Biological reviews don't stop projects, study says

It’s no surprise that the new Rosemont Mine Final Biological Opinion concluded the mine won’t illegally jeopardize imperiled species or destroy their habitat — or that it’s not proposing to stop the project.

The U.S. Fish and Wildlife Service didn’t stop a single project nationally over a seven-year period ending last year due to an endangered-species review, a recent study found.

In that time, out of 6,829 formal reviews, the service only twice found that a project would jeopardize species’ existence and once concluded a project would illegally destroy critical habitat, said the study, written by two Defenders of Wildlife scientists.

The study also found that despite numerous allegations by critics that the Endangered Species Act harms economic development, the wildlife service has significantly reduced the number of cases that result in findings of jeopardy or illegal habitat modification in the period this study covered compared to earlier decades.

The Rosemont Mine biological opinion, released Tuesday, concluded that while the mine would have significant adverse impacts on a dozen endangered and threatened species, the species would still be adequately protected. In part, that’s because of numerous mitigation measures agreed to by Hudbay Minerals Inc., which proposes to mine the site in the Santa Rita Mountains southeast of Tucson. Environmentalists and other opponents are already planning to sue to get the opinion tossed out.

A local environmentalist said the study's findings matched what she sees in environmental issues playing out in Tucson and says she believes the Endangered Species Act isn't enforced adequately. Two conservative groups, however, said the study underplayed or ignored some the act's negative economic impacts. An Arizona-based wildlife service official said he sees the lack of jeopardy and habitat destruction findings as a sign the service is doing its job properly.

The study by the Defenders of Wildlife scientists examined enforcement of the Endangered Species Act’s Section 7. It’s a far-reaching, highly controversial provision that requires federal agencies to examine impacts of proposed projects on species before approving them for construction.

A co-author, Yah-Wei-Li, said the study “raises very serious questions in our mind” about whether the wildlife service is properly enforcing Section 7.

“We read many of the opinions where thousands and thousands of acres are likely to be destroyed,” said Wei-Li, Defenders’ senior endangered species conservation director. “It’s very hard to imagine that of thousands of instances, there’s only two examples where a project rose to the level” of jeopardizing species.

Local critics of the Rosemont Mine have raised the same question about the service’s enforcement.

“In my experience, the wildlife service, along with a number of other federal agencies, whether it’s EPA, the Army Corps, the Forest Service or the National Park Service, are all very cautious due to the efforts on behalf of the regulated community to develop projects,” said Christina McVie, the Tucson Audubon Society’s conservation chair. “The fact that many species such as the Florida panther and the Mexican wolf have not recovered belies the argument that the act is having an adverse impact on business or serving the species it was intended to serve.”

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Representatives of two conservative groups said the study didn’t adequately portray the species act’s economic impacts, particularly that of a federal review in the late 2000s that triggered major cutbacks in irrigation water deliveries in California’s Central Valley to protect the endangered Delta smelt.

The study also doesn’t cover many projects that never get off the ground because their proponents don’t want to go through the trouble of dealing with the reviews, said Brian Seasholes, endangered species director for the Reason Foundation, a libertarian think tank.

“The Central Valley Project is the biggest irrigation project on the globe. The effect of the Section 7 review has been tens to hundreds of thousands of acres of land fallowed and lots of jobs lost,” said Tony Francois, a senior staff attorney for the Pacific Legal Foundation, a group that fights in court on behalf of property rights and limited government.

He said the study soft-pedaled the smelt case, in saying only that the Central Valley project was allowed to proceed after mitigation measures were approved.

A wildlife service official in Phoenix, Steve Spangle, didn’t dispute the study’s factual conclusions. He said that by heading off jeopardy findings by negotiating with other agencies and developers, “that’s the way Section 7 is supposed to work.”

Agencies have become used to designing projects so their effects on endangered species are minimal, he said.

“The goal isn’t to issue jeopardy opinions. Rather, it’s to avoid them by minimizing adverse effects,” said Spangle, a field supervisor in the service’s Phoenix office.

The peer-reviewed study analyzed 81,461 informal biological reviews and 6,829 formal reviews the service conducted from January 2008 through April 2015. Published by the Proceedings of the National Academy of Scientists, it found:

• One biological opinion that found a project would jeopardize species and destroy habitat — a Forest Service proposal to apply fire retardants on national forests — was rejected by a court and rewritten to contain no jeopardy or habitat destruction conclusions.
• The other jeopardy opinion was the Delta smelt case. It’s now a national flash point for debate over the species act’s impacts and the ongoing California drought. The smelt case is an anomaly, since the vast majority of projects reviewed aren’t nearly as controversial, Wei-Lei said.
• While developers have often complained that Section 7 reviews take too long and cost them needlessly, the formal reviews lasted an average of 62 days, when they’re supposed to finish in 135 days. (The Rosemont biological review lasted much longer, from May 25, 2015 until now).

Wei-Lei said the study did dispel myths about the act’s negative impacts, but that wasn’t the authors’ main purpose for preparing it.

“Section 7 is one of the most important aspects of the Endangered Species Act and it’s very ridiculous we really have very little idea what happening with it,” he said. “So much of what we know about section 7 is about unrepresentative anecdotes and case studies. Our study is the first one to step away from that and look at the entire program.”