Now what happens when a new species on a national forest is listed under ESA?

Once upon a time, when a new species was listed under ESA, the Forest Service was required to reinitiate consultation on its forest plan regarding the effects of the plan on the species.  Projects were often held up while this was occurring.  As a result of the Cottonwood litigation, involving a new designation of critical habitat for Canada lynx, the law was recently changed so that neither new critical habitat nor listings require new consultation on existing forest plans (as discussed here).

The candy darter (CBD photo) was listed as endangered in late 2018 and it is found on the Monongahela National Forest.  The Center for Biological Diversity provided this news release regarding a proposed timber sale in a watershed where the species is found and where critical habitat for it is being considered:

The U.S. Forest Service this week announced it will withdraw a 2,400-acre logging project in West Virginia’s Monongahela National Forest following objections raised by conservation groups about harm to an endangered fish.

The project would likely have caused significant erosion and sent sediment into rivers and streams, threatening the rare fish and other animals.

“Friends of Blackwater and all of our supporters are very pleased that the Monongahela National Forest supervisor has withdrawn the Big Rock Timber Project proposal,” said Judy Rodd, director of Friends of Blackwater. “Hopefully this is a step toward fully protecting the candy darter, a tiny jewel of a fish found in the timbering proposal area, near the world-famous Cranberry Glades.”

The Forest Service announcement said the project would have been the first of its kind to require formal consultation under the Endangered Species Act for the brightly colored candy darter, which was listed as endangered in November 2018. The Fish and Wildlife Service would have had to calculate how many, if any, candy darters could be killed or harmed by the proposed project. The Fish and Wildlife Service also plans to include portions of the logging project area in its final designation of the fish’s critical habitat. Those issues contributed to the decision to pull the project.

Presumably the Monongahela has come to a full stop on projects that may affect the darter, while they figure out a strategy for consulting with the Fish and Wildlife Service.  This is pretty close to the same result that would have occurred without the “Cottonwood fix.”  This is a situation where consultation on a forest plan has proven beneficial.  It should result in a species conservation strategy that “fully protects” the species’ habitat on the forest that the FWS supports and that can be included in the forest plan.  The FWS may then rely on the forest plan decisions and their biological opinion for analysis of its overall effects, which would simplify and streamline the consultation process for projects.

Post-Cottonwood, they could now choose instead to proceed on an individual project-by-project basis, but why?

(PS – This looks like an example where the administrative objection process prevented the Forest Service from losing a lawsuit.)

6 thoughts on “Now what happens when a new species on a national forest is listed under ESA?”

  1. Actually the Candy Darter is just on the southernmost RD of the forest in the New River watershed, so it won’t be an issue for most of the million acres. That being said, again doubtful that any actions would have impacted it from the forest compared to active surface mines downstream in WV and also VA. But thanks to some intra-gov monkey-wrenching the Candy Darter was used as a hidden poison pill, again wrongly, to go after the interstate Mountain Valley Pipeline whereby a district court rules against FERC and USFWS. My guess is the new supervisor on the Monongahela realized going forward would be a recipe for disaster in court. I like how the greenies falsely link the forest’s proposed work to a nearby natural area/reserve even though it is not in the project area (but that works to rile up the greenie base – OMG they are going to log the ancient red spruce forest at Cranberry Glades that is actually a fire-denuded regen stand from 1927). In the case of the Candy Darter, science has only been applied in one direct. Many of the same folks for stopping the work (intra-govt) support streamside road decommission which in my experience really loads the creek down with sediment. Ultimately few care about the fish. They just don’t want the Forest Service to manage habitat for a broader array of species, nor do they want a pipeline that they cannot see, will never visit, etc. being anywhere within 100 miles of their mountain second home.

    Rest assured every deer shot next year on the Monongahela and Jefferson will be on that pipeline ROW where the only early successional habitat occurs.

    • “Ultimately few care about the fish. They just don’t want the Forest Service to manage habitat for a broader array of species, nor do they want a pipeline that they cannot see, will never visit, etc. being anywhere within 100 miles of their mountain second home.”

      I think attacks on motivation are hard to base on facts and usually counterproductive. Do you know these people? I would say that CBD is consistently out to protect wildlife in all kinds of situations, and probably does care about this faraway fish. There is often an element of NIMBYism in efforts to stop development that affects “my property values” or “my view” or “my water supply” or “my recreation experience,” but I don’t think that delegitimizes other concerns about environmental impacts.

  2. Thanks for a local perspective RSM!

    In my view, it makes sense for a forest to choose project vs. plan consultation. We can imagine in some situations that a project won’t impact a species due to the nature of the project or the location. And, of course, reopening consultation on the forest plan is a bigger deal (taking longer) than explaining that, say, the fish doesn’t occur in a specific drainage at the project level.

    There’s also the probability that it will take longer to do a plan consultation than a project consultation, or at least it should, in our example, when the species does not occur in the project area.

    • Areas where the species does not occur, or otherwise would not be affected, would not require consultation or be delayed by forest plan consultation, so are not part of this discussion. (I didn’t mean to imply that a species’ presence in one part of a forest requires a forest-wide analysis or decision. I did mean it requires a plan-level decision to adopt a management strategy.)

      • Jon, I think you’re on to something that may be confusing to the rest of us. Say the forest wants to have a climate change strategy or a recreation strategy.. that doesn’t have to be in a forest plan, but ESA strategies do have to be in a forest plan because either….

        (1) critters aren’t protected in real life (which they could be regardless of status of strategy) or alternatively

        (2) strategies with regard to ESA don’t count to FWS unless it’s written in a plan (doesn’t “count” in some legal way, or pragmatic way -e.g., they don’t have to watch each project, or do they? Or perhaps there are both legal and pragmatic elements?

  3. Wildlife is probably unique because NFMA includes a substantive diversity requirement that applies to forest plans. Under the 2012 Planning Rule §219.9 they must provide ecological conditions that contribute to recovery of ESA-listed species and maintain viable populations of other at-risk species. The planning record has to show how they have met these requirements. (The Planning Rule requirements for other resources are in §219.10(b) and provide much more flexibility.)

    ESA consultation is required for “any action authorized, funded or carried out” by a federal agency. However, for programmatic actions, which include forest plans, it’s complicated. I think it’s somewhat discretionary what is done at the plan level vs the project level. Done right, doing more at the plan level can be both substantively (with a bigger picture look) and procedurally (streamlining projects) better.

    ESA also comes into play in another way. One of the factors for listing (and delisting) a species is the “inadequacy of existing regulatory mechanisms.” The listing agencies have criteria for what qualifies as regulatory mechanisms, and government land management plans clearly do (while conservation strategies that have not been formally adopted do not). Forest plans may therefore be important in listing and delisting decisions.

    A harder question that I don’t see discussed much is, independent of ESA, when do you have to put a strategy (like a recreation strategy or a climate change strategy or even a separate species conservation strategy) into a forest plan. My answer is if you “adopt” a substantive “plan component,” you need to do it through the planning process. In particular, “adopting” means making it mandatory in some way for future projects. It would defeat NFMA’s purpose of “integrated” forest planning if the Forest Service can develop and implement those kinds of strategies independent of forest plans. There is at least one court case won by the timber industry in the 80s that said the Forest Service can’t hold projects to a conservation strategy that hasn’t gone through the forest planning process. (The Forest Service manual and handbook are used for similar things, but should generally be limited to procedural requirements, though I think this is another gray area.)


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