Archive for the ‘Endangered Species’ Category

NJ's Endangered and Non-game Species Conservation Act

Written by Mike Pisauro on October 18th, 2009 in Endangered Species | No Comments »

Recently, a builders association petitioned New Jersey Department of Environmental Protection to remove the northern pine snake from the threatened species list under NJ Threatened and Non-game Species Conservation Act.  Hopefully, in the future, I will look at the actual merits of the petition, but I wanted to take this chance to explain NJ’s endangered species act equivalent.

NJ enacted the Endangered and Non-game Species Conservation Act (ENSCA) in 1972 prior to the Federal Government’s enactment of the Endangered Species Act.  Some people say that the Federal government modeled their act after New Jerseys.  NJ’s ENSCA act can be found at NJSA 23:2A-1.  The State in enacted the law set forth the policy of the law:

a.         That it is the policy of this State to manage all forms of wildlife to insure their continued participation in the ecosystem.

b.         That species or subspecies of wildlife indigenous to the State which may be found to be endangered should be accorded special protection in order to maintain and to the extent possible enhance their numbers; and

c.         That the State should assist in the protection of species or subspecies of wildlife which are deemed to be endangered elsewhere by regulating the taking, possession, transportation, exportation, processing, sale or offer for sale or shipment within this State of species or subspecies of wildlife including those on any Federal endangered species list.

The Act defines threatened as “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.” The ENSCA makes it unlawful to take, possess, transport, export, process, sell or offer for sale and species listed as endangered under NJ or Federal law or any nongame species regulated under this act.   It is therefore illegal for someone to “take” an endangered or threatened species.

The Act similar to the Federal ESA broadly defines “take.”  Under NJ’s act “take is defined as “to harass, hunt, capture, kill, or attempt to harass, hunt, capture, or kill wildlife.”  Under this broad definition the destruction of habitat could be considered as a take.

A violation of the act can result in civil and criminal actions against the offender.  There are also monetary penalties and injunction power available to the State to punishing offending behavior.

The presence of endangered or threatened species can also impact the implementation of several other laws.  For example, the existence of or probable existence of T&E species or habitat can influence whether a stream is classified as category 1 or not.  If a waterway is a category one, it is subject to stricter requirements for pollution discharges, and 300 foot buffers.  In fact the freshwater wetlands regulations prohibit the issuance of a permit if the Dept. finds that it will jeopardize the survival of T&E species under the State or Federal lists.  N.J.S.A. 13:9B-9

Another example is that the Pinelands Commission Regulations provide that:

[n]o development shall be carried out unless it is designed to avoid irreversible adverse impacts on habitats that are critical to the survival of any local populations of those threatened or endangered animal species designated by the Department of Environmental Protection [DEP] pursuant to NJSA 23:2A-1 et seq.

The above examples give you the sense of the power that NJ’s ENSCA can have if implemented properly.  It can provide buffers along streams to provide necessary habitat and reduces impacts to the streams.  The less pollution and larger buffers not only assist in the survival of the species but can have added indirect benefits to us as well.  These benefits can range from the obvious less toxins in our water, to more land around streams to prevent flooding and recharge of aquifers.  So protecting T&E species can also mean protecting ourselves.

Court allows Threatened Species to exist

Written by Mike Pisauro on December 11th, 2008 in Courts, Endangered Species, Wetlands | No Comments »

In mid-November the Appellate Division handed to DEP a win by finding that the barred owl could be threatened.  In ZRB, LLC. v. NJ Dept. of Environmental Prot., A-6046-06T3, ZRB sought to fill in wetlands under general permit #6.  Under general permit #6, a permittee can fill in limited amounts of freshwater wetlands as long as the freshwater wetlands are not classified as an exceptional resource.  Freshwater wetlands are classified as exceptional, intermediate, or ordinary.

The applicant alleged the wetlands were of intermediate value and could be filled while the DEP alleged because of the property was of exceptional value.  DEP claimed the property was of exceptional value because it was suitable habitat for the barred owl.  In NJ the barred owl is considered to be a threaten species under N.J. Endangered and Non-game Species Act.  While the case is interesting for several reasons, the aspect I am going focus on is whether DEP is authorized to list a species as threatened.

In 1973 both New Jersey and the Federal government enacted endangered species laws.  Under the Federal ESA an “endangered species” is defined:

any species which is in danger of extinction throughout all or a significant portion of its range  . . .  16 U.S.C. 1532(6).

The Federal ESA has a separate definition for “threatened species” and provides a different level of protections.  Under the Federal ESA, “threatened species” are defined as:

any species which is likely to become an endangered species within the foreseeable future throughout all or a signification portion of its range.  16 U.S.C. 1532(20).

The Applicant argued that since the New Jersey Endangered and Non-game statute does not define “threatened,” DEP could not create threatened species in its regulations.  DEP’s regulations define threatened as, “a species that may become endangered if conditions surrounding it begin to or continue to deteriorate.”   NJAC 7:24-4.1.  If there could not be a threatened species, then DEP could not classify the freshwater wetlands as exceptional and the applicant would be able to fill in the wetlands on its property.

The Applicant was only partly correct in its argument.  While the NJ statute does not have a separate definition for “threatened” its definition of endangered is:

“Endangered species” means any species or subspecies of wildlife whose prospects of survival or recruitment are in jeopardy or are likely within the foreseeable future to become so due to any of the following factors . . . NJSA 23:2A-3(C).

According to the Appellate Court, the highlighted section is the lynch pin.  As the DEP’s definition of threaten is actually part of the definition of endangered the Appellate Court found that the DEP did not exceed the authority granted to it under the statute.  Since the DEP was reasonable in creating the threatened category in its implementing regulations and listing species as threatened, its denial of the general permit to ZRB was within DEP’s authority.

A small little miracle

Written by Mike Pisauro on June 19th, 2008 in Endangered Species | No Comments »

After a very long day at the statehouse where the Permit Extension Act was being debated, I got a press release emailed to me by DEP. I am linking to it here. When you think about how developed New Jersey is, it is amazing to me that in this day and age that we can find a rare flower never seen in New Jersey before. Just goes to show that we do not know it all and that nature is alway able to amaze.

Wait a minute environmental laws weren't meant to protect?

Written by Mike Pisauro on June 4th, 2008 in Clean Air, Endangered Species, Global Warming | No Comments »

Back in April, President Bush unveiled his climate change plan. I wrote about it here. In his press conference he mentioned his disdain for how our present environmental laws are being used. He said:

“Some courts are taking laws written more than 30 years ago — to primarily address local and regional environmental effects — and applying them to global climate changes. The Clean Air Act, the Endangered Species Act, and the National Environmental Policy Act were never meant to regulate climate. . . . If these laws are stretched beyond their original intent . . . .” President Bush’ announcement on April 16, 2008.

Additionally, the Secretary of Interior repeated the Decider’s position with the announcement of the polar bear listing that, “the ESA was never intended to regulate global climate change.” (here)

Well that just got me thinking, were they right? Are the laws that were designed to protect the environment thirty years ago not suitable for protecting the environment today? Are these laws not able to protect against one of the greatest threats we are likely to encounter? Are the Clean Air Act (CAA), the National Environmental Policy Act (NEPA), or the Endangered Species Act (EPA), being twisted beyond their reach. So I started to review the statutory language of these laws and this is what I found….

The Clean Air Act (CAA), in the form we know it, was originally enacted in 1970. The CAA starts of with:

“The Congress finds – (2) that the growth in the amount and complexity of air pollution brought about by urbanization, industrial development, and the increasing use of motor vehicles, has resulted in mounting dangers to the public health and welfare, including injury to agricultural crops and livestock, damage to and the deterioration of property, and hazards to air and ground transportation.” 42 U.S.C.A. 7501.

The purpose of the CAA is: “to protect and enhance the quality of the Nation’s air resources so as to promote the public health and welfare and the productive capacity of its population.” Gee, doesn’t it seem like we could very well have been talking about global warming? Isn’t transportation the cause of about 30 to 40 percent of the greenhouse gas emissions in the country? Doesn’t global warming threaten to alter where and when agricultural products can grow? Isn’t the threat of rising sea levels, increased storm activity and increased intensity of storms a cause of damage and deterioration of property? Aren’t the increased temperatures and number of days above 100 degrees a cause for concern on a public health basis? All of these things are predicted to occur under most global warming scenarios.

At least in the realm of transportation, the CAA defines air pollutants as “any physical, chemical, . . . substance or matter which is emitted into or otherwise enters the ambient air.” 42 U.S.C. 7602. Again, at least when looking at motor vehicles contribution to global warming, it seems clear that a plain reading of the statute would indicate that the CAA has authority to regulate greenhouse gas emissions.

Now, looking at the National Environmental Policy Act (NEPA), the policies and goals of the statute provide, “The Congress, recognizing the profound impact of man’s activity on the interrelations of all components of the natural environment, . . . the critical importance of restoring and maintaining environmental quality to the overall welfare and development of man, declares that it is the continuing policy of the Federal Government, in cooperation with State and local governments, . . . to use all practicable means and measures, . . . to create and maintain conditions under which man and nature can exist.” 42 U.S.C.A. 4331(a).

NEPA, which is probably one of the shortest environmental statutes, requires that the government “include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible office on – (i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented” 42 U.S.C.A. 4332.

Again, according to a plain reading of NEPA, it looks like the effects of global warming clearly represent an environmental impact that NEPA’s statutory language would encompass.

The ESA, which some consider to the be the strongest of the environmental laws, provides, “various species of fish, wildlife, and plants in the United States have been rendered extinct as a consequence of economic growth and development untempered by adequate concern and conservation;” 16 U.S.C.A. 1531(a). The purpose of the act is “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Id. at (b). It is the policy of the ESA for the Federal government, “to conserve endangered species and threatened species and shall utilize their authorities in furtherance of the purposes of this chapter.” 16 U.S.C.A. 1531(c)(1).

The ESA additionally provides that a species should be listed when:

(A) the present or threatened destruction, modification, or curtailment of its habitat or range; . . .

(D) the inadequacy of existing regulatory mechanisms; or(E) other natural or manmade factors affecting its continued existence. 16 U.S.C.A. 1533(a)(1).

It seems clear from the FWS’s listing, the polar bear is threatened with extinction as the result of the destruction or modification of its habitat. That habitat is being destroyed or modified as a result of global warming. It is also clear that our current regulatory scheme is failing to address global warming and that humanity is causing, or at the very least significantly contributing to, global warming. Three of the five factors for listing a species have been met. It again seems clear that a plain reading of the ESA reveals that it, in fact, is a tool that can be used to combat global warming in that it requires the government to address the causes of the endangerment of a species.

While I will have to probably agree with our Decider in Chief that most legislators in 70′s probably did not think about global warming when they wrote any of these statutes or voted for them, that does not mean the authority and responsibilities within these statutes do not encompass global warming. If we accept that these statutes are not authorized to address global warming that is somewhat like saying that someone who discharges a brand new chemical into a waters does not need a permit because the chemical did not exist when we wrote the clean water act; therefore the clean water act does not cover this new chemical. That is silly and so is the contention that NEPA, ESA and CAA do not and cannot be tools we have at our disposal to help address global warming.

Polar Bears left clinging to the ice.

Written by Mike Pisauro on May 14th, 2008 in Endangered Species, Global Warming, Uncategorized | No Comments »

Today the Federal Fish and Wildlife Service took a swing and missed the ball. While today the polar bear has been listed on the Federal Endangered Species list, that listing was as a threatened species and not an endangered species. Additionally, Secretary Kempthorne went out of his way to tell people that this listing will not have any impact on the United States’ climate change strategy. In fact in the press release (click here to read the release) he is quoted:

While the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate changes . . . That is why I am taking administrative and regulatory action to make certain the ESA isn’t abused to make global warming policies.

The press release further made it very clear that this listing would not be used to prevent the exploitation of oil reserves in the arctic. This is clearly a miss on protecting the environment and on forward thinking on climate change. Unfortunately nothing better could have been expected from the current administration.

Once I have had a chance to read the actual proposal, I hope to provide more detail.  In the meantime the NRDC has some good information (click here).

New Jersey speaks for the Red Knot

Written by Mike Pisauro on March 18th, 2008 in Endangered Species | 1 Comment »

Yesterday, the New Jersey Senate passed unanimously S1331 which would put in place a moratorium on the harvesting of horseshoe crabs.  The Assembly previously passed A2260.  Now, it is up to the Governor to sign the bill into law.

As noted in my previous entry , horseshoe crab eggs are vital to the survival of the red knot as well as other shorebirds.  The red knot, without protection, is expected to become extinct by 2010.  It is with great hope that this moratorium on the red knots’ food will reverse the path towards extinction. 

That the red knot is on the road to extinction and that the New Jersey legislature had to enact a ban is a very sad commentary.  It is a sad commentary because current law was not enough to protect the red knot and that some on the Marine Fisheries Council decided to act in short sighted self interest instead of following the science and ultimately in their own long term interest.

That a ban was necessary is a sad because the red knot is listed as threatened under New Jersey’s Endangered and Nongame Species Conservation Act.  It is also listed under the United States Migratory Bird Treaty Act.  Under both laws it is unlawful to “take” a listed species.  The definition of ‘take’ is very broad.  Under the Migratory Bird Treaty Act, “it shall be unlawful at any time, by any means or in any manner, to pursue, hunt, take, capture, kill, attempt to take, capture or kill,” a listed species.  One would think this was enough to protect these birds, but it is not.  One would think that protecting the food source for an endangered species would be a paramount protection under these acts, but apparently it is not.

As the protections that were in place are not enough, the moratorium had to be pursued.   Thankfully the sponsors of the bills and the environmental advocates moved quickly and courageously to see that red knot would not be another victim of short sighted policies.