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In the Black River south of Carlsbad, N.M., rare Texas hornshell mussels are trying to multiply.

It’s a bizarre and complicated process: Male mussels spit sperm into the river, where the females catch it. After brooding fertilized eggs for about a month, they chuck the larvae into the water. There, the would-be mussels hope to be eaten by certain kinds of fish—attaching to their gills and forming parasitic cysts. Then they develop into juveniles before cutting loose from the fish and wriggling to the river bottom, where they can live for up to 20 years.

Texas hornshells are native to the Pecos and Rio Grande basins of southern New Mexico and Texas, where they help maintain water quality by filtering out sediment and other particulates. They’re the only surviving species of New Mexico’s eight native mussels, and the stretch of river near Carlsbad is one of their last strongholds.

Their troubles are nothing new, though. In 1989, the U.S. Fish and Wildlife Service classified the Texas hornshell as a candidate for the endangered species list, but had too little information about the mussel to support listing. In 2001, after studies showed that the mollusks were being harmed by low flows in rivers and water pollution, the agency decided protection was justified—but it still couldn’t list them, because too many other, higher-priority species also needed protection. Now, the mussel’s time may have finally come: In August, the agency proposed listing it as endangered.

Most species that have landed on the endangered species list in recent years got there when they did as a result of litigation by green groups, and the Texas hornshell mussel is no exception. Almost no one is happy with this pattern, though.

“(If) the service is simply responding to lawsuits, it’s not being very strategic,” or necessarily focusing on the plants and animals in greatest need, says Ya-Wei Li, an endangered species expert with Defenders of Wildlife. So Fish and Wildlife is now working to reform its process for listing species.

It has proposed prohibiting so-called “mega-petitions,” where environmental groups ask the agency to protect up to hundreds of species at a time, and it recently finalized a new five-tier system for prioritizing decisions on petitions. First in line are species that data clearly show are critically imperiled. Lower down are species for which states are already developing conservation plans, as well as species on which the agency lacks data.

The agency simply can’t keep up with all the petitions it gets to list species, says Fish and Wildlife spokesman Brian Hires. Environmentalists filed petitions on behalf of 1,230 species between 2007 and 2010, enough to almost double the number protected by the Endangered Species Act over the previous 30 years. The overwhelmed agency rarely meets its own deadlines for responding, so environmentalists often sue in response.

The mussel is one of 757 species included in a 2011 legal settlement with the Center for Biological Diversity, in which the agency agreed to deadlines for clearing its considerable backlog. “The states have been frustrated, because we feel like litigation shouldn’t drive conservation,” says Nick Wiley, vice president of the Association of Fish and Wildlife Agencies. Wiley says states—the feds’ main partners in endangered species work—are generally pleased with the planned reforms, which they hope will help them prioritize their own data collection and conservation work.

Some environmental groups are also supportive. “This is a very good move for the service to take control of its own destiny,” says Li.

But others argue that the reforms could consign at-risk wildlife to bureaucratic purgatory. “It creates excuses for ongoing delays in decisions on whether species should be protected,” says Tierra Curry, a senior scientist with the Center for Biological Diversity. She fears that lower-priority species will slip closer to extinction while they wait for conservation plans or studies that could bump them up in line.

The system also “biases decisions towards popular and well-studied species,” she says, mainly birds and mammals. But some of the most imperiled groups are also the least studied—freshwater mollusks, for instance. The fact that we understand the outlines of the Texas hornshell’s lifecycle makes it fairly unusual among mollusks, Curry notes: For many of the creatures, basic population data doesn’t even exist.

Mussels, snails and insects may well get shortchanged under the new system, Li says. In a perfect world, Fish and Wildlife would be flush with funding, and wouldn’t need to prioritize.

“Nobody likes to make those judgment calls,” he says. But relative to the number of species it’s charged with saving, the agency’s funding is decreasing, not increasing, he points out. One way or another, “there are going to be species that come out ahead, and some that fall behind.”

This piece originally appeared in High Country News.

Published in Environment

Proposition 1, the $7.5 billion water bond that 67 percent of California voters approved last week, will provide millions of dollars for projects everyone likes.

It sets aside funds to strip pollutants from valuable urban aquifers; it will bring in money to repair aging pipes that leach pollutants into drinking water. Locally, the Salton Sea could get part of the $500 million the measure authorizes for restoring damaged ecosystems.

So what about it makes many environmental groups so mad?

The Center for Biological Diversity, Food and Water Watch, and San Francisco Baykeeper all took an explicit stand against Proposition 1, as did virtually every fisherman’s advocacy group in the state. The Sierra Club, though it officially opposed the legislative bill that produced the ballot measure, remainedneutral in theory, but the group’s position statement announcing neutrality also used the word hate.

Chelsea Tu, staff attorney for the Center for Biological Diversity, says the problem comes down to this: While the bond measure does indeed give a nod to higher environmental concerns, “those beneficial provisions are far outweighed by the $2.7 billion in the bill set aside for surface and groundwater storage provisions.”

In other words, the “public benefits” it funds could mean new dams: One would flood 14,000 acres in Colusa County north of Sacramento for the proposed Sites Reservoir; another would augment current San Joaquin River water storage at Temperance Flat. Prop 1 funds could also go toward adding 18.5 feet to Shasta Dam—a $1.1 billion project touted as a “bargain“ by Westlands Water District General Manager Tom Birmingham, but opposed by the Winnemem Wintu tribe, which was flooded out of sacred lands once when the dam was finished in 1945.

Proposition 1 does not explicitly state that any of the $2.7 billion will fund dam projects, however, and not every environmental group worries quite so much. “The era of big dams is over,” pronounced Doug Obegi, staff attorney for the Natural Resources Defense Council, on the organization’s blog. “The water bond does not earmark funding for Temperance Flat or any other surface storage project.” Dams cost too much money to make sense anymore; even with taxpayer subsidies, they “can’t compete economically with these regional and local water supply projects.”

Emphasizing that NRDC “strongly opposes” both Temperance Flat and a Shasta Dam raising, Obegi’s organization endorsed Prop 1.

Tu thinks that’s not only “optimistic,” but at odds with Gov. Jerry Brown’s oft-stated agenda.

“Every time the governor talks about the water crisis, he talks about building out water infrastructure projects that go back to the 1950s,” she says. “Those are projects that both state and federal legislatures have been pushing for many, many years.” They’re also projects that the state’s agricultural interests, which consume more than three-quarters of the state’s water, have lobbied hard for, along with a multibillion-dollar tunnel project that would suck water from the Sacramento River before it ever gets to the ailing California Delta. (Prop 1 was written to be “tunnel neutral.”)

Adam Scow, California campaigns director for Food and Water Watch, calls Prop. 1 “a bunch of mystery meat,” ominously geared toward finding more ways to deliver water to industrial agriculture. Even more alarming, he says, is that according to the provisions of the bill, the nine members of the California Water Commission have been tasked with allocating the meat. Those nine members have been appointed by “Big Agriculture’s closest ally,” Scow says. “A man named Jerry Brown.”

Scow thinks Proposition 1’s other benefits recede in light of that fact. Aquifer cleanup, water for fish, habitat restoration and drinking water for disadvantaged communities are all good, he says, and even necessary. They just don’t have to be yoked to what he calls “a bloated bond deal,” written with industrial agriculture in mind.

“We do need to address the inequities in water rights we have in this state,” Scow says. “We just don’t need a bond deal to do it.”

But that bond deal is exactly what Californians overwhelmingly approved on Election Day.

Judith Lewis Mernit is a contributing editor for High Country News, where this story first appeared.

Published in Environment

The cactus ferruginous pygmy owl lives in the desert scrub and mesquite woodlands of central and southern Arizona, Texas and Mexico. It is a small bird with swaths of cream-colored feathers, measuring about 7 inches long and weighing a little more than 2 ounces. It eats insects, rodents and lizards, some of them as big as the owls themselves. It nests in the holes woodpeckers leave in cacti and trees.

And it has now become an emblem in a fight over the meaning of a five-word phrase that has dogged the 1973 Endangered Species Act the way “waters of the United States” has muddied the Clean Water Act: If a species, like the pygmy owl, is at risk of being lost in “a significant portion of its range,” does it merit protection, even if the same species is holding on elsewhere? Or do the inhabitants of that “significant portion” need to be crucial to the entire species’ survival?

Those are the questions the U.S. Fish and Wildlife and the National Marine Fisheries Service sought to address this summer, when they announced a new policy to provide “consistency in the application of that phrase” as it applies to endangered or threatened species. Under the new policy, a species on the decline in "a significant portion of its range" can be listed as threatened or endangered only if that portion is crucial to the survival of the species' entire global population.

In other words, if the cactus ferruginous pygmy owl will persist even after the species disappears from, for instance, the northern Sonoran Desert, the bird doesn't warrant protection.

It is not the clarification conservationists wanted. If the interpretation sticks, some say, the 1973 law will have fundamentally changed — reverted, in fact, to the 1966 Endangered Species Preservation Act that the 1973 law was written to improve.

“The 1966 law was deemed inadequate in part because scientists pointed out that actions taken only to prevent the complete extinction of a species were likely not to (work),” says Michael Paul Nelson, a professor and environmental ethicist at Oregon State University. “It defined 'endangered species' merely as 'species at risk of extinction.'”

The phrase “significant portion of its range” allowed wildlife agencies to list species whose numbers were diminishing in the U.S., even if global populations were stable.

In a recent New York Times editorial, Nelson and Michigan Technological University Ecologist John Vucetich argued that the new policy threatens to reduce the act to “a mechanism that merely preserves representatives of a species, like curating rare pieces in a museum.”

The bald eagle might never have merited protection were the policy in effect back in the 1970s; while hunting and DDT were decimating it, it still thrived in Alaska and Canada. The gray wolf wouldn't have been listed, either. The new interpretation of those five words has already been used in the process of delisting the wolf and to deny protection to the wolverine. And it has already contributed to the delisting of the cactus ferruginous pygmy owl.

The cactus ferruginous pygmy-owl’s disappearance from parts of its northern range toward the end of the 20th century wasn’t a mystery: Development had surged in the northern Sonoran Desert. In 1997, when the U.S. Fish and Wildlife Service listed the bird as endangered, developers were livid.

“The bird's listing is ‘dishonest,’” Alan Lurie, executive director of the Southern Arizona Homebuilders Association, told Tony Davis, who reported on it for High Country News. "Experts tell me the bird is prolific in Mexico (so) it is not truly endangered."

Lurie was partially right: The pygmy owl was first listed on the grounds that it was a “distinct population segment” from the pygmy-owls on the Mexican side of the border, which it technically wasn't. Developers sued, and in 2006, the pygmy owl’s listing was overturned.

Yet the owl was clearly endangered in the northern Sonoran Desert. So the Center for Biological Diversity petitioned again for the bird’s protection, arguing this time that it was “in danger of extinction throughout all or a significant portion of its range.”

At first, Fish and Wildlife agreed. "They actually drafted a proposed rule to list them, arguing for various reasons that we were right," says Noah Greenwald, endangered species director for the organization in Portland, Oregon. In that draft, which the Center for Biological Diversity obtained under the Freedom of Information Act, “the Sonoran Desert Ecoregion” was deemed “significant,” and the listing of the pygmy-owl within it was warranted.

Then something changed. “Two years later, they looked at that draft policy and said, ‘Nope, you’re not right. Even if (the pygmy owl) were lost in the Sonoran Desert, the species as a whole would be OK.’” A new draft in 2011 claimed that the Sonoran Desert pygmy owl’s “contribution to the viability of the species” wasn't important enough to list it. The petition was denied.

It was the exact—and to Greenwald and Nelson, deeply flawed—interpretation the Interior Department had been pushing for since 2000, and the exact interpretation that had already been struck down by the Ninth Circuit in a case involving the flat-tailed horned lizard in 2001.

And it was the exact interpretation many conservationists were hoping the Obama administration would overturn, not support, in its clarification. “The policy itself is a political decision to try and limit the scope of the ESA,” Greenwald says. His organization will likely sue again, on behalf of the pygmy owl.

Michael Paul Nelson says the new policy also misses the point. “Many of us would suggest that the ESA is not only about preserving curiosities and the cabinets necessary for those curiosities, but about preserving the role that native species play within ecosystems,” he wrote in an email from the field, where he’s studying the impact of old-growth versus second-growth forests on fish.

The Obama administration’s new policy states clearly that the ESA is “only about preventing the complete extinction of a species, no more,” Nelson says. “I would guess that the citizens of the United States, then and now, might have a very different answer.”

Judith Lewis Mernit is a contributing editor of High Country News, where this story originally appeared.

Published in Environment