On July 28, 2014, the Center for Biological Diversity petitioned the U.S. Fish & Wildlife Service (FWS). The petition, if granted, could have ramifications for development and other activities in the District of Columbia.
CBD, a nonprofit environmental organization, petitioned the U.S. Department of Interior’s (DOI) FWS to develop a “recovery plan” for the Hay’s Spring Amphipod. The Amphipod is a very small (5 – 10 millimeters in length), blind, colorless crustacean that lives mostly underground. FWS listed it as endangered in 1982, finding modification of its habitat threatened by flooding and construction activities, and over-collection for scientific purposes.
At the time of listing, FWS found that the Amphipod occurred in only a single Rock Creek spring within the National Zoological Park, in a portion of the spring less than one meter wide. The listing noted that “[t]he spring is so small, that careless movement of equipment slightly onto the hillside from which the spring flows could have a catastrophic effect on the habitat.” However, FWS elected not to develop a recovery plan for the Amphipod (FWS ‘exempted’ it from recovery planning), finding that “management options were so limited that no conservation benefits would ensue . . . .“ FWS has reserved the right to withdraw the exemption, if new information indicates that the Amphipod would benefit from recovery planning. “Recovery” means improvement in the status of the listed species by means such as removing the threats to the species, such that listing is no longer appropriate.
In the two most recent statutorily-required reviews, FWS continued to exempt the Amphipod from recovery planning, but noted that the specie was now known or suspected to occur at six additional sites in Rock Creek Park. In the reviews, FWS also recommended that a recovery outline be developed, and if deemed “appropriate,” that a recovery plan be made.
It appears FWS has not begun to develop a recovery outline (or take other actions, such as conduct additional sampling). CBD’s petition challenges FWS’ inaction, as well as its decision to continue to exempt the species from recovery planning while simultaneously assessing the species’ recovery options.
It may be prudent for interested parties to monitor, or actively participate in, this action, as recovery plans could involve limits on recreational activities within the Zoo park, as well as human activities outside the park boundaries, such as construction, soil compaction, forest clearing, paving, disturbance from mowing equipment, and foot traffic, that could impact the quality and quantity of surface- and ground- water flowing into the springs. FWS’ regulations do not set forth a procedure for parties’ filing, or FWS reviewing, the type of administrative petition filed by CBD. Nevertheless, there have been instances where parties have gone straight to court, seeking judicial orders compelling FWS’ development of a recovery plan. Courts will, but have been reluctant to, order preparation of plans; and broadly defer to the priority FWS assigns to developing plans. FWS has given a low priority to developing a recovery plan for the Amphipod.
If a court order did order preparation of a recovery plan, the Endangered Species Act requires public notice and an opportunity for comment on the plan. Accordingly, parties may wish to express interest in participating in planning activities, if they occur, especially as DOI guidance calls for teams of individual citizens and governmental representatives, as well as members of the scientific and academic community, to prepare the plans.