SMALL POPULATIONS IN JEOPARDY: A DELTA SMELT CASE STUDY

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See all articles by Karrigan Bork

Karrigan Bork

UC Davis School of Law

Peter Moyle

University of California, Davis

John Durand

affiliation not provided to SSRN

Tien-Chieh Hung

UC Davis

Andrew Rypel

affiliation not provided to SSRN

Date Written: December 15, 2020

Abstract

Under §7 of the federal Endangered Species Act, federal agencies must ensure that actions they authorize, fund, or carry out are “not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of habitat of such
species.” For species with low and declining populations, applying this standard is legally and scientifically difficult. The U.S. Fish and Wildlife Service (FWS) faced this problem in its recent biological opinion (BiOp) analyzing impacts to threatened Delta smelt from water project operations in the California Delta. FWS concluded the “species’ recent abundance trends strongly suggest it is in the midst of demographic collapse,” and most recent surveys to locate smelt have failed to find them. Nevertheless, FWS approved agency actions that will likely increase extinction risk for Delta smelt.

This Comment illustrates, through a case study of the Delta smelt BiOp, the difficulties in making ESA jeopardy determinations for species on the brink of extinction. We conclude that the myriad challenges inherent in conservation of some small and declining populations make reasoned §7 analysis difficult, bordering on impossible.

Keywords: endangered, threatened, Section 7, consultation, ESA, environmental law, delta, smelt, conservation biology

Suggested Citation

Bork, Karrigan and Moyle, Peter and Durand, John and Hung, Tien-Chieh and Rypel, Andrew, SMALL POPULATIONS IN JEOPARDY: A DELTA SMELT CASE STUDY (December 15, 2020). 50 Environmental Law Reporter 10714 (2020). , Available at SSRN: https://ssrn.com/abstract=

Karrigan Bork (Contact Author)

UC Davis School of Law ( email )

Martin Luther King, Jr. Hall
Davis, CA CA 95616-5201
United States
202-271-9392 (Phone)

HOME PAGE: http://https://law.ucdavis.edu/faculty/bork/

Peter Moyle

University of California, Davis ( email )

One Shields Avenue
Apt 153
Davis, CA 95616
United States

John Durand

affiliation not provided to SSRN

Tien-Chieh Hung

UC Davis ( email )

Andrew Rypel

affiliation not provided to SSRN

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