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Environmental Law

: ESA Blawg

NOAA needs 6 months more to reach listing decision on beluga whale

By Keith Rizzardi

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73 Fed. Reg. 21578(Tuesday, April 22, 2008)(DEPARTMENT OF COMMERCE; National Oceanic and Atmospheric Administration; Endangered And Threatened Species; Endangered Status for the Cook Inlet Beluga Whale; Final determination regarding petitioned action; 6-month extension.)

Photo of beluga whale from SFgate.com "The Tech Chronicles" blog

SUMMARY: We, NMFS, are extending the date by which a final determination will be made regarding the April 20, 2007, proposed rule to list a Distinct Population Segment (DPS) of beluga whale, Delphinapterus leucas, found in Cook Inlet, Alaska, as endangered under the Endangered Species Act of 1973, as amended (ESA). We believe that substantial disagreement exists regarding the population trend, and that allowing an additional 6 months to obtain the 2008 abundance estimate would better inform our final determination as to whether the Cook Inlet beluga whale should be listed as endangered under the ESA. A final determination on this listing action will be made no later than October 20, 2008.

NOTEABLE EXCERPT: The State of Alaska sent a letter to us outlining its disagreement with the abundance and population trend. The State's letter noted that the June 2007 count of beluga whales was the largest since 2001, indicating, in their estimation, that the population is beginning to recover from the unsustainable harvests in the early 1990s, as had been predicted by State and Federal biologists. An additional 6 months will allow us to complete an additional abundance survey in June 2008, which will provide additional information bearing on the dispute and may be sufficient to resolve it.

COMMENTARY: The ESA requires the use of the "best scientific and commercial data available." However, assembling meaningful data can sometimes take time. While a delay in listing can work to the detriment of an imperiled species, a mistaken species listing can cause needless effort by regulators, and the regulated community. Patience in this circumstance, particularly a brief period of 6 months, seems appropriate, especially in light of the scientific uncertainty, and federalism tensions given Alaska's concerns about the species listing. Critics, however, will be understandably quick to challenge any unreasonable delay of a decision, arguing that it will seal the fate of the beluga whale.

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