A Tale Of Two Species

The Oregon Coastine.  Courtesy of Jeff Bank (DOJ/ENRD)

WMRS | Implementation of ESA and Related Litigation

The Cape Sable Seaside Sparrow and the Everglade Snail Kite

The Setting

Cape Sable Seaside Sparrow.  Courtesy of USFWS.The Florida Everglades, as described by author Marjorie Stoneman Douglas, once comprised a vast, shallow “River of Grass” that originated with waters from the Kissimmee River and Lake Okeechobee and flowed south to Florida Bay. The historic landscape was characterized by sawgrass marshes and cypress swamps dotted with tree islands. The warm, moist climate of the Everglades and surrounding natural areas produced the only subtropical ecological communities in the continental United States. Numerous rare plant and animal species, including the endangered Cape Sable seaside sparrow and the Everglade Snail Kite, are endemic to the region.

Passage of the “Central and Southern Florida Project for Flood Control and Other Purposes”

In 1948, Congress first authorized the “Central and Southern Florida Project for Flood Control and Other Purposes” (C&SF Project). This massive engineering project consists of thousands of miles of levees and canals, and numerous water control structures located across the southern portion of the Florida peninsula. The U.S. Army Corps of Engineers (Corps), together with the South Florida Water Management District, operates the C&SF Project to control the inflow and outflow of water from the Project to provide water supply, flood protection, and benefit fish and wildlife.

Unanticipated Adverse Effects and Resulting Litigation

Since it was constructed, the C&SF Project has resulted in unanticipated adverse effects. Some areas of Everglades National Park and the Water Conservation Areas to the north of the Park are too wet. Some areas are too dry.

Changes in the timing and depth of flooding in its habitat have been particularly harmful to the Cape Sable seaside sparrow, which nests on the ground and depends on precise water levels in its habitat for successful reproduction. Beginning around 1992, there has been a decline in both the overall population of the species and in the distribution of the species across its habitat. Some scientists expressed concern that, without changes to management of the C&SF Project, the Cape Sable seaside sparrow may face the same fate as the dusky seaside sparrow, which recently became extinct.

Everglade Snail Kite.  Courtesy of USFWS.In 1999, the U.S. Fish and Wildlife Service issued a biological opinion concerning the effects of several ongoing Corps Everglades restoration projects on the sparrow and other species. The Service concluded that the Corps’ actions were likely to jeopardize the existence of the Cape Sable seaside sparrow. However, in its biological opinion, the Service recommended “reasonable and prudent alternatives” for the Corps to implement to avoid jeopardy to the sparrow. In response, the Corps began to implement structural and operational changes within the C&SF Project in response to the Service’s recommendations. The Corps and/or the Service have been in litigation with various stakeholders ever since.

Some environmental groups have raised concerns that the Corps’ actions in response to the Service's recommendations are insufficient to protect the sparrow. The Miccosukee Tribe of Indians of Florida has also raised concerns that the Corps’ actions have not protected the sparrow as intended and have instead increased water levels to the north of Everglades National Park, within the habitat of the Everglade snail kite. The courts have denied repeated requests by the Miccosukee Tribe to enjoin the Corps from implementing the Service's recommendations. In 2009, the U.S. Court of Appeals for the Eleventh Circuit largely upheld the Service's 2006 biological opinion concerning the Corps' ongoing efforts to protect the sparrow. Miccosukee Tribe of Indians of Fla. v. United States, 566 F.3d 1257 (11th Cir. 2009).

Meanwhile, there has also been litigation challenging the Service's designation of critical habitat for the sparrow. Most recently, environmental groups challenged the Service’s decision to exclude certain areas from the final revised critical habitat designation for the sparrow. In a March 2011 opinion, the district court found in favor of the Service, concluding that the Secretary provided a rational basis for the decision to exclude the areas to avoid constraints to Everglades restoration, which will result in long-term benefits to the sparrow and other species. Center for Biological Diversity v. Salazar, 770 F. Supp. 2d 68 (D.D.C. 2011).

The Corps and the Service are currently working together with stakeholders to implement the Everglades Restoration Transition Plan (ERTP), pending completion of other Everglades restoration projects. The goal of this project is to better manage the C&SF Project for the Cape Sable seaside sparrow, the Everglade snail kite, and other avian species and resources in south Florida while maintaining C&SF project purposes.

Given ongoing concerns about the status of both the Cape Sable seaside sparrow and the Everglade snail kite, further litigation is likely as the Corps continues to implement the ERTP.


Updated June 27, 2018

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