News Subscribe  to Our Newsletter Sign  up for Email Updates CGF  In the News Press  Inquiries Past  Articles Calendar NEWS FLASH: Fish and Wildlife Service lists the California Tiger Salmander as an endangered  species Read more...			Understanding the  Endangered Species Act The unauthorized  biography of a tiger salamander by Brian Schmidt   The life and death of a single salamander, even a member of a rare species  like the California  tiger salamander, would not normally be the subject of a biography.  However, federal environmental law has crucial importance for the Committee  for Green Foothills' work, and the relationship between the Endangered  Species Act (ESA) and the species the law protects may be best explained  in a biographical "thought experiment." This article follows the imagined life of a California  tiger salamander from its beginning this year to its end at the ripe old  age of seven, with the salamander's life providing a basis for understanding  the ESA. Winter, 2003-2004: Our salamander  hatches in the shallow, seasonal waters of Lake Lagunita on Stanford University  land. Stanford officials might suggest this is an extremely imaginary salamander,  because last winter's rains were poorly timed (from the salamanders' perspective)  and Stanford detected no pulse of migrating salamanders from the foothills  down to Lake  Lagunita. Because Stanford did not detect salamanders, university  officials did not direct additional water into the lake and the seasonal  water dried up early. Nevertheless, a small, early migration could have  gone undetected and reproduced successfully. Assuming our salamander egg hatched, survived the enormous odds against it as a tadpole, and lumbered as a young adult salamander across Junipero Serra Road and into the foothills, is it currently protected by the Endangered Species Act? The short answer is "no," but subject to change. With some exceptions, rare species receive no protection through the ESA until they are "listed" by the federal government. The law requires, in theory, that the government balance several factors in determining whether a species needs to be listed, the most important of which is whether the species' habitat is presently inadequate or under threat. . In practice, the government is rarely proactive, and typically lists species only in reaction to citizen pressure and lawsuits. In recent years, the vast majority of species listings in the Bay Area have resulted from citizen petitions for listing and/or threatened litigation by citizen groups.  Our salamander falls in that majority category.  California tiger salamanders require both wetlands and adjacent, undeveloped  upland habitat. Their habitats and populations have been under  pressure for years. After years of citizen  pressure, the Fish and Wildlife Service (FWS) just this year proposed  listing the Bay Area population of tiger salamanders as "threatened."  While our salamander is not yet protected by the  ESA, Committee for Green Foothills and others   are hopeful that it will be, presumably within the next few months. Once  the salamander is listed, the ESA will require the federal government  to designate the "critical habitat" and prepare a recovery plan for the  species, but in practice, the government frequently drags its feet on  these steps. Summer 2006: Our salamander is  curled up asleep for the summer dry season in an abandoned gopher hole  in the Stanford foothills. But Stanford officials and the federal government  are not asleep. Our salamander is now a listed species, having been belatedly listed by  FWS in October 2005 after environmentalists threatened renewed litigation.  The ESA now protects the salamander by regulating development and other  actions that might affect the animal or its habitat. In July 2006, Stanford has just proposed a major expansion of the Stanford Linear Accelerator Center, somehow bringing miles of accelerator lines across the Stanford foothills. This project involves large amounts of federal money as well as Department of Energy oversight. Because a federal agency is involved, this project must be reviewed under the ESA's section 7, which forbids federal agencies from taking any action that jeopardizes the continued existence of a listed species, or that adversely modifies the species' critical habitat. (Section 9 applies to anyone other than federal agencies.)  This listing means the Department of Energy must  consult with FWS to ensure that the project does not jeopardize the species'  survival. Let's assume that FWS eventually concludes in a "Biological  Opinion" that the accelerator project will not jeopardize the salamander's  survival, even when considered in conjunction with increased development  throughout the salamander's range. Environmentalists will examine this conclusion carefully. If they decide it is faulty, they can sue in federal court. While judges are generally deferential to federal agencies, they will sometimes stop projects that risk species' survival. Summer 2007: Our small salamander is sleeping,  again, in its burrow, something that makes sense for an amphibian that  needs moisture to be active. Stanford, meanwhile, considers other options  for the foothills. Moving forward in time, it is now July 2007. The linear accelerator project was never built, due to its political controversy. Stanford has subsequently suggested the Heartstring-Tugging Institution Project, which for some dubious reason requires constructing a building for a wonderful cause in the foothills rather than on the developed part of the Stanford campus. As planned, this development will destroy a significant amount of salamander habitat. A parking lot will pave over the gopher hole where our salamander is once again sleeping for the dry season.  However, the ESA becomes involved at this point;  the Act prohibits "take" of listed species through harming or harassing  the species, which is why hunting endangered species is illegal. This  prohibition applies to everyone, not just the federal government.  Prohibiting harm to listed species also prohibits harm to the species' habitat, so Stanford's development project faces a legal hurdle. This "take" of species can be permitted, however, if an applicant like Stanford requests an Incidental Take Permit. The Incidental Take Permit provides an exception to the ESA prohibition for everyone other than the federal government (another provision gives an exception for federal agencies and federal permit-holders).  It turns out that Stanford has been thinking ahead,  and for several years prior to 2007 considered applying for an Incidental  Take Permit. The university submits the Habitat  Conservation Plan (HCP) required by FWS so that the federal agency  can determine whether a permit is justified.  In theory, the applicant must minimize and mitigate harm  to listed species as much as is "practicable." In practice, many HCPs  provide little mitigation for harm to listed species while removing the  protections the ESA otherwise provides to the species. Each HCP has to  be analyzed to determine if it provides adequate protection; citizens  and environmental groups often use litigation to strengthen weak HCPs  and help provide necessary protection. Again, environmentalists will scrutinize  the HCP prepared for the salamander. Winter 2010-2011: Our salamander  survived the threat it faced in 2007. Perhaps Stanford's project was decreased  in size or moved to a different location; for whatever reason, our salamander's  habitat was saved. Two weeks of steady rain have awakened our salamander and its breeding instincts. It makes its way down to wetlands, but not to Lake Lagunita. Instead it encounters the ponds in the foothills that Stanford very laudably constructed years ago, long before salamanders were listed under the ESA. Our salamander breeds during the night with others, and then instinctively moves away up the hillside in the early dawn. It fails to notice a great blue heron standing motionless in the grass, and never makes it home.  Though our salamander's demise may seem sudden,  its life story was actually very successful. Having survived the combined  challenges of nature and humanity, it passed along its genes - constituting  a success in the natural world. Vigilance by environmental groups, good will towards the environment by others and compliance with the Endangered Species Act can make successes like this possible. The ESA is just one tool for environmental protection, but it can be a crucial method for keeping our salamander, and members of hundreds of other species, from edging into extinction. Important note: The preceding article discusses the Endangered Species Act in general terms only, and is not meant to constitute legal advice. Salamanders and other species facing extinction should consult with an attorney. Published July 2004 in Green  Footnotes. Page last updated July 28, 2004 .

	Tiger salamander drawing © Larry  Lavendel; foothills photo by Kathy Switky.