Monday, March 1, 2010

Latah County Farm Bureau News

Michael Bogert, Bob Smathers photo

Problem on the Palouse: Worm ESA Listing
Moscow--The counselor to former U.S. Interior Secretary Dirk Kempthorne told members of Latah and Whitman County Farm Bureaus along with environmental activists that listing of the Palouse giant earthworm presents legal problems.

Former Idahoan and U of I Law school graduate Michael Bogert served as chief council to Kempthorne and is a former regional administrator of the U.S. Environmental Protection Agency. Bogert is now working out of D.C. as senior counsel for Crowell and Moring's Environment and Natural Resources Group.

"The listing should be avoided at all costs as there is simply no way to predict what impact it will have on ag practices down the road if everything has to go to ESA Section 7 consultation," said Bogert.

He stressed that while the giant Palouse earthworm is invisible, it still presents problems for the Palouse. Scientists have documented just a few of the illusive worms with the last sighting back in 2008. But that hasn't stopped Conservation groups from trying to get the worm listed as endangered or threatened. "Having to deal with a listed species on the Palouse is not something we're used to dealing with," Bogert said.

The first petition back in 2006 was rejected by the Fish and Wildlife Service based on lack of data about the worm and its habitat; an appeal was also rejected. The Friends of the Palouse and the Center for Biological Diversity filed a new petition in June that claims the worm's habitat stretches from the Palouse to the Columbia River drainage region, but with little evidence to go on.

However, the Fish and Wildlife Service did not respond to the petition in the maximum 90 days after it was filed. Bogert said he checked the federal register on Friday, and the FWS still had not responded.

"The legal issue is simply because we can't find (the worms), and they're scarce, does that automatically mean they warrant protection under the Endangered Species Act?" he said.
He said if the worm is listed as an endangered species, the government would determine its critical habitat and require all people to avoid disturbing that habitat.

Bogert says with little habitat data, it could stretch ESA standards and end up being a case-study in the review process. "I think there is a good chance these guys will take it to the next level."

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