Indiana Mussels Control Water Use: the Expanding Geographic and Regulatory Reach of the Endangered Species Act

Commentary

Indiana Mussels Control Water Use: the Expanding Geographic and Regulatory Reach of the Endangered Species Act

If you want to get an idea of how the Endangered Species Act is going to impact significant parts of the country in the coming years, take a look at the events over the past month around Lake Freeman and the town of Monticello in northern Indiana. There, six freshwater mussels listed under the Act caused the lake level to be lowered by almost two feet, which harmed local businesses, put people out of work, posed a hazard to boaters, and could potentially lower property values.

Mussels? Really? Come on, how can something so small and seemingly insignificant be such a big deal? And how can the Endangered Species Act be a problem when we’re constantly told how great it is, including saving the bald eagle-the national bird, no less-from extinction (even though, as I’ve documented here, here, and here for the Reason Foundation, the eagle was never in danger of extinction, because of the massive, healthy and secure population in Alaska and British Columbia that constitutes about 75% of the bird’s total population, and the Act’s role conserving the eagle in the lower 48 states has been hugely exaggerated)? That may be what homeowners, businesses and visitors along Lake Freeman thought until they were on the receiving end of the Endangered Species Act.

The problems this summer actually started in 2012 when the U.S. Fish and Wildlife Service ordered NIPSCO (Northern Indiana Power Service Company, which has 821,000 natural gas and 468,000 electrical customers in the state’s northern third) to lower Lake Freeman by releasing water from the Oakdale dam, which NIPSCO owns and was created in 1925 by damming the Tippacanoe River. Fish and Wildlife ordered the release so endangered freshwater mussels down river would have sufficient water. Freshwater mussels are an obscure but highly effective means to control water quantity and quality because the U.S. has the world’s largest number of them, they are widespread, and, by dint of being filter feeders, they are very sensitive to water quality.

Lake Freeman is a popular vacation and recreation site, and a number of businesses in the town of Monticello bordering the lake are heavily dependent on income earned during the summer. So when the lake level began to drop in 2012 due to the Endangered Species Act, residents and business grew concerned that boat launches and a marina would be unusable, and if water levels dropped too much stumps from trees cut when the lake was made would be exposed, thereby making boating dangerous. While it appears these fears were unrealized, the stage was set for future problems.

On August 1, 2014 low rain levels over the preceding weeks prompted the Fish and Wildlife Service to order water released from the dam for the endangered mussels. This time, however, there were serious problems. The water got so low that many people were unable to launch their boats, and others opted not to go boating because exposed tree stumps and rocks posed a significant hazard. As a result, a number of businesses suffered.

In early August, Doug Hovermale, owner of Twin Lakes Enterprises, which operates three barges that transport supplies and equipment to people on the lake, had to lay off three workers because the lowered water level led to decreased demand for business and even caused one barge to be stuck in port. “These people are used to working seasonal anyway, and they count on getting as many hours as they can in the summer,” Hovermale told wlfi.com about his employees. “It was very difficult to have to say, ‘I’m sorry we’re going to have to lay you off this week.'” The owners of two other businesses also worried about the effects of the lowered water levels. “I have several kids and other employees on the service end that we’re probably going to have to lay off,” Gary Creigh, owner of the Tall Timbers Marina, said to wlfi.com. “There’s no gas to pump, no ramp to run, and no boats to tow in to be able to fix,” he added. “We do 20 percent of our selling season in August, so it is very devastating.” And Kit Caster, owner of the Madam Carroll, a large party boat, reportedly said “there’s going to be a few staff members we won’t be working on the weekends.”

By mid-August, when the level of Lake Freeman reached two feet lower than usual, things got worse. Gary Creigh had to lay off four employees. “It’s really getting into our income level not to be pumping any gas,” due to the lack of boaters he remarked to the Lafayette Journal & Courier. When the lake was initially lowered, people were taken by surprise because no notification was given, which was especially hard on businesses because they, like any business, depend on predictability. “Is this going to happen every year?” Creigh asked the Journal & Courier. “It’s devastating not knowing when it’s going to happen.” Homeowners also grew concerned that chronic low water levels potentially could result in lowered property values.

In response to these problems, there were two meetings in Monticello on Aug14. In the morning, the U.S. Fish and Wildlife Service met with federal and state elected officials, home and business owners and representatives of NIPSCO to discuss the Abnormally Low Flow Plan developed by the Service and NIPSCO. The goal of the Flow Plan is to provide more predictable water releases in the future. Later in the day, U.S. Representative Todd Rokita, whose district contains Lake Freeman, participated in a town hall meeting packed with more than 150 people. At one point, he asked how many people would like the Endangered Species Act to be repealed. “The majority raised their hands,” according to a story in the Lafayette Journal & Courier. Rep. Rokita was surprised. “I’ll take that back,” he reportedly said. “But I don’t know how much support that would get.”

In late August, a combination of a broken floodgate on the Norway Dam, which controls water on Lake Shafer just upstream of Lake Freeman, and heavy rains began to increase water levels at Lake Freeman. While residents and businesses on Lake Freeman caught a lucky break, they still have long-term concerns about the Endangered Species Act’s ability to lower the lake’s water level.

Last week the latest chapter in the Lake Freeman water level story unfolded, when there was talk of filing a lawsuit (against whom was not specified but presumably the U.S. Fish and Wildlife Service) to challenge the ability to lower the lake for the endangered mussels. “A legal challenge is a last resort, a pivotal action that we would not undertake lightly,” Joe Roach, Executive Director of the Shafer and Freeman Lakes Environmental Conservation Corporation, told the Lafayette Journal & Courier. (The Shafer and Freeman Lakes Conservation Corporation is the non-profit corporation that is the title holder for all property under and around the perimeter of the lakes. Each lakeside property owner is required to obtain an annual license, for a nominal fee, from the Corporation in order to be granted permission to cross the Corporation’s lakeside property, access the lakes, and install seasonal boat docks. As part of its mandate, the Corporation maintains the lakes, which includes dredging silt, removing debris, stocking game fish, and serving as an authority that helps resolve disputes among lakeside homeowners and businesses)

There are three take-home points about the Lake Freeman-freshwater mussels issue. First, as the response of the majority of people attending the August 14 town hall meeting indicates, those who have been impacted by the Endangered Species Act are far more likely to have a negative view of the Act than those who have not. The Endangered Species Act often looks good from a distance, but once people see it up close, and especially how the Act’s massive power can impact people’s lives and livelihoods, they tend to have a more nuanced and less enthusiastic view of the Act. It is remarkable that most of the more than 150 attendees of the August 14 meeting favored repealing the Endangered Species Act.

Second, the events in and around Lake Freeman this August are a foreshadowing of what is coming to many parts of the country, especially the South, over the coming decades. As a result of a 2011 lawsuit settlement between the U.S. Fish and Wildlife Service and a couple of environmental pressure groups, the number of U.S. species listed under the Endangered Species Act is going to increase by about 50%. Under the lawsuit settlement, the Fish and Wildlife Service is obligated to consider for listing 757 species by 2018 (251 of which must be final listing decisions, while the other 506 species are in the pipeline, with listing decisions likely to be made after 2018). Invertebrates constitute by far the largest group of these species, with 379 total, of which there are 54 species of mussels, 89 insects, 98 crustaceans, and 138 snails. Almost all of these invertebrates are based in freshwater habitats. In addition, the 2011 lawsuit settlement includes a number of other freshwater-based species; 66 fish and 33 amphibians, which by their very nature are based in aquatic, riparian and wetland habitats. And of the reptiles covered by the settlement, 10 are freshwater aquatics. Even though many of the 197 species of plants in the lawsuit settlement are aquatic, they pose substantially less of a threat to landowners and businesses because plants generally receive a much lower level of protection under the Endangered Species Act. Altogether, there are close to 480 freshwater aquatic, riparian and wetland animal species around the country that have the potential to create serious problems for landowners and businesses as a result of the 2011 lawsuit settlement.

So far, 113 of the lawsuit settlement species have been listed, 10 proposed for listing, and 22 found not to warrant listing. The listed species consist of both plants and animals, but because animals generally receive a higher level of protection than plants, they will cause the greatest regulatory impacts. Of the listed animals, 37 are freshwater aquatic (14 mussels, 9 amphibians, 7 snails, 3 insects, 2 fish, 1 crustacean, and 1 reptile), which means potential impacts on human water use. Indeed, four of the six freshwater mussels that caused Lake Freeman in Indiana to be lowered were listed as a result of the 2011 lawsuit settlement; the rayed bean and snuffbox in February 2012, the sheepnose in March 2012, and the rabbitsfoot in September 2013 (while the other two were listed years ago; the fanshell in 1990, and the clubshell in 1993). People in northern Indiana can expect additional problems with the Endangered Species Act because the Tippacanoe darter, a species of fish found downstream of the Oakdale Dam, is another lawsuit settlement species that will be evaluated for listing, likely after 2018.

The region of the country that is going to be hardest hit by the listing of aquatic species is the South, which contains 374 freshwater aquatic lawsuit settlement species. In Arkansas, the listing of two freshwater mussels, the Neosho mucket and rabbittsfoot in September 2013, has been the cause of great concern because the Fish and Wildlife Service proposed to designate critical habitat for them, which, according to a report by an environmental firm, will cover 42% of the state and include 762.2 miles of rivers and streams. In response, the Arkansas legislature got involved, and in May the U.S. House Committee on Natural Resources held a hearing in Arkansas. In an attempt to calm concerns about the proposed critical habitat designation, Dan Ashe, Director of the Fish and Wildlife Service, sent a letter to Senator Boozman of Arkansas in which he stated:

“The designation of critical habitat will have no impact on most private landowners with lands adjacent to the designated critical habitat. For example, it will not prohibit a farmer from allowing cattle to cool down in a river or from driving a vehicle through a stream.”

There is no way Dan Ashe can realistically make the categorical claim that the critical habitat designation “will not” have certain impacts. Determinations about site-specific impacts on endangered species are made by Fish and Wildlife Service field biologists and their supervisors, not the agency’s director. For Ashe to make a categorical claim about very specific impacts not only flies in the face of reality, but it is troubling. It indicates either he does not know how assessments about human impacts on endangered species and their habitats are made, or he is giving Senator Boozman a guarantee he has no ability to keep. Furthermore, after Dan Ashe leaves the Fish and Wildlife Service, which is likely in the next couple years, his so-called guarantee leaves with him.

Third, the Endangered Species Act is going through an unprecedented geographic and regulatory expansion. Regions of the country that have little if any experience with the Act, such as northern Indiana and large parts of Arkansas, are going to have firsthand knowledge of the Act’s ability to regulate otherwise normal and legal forms of land and resource use, such as farming, ranching, home building, timber harvesting, energy production and outdoor recreation. Given the huge number of freshwater aquatic species in the 2011 lawsuit settlement, coupled with the increasingly aggressive tactics of groups filing lawsuits over the Endangered Species Act’s implementation, such as the Center for Biological Diversity and Wild Earth Guardians, the two groups involved in the lawsuit settlement, it is a virtual certainty that in the coming years conflicts over water use will increase substantially. In all likelihood these conflicts will not be limited to activities that are adjacent to aquatic habitat. Actions in watersheds that occur miles from streams, rivers and wetlands, such farming, raising livestock, mining, and any number of commercial and industrial activities, can impact aquatic habitats and the species that live in them. For example, runoff of pesticides, soil and animal waste from agriculture can affect water quality. As a result, entire watersheds, or substantial portions of them, may well be subject to regulation under the Endangered Species Act. Indeed, a map available from the U.S. Fish and Wildlife Service of the 374 southern aquatic lawsuit settlement species organized by watersheds, strongly suggests watershed-wide impacts may be regulated.

The hundreds of uncharismatic and obscure invertebrates, including mussels, that are in the process of being listed under the Endangered Species Act, as well as those already listed, are going to have very significant impacts on water use across the country in the coming years and decades unless the Act is substantially reformed. Just ask the people in Monticello, Indiana.

Brian Seasholes is a former research fellow with Reason Foundation.