Swept Away: A Cautionary Tale Regarding Endangered Species Mitigation

For many years, fossil enthusiasts have searched for Miocene fossils on a secluded beach south of Chesapeake Beach, Maryland. About a decade ago, without warning or explanation, a formidable chain link fence appeared on the beach, anchored at one end to the nearly vertical cliffs behind the beach, and extending at the other end about 30 feet into the Chesapeake Bay. No sign warned against trespassing, and since the water is shallow there, most fossil hunters simply waded around the fence to get to the more productive areas on the other side. A year later, the fence was even less of an obstacle. Enterprising beachgoers had scraped out a small passage between the cliff face and the landward end of the fence through which a person could squeeze. The bayside end of the fence was sagging, having been battered by storms the previous winter. More storms the next winter pretty much leveled the fence. Soon, not a trace of it remained. Most visitors then never knew why the short-lived fence had been erected. Most visitors today are unaware it ever existed.

The mystery of why the fence suddenly appeared is revealed in--of all places--the U.S. Fish and Wildlife Service's (FWS') endangered species Consultation Handbook. The handbook gives extensive guidance to the FWS staff regarding implementation of §7 of the Endangered Species Act (ESA). Section 7 is the provision of the Act that requires federal agencies to consult with the FWS to ensure that the actions they authorize or carry out do not jeopardize the continued existence of endangered species. The handbook illustrates its detailed guidance with numerous documents showing how to implement various stages of the consultation process. Among those illustrative documents is a letter dated January 11, 1993, that discusses the mysterious fence. The letter addressed plans for a boardwalk along the bayfront from the center of town to a point just short of the fossil hunters' beach. The boardwalk, by facilitating access, was sure to increase public use of the beach. That concerned the FWS, since the beach was not only a good place to find the fossilized remains of long extinct sharks and whales, but