am, Categories: Science & Environment, Economics
& Tax Policy, 1259 words ••
House passes new Endangered Species Act
Thanks to Congressman Bob
Beauprez (whom I support to be the next Governor of Colorado)
for the following story:
H.R. 3824: The
Threatened and Endangered Species Recovery Act (TESRA)
Washington, DC - After more than three decades of implementation, the Endangered
Species Act (ESA) has failed to achieve its purpose of recovering endangered
species to healthy and sustainable populations. In addition, the unintended
consequences of this law have caused a tremendous amount of conflict with
landowners and local communities alike. As such, Congress must update and
modernize the ESA to strengthen its results for species recovery by turning
conflict into cooperation. TESRA will do just that.
According to U.S. Fish
& Wildlife Service (FWS) data, the ESA has achieved a less-than 1% success
rate for species recovery in its 33-year history. Just as troubling is the
Service data on the progress of species recovery efforts and species status. A
review of the numbers alone serves as irrefutable evidence of the fact that the
ESA needs serious legislative improvement.
According to the U.S.
Fish & Wildlife Service:
Ø Less than 1%
(10 of roughly 1300 species) have recovered.
Ø 39% of all
listed species are classified in "unknown" status.
Ø 21% of all
listed species are classified as "declining."
Ø 3% (or roughly
2 dozen species) are believed to be extinct.
Ø Only 6% of all
listed species are classified as "improving."
Ø 77% of all
listed species have only achieved 0-25% of their recovery goals
In addition, 30% of all
listed species are classified as stable, but that doesn't necessarily mean much
in terms of the Act's effectiveness. In many cases, the FWS classifies a
species as stable because of corrections to original data error. For example,
at the time of listing, officials thought the Johnston's Frankenia (a plant)
was down to a few thousand specimens. After listing, more data was collected
which showed there were over 9 million of them. It should not have even been
listed as endangered in the first place, but was moved to stable status instead
of being de-listed. There are many cases like this.
TESRA offers a new
emphasis on recovery with new Recovery Teams and Recovery Tools:
Recovery Plans: Recovery Plans will be
required by law, within two years of listing, and will be reviewed regularly to
make sure they are as effective as possible. The plans will require the
identification of lands important to the conservation and recovery of species.
Recovery Teams: Each species will have
one. These will draw not only on those who have knowledge and skills essential
to guide effective conservation efforts, but also those who have property or
livelihoods affected by species where any successful program must be made work.
This will foster collaborative rather than confrontational efforts recovery
New Conservation Tools: TESRA provides numerous
tools to promote conservation of species on private lands without putting more
land without further increasing the size of the federal estate and improves
other tools that are already provided for.
Recovery Agreements and
Contracts: Section 12 - these are a means of enlisting private property as
allies in the conservation of endangered and threatened species by providing
incentives to manage lands, with priority given to those lands identified in
recovery plans as being of special value to species, in a way that helps these
Conservation Aid: Section 16 - reduces
the burden of regulation on landowners when use of their private property has
been restricted because for conservation purposes so that individual property
owners are not unfairly forced to shoulder the financial burden of a program to
conserve endangered and threatened species for all Americans. These assurances
reduces the disincentives to landowners to provide habitat on their property by
taking it off the books as a liability.
Conservation Grants: Section 16 will provide
the Secretary another tool, proving the Secretary has been successful in
promoting conservation without overly burdening individual landowners. The
conservation grants provision is designed to foster new ideas and unique
approaches to conservation on private property by providing some guidelines as
to the goals to be met as well as sideboards on what the funds be used for but
leaving room for ingenuity and creativity on how to achieve conservation.
Amendments in Section 15 provides those participating in HCP's with the
assurance that the resources they commit to conservation can be provided
without fear of "surprises" will undo the deal.
The designation of
critical habitat is perhaps the most problematic aspect of current law. The
term "critical habitat" is one of those things that sounds good and
looks good on paper, but is problematic in application. The FWS has maintained
as its official position that designating critical habitat:
(1) contributes very
little, if any, additional protections for species recovery
(2) consumes massive amounts of the agency's conservation resources
(3) is driven by litigation, not biology, which disrupts their ability to
(4) and imposes huge social and economic costs
In fact, the FWS publishes a disclaimer with the above every time it designated
critical habitat for a species. This aspect of the ESA has caused litigation
and conflicts with communities - all for a requirement the experts indicate is
Scientific Standards Not
The ESA relies on a standard of "best scientific data available" for
regulatory decision-making such as listing a species as threatened or
endangered and designating critical habitat. Unfortunately, Congress failed to
define "science" when the law was written in 1973 and to specifically
outline whether or not particular data would meet this standard.
The problem with a
"best available data" standard is that 'best' is a comparative word.
Thus the data need not be verified, reliable, conclusive, adequate, verifiable,
accurate or even good. The best available data standard hampers the effectiveness
of the program.
TESRA requires the
Secretary of the Interior to establish criteria that will constitute a clear
definition of "best available" - consistent with the Data Quality Act
- to strengthen the law's scientific underpinnings. Better science leads to
better decisions. Better science and better decisions save valuable resources
from being wasted on species not truly in need.
Incentives for Private
Another major unintended consequence of the ESA stems from the fact that it
creates an adversarial relationship between government regulators and the
people who are most critical to the goal of saving endangered species:
America's farmers, ranchers, and private property owners.
Known as the
"shoot, shovel, and shut up" syndrome, research shows that the ESA
has created perverse incentives that prompt land owners to actually destroy
species habitat to rid their property of the liability that comes with
Because 90% of
endangered species in the U.S. have habitat on private land, it is imperative
that we change this disincentive into real, positives incentives. The abysmal
1% success rate for species recovery will never improve unless we do.
TESRA places emphasis on
private property owners' participation in species recovery:
Ø Codify the No
Surprises/Assurances policy for persons developing habitat conservation plans;
Ø Provide certainty for
private property owners by allowing landowners to request a written
determination as to whether their land use activities will violate the take
prohibitions of Section 9, granting the landowner incidental take coverage
where the written determination is that they comply with Section 9 and giving a
mechanism for compensating the private property for foregone use of his
property where the determination is that the activity would violate the take
property owners for the fair market value of loss of use for foregone use of
their property where the Secretary has determined that the use of that property
would constitute a "take" under Section 9 and the activity is not
otherwise determined a "nuisance" under principles of property and
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