The Endangered Species Act is once again being targeted by its critics in Congress. Spearheaded by Rep. Richard Pombo of California, the House of Representatives last September passed a bill that would make some significant changes to the existing law.
Perhaps most notable would be the elimination of the critical habitat designation so unpopular with many private landowners. Instead, the bill proposes payments to landowners to encourage conservation uses of their lands, including a controversial requirement to compensate property owners whose future uses are precluded in order to protect a listed species. Pombo’s measure, House Resolution 3824, also would eliminate the Endangered Species Committee.
But there’s a more limited and politically realistic path to reform that would significantly increase efforts to recover listed species by offering states the lead in developing and implementing recovery plans.
One of the most persistent criticisms of the ESA is that few species have been pulled back from the brink of extinction after 30 years. Yet a look at the ESA makes it clear that its primary thrust is not to bring about species recovery, but to slow or stop human actions that are contributing to extinction.
As originally enacted in 1973, the ESA contained no reference whatsoever to recovery. Congressional attention focused on preventing international and interstate trade involving protected species, on limiting potentially harmful federal actions and on prohibiting hunting and other unauthorized harm to listed species. While “conservation” was an identified purpose of the ESA, the only method contained in the original act was authority for the U.S. to purchase land, presumably to protect habitat.
Recovery plans entered the ESA in 1978 amendments. The U.S. Fish and Wildlife Service had already been preparing recovery plans for some listed species, and this new provision largely codified existing practices. Preparation of such plans is not mandatory under the existing law, only if it is believed such a plan would in fact promote conservation. Plans are developed based on a system of priorities, with the highest priority given to species considered likely to benefit from recovery actions and that also are threatened by development.
The Pombo bill does little to strengthen attention to species recovery. It would set a deadline for preparation of a final recovery plan – within two years following listing of a species. In most other respects, recovery planning would proceed in the same manner as it does now.
The most significant addition proposed in HR 3824 is an “incentives program,” intended to engage private landowners in conservation activities. Species recovery agreements would commit the landowner to specific actions involving habitat protection for at least five years, in return for annual payments.
The other proposed new program would establish longer-term management plans for lands important for candidate species and species listed as threatened, endangered, or candidate under state law, as well as for conservation of federally listed species.
The task of recovering the 1,269 plant and animal species listed as of 2005 is truly daunting. More than 1,000 recovery plans now exist. There are no solid estimates of the costs of implementing these plans, but they certainly dwarf present available money. Most of the funds appropriated for recovery efforts are tied to recovery of just 22 species. While the Fish and Wildlife Service attempts to develop partnerships to help with recovery, the federal government remains responsible for recovery plan implementation and inevitably carries most of the burden.
The Pombo bill’s outreach to private landowners is a step in the right direction. There should be an intervening option, however: an invitation to states and tribes to develop recovery plans for listed species with habitat within their political jurisdictions.
Every state has a fish and game or wildlife agency with extensive knowledge of local wildlife, and many tribes are developing such expertise. The ESA should be amended to invite states and tribes to prepare state- and reservation-specific plans, with actions necessary to recover species and with criteria for determining when recovery has been achieved, subject to federal oversight.
States and tribes might be attracted to take advantage of this invitation for several reasons:
A model for this approach is the recovery implementation plan for Upper Colorado River endangered fish, developed cooperatively by representatives from the U.S. Fish and Wildlife Service, the upper basin states, water users and conservation organizations.
The program guides a series of conservation measures to recover the fish. So long as measurable progress toward recovery continues, additional development and use of water are allowed. Indications are that the program is working and fish populations are increasing.
The ESA challenges us to find ways to live that do not cause the extinction of other life forms. Increasingly, we gain knowledge about how this can be done. But doing so will require the willing involvement and cooperation of public and private landowners under programs coordinated at the state and local levels, with funds from a variety of sources. Achieving this kind of cooperation should be the goal of any reform.
Lawrence J. MacDonnell is a lawyer and former director of the Natural Resources Law Center at the CU School of Law.
