Is the Endangered Species Act at Risk?

Johanna Polsenberg *
Senior Legislative Assistant Representative
Tom Udall (NM-3rd)
Johanna.polsenberg@mail.house.gov

In 1973 the Endangered Species Act (ESA), a piece of landmark legislation for the US federal government, embraced the idea that as a Nation we could not allow America's future natural bounty to be squandered by unbridled desires for immediate gains. In 1973 the proposed ESA bill sailed through both the House of Representatives and the Senate by wide bipartisan majorities and was signed into law by Republican President Richard Nixon - a testament to its recognized importance. Conservation of habitat is the heart of the ESA. Although some of the most historically well-known species driven to extinction by human activities, such as the passenger pigeon and the Steller's sea cow, were lost due to over-exploitation, the current prime threat to the vast majority of species is the devastation or radical alteration of their habitats. One of the stated purposes of the ESA is "to provide a means whereby the ecosystems upon which endangered and threatened species depend may be conserved". In July 2004, a minority of lawmakers with the power of the majority behind them in the House of Representatives may demonstrate that they disagree with that purpose and take the first step toward dismantling the ESA. The House Resources committee is expected to refer to the floor a so-called critical habitat reform bill that would almost entirely eliminate any protection for much of the habitat that threatened and endangered species need. Not surprisingly, habitat protection has notoriously been the most contentious part of the ESA. This is not the first time it has been the focus of attempts at ESA "reform" legislation. Critical habitat is well defined in the Act as areas where the species is currently found, and areas that might provide additional habitat for species recovery, such as corridors or habitat suitable for re-introduction. Once a declining species is listed by the ESA, the responsible federal agency must designate critical habitat for that species.

Scientists can affect this debate by engaging in cooperative, inclusive research projects that involve and educate as many stakeholders as possible. Not only does cooperative research develop more workable solutions for using and managing land and water resources sustainably, it also provides important opportunities for stakeholder buy-in.

Critical habitat protection limited Critical habitat designations, however, only affect the activities of federal agencies and federally permitted and/or funded projects. Critical habitat designations do not affect private landowners' actions unless they are seeking approval or funding from the Federal government. While privately held land may be designated as critical habitat, activities on that land are only impacted if a federal action (e.g., a license, loan or permit) is involved. Although the ESA procedures do require time, for all but two of the 13,000 federal projects requiring consultation on ESA issues from 1996-2003, the Fish and Wildlife Service reported that it was able to develop plans and alternatives that allowed the projects to proceed. Still, some lawmakers and citizens assert that the ESA "is broken" and needs to be fixed. Generally, the arguments are based on the belief that the designation of critical habitat as required under the Act is costly and ineffective and creates negative public sentiment. In actuality, the government has only designated critical habitat for less than one-third of the listed domestic species. And, even though the ESA has helped improve or stabilize the populations of nearly half of the listed species, the rampant loss of habitat continues to threaten many species of plants and animals, including a number that have already been listed. The demise of our country's natural systems is probably obvious to most ERF Newsletter readers since estuaries and freshwater wetlands are among the most rapidly disappearing habitats in the United States.

Where's the rub? Economics According to the Act, the federal agencies responsible for listing species as threatened and endangered are not allowed to consider economic factors when making the decision about whether a species should be listed. Economic factors, however, are expressly part of designating critical habitat. This provides the federal agency responsible for enforcing the ESA the leeway to reduce the critical habitat the best-available science recommends if the determination is made that "the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat." Wherein lies the problem? The Act as written provides fair consideration to the potential economic impacts of designating critical habitat and to the rights of private landowners. What about the ESA needs to be reformed? The current federal Administration has repeatedly claimed that its priorities are being dictated by court-ordered critical habitat designations rather than science. It is true that numerous suits have been brought against and lost by the Administration due to the continued failure of the Agencies to address long overdue critical habitat designations. Again, their defense in these suits has been that critical habitat designation is simply too costly. While the actual expense is obviously a fact to consider (and the Act as written provides for that), the problem lies not in the cost but in the funds available for the agencies to do the work. In my opinion, this Administration is sorely, short-sightedly, and severely unfunding all conservation and protection of natural habitats and resources programs. Because underfunding inevitably leads to an inability to enforce the law as written, the push is on to change the law. The code word being used is streamlining; the effect is the gutting of the strongest law on the books for conserving natural habitats.

Cooperative research involves and educates stakeholders As citizens of the United States, there are numerous things you can do to raise the priority of this issue with your elected officials. I propose and encourage an approach in your scientific lives to address the issue from a different direction. Scientists can affect this debate by engaging in cooperative, inclusive research projects that involve and educate as many stakeholders as possible. Not only does cooperative research develop more workable solutions for using and managing land and water resources sustainably, it also provides important opportunities for stakeholder buy-in. The chronic lack of government funding to address endangered species issues and management has left many people with a sense of inertia and hopelessness. Cooperative research that involves the very individuals who fear being shackled by endangered species listings - e.g., landowners, farmers, and other resource users, can change their perception of the Act. Through involvement in cooperative research that offers them input and a sense of ownership in the science-based management decisions they become empowered and less likely to strike back. The ESA can and should be interpreted as both the Endangered Species Act and the Ecosystem Sustainability Act. The two are inextricably linked. While it is clear to all of us that species need natural, healthy ecosystems in order to exist, it must be recognized that, in order to survive, our ecosystems need the Endangered Species Act.

Johanna Polsenberg 
1414 Longworth House Office Building 
Washington, D.C. 20515 202-225-6190 (phone), 202-226-1331 (fax) 

Please visit our website at www.tomudall.house.gov for more information on this subject and to learn about events in the U.S. Congress.

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