Endangered Species Act: In Desperate Need of Reform

Frustration is mounting within real estate groups and others in Washington concerning the direction the Endangered Species Act (ESA) is taking and how it is being implemented.

Though developed with good intentions, the Endangered Species Act does little to promote the recovery of endangered species and places unfair economic burdens on land owners.

Created in 1973, the Endangered Species Act gave the federal government the authority to identify endangered species and the means to conserve and recover them to healthy populations. Unfortunately, the well-intended work of Congress has turned into a failed system that frequently excludes private property owners from using their own land. These affected citizens have justly complained that critical habitat is designated on huge tracts of land without the science or even common sense to justify such a decision. Many feel that they are left out of the process and are frustrated with the fact that the ESA has undermined their rights as private property owners.

In response to reckless decision-making related to the implementation of this legislation, two pieces of legislation have been introduced that would tighten the habitat-designation process, end nuisance lawsuits and strike a balance between preserving species and the property rights of local governments and private land owners. Both bills have been reported favorably through the House Resources Committee and await action on the House floor.

Congressman Dennis Cardoza (D-Calif.) introduced the Critical Habitat Reform Act (H.R. 2933) in July 2003. Cardoza's bill proposes some welcome clarification for certain critical habitat provisions and is a sensible approach to a complicated problem.

Primarily, Cardoza's legislation would change the way that critical habitat designations are made.

"We can't keep waiting for Fish & Wildlife officials to make their decisions and then attempt to correct them afterwards," Cardoza has said. "It's time we solve this problem permanently and bring some sense to a very important process by reforming it at its core."

Among the significant changes in Cardoza's bill are the following:

• Critical habitat designation would move the time of listing a species as endangered or threatened to a time not later than one year after the completion of a recovery plan or three years after the initial determination that lists the species under the ESA.
• Properties - regardless of whether they are already subject to a habitat conservation plan (HCP) or under a state or federal conservation program - would be excluded from critical habitat listing. In these cases, the Secretary of Interior would determine that the program provides protection that is substantially equivalent to the protection afforded by a critical habitat designation.
• Economic impact on land owners would be considered. For years landowners have argued that their economic burden has not been measured when designating critical habitats. To reconcile these differences, Cardoza's legislation includes language that makes an economic impact analysis mandatory when considering designation, including the impact of lost revenues to land owners and to federal, state and local governments. Costs of reports, surveys and analyses for land owners seeking to obtain approval from state, federal or local permitting agencies would also be included.
• Communications between counties and municipalities with designated tracts of land would be improved, including additional notifications of the critical habitat designation proposal.

Overall, Cardoza's proposed legislation would strengthen the requirements for designating critical habitats by changing the phrase "prudent and determinable" to "practicable and determinable."

This change " however minor - may eliminate the broad interpretation of critical habitat and puts the decision-making process back in the hands of the Fish and Wildlife Service by making these designations less vulnerable to litigation.

Other Legislation Introduced

Greg Walden introduced H.R. 1662, Sound Science for Endangered Species Act Planning Act of 2003 in April 2003. This bill amends the Endangered Species Act of 1973 to require the Secretary of the Interior to give greater weight to scientific data that is empirical or has been field-tested or peer-reviewed. As well as requiring peer-reviewed scientific data, H.R. 1662 also sets minimum standards for the scientific data used in species listing as well as critical-habitat designations.

It requires the Secretary to solicit and consider information provided by the state, accept and acknowledge data from landowners and, most importantly, it requires that every proposed listing, de-listing and recovery plan under ESA be reviewed by a peer review panel of three non-biased scientists. Congressman Richard Pombo (R-Calif.) serves as chair of the House Resources Committee and has indicated a strong possibility of seeing a reform of the Endangered Species Act sometime soon.

Pombo has named ESA reform as one of his top priorities for the year, although the political climate of the election year may make reforms difficult during this Congress. While there seems to be general, bipartisan agreement that the ESA is in need of reform, some administration officials and members of Congress are withholding their support for any, and, instead, are requesting that the agency receive more funding from Congress.

To voice its support for Cardoza's H.R. 2933, NAIOP submitted testimony to a hearing with Chairman Pombo, indicating that the association is committed to protecting the nation's treasures - including endangered species - but asks for common sense practices. NAIOP noted that because more than half of endangered or threatened species have 80 percent or more habitats on private lands, land owners shoulder the heavy weight of guaranteeing that endangered species are treasured for future generations.

NAIOP is committed to promoting species conservation, but in doing so, calls upon Congress to ensure that those practices are fair and actually work to further the recovery of endangered species without burdening property owners.