Faced with the possible extinction of various species of animal and plant life, Congress passed the Endangered Species Act (ESA) in 1973. The Act established a process to designate a plant or animal as being in danger of extinction, protecting that species from further decline and devising a strategy for its recovery. Unfortunately, the ESA, though well intentioned, has been largely unsuccessful in conserving the species it was meant to protect – only one percent of species have recovered sufficiently to qualify for delisting. In addition, its enforcement has, at times, resulted in dire economic consequences for the communities and landowners who have been affected by it.
NAIOP supports the goals of protecting our nation's treasured species that are on the brink of extinction. However, we feel that the Endangered Species Act (ESA) is in need of reform. Currently, there is a lack of reliable data analysis in the decision making process for endangered species protection. There is a great need to establish greater scientific standards that are peer reviewed for all ESA listing and de-listing proposals to ensure the use of sound science and to provide a mechanism for resolving scientific disputes. Additionally, we believe that the Secretary of the Interior should be required to solicit and obtain additional data from landowners and others that would assist in the development of recovery plans, including the recovery goals. The process should also compensate property owners when they are substantially deprived of the economically viable use of their property because of ESA restrictions. NAIOP feels that landowner incentives and cooperative agreements are the best way to recover endangered species. This approach – versus the punitive one currently in place – would be best implemented through individual state programs allowing for local participation and expertise.
In August 2019, the Trump administration finalized a series of ESA regulations. One of the most significant changes addresses the difference between threatened and endangered species. ESA critics have long charged that federal agencies have too much leeway in extending the heightened protections associated with endangered species to threatened ones, though what’s known as the “blanket 4(d) rule.” Going forward, for a threatened species to receive these protections, agencies will have to promulgate a species-specific rule, a requirement that presents more significant hurdles. Further, species are deemed threatened when there is a demonstrable risk of becoming endangered in the “foreseeable future.” The new rules narrow this scope to only consider factors that are deemed “likely.” Other changes include tweaks to the definition of “critical habitat”; a more streamlined process for landowners seeking permits for activities that result in minimal effects to species and environments; and language that enables federal agencies to conduct environmental impact studies of proposed species listings, for purposes of “informing the public.” Importantly, the rules will only apply to future listing decisions. Existing protections are grandfathered in, and will remain unaffected unless their status changes.