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H.R. 3824: The Threatened and Endangered Species Recovery Act (TESRA)

Background and Need

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.

ESA Results - By the Numbers

According to U.S. Fish & Wildlife Service (FWS) data, the ESA has achieved a less-than 1% success rate for species recovery. 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 U.S. FWS data:

  • Less than 1% (10 of roughly 1300 species) have recovered in the Act’s history.
  • 39% of all listed species are classified in “unknown”status.
  • 21% of all listed species are classified as “declining.”
  • 3% (or roughly 2 dozen species) are believed to be extinct.
  • Only 6% of all listed species are classified as “improving.”
  • 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 factors other than an increase in the species’numbers or distribution like corrections of 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 been listed, but was moved to stable status instead of being de-listed. There are many cases like this.

The numbers alone serve as irrefutable evidence that the ESA is broken and in desperate need of a legislative update.

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: 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 programs.

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 species.

Conservation Aid in 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 assurance reduces the disincentives to landowners to provide habitat on their property by taking it off the books as a liability

Conservation Grants in 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.

Habitat Conservation Plans: 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.

Threatened Species - TESRA also reestablishes the distinction between endangered and threatened species as was intended by requiring that rules regulating threatening be promulgated on a case by case basis and with justification rather than by a blanket rule for all threatened species. By requiring the tailoring of rules to threatened species, TESRA ensures that the management flexibility that can be central to effectively promoting conservation is not lost.

Critical Habitat

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 awful in application. The U.S. Fish & Wildlife Service, under both Republican and Democratic administrations, has maintained as an official position that designating critical habitat:

  • contributes very little, if any, additional protections for species recovery
  • consumes massive amounts of the agency’s conservation resources
  • is driven by litigation, not biology, which disrupts their ability to prioritize
  • 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 rampant litigation and conflicts with communities - all for a requirement the experts decry as ineffective.

TESRA replaces the critical habitat program with a more integrated recovery planning process that includes the identification of specific areas that are of special value to the conservation of the species which are then given priority in recovery efforts. This will focus the law on recovery and minimize the conflicts that lead to litigation.

Scientific Standards Not Defined

The Endangered Species Act 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.

This is certainly true in practice. Agencies that evaluate scientific data under the ESA - and courts forced to evaluate agency decisions based upon such data - have found their efforts severely hamstrung by two factors: (1) the ESA’s lack of definitional terms and (2) the fact that species data is, by its very nature, often vague, ambiguous, and frequently subject to best-professional judgment rather than objectively quantifiable.

Some of our nation’s other environmental laws (in addition to those that apply to the Food & Drug Administration) have avoided this problem by requiring peer review. The Safe Drinking Water Act (SDWA), for example, employs the “best available”standard, but also requires that data be “peer reviewed”and “in accordance with sound and objective scientific practices.”Given the fact that FWS will even consider oral and anecdotal data on species, the need for a more rigorous scientific review for the ESA, such as that used in the SDWA, is clear.

The absence of clear, objective standards has resulted in a litany of data errors and poor decisions on species protection and critical habitat designations. These errors waste valuable agency resources that could be spent on species in proven need of recovery efforts.

TESRA requires the Secretary of the Interior to establish criteria that will constitute a clear definition of “best available”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 Property Owners

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 endangered species.

Because 90% of endangered species in the U.S. have habitat on private land, it is imperative that we change this disincentive into real incentives. The abysmal 1% success rate for species recovery will never improve unless we do.

TESRA represents a paradigm shift by placing emphasis on private property owners’participation in species recovery. Specifically, TESRA will:

  • Codify the No Surprises/Assurances policy for persons developing habitat conservation plans;
  • 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 prohibitions;
  • Compensate private 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 nuisance law;