Reform, Don't Repeal, the Endangered Species Act

As the new administration looks at regulatory reform, many biologists within the United States Fish and Wildlife Service (USFWS) fear the Endangered Species Act (ESA) will receive a major overhaul. Complaints of unreasonable, overzealous and unethical conduct by the USFWS may no longer fall on deaf ears inside the Beltway. But when considering reforms, it’s worth asking whether the problems with the ESA are inherent to the law or are caused by the manner in which the law has been administered. 

Over my 25-year career with the USFWS, I found that over 75 percent of the cases brought to the Special Agents by USFWS biologists alleging a violation of the ESA were not violations at all. Alarmingly, many lacked a fundamental understanding of the required elements for a violation of the ESA, demonstrating a significant training problem within the USFWS Ecological Services Program. Worse still, even with proper training, the institutional culture within that division prevents the proper implementation of the law. 

The required elements of an ESA violation involving habitat modification were clearly delineated in the 1995 Supreme Court case Sweet Home Chapter of Communities for a Greater Oregon v. Babbitt. USFWS biologists have since embraced some aspects of the Court’s decision while ignoring other aspects that conflict with how they wanted to apply the ESA.

It sometimes seems as though USFWS biologists want the ESA to protect every bush, tree, gallon of water, and acre of grass that might be used someday by an endangered species. For better or worse, this is not what the law prohibits. Still, its proponents and the public are given erroneous information about its requirements almost daily. 

Unfortunately, these mischaracterizations have convinced the public that the ESA is a draconian, project-killing law that should be amended or eliminated entirely. Ironically, while USFWS biologists now fear an overhaul of the ESA, it was their own misinterpretation of the law and misuse of government authority in implementing it that created this problem.

Some aspects of the ESA should be reformed — and through no fault of the USFWS biologists. For instance, Section 10 authorizes incidental take permits to be issued pursuant to a habitat conservation plan. This process simply takes too long and costs too much for most projects, undermining the effectiveness of this provision of the law. 

Other aspects of the ESA, however, are simply misused. Section 7, for instance, which requires consultation with the USFWS on projects that require federal authorization, has become a “license to steal.” USFWS biologists often mistake perfectly legal project impacts on listed species and their habitat for “take,” which is not legal, routinely coercing millions of dollars of unnecessary mitigation from project proponents or government agencies. Section 7 of the ESA needs to be amended immediately to eliminate such abuse.

A very recent example of USFWS overreaching is found in the rules adopted by the USFWS in 2016 to address critical habitats. Under the new rules, the USFWS can designate hundreds of thousands — or, in extreme cases, millions — of acres of land as critical habitat for a species, even if the habitat is not currently suitable for that species. Thus, for example, the USFWS recently designated 764,207 acres of critical habitat for the jaguar in southern Arizona and New Mexico, even though much of this land is not suitable jaguar habitat. Meanwhile, there are literally billions of acres of jaguar habitat in Central and South America, with an estimated population of 30,000 animals. But the USFWS chose to restrict development in the United States on the rationale that male jaguars occasionally wander into the U.S. from Mexico.

As an avid environmentalist, I continue to believe that our country’s wildlife must be protected. If properly administered, the ESA can play a vital role in protecting at-risk species while allowing responsible development to take place. New USFWS leadership, coupled with proper ESA training, can correct bad agency behavior and provide a framework in which the USFWS can partner with industry for the benefit of at-risk species. 

Gary Mowad is a former Deputy Chief with the United States Fish and Wildlife Service, Office of Law Enforcement.