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ESA's 40th Birthday Should be a
Time for Reflection - and Reform

by James S. Burling
Visalia Times-Delta, April 10, 2013

This year marks the 40th birthday of the federal Endangered Species Act, but it's less a time for celebration than re-examination.

In fact, one of the big problems with this law -- both in its structure and in the way it is enforced -- is that its accomplishments are hard to identify.

Enacted in 1973 under President Richard Nixon, the ESA authorizes federal officials to identify "endangered" and "threatened" species, and foster recovery through regulation. In one respect -- the economic impact -- the results are easily seen. Indeed, they can be calculated with sometimes painful specificity.

Recently, for example, farmers in the San Joaquin Valley have had to idle tens of thousands of acres because irrigation was cut back to help the 3-inch delta smelt.

In the Pacific Northwest, the timber industry has been decimated by the ESA listing of the spotted owl.

And in an iconic example stretching back to the early days of the law, completion of Tellico Dam in Tennessee was blocked for years. The Supreme Court held that the tiny snail darter's interests must come first, because the ESA takes precedence, "whatever the cost."

But if the law's price in lost projects, property rights and productivity is real, its success in its intended purpose -- saving species -- is too often a matter of guesswork and inference.

We know that approximately 2,000 animals, fish, birds and plants have been placed on ESA lists over the years. But only a couple of dozen have been removed. And whether the ESA can be credited for those recoveries can be a cloudy question, partly because of the notoriously elastic criteria for "endangered" and "threatened."

Do we actually have a clue what the real state of most threatened and endangered species is? Twice-a-decade assessments of listed species are supposed to take place, but regulators have treated this as an optional duty, leaving hundreds of species unreviewed -- and their status uncertain -- for years on end.

If we're serious about species protection -- and doing it without undermining the environment for jobs and community well-being -- it's not hard to find aspects of the law that need to be made more sensible, credible and fair. A few examples: Regulations should reflect sound science. The ESA currently doesn't require peer-reviewed science to justify listing a species or labeling property as "critical habitat." The "best available" evidence is enough to suffice -- a term that is read to mean, essentially, any evidence at all.

Listings should be based on biology, not zip codes. The ESA currently applies not just to species as a whole, but to any "distinct population segment" of a species. Regulators exploit this term's vagueness to label thriving species as "endangered." They'll focus on the species' numbers in a single, "distinct" region -- while ignoring the larger population. For example, a bird called the gnatcatcher in Orange County is on the ESA list -- with costly restrictions on land use and housing creation -- even though the species thrives in abundance in Mexico.

Property owners should be treated as partners, not pariahs. Under the current, ambiguous definition of "harm" to a listed species, a property owner can be subject to civil or criminal sanctions even for actions that have only an indirect effect on protected plants or wildlife. This creates a framework of conflict, rather than cooperation, between regulators and landowners.

It's past time to revisit the terms of the ESA and introduce real accountability and balance, so we can be confident that resources are being used effectively, species are actually being protected -- and the economy is not being unnecessarily endangered.

James S. Burling is Director of Litigation with Pacific Legal Foundation, a nonprofit watchdog organization.
ESA's 40th Birthday Should be a Time for Reflection - and Reform
Visalia Times-Delta, April 10, 2013

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