It’s Time to Reform the Endangered Species Act

Sept. 30, 2003
Washington, D.C. – Though well intentioned, the Endangered Species Act does little to promote the recovery of endangered species and puts unfair financial burdens on landowners.Dissatisfaction has been growing among real estate groups and others in Washington over the way the Endangered Species Act (ESA) is being implemented. Often, groups shamelessly exploit the ESA to further their conservation agenda and are using the courts and litigation to implement critical habitat designations decisions without the use of sound policy and science.In 1973, in an effort to deal with declining numbers of animal species, Congress passed the Endangered Species Act. Two federal departments, Commerce and Interior, were charged with designating “endangered and threatened” species and establishing recovery strategies. Unfortunately, the hopes of Congress have turned into what some are now calling the “Frankenstein Monster” of land use. Affected citizens often note that critical habitat is designated on huge tracts of land without the science or even common sense to justify such a decision. Many feel they are left out of the process and are frustrated that the ESA has undermined the rights of private property owners, as they often lose the ability to utilize their own land.In response to irresponsible decision-making related to the implementation of this legislation, Congressman Dennis Cardoza (D-CA) introduced the Critical Habitat Reform Act (H.R. 2933) as a realistic approach to a complex problem. BOMA International recently joined with eight other real estate organizations to support this important legislation.Cardoza’s bill, introduced in July with 17 bipartisan co-sponsors, would change the way critical habitat designations are made. “We can’t keep waiting for Fish and Wildlife officials to make their decisions and then attempt to correct them afterwards,” Rep. Cardoza said. “It’s time we solve this problem permanently and bring some sense to a very important process by reforming it at its core.”Cardoza’s bill would make a number of important changes. First, it would move the critical habitat designation from the time of listing to be concurrent with the approval of a recovery plan. Currently, designations are made at the time of the listing of a species – often years before a recovery plan is developed. The fish and wildlife service has suggested that critical habitat does very little to encourage the recovery of a species. Another key factor in Cardoza’s legislation ensures that property that is 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 that afforded by a critical habitat designation. Additionally, the bill would require that economic impact be taken into consideration. For years, land owners have criticized the fact that their economic burden under the ESA has not been a part of the equation when designating critical habitat. Cardoza recognized this as an unfair burden and included language to require an economic impact analysis to study direct, indirect, and cumulative economic impacts of the designation, including the impact of lost revenues to landowners and to federal, state, and local governments. Answering the objections of constituents that they do not readily have access to information notifying them if their land is affected by the ESA, Cardoza wants to require that affected counties and municipalities receive additional notifications of the critical habitat designation proposal. Because it can be very expensive to employ a firm to get this information, further public access requirements, including GIS maps on the service’s website when providing public notice of the proposed designation, are called for. Finally, the bill would strengthen the requirements for designating critical habitat by changing the phrase “essential to the conservation of the species” to “essential to the conservation of the species as areas which are absolutely necessary and indispensable to conservation.” In the past, the word “essential” has been broadly interpreted. This new wording will make it more difficult to designate large areas of land as habitat. It has become clear that improving the implemention of the ESA is necessary. In testimony to Congress, Assistant Secretary of the Interior Judge Craig Manson said, “The [Fish and Wildlife] Service’s present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs.” For more information, please visit BOMA International’s website at ( or call (202) 408-2662.

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