Governors Call for Endangered Species Act Reform

Published May 1, 2004

On the 30-year anniversary of the federal Endangered Species Act (ESA), the nation’s governors came together in a bipartisan effort to urge more state participation in federal endangered species programs.

Gathering at the National Governors Association’s (NGA) Winter Meeting on February 22, the nation’s governors issued a joint statement expressing concern over several facets and implementation strategies of the ESA, and encouraging more grassroots participation to make the act more effective and citizen-friendly. Colorado Governor Bill Owens, chairperson of the NGA’s endangered species committee, spearheaded the discussion and personally proposed many of the statement’s provisions.

The governors noted nearly 1,300 species of fish, wildlife, and plants have been listed as threatened or endangered since inception of the ESA in 1974–but only nine species have recovered sufficiently to be removed from the list. The governors made the following observations regarding the low recovery rate:

ESA is “crisis-driven.” The act needs a system of incentives to encourage state and local governments to develop comprehensive land-use and development plans that balance habitat preservation and environmental concerns with necessary development and economic growth. ESA should encourage private landowners to engage in habitat conservation activities. It must identify and prevent problems before they become critical and more difficult to manage.

Funding for ESA should be enhanced to address the growing list of threatened and endangered species.

ESA needs a clear methodology for delisting recovered species. Even when actual recovery has occurred, species frequently are not delisted. This failure to acknowledge success aggravates public frustrations generated by the cost and inflexible processes of ESA.

ESA would benefit from providing more meaningful opportunities for states to comment, participate, or take the lead before the federal government makes any number of decisions–ranging from listing through delisting–under ESA. Such consultation is largely optional under the current scheme and has been provided erratically.

Together, all of these factors would help rebuild public support and enthusiasm for the maintenance of biological diversity and the protection of species and habitats. Public support is essential to successful accomplishment of the goals of the act as established by Congress.

In an issue brief titled “Tapping State Leadership to Manage Endangered Species,” the governors called for reauthorization and amendment of the ESA based on three goals: to increase the role of states, to streamline the act, and to increase certainty and technical assistance for landowners and water users. Those goals, stated the governors, should be achieved while maintaining the act’s integrity and original intent to conserve listed species. The governors suggested several specific steps to implement those goals:

The ESA “should continue to give priority to the conservation of the species and habitats that, if protected, are most likely to reduce the need to list other species dependent on the same ecosystem.”

Species protection should include incentives such as authorization for short-form, cost-effective habitat conservation plans under Section10; “no surprise” policies; safe-harbor policies; small landowner and small impact exemptions; and other initiatives that provide certainty and encourage voluntary efforts by landowners.

The ESA program is best served by an increased state role in species management. “The act should affirm and be carried out in a manner that recognizes the broad trustee and police powers that states possess over fish and wildlife within their borders, including those found on federal lands, and the concurrent jurisdiction for listed species that the states and the U.S. Secretary of Interior share. The act can be effectively implemented only through a full partnership between the states and the federal government. A federal-state collaborative rulemaking process should be established to determine the standards and guidelines for state participation in or assumption of authority for decisions under the act, while recognizing that the secretary retains final decisionmaking authority.”

To increase cooperation the law “must enable stakeholders to participate directly in the important decisions of ESA management. Currently, public comments are only required to be solicited for the development of recovery plans. During both the listing process and the drafting of recovery plans, public hearings and the solicitation of comments should be required and significant comments should be addressed.”

Current law allows judicial review only for the denial of a listing petition, not for the acceptance. To ensure fair and equal access to the legal system, judicial review must be granted for either the denial or the acceptance of a petition.

The public has a right to know whether it will be affected by the implementation of ESA. “For this reason, positive and negative economic impacts must be assessed and considered in order to minimize adverse impacts during the preparation of recovery plans.”

Congressional intent to distinguish between endangered species and threatened species has been almost entirely eroded. Congress must reassert the distinction as originally intended. When a species is classified as threatened, regulatory restrictions appropriate to endangered species must give way to greater deference to states, greater program flexibility, and a broader range of permissible actions in developing a creative conservation program.

Although fully half of endangered and threatened species are found on nonfederal land, “there are few incentives for private landowners and state and local governments to undertake conservation measures before a crisis exists. The reauthorized act must provide incentives for state and local governments, private landowners, and private organizations to assist in species habitat and species conservation and with recovery efforts and habitat preservation. The governors also endorse efforts to expand nonregulatory, incentive-based, and commercial conservation efforts.”

The governors should respect citizens’ private property rights in the implementation of the Endangered Species Act.

Henry Miller, a senior fellow at the Hoover Institution, said ESA changes are necessary to preserve the intent of the act and stop its manipulation by activist groups with ulterior motives. Said Miller, “Since the Endangered Species Act was passed in 1973, most Americans have come to identify themselves as environmentalists.

“Unfortunately,” he continued, “over the years a small faction of the movement has drifted farther and farther away from the original goals of environmentalism. These pseudo-environmentalists now pursue an agenda that has less to do with conserving resources, reducing pollution, and protecting wildlife than with attacking business and opposing certain products and technologies.”

“What the Endangered Species Act (ESA) does is transfer ownership or control of private property over to the government,” said columnist Alan Caruba. Caruba cites research showing that “in 25 years, ESA has ‘saved’ few, if any, creatures at all, but has nevertheless grandly succeeded in placing under temporary or quasi-permanent government control some 25 million acres. This is the land-area equivalent of Massachusetts, Vermont, New Hampshire, and Connecticut combined.”

Added Caruba, “Millions of dollars that could have otherwise improved the lives of Americans have been diverted to the bizarre notion that species can be ‘saved’ by government intervention. Billions in tax revenues have been lost because development of every description was stopped because of the ESA.”

James M. Taylor is managing editor of Environment & Climate News. His email address is [email protected].

For more information …

“Tapping State Leadership to Manage Endangered Species,” an Issue Brief released in February 2004 by the National Governors Association’s Center for Best Practices, is available through PolicyBot™. Point your Web browser to, click on the PolicyBot™ button, and search for document #14823.