| (Reprinted from the Endangered Species
Bulletin* Vol. XX No. 3)
Making the ESA Work Better Ten principles* to improve implementation of the Endangered Species Act (ESA) were announced March 6 by Interior Secretary Bruce Babbitt and Dr. D. James Baker, Under Secretary of Commerce. The changes are designed to: improve the species recovery rate while minimizing impacts of the ESA on landowners, grant more authority to State and local governments, require greater scientific scrutiny of endangered species decisions, and make implementation of the ESA more efficient. Some of the principles can be carried out administratively or through the rulemaking process. Others, however, would require amendments to the ESA. "As changes to the law come under consideration," Babbitt said, "a key need is to balance species protection with the rights of private property owners. These principles build on our initiatives to reduce the conservation burden on small landowners and show the Administration is serious in its efforts to balance the rights of individual landowners with the community's right to a healthy environment." Easing Impacts on Landowners The Fish and Wildlife Service (FWS) and National Marine Fisheries Service (NMFS) will propose regulations designed to ease the impacts of the ESA on private landowners. For species listed as threatened, the agencies would allow land uses that result in incidental take, provided that such activities have no lasting effect on the survival and recovery of the species. "Small landowners should be exempted from endangered species conservation burdens on the basis of fairness and biology," Babbitt said. In particular, the following would not be regulated under this proposal:
The ESA allows flexibility in the management of species listed as threatened. Congressional authority would be needed, however, to grant such exemptions involving endangered species. Minimizing Social and Economic Effects Both the FWS and NMFS will take additional steps to minimize any negative social or economic impacts resulting from ESA activities. For example, once the agencies scientifically identify the recovery needs of a listed species, they will involve affected individuals and groups in developing and implementing recovery actions. Diverse areas of expertise will be represented on recovery teams. Creating Incentives for Conservation Landowners often are interested in managing their lands in ways that are compatible with, or actually improve, habitat for wildlife, including endangered and threatened species. However, some are reluctant to do so because of concern that subsequent activities that may damage the improved habitat could result in a violation of the ESA. To create incentives for voluntary habitat improvement on private lands, one of the new proposed policies would insulate landowners from ESA restrictions if they enhance habitat for listed species on their property and later need to return the land to its previous condition. The proposed policy would apply in cases where it is possible to measure a conservation benefit to a species from habitat improvements. Providing Prompt Information Earlier notifications Due to concern that delays and uncertainty in ESA decisions frustrate development and land use, the FWS and NMFS will provide more information to landowners at the time a species is listed. Both agencies will identify, to the extent known, specific activities that are exempt from, or unaffected by, provisions of the ESA. Habitat Conservation Planning Under section 10 of the ESA, the FWS and NMFS can grant permits for the incidental take of listed species during otherwise legal activities, provided the effects of such take are minimized and mitigated as part of an approved habitat conservation plan. Both agencies recently published a draft conservation planning handbook for public review and comment. It is intended to provide more consistent answers to applicants for incidental take permits. "No surprises" Under the "no surprises" policy, landowners who develop an approved habitat conservation plan for any listed species will not be subject to any later demands for a larger commitment, even if the needs of the species covered by the plan increase over time. No additional mitigation requirements will be required beyond those specified in the plan. Sound and Objective Science By law, ESA decisions must be based on the best scientific information available. Because of concern in some quarters about the quality of this information, the FWS and NMFS require independent scientific peer review of all listing proposals and draft recovery plans. These reviews will be accomplished within the timeframes specified in the law for ESA implementation. The FWS and NMFS also have proposed tougher, uniform standards for evaluation of listing petitions. Further, petitioners would be required to furnish more proof that the petitioned action is warranted. Preventing the Need to List Because prevention is preferable to a cure, the FWS and NMFS are working with other agencies and interests to conserve species before need ESA protection: Federal/State conservation The Forest Service, Bureau of Land Management, National Park Service, FWS, and NMFS have signed an agreement with the International Association of Fish and Wildlife Agencies to cooperate in efforts to reduce, mitigate, and potentially eliminate the need to list species under the ESA. Pre-listing conservation The FWS and NMFS have published draft guidance that encourages and sets standards for the development of pre-listing conservation agreements with other parties. Again, the goal is to assess the status of listing candidates and take action to prevent the need for ESA protection. Increasing Recovery and Delisting The overall goal of the endangered species program is to recover listed species to the point where they no longer need ESA protection. To help speed the process, the FWS and NMFS have adopted a policy that requires completion of a draft recovery plan within 18 months of listing and a final plan within 12 months of the draft plan. Additionally, 14 Federal agencies recently entered into an unprecedented agreement to improve recovery implementation. Each agency agreed to identify opportunities for recovery and to use existing authorities toward that end. To make recovery plans more than discretionary blueprints, Babbitt and Baker called for more certainty in recovery implementation. They asked Congress to require appropriate Federal and State agencies to develop one or more specific agreements to implement a recovery plan. Upon approval of an implementation agreement by each of the involved agencies, it then would be legally binding. Both recovery plans and implementation agreements would be reviewed and updated on a regular basis. Another proposal requiring Congressional action is to modify the timing of critical habitat designations. Areas to be proposed as critical habitat would be identified through the recovery planning process. Critical habitat would be designated at the time the recovery plan is approved rather than when the species is listed. Strengthening Partnerships Recovery Building new partnerships and strengthening existing ones with State, Tribal, and local governments is essential to achieving species recovery in a fair and effective way. The FWS and NMFS will encourage States to take a greater role in the development and implementation of recovery plans. Further, Congress will be asked to give States the opportunity to assume lead responsibility for developing recovery plans and any associated implementation agreements. For cases in which a species' range extends over several States, a mechanism would be needed to ensure that each State may be involved. Under this proposal, the FWS and NMFS would approve State-developed recovery plans unless the Secretary determines that a plan does not meet ESA standards. Listing petitions Another proposal needing Congressional approval would give States greater influence over the evaluation of listing petitions. Such petitions would be sent to each affected State wildlife management agency. If a State recommends against proposing a species for listing or delisting, the FWS and NMFS would be required to accept that recommendation. The only exception would be for a case in which the Secretary finds, after conducting independent scientific peer review, that the species does need ESA protection. Habitat conservation Currently, habitat conservation plans and incidental take permits are approved by the FWS or NMFS. The Secretaries have requested Congressional authority for States to assume responsibility for issuing such permits. This would apply to areas within a state that have been identified for such assumption in an approved recovery plan or areas within an approved habitat-based program. Focusing on Species Groups To make more effective use of limited public and private resources, the FWS and NMFS have been shifting from an emphasis on individual species to a focus on groups of species and their habitats. This trend will continue as both agencies give even greater priority to multi-species listings, recovery actions, and habitat conservation plans whenever possible. (For more information on taking an ecosystem approach to wildlife conservation, see Endangered Species Bulletin Vol. XX, No. 1.) Ten Principles to improve ESA implementation
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