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The Endangered Species Act: 50 Years Old and in Need of Reform

Later this year the Endangered Species Act (ESA) will turn 50. Created with the best of intentions, the law has become a lightning rod for litigation among landowners, environmental activists, and the federal government. While the bill has done well in avoiding extinctions, it has not been very effective in helping species recover. Since its enactment, only three percent of all species ever listed as endangered or threatened have been fully recovered. And, data shows that the U.S. Fish and Wildlife Service has fallen far behind in key objectives designed to recover currently listed species. 

>>>READ: New Report Analyzes How States Are Leading in Conservation Efforts

As a study from the Property and Environment Research Center (PERC) points out, the ESA is ripe for reform. In the study, titled A Field Guide for Wildlife Recovery, PERC outlines 10 key Endangered Species Act reforms that could make the law more effective. 

 A few of the key recommendations include: 

  1. Restore the Two-Step Process

Endangered and threatened species are two distinct populations. Unfortunately, the federal government frequently regulates their treatment identically. 

A “blanket rule” issued by the U.S. Fish and Wildlife Service shortly after the passage of the Endangered Species Act effectively removed the distinction, triggering stricter regulations that can eliminate many of the incentives attached to shifting a species from endangered to threatened status. These rewards are vital to motivating landowners and other stakeholders to actively work toward local endangered species recovery. Former President Trump revoked the blanket rule in 2019, but President Biden restored it in 2023. 

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PERC’s Jonathan Wood recommends that there be a clear, objective, and quantifiable standard to differentiate the regulation of endangered species from that of threatened species. Wood also argues that the spirit of the blanket rule hampers state conservation efforts and that states should be allowed to take the lead in recovering populations. 

  1. Plan for Successful Recovery

The goal of the Endangered Species Act is to recover species to a point where they no longer need federal protections. But more than 80 percent of listed species require proactive conservation work if there is hope for their populations to stabilize and be delisted—the listing alone does little. So why is it that one-third of the species listed under the act have no proactive recovery plan? 

Even if a species does have a proactive recovery plan, the plan is often woefully out of date and lagging behind schedule. U.S. Fish and Wildlife estimates that 85 percent of listed species have completed or partially completed less than a quarter of their recovery objectives. Recovery plans are also frequently implemented only after punitive regulations have been enacted, a backward approach jokingly referred to as the “ready, fire, aim” process. 

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“As long as recovering listed species is treated as a secondary priority, their recovery rate is unlikely to increase,” writes PERC’s Shawn Regan. “To achieve meaningful progress, policymakers should implement reforms that place recovery planning at the forefront while fostering collaborative partnerships with states and other partners.”

  1. Make Critical Habitat an Asset

Habitat loss is the leading cause of species extinction. The Endangered Species Act rightly focused on this cause, aiming “to provide a means whereby the ecosystems upon which endangered species and threatened species depend may be conserved.” Unfortunately, the way the federal government goes about protecting critical habitat often makes the situation worse. 

When private land is designated as critical habitat, that designation can often disincentivize conservation efforts. Critical habitat regulations are a huge liability, coming with tight regulations that can be extremely burdensome to landowners and harmful to local property values. The threat of such a designation may motivate property owners to preemptively destroy habitats that could support listed species, as a study of pygmy owl habitat in Arizona indicated. 

PERC’s Tate Watkins argues that a market approach where landowners are compensated for conserving habitat is a better path forward. Landowners could be compensated for achieving habitat restoration or species recovery benchmarks. A different option is to build such compensation plans into already existing environmental mitigation programs, like those designed to help private landowners reduce water pollution. 

Another necessary step is to update critical habitat definitions and regulations. Congress or the U.S. Fish and Wildlife Service must adopt a final definition that recognizes “habitat” as being limited to “areas that currently have all of the features necessary to support a species.” The lack of a consistent definition currently allows for this designation to be applied too broadly. 

  1. Embrace Incentives Over Penalties

Private landowners could be an incredible asset to species recovery. However, when it comes to motivating their participation, the Endangered Species Act often penalizes these stakeholders by attaching financial and regulatory burdens to areas where species are threatened.

PERC’s Regan suggests removing or reducing “take” prohibitions, critical habitat designations, and other regulations that penalize property owners. “By reducing punitive regulations, policymakers could encourage conservation organizations and others interested in species recovery to develop voluntary, incentive-based efforts to recover listed species, as described above. Agencies could also provide cost-share support for private-led recovery projects, similar to existing federal conservation programs,” Regan argues.

If these sorts of private efforts don’t emerge, another option is direct payments to property owners, typically through a form of conservation contracting. These contracts would be between the government and the landowner, and the owner would agree to recover endangered species on their property in exchange for payments to be released upon meeting certain benchmarks. 

The U.S. Fish and Wildlife Service said it well: “The law’s ultimate goal is to ‘recover’ species so they no longer need protection under the Endangered Species Act.” Proper Endangered Species Act reform will help make this goal an actual reality. The regulatory status quo is not truly recovering endangered species—it’s time to try something new. 

You can find the full report here.

Kelvey Vander Hart is a native Iowan, a member of the American Conservation Coalition, and a communications specialist at Reason Foundation. 

The views and opinions expressed are those of the author’s and do not necessarily reflect the official policy or position of C3.

Copyright © 2020 Conservative Coalition for Climate Solutions

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