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This special issue of PERC Reports explores the past, present, and future of the Endangered Species Act, with an eye toward getting the incentives right to recover species. Jonathan Adler (p. 6) explains how the act often fails to achieve its recovery goals, while Jonathan Wood (p. 12) draws lessons from the law’s past that demonstrate how to get recovery right in the future. Using newly compiled data, Katherine Wright (p. 26) provides an up-to-date examination of species recovery progress over the past 50 years.

This issue also offers specific ideas for how to improve the act’s recovery track record, drawing from a new policy report published by PERC (see summary on p. 18). Building on those ideas, Brian Yablonski offers a bold vision for how to recover grizzly bears (p. 30), and Tate Watkins examines how to encourage habitat restoration to recover species like the black pinesnake (p. 38). He concludes the issue by exploring some of the surprising ways that technological innovation can help save rare species (p. 44)

In addition to addressing whether the ESA has been successful at conserving species, stakeholders have raised other issues related to the act. These issues include, among others, the ESA’s effects on private property and landowners; the ability to conserve species before it is necessary to list them; the cost of listing species and the resulting economic impacts; the availability of funding for the ESA; incentives for conservation under the ESA; the states’ role in conserving listed species; delays in listing, delisting, and reclassifying species under the ESA; and litigation related to the ESA. Given the perennial nature of these issues and the ESA’s controversial nature, these matters are routinely of concern to Members of Congress.

National Environmental Policy Act Review Process

The National Environmental Policy Act (NEPA) process begins when a federal agency develops a proposal to take a major federal action. These actions are defined at 40 CFR 1508.1. The environmental review under NEPA can involve three different levels of analysis:

1. Categorical Exclusion determination (CATEX)
2. Environmental Assessment/Finding of No Significant Impact (EA/FONSI)
3. Environmental Impact Statement (EIS)

Environmental Impact Statements (EIS)

Federal agencies prepare an Environmental Impact Statement (EIS) if a proposed major federal action is determined to significantly affect the quality of the human environment. The regulatory requirements for an EIS are more detailed and rigorous than the requirements for an EA.

Title I of NEPA contains a Declaration of National Environmental Policy. This policy requires the federal government to use all practicable means to create and maintain conditions under which man and nature can exist in productive harmony.

Section 102 in Title I of the Act requires federal agencies to incorporate environmental considerations in their planning and decision-making through a systematic interdisciplinary approach. Specifically, all federal agencies are to prepare detailed statements assessing the environmental impact of and alternatives to major federal actions significantly affecting the environment. These statements are commonly referred to as Environmental Impact Statements (EIS) and Environmental Assessments (EA).

Title II of NEPA established the President's Council on Environmental Quality (CEQ) to oversee NEPA implementation. The duties of CEQ include:

• Ensuring that federal agencies meet their obligations under NEPA
• Overseeing federal agency implementation of the environmental impact assessment process
• Issuing regulations and other guidance to federal agencies regarding NEPA compliance.

Learn more about the National Environmental Policy Act.

Two legal presentations are included in this PowerPoint briefing.

Defines a "Significant Event" requiring and EIS as:

Determined case-by-case

– Context: Affected environment where proposal is planned

– Intensity: Severity of impacts, considering e.g.:

• Beneficial and adverse environmental impacts

• Public health

• Unique characteristics of affected area

• Effects on cultural resources

• Endangered species

• Violations of federal, state, or local environmental laws

• Controversy (but not simply public opposition)

• List not exhaustive; no single factor dispositive 

Why is the environmental baseline so important in an Endangered Species Act (ESA) section 7 consultation?

Distinguishing between the environmental baseline and the proposed action when considering the ongoing effects of an existing project is critical to (1) the results of the Services’ jeopardy analysis, and (2) what the Services can require in response to any perceived impacts. Including ongoing effects as a project impact has the effect of increasing the total perceived impacts of the proposed action, which could make it easier for the Services to conclude that the action is likely to “appreciably reduce” the species’ likelihood of survival (a.k.a. jeopardy).

In addition, by constructing the proposed action to include the ongoing effects of an existing project, the Services increase the range of measures that they can require a licensee to take in response to perceived impacts. For example, in a “no jeopardy” biological opinion, the terms and conditions of the applicable Service’s incidental take statement could require the licensee to implement minimization measures designed to address the effects of existing facilities. Even more importantly, in a “jeopardy” biological opinion, the Service could propose a “reasonable and prudent alternative” to address the perceived jeopardizing effects of facilities.

Neither of these measures are appropriate if the Services are properly considering existing facilities and their ongoing effects as part of the environmental baseline rather than the proposed action.

Users of public resources are not parties to programmatic section 7 consultations dealing with an agency's overall management operations, including land management planning and other program level consultations. However, users who are party to a discrete action (i.e., where they are already the successful bidder on a timber sale that becomes the subject of later consultation or reinitiation when a new species is listed or new critical habitat is designated) may participate as applicants in the section 7 process. 

Applicant's role in the consultation process If the Federal agency identifies an applicant, the Services and the action agency meet their obligations to that party as outlined in 50 CFR§402 through the following:

o the action agency provides the applicant an opportunity to submit information for consideration during the consultation;

o the applicant must be informed by the action agency of the estimated length of any extension of the 180-day timeframe for preparing a biological assessment, along with a written statement of the reasons for the extension;

o the timeframes for concluding formal consultation cannot be extended beyond 60 days without the applicant's concurrence;

o the applicant is entitled to review draft biological opinions obtained through the action agency, and to provide comments through the action agency;

o the Services will discuss the basis of their biological determination with the applicant and seek the applicant's expertise in identifying reasonable and prudent alternatives to the action if likely jeopardy or adverse modification of critical habitat is determined; and

o the Services provide the applicant with a copy of the final biological opinion. The Services do not work directly with or take comments directly from the applicant without the knowledge or consent of the action agency [50 CFR 402.14(g)(5)].

What are HCPs?

HCPs are planning documents required as part of an application for an incidental take permit. They describe the anticipated effects of the proposed taking; how those impacts will be minimized, or mitigated; and how the HCP is to be funded. HCPs can apply to both listed and nonlisted species, including those that are candidates or have been proposed for listing. Conserving species before they are in danger of extinction or are likely to become so can also provide early benefts and prevent the need for listing.

The permit allows the permit-holder to legally proceed with an activity that would otherwise result in the unlawful take of a listed species. The permit holder also has assurances from the FWS through the “No Surprises” regulation.

Effective conservation without conflict involves several important steps. These include:

Step 1: Embrace the Local Context

Step 2: Empower Meaningful Engagement and Participation

Step 3: Clarity of Purpose: Unite Around Shared Goals

Step 4: Implement Adaptive Management Strategies

Step 5: Foster Sustainable Livelihoods and Conservation

Step 6: Build Capacity and Empower Landowners and Local Communities

Step 7: Establish Collaborative Governance Mechanisms

Step 8: Cultivate Continuous Communication and Learning

Conclusion: The Conservation without Conflict model is not only possible but necessary for the long-term sustainability of our planet’s biodiversity and the well-being of local communities. By embracing the local context, empowering engagement, uniting around shared goals, implementing adaptive management strategies, fostering sustainable livelihoods, building capacity, establishing collaborative governance, cultivating continuous communication, and building trust, we can achieve collaborative conservation that benefits us all and ensures working lands can continue to work. Let us join forces, build trust to overcome conflicts, and work together to create a sustainable and thriving future for our nation and its remarkable species.

Meandering north through the heart of Oregon, the Deschutes River connects our human communities and the wildlife who share our high desert home.

With our economies and our ecosystems tied to the flow of the river, sustainable water management is a balancing act that has taken years to achieve in the Deschutes River Basin. And in the face of a changing climate, having a plan in place to navigate and adapt to a world of scarcity and extremes is more important than ever for all who live in Central Oregon. The Deschutes Basin Habitat Conservation Plan (HCP) is the result of that effort. 

The following are the categories of potential applicants that can apply for an exemption for a federal action despite its effects on listed species or their critical habitat:

 the federal action agency interested in proceeding with the action,

 an applicant for a federal license or permit whose application was denied primarily because of the prohibitions of ESA requiring that federal agency actions avoid jeopardy to threatened or endangered species or harm to their critical habitats, or

 the governor of the state where the action was to have occurred. An exemption application is considered by a specially convened committee which may exempt the federal agency’s action from the prohibitions of the ESA.

The exemption process allows major economic factors to be judged to outweigh the ESA’s mandate to recover a species when the federal action is found to be in the public interest and is nationally or regionally significant