Is It Time to Revise the Endangered Species Act?

By Hazlehurst, John

The Endangered Species Act of 1973 was intended to provide a means for the conservation of ecosystems upon which endangered and threatened species depend, to provide conservation programs for those species, and to “achieve the purposes of the treaties and conventions” to which the United States is a party for conserving species facing extinction.

But while Arizona lawyer Lisa McKnight’s description might seem straightforward enough, during the last 35 years, the ESA has metamorphosed into something entirely different.

Once a species is listed as endangered or threatened, Section 9 of the act charges the secretary of the interior with preventing the “take” of individual members of the species, and with preventing “harm” to species. Violations can result in civil and criminal penalties.

Take means to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture or collect or to attempt to engage in such conduct.” Harm includes significant modification or degradation of the species’ habitat.

The broad, sweeping language of the act, as well as its explicit prohibition of virtually any action that might affect the well- being of a listed species, has affected a broad range of governmental and private actions.

Critics say the act is arcane, badly drafted and often self- defeating.

But supporters point to the act’s successes, such as the preservation of America’s national symbol, the bald eagle. Such successes, they say, far outweigh its occasional ill effects.

In Colorado, the 1998 listing of the Preble’s meadow jumping mouse is usually cited as an example of the act’s inherent absurdities. Because the mouse only lives in riparian environments along the Front Range, its listing triggered manifold land use restrictions upon tens of thousands of acres bordering streams such as Monument Creek.

Current guidelines from the U.S. Fish and Wildlife Service state that any projects occurring within 300 feet of the 100-year floodplain require notification of the service to ensure compliance with the ESA. For such projects to proceed, both El Paso County and the city require that they be approved by the USFWS. The approval process can be tedious, complex and expensive.

And the county isn’t of much help to would-be developers.

Official policy states that “It is not El Paso County’s intent to administer or enforce the Endangered Species Act. Compliance with the Act is the responsibility of the individual.”

Team approach

Area governments are collaborating on a Regional Habitat Conservation Plan to address conservation of the mouse, while allowing for continued development. Once the plan is in place, individuals will be able to work within a county-level process to address ESA compliance.

But, according to Kathy Andrews at the county’s Environmental Services Department, the plan won’t be ready until “sometime in 2009.”

El Paso County Commissioner Jim Bensberg said that the ESA “is not as effective in protecting species as it might be. Even environmentalists will privately agree that it isn’t — but they’ll fight any modification for fear that the act might be scrapped.”

A better mousetrap?

To many local residents, restricting development to protect an obscure species of mouse seems irrational and incomprehensible.

As an 8-year-old from Colorado Springs wrote in one of many negative comments the USFWS received about the listing, “If we love this rodent so much, why were mousetraps invented?”

Although developers have claimed that the presence of the mouse has effectively barred development of their land, causing severe economic loss, the ESA does not provide compensation for such “takings.”

Frustrated opponents of the mighty rodent have tried to use science against the mouse, claiming that it is not a distinct subspecies, but genetically identical to similar jumping mice with large, established populations in other states.

In response to these conflicting opinions, the USFWS commissioned the Oregon-based Sustainable Ecosystems Institute to resolve the dispute.

The panel responded that. “In the case of the Preble’s Meadow Jumping Mouse … the panel unanimously concludes that the weight of evidence currently clearly supports retention of the subspecies as a valid taxon.”

About the animals?

Environmentalists first proposed that the mouse be listed during 1985. Contemporary documents show that the environmental community was less concerned about protecting the mouse than in finding a way to bar development in riparian ecosystems.

As Jasper Carlton, then the director of the Biodiversity Legal Foundation told Time Magazine during 1998, just prior to the mouse’s official listing, “We’re talking about critical habitat that’s almost gone. We shouldn’t be building in these areas anyway. Protecting the mouse saves the environment for all of us.”

Subsequent to the listing, the USFWS designated 31,000 acres in Colorado and Wyoming as “critical habitat” for the mouse. Lands so designated in Colorado include 234 “linear river miles” comprising a total of 20,680 acres.

No such lands are designated in El Paso County, although developers must survey any possible habitat and protect any mouse population that might exist.

Landowners and developers reacted to the habitat designation with fury.

The Colorado Association of Homebuilders said that the “listing has cost business millions of dollars, stalled water development in the face of the state’s worst drought and threatened long-standing agricultural practices.”

Bush-whacked

Although the Bush administration is charged with enforcing the ESA, officials have made no secret of their dislike of the act. Political appointees have tried to soften the act’s effects upon development activities, with mixed results.

The mouse effectively ended the career of a top official in the Bush administration who was found to have manipulated scientific data in several cases, including that of the Preble’s mouse.

Julie MacDonald, formerly deputy assistant secretary of the interior, resigned after an internal investigation found that she had altered the content and conclusions of scientific reports.

Last week, the USFWS officially delisted the mouse — but only in Wyoming. Environmentalists decried the ruling.

“We certainly don’t think that a political border like a state boundary is a legitimate scientific method for defining the range of a species,” said Duane Short of the Biodiversity Conservation Alliance in Laramie.

Credit: John Hazlehurst

(Copyright 2008 Dolan Media Newswires)

(c) 2008 Colorado Springs Business Journal, The. Provided by ProQuest Information and Learning. All rights Reserved.