by Kathryn Stelljes
Steven Beissinger and David Sunding teach conservation biology and environmental economics at UC Berkeley’s College of Natural Resources. Both have extensive experience with endangered species and relevant legislation. As the Endangered Species Act reached its 30th anniversary, the two reflected upon the Act, its impacts, and its future. The Act was signed into law on December 28, 1973, and is administered by the U.S. Fish and Wildlife Service. Today there are 1,263 species listed as federally endangered or threatened, including 517 animals and 746 plants. This includes 288 species that live in California.
“The Endangered Species Act is the only place in the law where we’ve given existence rights, in essence, to nonhuman species,” said conservation biologist Steven Beissinger. He added that other legislation protects specific types of species in specific habitats, such as the Marine Mammal Protection Act or the Forest Management Act, but the Endangered Species Act provides a unique nexus for all public–and to some extent private–lands regarding the taking or potential to impact a species.
Further, he noted that California is an endangered species hotspot.
“Outside of the state of Hawaii, we have the largest numbers of threatened and endangered species. At the same time, one out of every 9 people in the U.S. lives in California,” Beissinger said. “There are cataclysmic forces coming together from two different directions here.”
But evaluating the success of the Act is difficult.
“Few species come off the list or are down-listed from endangered to threatened,” said natural resource economist David Sunding. “By this one measure, the Act has not been as successful as everyone had hoped 30 years ago. On the other hand, we haven’t had as many species go over the precipice, either. There are a lot of species that are on life support, but at least they’re alive. That is an accomplishment of the Act and I think it’s something that people should be thankful for,” he said.
“But that illustrates there is a real difference between keeping a species alive and returning a species to a viable population,” Sunding continued. “Recovery is much harder to implement and it takes a lot more resources.”
Beissinger agrees.
“A key point for agencies in interpreting the Act is to ‘do no harm’. Federal agencies spend far more time trying not to harm species than they do on recovering them,” he said. “People like to evaluate the Act on what’s delisted. We could have the best act in the world but not have the tools and the funding to implement it, so species would never get delisted.”
Beissinger said he’s participated in several recovery teams but questions the value of some of their products. “A recovery plan is a nice document, and the administration loves them because it shows they’ve accomplished something. But do the recovery actions identifiied in the plan actually get done? No, not even a lot of the first priorities,” he said.
Funding is one obvious issue, but biological challenges exist as well.
“Even with a species like the California condor, which has received substantial resources, our ability to recover species is a great biological challenge because the population has been reduced to such a small number of individuals. Also, the factors that caused condors to become endangered have not been reversed,” Beissinger said. “The species we’ve been successful getting off the list have often been in situations where we’ve made a policy intervention that changed the environment across entire species ranges and across state and political boundaries, like eliminating DDT and some other pesticides.”
The difference between survival and recovery is at the heart of three decades of contention between environmental groups, land owners, and industry.
“To be successful at recovering an endangered species, you often have to change the way land is used. Some land has to be set aside entirely, some land may need improvements, economic activities on other land may need to be changed or worked around,” said Sunding. “The basic problem with the Act from a regulatory point of view is that land use planning in this country has historically been one of the things under the purview of local governments.”
“Land owners and communities have things that they want to do with their land, and putting the federal government in there with environmental oversight of proposed land use changes is pretty obviously going to lead to conflict,” Sunding said.
In addition, recovery is expensive.
“Take the case of the Coho salmon,” Sunding said. “To recover the species, we estimated a price tag of about 6 billion dollars, just in California, for one species.” This would involve dozens of counties and cities in the state and would require sweeping land use changes, including changing timber harvesting practices, acquiring water, decommissioning and paving forest roads, and cataloging the upper reaches of relevant watersheds. “In this budget environment,” Sunding said, “it’s very hard for me to imagine the state, even combined with the federal government, allocating 6 billion dollars to recover the Coho salmon. We can keep it from going extinct, but it is a public policy decision whether recovering this fish is worth that amount of money.”
At the same time, nothing in the Act’s legislation provides funding for implementation.
“The Endangered Species Act has been cited as the biggest unfunded mandate passed by Congress in the last 50 years,” said Sunding. “The Clean Water Act, in contrast, is one of the biggest public works projects this country has ever undertaken. There were literally tens of billions of dollars allocated by the federal government to help private industry and governments deal with Clean Water Act requirements. Those funds have never flowed for endangered species. The Endangered Species Act, in other words, has only sticks and no carrots.”
The funding situation is so dire that there has been a moratorium on listing new species for most of the time period since the Reagan administration.
Beissinger noted that the Fish and Wildlife Service is so backlogged that they invited him to a workshop to help them prioritize species that should be considered to begin the listing process. Approximately 117 animals and 139 plant species are candidates for listing but because they have not gone through the formal process, have no legal protection from the Act.
Beissinger says that only a few species have become extinct in the U.S. in spite of listing. “The first place they are disappearing is in Hawaii. The second place they’re going to disappear is here.”
The funding issues are compounded by another section of the Act, which requires designation of critical habitat for each species within one year of listing.
“Historically, the Fish and Wildlife Service had not designated habitat because it was thought that it didn’t provide any additional protection to the species, noted Sunding.” So far, 450 species have designated critical habitat.
There were also concerns by some, noted Beissinger, that small populations might be risked further by specifying their location.
But in many cases, environmental groups have successfully sued the service for not designating habitat, tying up the agency’s resources in litigation or habitat designation rather than in listing.
Both Beissinger and Sunding agree that the Act would benefit from reform and that it faces numerous challenges in today's political and economic environment. The authorization for spending for the Endangered Species Act–such as for the Fish and Wildlife Service to list species--expired in October 1992. Although the tenets of the law are still in force, the Act has not been reauthorized and spending must be allocated annually.
In addition to outright reform or rejection, legislative and administrative changes in other areas can weaken the Act or change how it is implemented. For example, Congress recently exempted military training exercises from requirements of the Act. The Department of Defense controls millions of acres of land that are home to hundreds of rare species.
Even more significant, in December federal regulations eased rules for compliance with the Act for actions that fall under the National Fire Plan. Normally, land management agencies must consult with the Fish and Wildlife Service before authorizing or carrying out actions that could harm listed species or critical habitats. Now, biologists within the individual land management agencies can make the initial determination of whether there is likely to be an adverse habitat.
Two areas that would help reform the legislation, said Sunding, are separating critical habitat designation from listing and providing federal funding.
“Right now, the Act requires critical habitat to be designated at basically the same time as listing, but critical habitat is really part of the recovery phase,” he said. “Moving the critical habitat designation has broad-based support. That would remove a lot of on-the-ground roadblocks and eliminate a lot of lawsuits that have held up listings. And listing is where people feel we get the most benefits,” he added.
“But the most complex challenges are between federal, state, and local governments,” Sunding said. “The federal government needs to develop more trust in state and local governments that they’ll protect species that the nation considers important.”
California has lead the way in innovative methods to address some of these issues, particularly, said Sunding, in a process known as Natural Community Conservation Planning or NCPP launched in 1991. Administered by the California Department of Fish and Game, NCPP seeks to anticipate and prevent the controversies and gridlock caused by species' listings by focusing on the long-term stability of wildlife and plant communities and including key interests in the process. The focus of the initial effort was to protect the coastal sage scrub habitat of Southern California, home to the California gnatcatcher and approximately 100 other potentially threatened or endangered species.
“In addition to the biological innovation of focusing on landscapes rather than species, the Fish and Wildlife Service has reviewed California’s process and through the NCPP delegates a lot of the authority,” said Sunding. “It didn’t come free–California has expended a lot of resources on this process–but it has streamlined the process and helps developers and local governments deal with the Endangered Species Act.”
“Mitigation banking in wetlands is another example of regulatory innovation that reduces compliance costs,” Sunding said. “If you are building a single family development on a designated wetland, you either have to protect it where it is, or you can restore wetlands elsewhere. These types of creative policy solutions have worked very well. It’s when agencies are rigid that things get much more expensive,” he said.
The biological knowledge is also evolving. In a recent paper in Bioscience, Beissinger and coauthors discuss the challenges of defining a viable population of any specific species and of developing methods of evaluating risks to those populations. Some species are key to ecosystem function, while in other cases, evaluating communities or habitats may be sufficient.
Hopeful, rather than optimistic, describes both Sunding’s and Beissinger’s thoughts about the future.
“We’ve got to get real about how much endangered species conservation is going to cost.” he said. For example, Sunding participated in a study in Southern California concluding that endangered species protection in certain areas of Orange County can raise the price of a house by more than $50,000. “That’s where you get into the billions of dollars of impacts,” Sunding said.
“Another way to deal with reform is to understand that developers want certainty. They want to know exactly what it’s going to take in time and money to complete a project. Right now it is a very uncertain process. Anything that adds transparency or streamlines the process will reduce the impact of endangered species regulation on housing,” he said.
But for recovery from a biological standpoint, more sweeping changes would be necessary.
“While the Endangered Species Act has stopped hundreds of species from going extinct, creating an act that recovers species rather than just prevents them from disappearing requires a different kind of legislation,” Beissinger said.
“From a biological perspective, such legislation would deal more directly with the threats to species viability, such as habitat destruction, invasive species and diseases, pollution, and over-harvesting. It would also take a preventative approach to conservation that would aim to conserve ecosystems and communities to avoid listing of individual species. Finally, it would have to recognize the three "r's" of conservation - redundancy, resilience, and resistance. We need to create the conditions that will preserve species and ecosystems, by both making them able to recover from drastic change (resilience) and making them less susceptible to such events (resistance). “
“Redundancy means conserving multiple populations of a species across its range. Redundancy at the ecosystem and community level means conserving
multiple species with the same functions and conserving representations of community/ecosystem types.”
“On one hand,” Beissinger said,” it is hard to be optimistic about the future for many species given the current political impasse and lack of support for conservation in the White House. On the other hand, the Bush doctrine is a religious one and it should recognize that humans have a unique role in stewardship of nature. In this way, both religious groups and environmentalists should agree that all creatures have an intrinsic right to exist and that an Endangered Species Act should be structured to achieve that goal.”
Steven Beissinger holds the A. Starker Leopold Chair in Wildlife Biology and currently chairs the Department of Environmental Science, Policy & Management. He has been involved in field recovery and management of a number of threatened birds including tropical parrots, the Florida Snail Kite, and the Marbled Murrelet. He’s developed models to estimate risks for these and other species, such as the California Condor. He has participated on several federally appointed recovery teams and has recently been elected to the board of the National Audubon Society.
David Sunding previously worked at the Clinton White House as an economic advisor. He is an expert in resource economics regarding water issues and habitat protection. He has helped the Department of the Interior design a framework for designating critical habitat and has served on recovery teams for the Coho salmon and greater sandhill crane.