How can the 40-year old Endangered Species Act be made more effective and more responsive to the scientific advancements and societal needs of the 21st century, while still maintaining the basic goals and objectives of the Act?
A diverse group of 60 Western farmers and others with water interests gathered to address this issue immediately following the 2015 Family Farm Alliance Annual Conference that took place last month in Las Vegas. Rather than heading out to tour local water-related sights, like Hoover Dam or the fountains of Bellagio, as in years past, this year, we tried something new – a “Tour of Discovery” to identify ways to more successfully implement the Act to accomplish species conservation while minimizing conflicts with people.
The Tour of Discovery, facilitated by Dr. John Ehrmann, Meridian Institute Senior Partner, brought forth four general findings:
Improved transparency in ESA decision-making and a better approach to species recovery are needed. More publically available information is needed on species that are candidates for listing PRIOR to the listing. Pre-listing activities should be encouraged to avoid listings. Listing and recovery processes that focus on single species are not successful in saving species. Future efforts should focus on maximizing intact habitats and landscapes in order to maximize diversity and employ an ecosystem-based approach that husbands multiple species.
Efforts should be placed on strengthening and prioritizing those sections of the ESA that provide for a strong implementation role for state, regional and local entities. Collaborative science and decision-making are essential--up front and early in the process. Players at the table need to have an understanding of the local history, water rights and institutional constraints before making decisions that change management of resources. Agencies are often understaffed, and devote too many resources to litigation-driven listing, critical habitat designation, and other administrative-related matters. In some cases, the agencies are not able to perform their scientific duties. This leads them to shift those duties to local officials and interests. For larger, well-funded local lead agencies, this can work. For smaller entities, this can further strain limited resources.
Decision-makers need to recognize and be transparent about the uncertainty involved with the science surrounding many species and associated decisions. Very few people understand the level of uncertainty in the science. Agency staffers charged with implementation of the ESA sometimes have a false sense of confidence regarding the certainty of their science and therefore the efficacy of the resulting decisions -- yet the law and the courts often defer to their science and expertise, not understanding the uncertainties involved.
“We are living in a ‘D-minus’ world,” one water user commented, where the science employed may be barely passable, but still carries the day in the courts.
There are significant concerns with third party litigation, which can be very expensive and lead to uncertain and unproductive results. Today’s system presents the perfect mechanical process that encourages procedural lawsuits generated by organizations (the “environmental litigation industry”) which are concerned about the way the Act is being implemented. These lawsuits contribute to frustration by those impacted because they are seen as more focused on slowing down decisions than on saving species. Unfortunately, in some cases there is almost no recourse for those individuals or communities that are impacted by ESA-driven judicial decisions. The existing dispute resolution process needs to be refined and improved. Many of the ideas generated in this session would not require legislative changes to modernize implementation of the ESA, although some would require such changes. A basic legislative package might include better approaches to avoid bureaucratic entanglements through improved collaboration and upfront development of science; streamlined use of Habitat Conservation Plans; and the opportunities for litigation to provide agencies with more flexibility on listing and critical habitat deadlines.
A lack of consistency is seen across regions of the country regarding how the ESA is implemented. Lessons should be learned from areas where successful implementation of the ESA has occurred and used to guide implementation in other areas.
The problem solvers who gathered in the “Tour of Discovery” agreed that making progress starts with sitting down to talk and listen, rolling up your sleeves and getting involved.
Patrick (Pat) O’Toole is the Owner of Ladder Livestock, Family Farm Alliance President and AGree Advisory Committee member. Dan Keppen is the Executive Director of the Family Farm Alliance. In Securing the Future of Western Agriculture: A Perspective of Western Producers, a Point of View paper released last year by AGree, the Family Farm Alliance provides further insight into the ESA and other unique challenges facing producers in the Western U.S. The ESA is also a key topic discussed in the Alliance’s January 2015 report, A Road Map Towards Securing the Future of Western Agriculture.