The Endangered Species Act

Julie MacDonald


August 23, 2004


Mr. Chairman, Senator Thomas, and members of the Subcommittee, I am Julie MacDonald, Deputy Assistant Secretary for Fish and Wildlife and Parks in the Department of the Interior (Department). I am pleased to appear before you today to discuss the Endangered Species Act (ESA or Act).

The Bush Administration is committed to conservation using all the means available to us. In the Department of the Interior that means more staffing and funding for national parks than ever before, it means $507 million in grants from the Fish and Wildlife Service, National Park Service, and Bureau of Land Management for partnerships between the agencies and private landowners, tribes, states, and other organizations, and it also means effective implementation of the ESA to achieve its purpose. To that end, I would like to discuss how the Administration is working to make implementation of the ESA more efficient and effective in order to achieve this goal.

Designation of Critical Habitat

While the Department has made great strides in improving the administration of the ESA, I would like to take the opportunity to discuss one area of implementation that continues to be both a challenge and a source of controversy-- the designation of critical habitat. As we have previously detailed in testimony before this Subcommittee, the U.S. Fish and Wildlife Service (the Service) has been embroiled in a relentless cycle of litigation over its implementation of the listing and critical habitat provisions of the Act. The Service now faces a Section 4 program facing serious difficulties due not to agency inertia or neglect, but to a lack of scientific or management discretion to focus available resources on the listing actions that provide the greatest benefit to those species in greatest need of conservation.

The Service has characterized the designation of critical habitat as required by the Act as the most costly and least effective class of regulatory actions undertaken by the Service. It is often of little additional value or counterproductive and can result in negative public sentiment to the species and the designation of critical habitat. This negative public sentiment is fueled by inaccuracies in the initial area designated when we must act with inadequate information to meet deadlines and also because there is often a misconception among the public that, if an area is outside of the designated critical habitat, it is of no value to the species. At the same time, the designation of critical habitat imposes burdensome requirements on federal agencies and landowners and can create significant economic and social turmoil.

As a result, for many years the Service often found designation of critical habitat to be “not prudent,” and did not designate it for most listed species; an approach which was formalized by the previous administration. In the late 1990s, some critics began challenging these “not prudent” findings in court; those successes led to a flood of additional suits which continue to this day. These lawsuits have subjected the Service to an ever-increasing series of court orders and court-approved settlement agreements, compliance with which now consumes nearly the entire listing program budget. Consequently, the Service has little ability to prioritize its activities to direct resources to listing program actions that would provide the greatest conservation benefit to those species in need of attention. The previous Administration recognized this when it said that lawsuits which force the Service to designate critical habitat necessitate the diversion of scarce Federal resources from imperiled but unlisted species which do not yet benefit from the protections of the ESA.

The accelerated schedules of court-ordered designations have left the Service with limited ability to take additional time for review of comments and information to ensure the rule has addressed all the pertinent issues before making decisions on listing and critical habitat proposals, due to the risks associated with noncompliance with judicially imposed deadlines. This in turn fosters a second round of litigation in which those who will suffer adverse impacts from these decisions challenge them. This cycle of litigation appears endless, is very expensive, and in the final analysis provides relatively little protection to listed species.

Extensive litigation has shown that the courts cannot be expected to provide either relief or an answer, because they are equally constrained by the strict language of the Act. The Department of Justice has defended these lawsuits and sought to secure relief from the courts to allow the Service to regain the ability to prioritize the listing program according to biological need. Almost universally, the courts have declined to grant that relief.

In 2001, a federal district judge, in Center for Biological Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), observed that “the Secretary is caught in a quandary” in trying to “fulfill the myriad of mandatory [ESA] duties.” The judge opined that “[m]ore lawsuits will inevitably follow” unless, among other things, the Service regains its discretion to prioritize its workload. The judge suggested that a legislative solution is necessary; otherwise “tax dollars will be spent not on protecting species, but on fighting losing battle after losing battle in court.”

Other courts have agreed with this assessment. Simply put, the listing and critical habitat program is now operated in a “first to the courthouse” mode, with each new court order or settlement taking its place at the end of an ever-lengthening line. We are no longer operating under a rational system that allows us to prioritize resources to address the most significant biological needs. I should note that it is as a direct result of this litigation that we have had to request a critical habitat listing subcap in our appropriations request the last several fiscal years in order to protect the funding for other ESA programs. At this point, compliance with existing court orders and court-approved settlement agreements will likely require funding into fiscal year 2008.

The Administration’s budget request for FY 2005 provides funding to meet resource protection goals and address the growing listing program litigation-driven workload. The requested increase includes a total of $13.7 million for critical habitat for already listed species. This is an increase of $4.8 million over the FY 2004 funding level. The increased funding will allow the Service to meet its current and anticipated court orders for the designation of critical habitat for already listed species. In this regard, I would note that as of August 2, 2004, there were 73 lawsuits pending or expressly threatened related to critical habitat or other section 4 actions. In short, litigation over critical habitat has hijacked the program.

However, additional funding to stem the tide of this “deadline” litigation is not the solution. When Congress included strict deadlines to ensure that listing measures are completed in a timely manner they could not have foreseen that litigation over deadlines would highjack the program. This highlights the need for a specific legislative solution. The Department and the Congress must work together to determine how to get the most value for species conservation out of the federal resources devoted to the endangered species listing program.

Former Secretary Bruce Babbitt wrote in a New York Times op-ed piece in April 2001 that, in its struggle to keep up with court orders, the Service has diverted its best scientists and much of its budget for the ESA away from more important tasks like evaluating candidates for listing and providing other protections for species on the brink of extinction. We also believe that available resources should be spent focusing on actions that directly benefit species such as improving the consultation process, development and implementation of recovery plans, and voluntary partnerships with states, tribes, and private landowners.

Some of the more significant and efficacious elements of a modern conservation strategy that we have pursued include candidate conservation agreements, habitat conservation plans, safe harbor agreements, voluntary agreements with landowners such as through the Service’s Partners for Fish and Wildlife Program, incentive-based actions such as those carried out under the Service’s Landowner Incentive Program, partnerships with states, tribes, and nongovernmental organizations, and private stewardship efforts by individuals and businesses. These programs, which consist of combined private and governmental action, improve the health of our lands, forests, rivers, and other ecosystems. Their implementation provides far greater conservation benefits than the designation of critical habitat while avoiding the regulatory, economic and social disadvantages of critical habitat designations.

Habitat Protection through Cooperative Conservation

We are continually working to find new and better ways to encourage voluntary conservation initiatives. Indeed, the Service currently has many conservation tools available which provide for close cooperation with private landowners, state, tribal, and local governments, and other non-federal partners that are particularly important in our implementation of the ESA. For example, through the Candidate Conservation program, the Service can work with states, landowners, and other non-federal partners to voluntarily conserve candidate or other declining species. Under this program, the Service works to identify species that face threats that make listing under the ESA a possibility and provides information, planning assistance, and resources to encourage voluntary partnerships and agreements. These resulting conservation agreements or plans may contribute to removing the threats that might otherwise necessitate listing under the ESA.

Most recently, a Candidate Conservation Agreement, developed by the Bureau of Land Management (BLM), the State of Idaho, the Idaho Army National Guard, and several private property owners who hold BLM grazing permits, served as part of the basis for the Service’s determination to withdraw its proposal to list the slickspot peppergrass (Lepidium papilliferum). Among other information central to the Service’s decision to withdraw the proposal, this formalized agreement was determined to reduce risk to the slickspot peppergrass such that this species is unlikely to become endangered within the foreseeable future. The slickspot peppergrass story is an outstanding example that listing a species and designating critical habitat is not necessarily the only means to achieve conservation.

Similar to Candidate Conservation Agreements, Safe Harbor Agreements also serve as a means to garner non-Federal property owners’ support for species conservation on their lands. Under Safe Harbor Agreements, non-Federal property owners who commit to implement voluntary conservation measures for listed species will receive assurances that no additional future regulatory restrictions will be imposed.

In addition, the Habitat Conservation Planning Program provides a flexible process for permitting the incidental take of threatened and endangered species during the course of implementing otherwise-lawful activities. The program encourages applicants to explore different methods to achieve compliance with the ESA and to choose the approach that best meets their needs. Perhaps the Program’s greatest strength is that it encourages locally developed solutions to listed species conservation, while providing certainty to permit holders. Through this process of consultation and cooperation with our partners, the Program helps provide for the conservation of listed species on non-federal land throughout the country.

On May 8, 2003, the Service announced a new conservation banking guidance to help reduce piecemeal approaches to conservation by establishing larger reserves and enhancing habitat connectivity, while saving time and money for landowners. This guidance, which has been in place since May 2003, details how, when, and where the Service will use this collaborative, incentive-based approach to species conservation.

Conservation banks are lands acquired by third parties, managed for specific endangered species and protected permanently by conservation easements. They may also help avoid the need for designation of critical habitat. Banks may sell a fixed number of mitigation credits to developers to offset adverse effects on a species elsewhere.

Critical Habitat Exclusions

These are among the many conservation tools we use that play an important role in our implementation of the ESA. It is our view that where programs provide for species conservation and management, critical habitat designation is not needed. Our support for this interpretation is derived from the definition of “critical habitat” under Section 3 of the Act which states that critical habitat includes areas occupied by the species “on which are found those physical or biological features (I) essential to the conservation of the species and (II) which may require special management considerations or protection” It has been our view that areas that are not in need of special management considerations or protections are outside the definition of “critical habitat,” and are, therefore, excluded from designation.

However, a court decision in the District of Arizona has cast doubt on this interpretation. In a case involving Forest Service lands, the U.S. District Court in Arizona ruled that this interpretation is incorrect, and found that the fact that lands require special management necessitates their inclusion in, not exclusion from, critical habitat.

Although the decision is limited to the critical habitat designation at issue in that case, it may negatively affect our future ability to use this interpretation of “critical habitat” elsewhere. The Service uses other methods besides this policy to encourage voluntary and cooperative conservation. For example, Section 4(b)(2) of the ESA allows the Department to exclude areas if the benefit of exclusion outweighs that of inclusion as long as it does not result in the extinction of the species. This Administration has used this provision to exclude lands subject to Habitat Conservation Plans and other conservation agreements or management strategies designed to conserve species.


In closing, I would like to reiterate our commitment to working with Congress to find a solution to the problems associated with critical habitat designation and other related issues. At the same time, the Department will continue to strengthen our partnerships and expand the use of cooperative conservation tools. It is our goal to use cooperative conservation and the tools at our disposal to implement programs that will eliminate the need for listing by conserving species before they become threatened.