The Record of ESA Administrative Reform
Ecosystem Approach Policies
- An Ecosystem Approach Policy for the
- An Ecosystem Approach to Recovery
- Implementing Federal Agency
- Testing the Limits of the ESA Ecosystem
- Promoting Geographical and Species
- Promoting Proactive Measures Through
18 FWS recently reaffirmed its commitment to the Fair Approach philosophy in a document that explains the agency's current thinking on each element of the agenda and provides implementation examples from the field. BETTER: IMPLEMENTING THE 10-POINT PLAN AND BEYOND (1997) (issued jointly with NMFS) [hereinafter MAKING ESA Work Better]. Although the literature on most of the policy initiatives is sparse, there are references to the more detailed commentaries.
However, several commentators argue that the ESA's species-focused approach is both essential and effective. Rachlinski, Noah By the Numbers: An Empirical Evaluation of the Endangered Species Act, 82 CoNEL L. Unfortunately, FWS does not have the authority to replace the species-by-species approach with an ecosystem protection program that protects ecosystems independent of the existence of endangered species.
The stated purpose of the policy is to "promote healthy ecosystems through activities conducted by the Service under the Endangered Species Act." Id. Nothing in the relevant provisions of the ESA on restoration planning suggests an ecosystem orientation to restoration planning and implementation. 39 Memorandum of Understanding between Federal Agencies on Implementation of the Endangered Species Act, signed Sept.
These fourteen MOU agencies are responsible for managing nearly 600 million surface acres of the United States. For example, the operational provisions of the MOU commit each party to work for the conservation of species and their ecosystems.42 Fur-. Test the limits of the ESA ecosystem approach in the Policy on Distinct Populations Policy on Distinct Populations.
One of the most controversial features of the ESA is the extent to which the legal definition of 'species' deviates from the concept commonly used in the scientific community (which is itself a matter of debate).4 7 The ESA defines species to record. Specifically, section 10(a)(1) allows FWS to authorize actions that would otherwise result in a prohibited take of listed species, provided that the person requesting authorization has a habitat conservation plan (HCP ) describing the measures that the person will apply. to avoid, minimize and mitigate the impact of the action on the species. 59 For comprehensive overviews of the current status of the HCP program, see Lin, supra note 57, at 381-88 and Barton H.
Crystal, Delisting Candidate Species for Category 2: A Recipe for Environmental Trainwrecks, ENDANGERED LIVES UPDATE, Jan.-Feb. While the agency's early policies in this regard were rather modest and suggested that CCAs should not be used for this purpose,70 the agency changed its approach in the 1994 draft guidelines and solidified CCAs as an important component of the ESA ecosystem. Approach philosophy.
Economic Interest Policies
Take Criteria Notice
One such measure was a policy statement adopted in July 1994 that required the agency to identify specific activities that would be considered likely, as well as activities that would not be considered likely, and would result in a violation of section 9.88. In addition, the agency has agreed to designate liaison staff to assist individuals engaged in transboundary activities that do not clearly fall into either category.89 While these measures will increase awareness of endangered species among the entire public, they will also help to address criticism that FWS is listing endangered species. species without providing adequate guidance to the regulated community regarding permitted and prohibited activities.90. Another July 1994 policy that fell within the Fair Approach philosophy addresses the agency's regulatory requirements for listing, recovery planning, interagency consultation, and health care authorization decisions based on best scientific and commercial data available.91 The Supreme Court recently noted. The strongest regulatory consequence resulting from the listing of species, and perhaps the strongest regulatory provision in all of environmental law, is found in the prohibition on "taking" listed species in Article 9(a) , making it illegal for “any person.” subject to the jurisdiction of the United States to... B) take such species within the United States or the territorial sea of the United States. 16 U.S.C
For an overview of the enforcement ban, see Rohlf, supra note 7, at 59–71; Federico Cheever, Introduction to the Prohibition of Take in Section 9 of the Endangered Species Act of 1973: Learning to Live with a Strong Species Conservation Act, 62 U. Quarles et al., Sweet Home and the Narrowing of Wildlife "Take" under Sec. 9 of the Endangered Species Act, 26 ErvrL. 91 See Notice of Interagency Cooperation Policy on Information Standards Under the Endangered Species Act, 59 Fed.
The ESA requires that many factual determinations relevant to the listing and protection of species be made on a "best available" basis.
Peer Review Process
Minimizing Social and Economic Impacts
Although FWS has not finalized the Safe Harbor rule as of this writing, the obvious win-win benefits the policy provides suggest that this may be the least precarious of the agency's permitted innovations.'' The impact rule reverses therefore the effect of the existing general rule for the specified types of projects is: only about a fifth of all listed species fall into the endangered category.117 The effect of the proposed exemptions will therefore be limited.
One of the most troubling features of the ESA for advocates of economic interests is that the future is difficult to plan with certainty. So FWS was attentive in crafting a policy known as the "No Surprises" policy, a central feature of the Fair Approach agenda. FWS agreed to promulgate the No Surprises policy as it appeared in the HCP handbook, or some version thereof, as a regulation in settlement of a lawsuit challenging FWS's use of the informal guidance approach for the policy .
Under the Candidate Species Conservation Agreements A logical corollary of the No Surprises Policy is an "insurance" policy for Candidate Conservation Agreements (CCA). Many of the measures FWS has adopted are baby steps compared to what can be undertaken. FWS's ecosystem approach gives life to the ESA's purported ecosystem protection goal primarily through the species-based provisions of the statute.
However, there are two provisions of the ESA that provide FWS with a broader front for integrating ecosystem-based measures into the ecosystem approach philosophy. However, one provision of the ESA frees FWS from its species-based shackles without imposing the political ruckus that comes with coercive regulatory options. Many of the streamlining measures outlined in the HCP handbook sound promising for economic interests.
When economic interests see FWS committing to its streamlining measures with enforceable regulations, they will be more likely to perceive the Fair Approach agenda as an integral part of the ESA program. For a detailed discussion of the wetlands mitigation bank program and other wetlands restoration and creation initiatives, see Royal C. Overall, the scorecards show that FWS' ecosystem approach and fair approach administrative reform agendas have made much progress toward shaping legislative reform of the ESA.
It is worth noting that the FWS agenda, which has so far balanced the themes of an ecosystem approach and a fair approach, has appeared in many provisions of the first bipartisan effort to reform the ESA to begin in Congress in many years. None of the proposed FWS changes relate to provisions of the bill that include FWS reforms.
