By David Wojick
The regulatory machinery of the Endangered Species Act (ESA) is incredibly overdone, often making the reasonable use of regulated land impossible. Congress needs to fix this.
The law itself is pretty simple but the U.S. Fish and Wildlife Service (FWS) has interpreted it in an extreme way. The law says you cannot harm an endangered species. FWS has interpreted “harm” to include any change in the species’ habitat that might affect it. Cutting down a tree that an endangered bird might happen to nest in is considered harm.
The law actually allows for property development within an endangered species habitat. It is called an “incidental take” permit because every habitat change is considered a “taking” of the species. FWS has stretched this language to the limit.
The problem is that FWS has made incidental take permits so expensive that only rich landowners can afford them. Since most of us are not rich this incredible fee structure has made reasonable development impossible.
This taking fee overkill can be seen in an example from Florida. A landowner with a modest five acre plot wanted to build a house on that land. The incidental take fee was a choking $139,440 which made building impossible. The landowner has asked the Court to overturn this destructive fee structure but it is really Congress’s job to do that. See the case here.
This case is from Charlotte County, Florida, one of a number of American jurisdiction to do what is called a regional Habitat Conservation Plan, which is required to get an ESA incidental take permit. The County then sublets the take to local landowners who want to improve their property.
The horrendous ESA fee structure is usually secret but Charlotte County has published theirs here.
For anything over 100 acres, such as developing agricultural land, the ESA fee is a punitive $2,289,700. This pretty much rules out agricultural development. Ironically it invites things like malls and data centers that sterilize the land. Developing even the smallest piece of land, up to 0.22 acres, costs $2,032.
In most of America where there are endangered species about the landowner has to directly apply to FWS for an incidental take permit in order to develop their land. The required Habitat Conservation Plan (HCP) is very expensive and time consuming. So much so that doing HCPs for landowners has become a lucrative industry.
Even worse FWS has ruled that their approval of every HCP has to go through the laborious National Environmental Policy Act (NEPA) process. This is truly strange given that there are no direct impacts on the endangered species, just on its habitat.
In sharp contrast the National Marine Fisheries Service issues incidental take permits to actually harass and harm protected marine mammals without going through NEPA. The Dominion Energy offshore wind project is authorized to harass and harm almost 60,000 marine mammals. NEPA is not involved.
The situation is clear. The U.S. Fish and Wildlife’s Endangered Species Act regulations seriously distort Congressional intent. They make it almost impossible for anyone except the rich to develop land within the extensive habitat of an endangered or threatened species. Not just in Florida but throughout America.
The Endangered Species Act is not the problem; it is the extreme regulations that Congress must constrain.
I will blame Nixon for establishing EPA as an independent agency, so the situation always needs more regulation to keep the agency going. In addition, fanatics are attracted to EPA jobs, which give them the opportunity to impose their anti-development beliefs.
“impose their anti-development beliefs.”
The core problem! I have a friend who many years ago wanted to build on his lakefront lot of hard rock dropping into deep water. Permits from 5 different agencies with conflicting regulations were required. The worst was an enviro idiot who made him hire a fisheries biologist to do a study to prove he wouldn’t disturb salmon spawning grounds. Grade school children know salmon spawn in gravel stream beds… It cost him $100,000 and a nine month delay to coddle stupidity.
The Habitat Conservation Plan always requires a biological impact assessment on the listed species. It never occurred to me that you might have to do one to prove there was no impact. More cost!
It shouldn’t occur to anyone that a deep water hard rock lake bottom would be a salmon spawning bed. A child would know there was no possible impact.
The EPA went from a scientific organization with credible staffs to a regulatory/police outfit. There had been Public Health labs, for example. This was proven by ‘environmental impact statements’ which became bureaucratically padded mostly irrelevant paperwork. Crises back then were closer to the truth from WWII and following industrialization. Galveston Bay, with the really dead oily waters of the Houston Ship Channel contained no protoplasm, at least that anyone could measure. This paper wrote them ‘permanently’ off, among another from a congressman, it didn’t happen. Somehow they lost track of constitutional rights, a significant story which needs study, as always said so it doesn’t happen again. Homework always helps.
Carter, L. J. 1970. Galveston Bay: Test case of an estuary in crisis. Science. 167(3921):1102-1108. DOI: 10.1126/science.167.3921.11:1102-1108.
True enough but the Endangered Species permit program is over-regulated by the U.S. Fish and Wildlife Service not EPA. EPA may have to sign off on the permit along with several other agencies depending on the location and species involved.
The only “taking” happening is private property rights given away to obstructionists and theft of money by complicit government.
The environmentalists get their restrictions on growth and the government gets more money to fritter away.
Most of the money goes from landowners to consultants who do the technical work preparing the Habitat Conservation Plan. There is a multi-billion dollar industry here. ICF is a big player. The Federal landowning agencies alone spend over a billion a year. Private landowners dwarf that.
The endangered species right now is us. Naturally productive, honest, human beings.
While windmills keep killing eagles ..
and many other animals, too.
There is much more to this particular Florida ESA story.
The endangered bird in question is the Florida scrub jay. The species is down to an estimated 7-9000 individuals and despite conservation efforts is not recovering since matures slowly (it doesn’t mate until typically year 3 after hatching). The species inhabits only central Florida scrublands—characterized as well drained sandy soils subject to periodic wildfires. Wildfire is why they remained scrubby rather than becoming forested.
The basic Florida scrub jay problem is its unique habitat. Well drained soils make ideal building sites. And for decades Florida has been suppressing the wildfires that would threaten the homes that were built on them. For those not familiar with central Florida, that is Orlando and Disneyworld. Disney ‘secretly’ bought 27000 acres of mostly scrubland between 1963 and 1965 west of Orlando for its then planned Florida park complex. Goodbye, Florida scrub jay. Hello, Mickey Mouse.
For years, there has been a legislative proposal to change the Florida state bird to its scrubjay. It never passes—for obvious reasons.
No doubt most of the 1600+ listed endangered and threatened species are such due to human development. The question is what the $139,440 buys?
Note that the scrub jay is just threatened not endangered but the regulations make no distinction.
Elimination of private property for all but the “elite” has always been a goal of those on the left.
You can keep the property; you just can’t do anything with it. (Sarc)
If you like your doctor, you can keep your doctor.
There is no question that government is necessary but more importantly controls on government are just as necessary.
Isn’t that what Congress is for?
No that’s what the constitution is for.
The degree of self control displayed by the US congress over the last half century should tell you that congress is not the answer to limiting government power.
The founding fathers divided government power for a reason.
The USFWS like other federal agencies does not have the resources to review every development plan, large or small. They depend on willing accomplices at the state and local level, and on local activists to rat on their neighbors. Things become truly hyperventilated in the case of a truly endangered species occupying a very, very narrow habitat niche.
Outside of these highly contentious settings, private and governmental development are not nearly so costly or difficult. Small property owners just do what they want to do, no studies no permits no notices. USFWS never knows about any of these, nor do they have the staff levels to be able to bother with such small issues. This is also true in the world of water law where the US Army Corps of Engineers cannot and does not want to review every muddy ditch in the country. Federal agencies have to prioritize in some sort of triage arrangement.
I oversaw the environmental assessment and management of a large state entity’s statewide developments, selectively evaluating where formal natural resources (waters, wetlands, wildlife) and cultural resources (antiquities) evaluations are necessary, and to what extent. Seldom did it cost us much money. Even when we did elect to do such studies, rarely did any development rise to the level of requiring federal permits for development. We almost never ran across antiquities issues that had any impact on planned development. Likewise, habitat was almost never an issue of concern. With respect to waters and wetlands, we could usually either slightly modify development plans or claim standard permits with little or no cost to the project.
Unfortunately, this is where the state and local governments and their attitudes can step in to thwart development. Those are mostly the blue state and blue city coastal elites, which is another reason why people are fleeing those places.
I might add the major exception to this — sites or developments where federal money is involved. Due to mandatory NEPA requirements where federal moneys are involved, these can get administratively complicated, costly and time-consuming. However, even federal agencies, if they are highly motivated in a given circumstance, can opt to streamline the process and take decisive action. In my 24 years at the state entity, I dealt with five of these situations. In every case, the feds were motivated or time-constrained. The costs and delays were significant, yet really quite minor compared to the size and scope of the project budgets.