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Water Education Colorado

ESA: Safety Net or Shambles?

Experts on the Endangered Species Act Share their Views
February 1, 2005 — CFWE Offices, Denver

Karla Brown, Moderator

Karla Brown: Thank you all for coming here today. Recently, some politicians and lobbying groups have become increasingly vocal in stating that the Endangered Species Act, the ESA, is broken. Somehow since the act was first created, it has failed to fulfill its mission and it needs fixing. What are some of the major reasons people cite in support of this claim?

Russell George: From our point of view, there are some flaws in the act which we believe can be improved. It appears, for whatever reason, that the act has not been successful at engendering recovery of species. Whether intended or not, its progress has been more in the nature of managing or controlling land use rather than actually recovering species. And that's not acceptable.

As for some of the points we think can be changed, at the outset I would say the standard in the act that drives [endangered species] listings—the 'best available science and commercial data' standard—is not adequate. It's too loose, too easy to comply with. It often means no science or commercial data is okay. And listing has such enormous impacts for people and businesses, communities, governments. This powerful federal regulatory process needs to be tightened up. And we'll talk about how to tighten it. But certainly using commonly accepted peer-reviewed scientific processes would be a great step forward.

Dan Luecke: Let me take a contrary view. The Endangered Species Act is not broken because the majority of the species listed have not gone extinct.

On the other hand, not many have been recovered.

I think those who point the finger at the act are those who somehow see it as having constrained development or other actions. But look at the number of biological opinions released every year that allow things to move forward. You will see that the act has an enormous amount of flexibility while at the same time trying to carry out its mandate.

I consider the Endangered Species Act the most noble of the Federal environmental statutes. There's nothing quite like it. We haven't done a great job yet, but I think we're still learning about what we might do. I think the majority of the time when independent scientists have reviewed endangered species decisions, they have supported the decisions made by federal scientists.

Margot Zallen: I would like to note that neither Dan nor Russ said the act was broken. They both talked about some of the things we need to do to improve it and some of the problems with it. But let me say first that any opinions I give today are my own not necessarily those of the Department of the Interior. And in my opinion the act isn't broken.

But I think there are a lot problems involved in carrying it out. We have a lot of lawsuits that really tie the Fish and Wildlife Service's hands—especially regarding delisting species and designating critical habitat. And that number of lawsuits has prevented the Department of Interior from taking what they believe are priority actions because they're tied up meeting court deadlines.

Generally each year there are about 1,300 formal Section Seven consultations. That means that somebody has to look over the information and give an opinion: Is this action likely to jeopardize a species? That doesn't include some 77,000 informal consultations. And out of those, there are virtually none where U.S Fish and Wildlife is not able to reach accommodation and find an alternative way of solving the problem.

Another way to show the act is working is the issue of the Preble's jumping mouse. The original listing decision was based upon the best biological information that existed at the time the mouse was listed. Now it appears there may be contrary information. People petitioned to have it taken off the list and now a review is going on to see if it should be taken off the list. This process is working.

The number of species which have recovered and been taken off the list is always something people ask. But we have to think about how long it took for species to get to the position they're in. Sometimes problems have been in the works for over 100 years. It takes a long time to figure out what to do and by the time you get them listed they're very rare, or there's very little known about the species. Trying to figure out the needs of endangered fish that live in rapids in the middle of the Colorado River is not easy. They don't come with an instruction manual. In summary, I say it's not broken.

It's working as well as it can. Could it work better? Yes. Could we use some changes? Yes.

Barry Noon: I want to comment on the claim about inadequate science. Being a scientist who's worked on endangered species issues for the last 18 years, I don't agree with that assertion. There have been a number of formal reviews of the quality of the science that contributes to decisions.

One of these was a 2002 National Science Foundation-sponsored review of the quality of the science from randomly-selected recovery plans. This review involved, I think, 15 universities around the country. What we found is that deficiencies in the data were strongly correlated to the time when the recovery plans were developed. What we saw was an extremely strong trend towards an increasing empirical foundation and data credibility going into recovery plans over the last 10 years. So in my opinion, the science was vulnerable 10 years ago, but I think now the science is extremely strong.

Tom Pitts: I think if you're going to look at the ESA and whether it is broken or not you need to consider what its goals are. And its goals are not only to identify endangered and threatened species, but, as stated in the act, to conserve those species—and that means to bring them to the point where their protection by the act is no longer required. That's the fundamental goal.

At the end of 2004 we had about 1,260 listed species listed. The figures I've heard indicate about one to two percent of that number have been actually de-listed because of recovery. Now why hasn't it succeeded?

One thing is funding. In the 2003 Expenditures Report on the Endangered Species Act, 105 out of 1,200 species got 90 percent of the funding. 10 percent of the species got no funding at all, and the remaining 970 species got 10 percent of the funding or about $81,000 per species. So we have hundreds of species out there on the list and there's nothing being done—nothing significant for recovery.

And also as Margot stated—hopefully—I'm not trying to paraphrase her…the law is written in such a manner that it's driven by lawsuits. The U.S. Fish and Wildlife Service cannot rationally respond to the needs of endangered species when their priorities are set by lawsuits. And when judges are telling them what the priorities are for listing, as far out as you can see, there is no room for additional listing because the courts have dictated that sequence. Yeah, I think the Endangered Species Act is broken and it needs a lot of fixing.

Carl Stogsdil: I don't know whether the ESA is broken or not, but let me give you my perspective as a landowner. I furnish habitat for a couple of species that would've been listed if we hadn't gotten some good scientific research to stop it. So, I don't think the research required by the Endangered Species Act is as good as it could be.

But how do you determine what's good enough? I don't know that either. But I know as a landowner it scared the heck out of us because of the [listing of the] Preble's meadow jumping mouse and what that caused. I think we've shown with studies on the prairie dogs and the mountain plover that there needs to be more scientific research particularly regarding listing of species.

Brown: It was not until 1978 that the ESA began to require consideration of economics. How do you think species listing in Colorado has affected our economy?

Noon: Well, I can comment on a report that I pulled off of the Web just recently done by an economist/political scientist at MIT who examined the impacts of endangered species listing on state economic development for the years 1975 through 1990. He used various measures of impacts, including construction employment and overall economic performance. He found absolutely no relationship between state GDP growth and the number of species listed or the area designated as critical habitat. In fact, he found a slightly positive relationship.

There's a book written by John Bliese who's a political scientist at Texas Tech University, called The Greening of Conservative America. I've not finished reading that but the first third of that book is an examination in general of economic impacts of environmental protection. And what he finds, and it's well documented in peer-reviewed literature, is that at the scale of the individual states, environmental protection is adding to economic growth and economic prosperity. He challenges the myth that there is an inescapable tradeoff between the environment and the economy. So, as a scientist, what I'm trying to do is to go to the data and verify what the data says on these particular questions.

George: And I applaud that as well. But the conclusion is just wrong. It seems for data in Colorado, there are two sources one can go to and get the numbers. One is the Colorado Department of Transportation and the other would be whoever assembles data on housing development. The reports

I've seen putting those numbers together tell me that listing of the Preble's meadow jumping mouse generated costs well in excess of a $100 million—costs that would not have otherwise been incurred but for meeting the jurisdictional requirements imposed by the federal Endangered Species Act.
Those numbers are available and there are others. There's ample justification for the belief that's at least intuitive among all of us—that imposition of federal jurisdiction over large segments of our economic engine has costs that ultimately have to be paid by the consumer.

Pitts: I think Colorado has avoided some of the most disastrous bullets fired in the name of endangered species in terms of economic consequences and it's done so by taking a positive approach to trying to solve the problem. And Russ is right, those costs are not accounted for.

The Upper Colorado River Recovery Program through last September spent about $138 million and I expect we have about $100 million more to go.

It's true it's a large-scale program. It covers 800 miles of rivers and many complex situations. But we as a state, and as water users and federal agencies, have bought into that solution because it is better than any of the alternatives. And the alternatives are legal chaos, and regulatory and economic uncertainty—and that's a fact.

If we didn't have that [recovery] program, we would have pitted our interstate compacts against the Endangered Species Act. And the economic consequences of uncertainty—just whether or not one could develop the state's compact obligations—would have been enormous in terms of people going to the bank to get loans to finance next year's crop or to finance a water project.

Luecke: It's true the states have put in contributions of money and time as well, but you really have to take a look at these as federal transfer payments and the multiplier associated with them. As a society we have committed ourselves to saving these species. And as a society we have committed some funding, perhaps not an adequate amount as Tom pointed out, but it's there. So to look at what happens on a state-by-state basis can sometimes be rather misleading.

Zallen: I think we have to recognize as you said, that economics only really became a part of the Endangered Species Act in 1978. The act says that in considering critical habitat you're supposed to take economics into account. However, U.S. Fish and Wildlife is prohibited from taking it into account for listings. Congress said that the will of the people of the United States is that we want to recover these species. We want to prevent them from becoming extinct. And cost is not a consideration when we list species.

The other place where economics comes in is where Fish and Wildlife is working to develop alternative actions. These are supposed to be economically feasible. The Fish and Wildlife Service in my estimation has spent hours, years, trying to work out accommodations with people who have a problem in the Endangered Species Act.

So I think we have to look at this in context—we can't say on one hand recovering species is what we want to do, and then on the other hand say it costs too much. I think we have to think about how it affects the individual. And there are times people have had to reconfigure their projects, they may have had to move their highway, change something—but they have not been prevented from going forward. These alternative actions Fish and Wildlife recommends are to be 'economically feasible.' But let's remember Congress has said, 'We want to protect these species.'

Noon: I also want to comment as a wildlife ecologist, it seems very narrow to look at these issues one species at a time. If you protect habitat for a listed species, the other species using that habitat are also benefiting. Let me give you an example. I've reviewed the plan for management of the Gunnison sage grouse. Now a number of people were very happy that the Gunnison sage grouse was not listed. What they fail to recognize is that sage brush habitat is critical winter range for deer and elk and antelope—species with significant importance for the hunting community where there's tremendous economic gain to Colorado. So if you focus narrowly on the grouse and fail to recognize all the other species that are going to benefit from its conservation, that's a very narrow view and in my opinion a very inappropriate way to discuss the issue.

Pitts: But you know a full discussion of benefits does take place, and it takes place in the United States Congress and the state legislatures when they're setting up budgets. And I don't know where they would end up if we didn't have an Endangered Species Act—but just had endangered species. And then we asked them, how much money would they want to allocate for endangered species? Well, I don't think they'd allocate very much.

Even now, how much money does Congress give to endangered species? Almost nothing.

Noon: Right.

Pitts: So that 'full benefit' discussion takes place every year in Congress. It takes place every year or two in state legislatures, and it doesn't get us anywhere. Expenditures for endangered species are driven by a desire to avoid costs created by the Endangered Species Act through uncertainty, through taking of property. That's what drives those expenditures and it's not a consideration of, 'Well this will be nice for all these other species.' Or, 'This will be nice for landowners.' It's driven by the regulatory clout of the Endangered Species Act.

Brown: Some of the dollar amounts spent on recovery programs are substantial. How much do you think the citizens of Colorado—and since we receive federal funding, citizens of the United States as well—are willing to pay to conserve species?

Pitts: Voluntarily or required? I think that's an issue. I think voluntarily it probably would not be in our priority. That's just my opinion. In polls, people want endangered species protected. But that doesn't get to the point of how much they're willing to spend on a voluntary basis. If what we see coming out of Congress on a species-by-species basis is any indication, I would say they're not willing to spend much compared to the magnitude of the problem.

Zallen: Well, I think we have to put the amount we're paying in light of other things we spend our money on. When we look at the amount of pizza that's delivered in the United States each year, we spend $32 billion. That's with a B! The amount of money that's been spent in 14 years on the recovery program is about equal to two years worth of pizza in Washington D.C. So you have to look and see where our values are.

I know that you asked about Colorado and I don't know of any specific studies done in Colorado—others might. But I'm very well aware of what's going on in my own county—Jefferson County—which is not considered a liberal bastion. People in Jefferson County and other counties in the state have in the last 10 years overwhelming voted to tax themselves to support open space and ecosystem protection. The last election we had in Jefferson County, that was supported by over 71 percent of the voters.

George: I would agree. I think there is a generally positive attitude towards protection of most species—threatened, endangered or otherwise. And there's just something intuitive and natural about that. My figures tell me that some 68 percent of people polled nationwide have a positive attitude towards work under the Endangered Species Act and recognize that some federal and state resources accumulated from taxes and fees should be invested.

Colorado has a similar attitude. A number of years ago the legislature stepped up and said it's a matter of state policy that we will invest state public monies to set up a Species Conservation Partnership. Maybe not in the first year but certainly in that first wave, we put in about $11 million, a fairly significant sum for a small state like Colorado.

For the last decade or so we've also had the Great Outdoors Colorado Trust Fund, funded by lottery purchases, to provide a quarter of that trust fund with monies made available to the Colorado Division of Wildlife. And the choice of the Division of Wildlife has been increasingly to move those monies into species conservation—primarily to match increasing federal funding.

Right now, we're trying to complete an agreement between Nebraska, Wyoming and Colorado about how to adjust the flows of the South Platte River in order to try to solve endangered species issues there—whooping cranes, pallid sturgeons, plovers and terns.

And although there isn't complete agreement on what it will take or what effect altering river flows will have on the species, I am satisfied that [to fund the program] water users along a good portion of the South Platte, at least from Denver downstream, are ready to step up and pay a user fee.

And it won't be a lot. The number I have is around 50 cents a month. I don't know whether that's based upon a certain quantity of use. But the number I was given is that in pretty short order we can raise $10 million just this way.

Stogsdil: Coming again from a landowner's perspective: since as you said, we [private landowners] have 85 percent of the listed species on our property—we're willing to do the match. I've worked on incentive programs through the Division of Wildlife. And if the people of Colorado are willing to put their money into incentive programs, I don't know why it wouldn't work on the river to reimburse farmers for not using their water. That could be beneficial for the species and for the river too.

Brown: It is often cited that about 85 percent of endangered species have significant habitat on private land. How does the government develop regulations such that private landowners are encouraged and willing to protect species?

Stogsdil: Let me answer that first of all. I don't think they ought to develop regulations. I think it ought to [work through] incentive programs and monies ought to be available to pay people for habitat. And if they'll do that, it will look real good for people to provide acreage for wildlife or whatever.

And like I said, I think it can be adapted for rivers too—if there's money around. Most of the [land-based incentives] come through the Farm Bill now. So, I think it can work for water rights too. But when you go to putting regulations on private landowners you're going to get a lot of trouble.

Noon: Let me just agree with Carl. I think what we need to change is to have more positive incentives for private landowners to conserve. Fish and Wildlife made a positive step by adopting two ideas: 'No Surprises' and 'Safe Harbors.' Most of us working on T&E species recognized that we couldn't to be successful if we didn't have positive incentives for private landowners to participate. That was sort of a first step.
I have subsequently worked with a number of private landowners who are taking full advantage of the Safe Harbors and No Surprises under Section 10 and I think it's working. But I think we could go even further—have some sort of direct financial transfer.

George: I agree totally with both of you…and we need to keep our flow of resources going into incentives. We've been doing it with the Gunnison sage grouse—primarily in Gunnison County with wonderful success—and if we can just keep that up we can recover the Gunnison sage grouse in Colorado, which is really what we're all about. I mean none of us disagree with that.

We're moving quite a lot of resources into the mountain plover program that we're incentivizing on the eastern plains, and so far so good. And of course the more success we have doing this, the more comfortable the Fish and Wildlife Service becomes, and the more comfortable organizations wanting more strict enforcement of the Endangered Species Act will be. And the more comfortable they are, the less reason they have to sue or file petitions.

Brown: Given that you have all worked on endangered species-related issues for many years, if the act were to be amended, what would you suggest? For example what other approaches to species recovery might you suggest?

George: I'll start. I have a couple specifics. I would like to see us continue down the path that I'm seeing increasingly now with the Fish and Wildlife Service administratively delegating more management to the states—letting state agencies and their local private partners have more management authority on T&E species.

This is going to light up Dr. Noon again but I really do think we need to change the standard for the role that science plays. And I mean particularly at the front end. Just being able to petition for listing based upon the current standard, which can mean we just don't know enough, and therefore we invoke this federal legislation—this just can't be acceptable. There needs to be some higher standards at the front end.

But what are we trying to do here? It isn't just altering land use conduct by humans. It's to figure out what's causing the threat. We need to know what has to change in order to recover species. We also need to be more precise about recovery standards and goals so that we know how to solve our problem. What do I need to do, to get where I need to go?

And I appreciate Margot's point earlier that it's taken a long time for these species to get into this predicament and humans, certainly when it affects our business and our profits and our lives, are pretty impatient. But earlier rather than later we need to be establishing recovery goals and I think this needs to be built into the updating and modernization of the Endangered Species Act.

Noon: I still don't understand why you think the science is deficient when we've now had a 1995 National Academy of Sciences review. We had a 1996 and 2002 Ecological Society of America and a National Science Foundation-sponsored evaluation of the quality of the science. We had a 2003 General Accounting office evaluation of the quality of the science. And we have this 2005 report that was released last week about the quality of the science in the Platte River.

All of them found that the quality of the science was meeting the highest standards. Now I don't understand how you can assert that somehow the science is deficient. I can speak directly about species that I've worked on recently in the recovery process and in the proposal for listing process. And I know of the quality of the science. I know of the extensive peer review and I think that is the standard for the Fish and Wildlife Service.

Zallen: Well, I don't know that Russ said the science is deficient. I think he is saying the standard in the law says they have to make a decision based on what's available and sometimes that really isn't enough to tell you whether you should list or de-list. Procedurally, we may need more time or flexibility to gather sufficient information to decide whether to list or delist a species.

Is that correct? Is that what you were saying?

George: Yes. Thank you.

Zallen: But I'd like to answer the question about what I personally think. There are a number of things I would do—if I were queen or king for a day.
I would deal with the critical habitat problem. Of course, right now critical habitat is supposed to be determined at the time of listing. People often say we don't know enough at that time to say what critical habitat should be.

There are a number of ways to deal with this issue and I don't know which one is the best. Suggestions from the people I talk to go from getting rid of critical habitat completely, to saying that we shouldn't determine what critical habitat is until we do a recovery plan.

And then thirdly, I would try to just get some good heads together and think about what we should put in the act to try to prevent species from getting on the list in the first place. We need to take early actions focusing not just the species but the ecosystems. The Endangered Species Act is not an ecosystem protection act. And we need to look at ecosystem protection in order to prevent species from getting listed in the first place.

We need to have more landowner incentives, and work more with landowners. We need to learn more about the symbiotic relationships that rare species have with habitat. And we need to have more grants and work with the states on rare species. We need to be cooperating with local groups such as those in California working to protect habitat used by condors, or working with open space in Jefferson County. Just right here outside this window I'm looking at lands that have been preserved by Jefferson County open space funds that support bald eagles, peregrine falcons, and other listed species.

Noon: Since people are talking about changes they'd make I'd like to talk about one feature of the act I would never change. The Endangered Species Act is unique in my opinion within the realm of federal environmental law, in that it is designed so that all of the scientific uncertainty does not fall on the species.

And I think that this is the noblest feature of a noble act—that we recognize that we're never going to have all of the answers but even with that uncertainty we still are bound and determined and committed to protect any species. Whatever is done to amend the act I hope that feature remains in place

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