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Colorado's public lands are faced with new challenges but water and land management depend on working together. Read about the relationship between water and land in Colorado and how Coloradans are converging to restore Colorado's public lands in the Spring 2018 issue of Headwaters magazine.

Browse articles and find a flipbook of the magazine here.

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Water Education Colorado

The Endangered Species Act

By Kevin Darst

More than three decades ago, with the nation's cherished bald eagle on the brink of extinction, federal legislators passed the Endangered Species Act.The 1973 act replaced legislation in 1966 and 1969 that produced a list of endangered species but gave them little protection.

The eagle, listed as endangered in March 1967, was upgraded to ‘threatened’ status in the lower 48 states in June 1995. But despite the efforts of an act widely considered one of the most powerful and far-reaching pieces of legislation on America's books—the eagle remains on the threatened list today.

As of mid-February 2005, there were 518 animals (including fish) and another 746 plant species listed as threatened or endangered. That's 1,264 species, up from 962 in 1995 and 281 in 1980. Twenty-one species are currently proposed for listing.

ESA advocates hail the protection being given those species and call the act a safety net for species they say would otherwise lose out to negligence, pollution and development.

But opponents of the act bemoan its increasing caseload and often criticize the science that drives species to be listed as endangered or threatened.

They say an ill-considered listing can give species unwarranted power to impact private property rights and development. In Colorado and other Western states, these concerns often focus on impediments to the building of water supply projects and full use of water rights.

Momentum for ESA reform has grown over the last decade. During the 108th U.S. Congress (2003-2004), more ESA-related bills were introduced than during any other session, according to the Washington D.C-based National Endangered Species Act Reform Coalition.

In February of this year, a group of four republican congressmen vowed to rewrite the act. Their primary goals were to give private landowners more incentives to protect species, increase state involvement and bolster the scientific reviews required to list species or designate critical habitat.
Environmentalists say such revisions would weaken the act, in part by making it harder to list species.

What the Act Does
The act, which has been reauthorized seven times and occasionally amended since 1973, requires federal agencies to protect listed species and preserve their critical habitats.

Any group can petition the U.S. Fish and Wildlife Service to list a plant, animal or fish. A petition kicks off USFWS review of the ‘best scientific and commercial data available’ regarding a species' biological status and threats to its existence. At the review's end, USFWS makes a ruling, recommending or declining the species for placement on the threatened or endangered list, and designating areas that constitute ‘critical habitat.’

The agency also keeps a list of ‘candidates’ for listing, comprised of species the USFWS has enough evidence to propose for listing. There are currently 286 plant and animal candidate species.

The ESA's stated purpose is to conserve threatened or endangered species and provide a plan for their recovery—using all methods necessary to bring these species to the point where they no longer need the act's protection. While recovery plans are part of the ESA, they often take years to build.

Many species on the list do not have a recovery plan.

In more than 30 years, 17 species have been removed from the threatened or endangered lists because they recovered enough to warrant delisting. Nine species were delisted after they became extinct. The USFWS dropped five species from the endangered or threatened lists after they were reclassified or found to be closely related to other plants or animals not threatened or endangered.

The ESA in Colorado
Colorado harbors 16 federally listed endangered species, including 10 animal species and six plant species, according to the USFWS. In addition, eight animal species and seven plant species on the federal government's threatened list can be found in Colorado.

The Canada lynx, a federally threatened species, was reintroduced in Colorado by the Colorado Division of Wildlife in 1999. Since that time, the state has spent more than $1 million on lynx recovery efforts. Extensive state-led studies in Colorado could help get the lynx off the list, says Colorado Gov. Bill Owens, who advocates the takeover of ESA functions by states.

In an attempt to address struggling species before they reach threatened or endangered status the DOW created the Colorado Species Conservation

Partnership in 2001. The partnership pays landowners to maintain or develop habitat for imperiled species. It also pays landowners to leave their lands undeveloped during the life of the agreement. The program's goals are to reduce ESA listings of plants and animals in Colorado and to help delist species already on the list. More than 30 landowners participated in the program in its first year, helping the DOW to conserve more than 25,000 acres of habitat.

The threatened Preble's meadow jumping mouse has been one of the state's more contested listings, pitting residential and commercial developers, cities and water providers against the USFWS. Thousands of dollars were spent studying the mouse's habitat in conjunction with proposed water projects such as the Reuter-Hess Reservoir near Parker and Milton Seaman Reservoir located on the lower North Fork of the Cache la Poudre River, among other projects.

Soon however, the mouse could see an end to its reign as a threatened species. In January 2005, U.S. Secretary of the Interior Gale Norton announced that because studies have shown the Preble's meadow jumping mouse is too closely related to the Bear meadow jumping mouse, which is not threatened or endangered, it will be removed from the threatened list. ESA critics called the decision a victory.

Of the 14 scientists who studied the mouse for the report that led to Norton's announcement, eight sided with the recommendation and six disagreed. ESA advocates were dismayed and criticized the study's lead biologist for keeping the study's data secret.

‘I want the science to be transparent, credible and open,’ says Jacob Smith, executive director of the Center for Native Ecosystems in Denver.

Reform-minded legislators, including Colorado Senator Wayne Allard, a Loveland Republican, were elated. Allard says the act should be more proactive than punitive, offering incentives instead of punishing landowners who have endangered species or critical habitat on their property.

‘Senator Allard thinks the Endangered Species Act is well intentioned but ineffective,’ says Allard spokeswoman Angela de Rocha.

What's Next?
Some question whether this year's Congress has the political will to pursue ESA reforms, but the issue seems unlikely to go away.

Groups like the National Endangered Species Act Reform Coalition are determined to revise the act to allow greater citizen participation in listing decisions, as well as recognition of state water laws as primary to the act's rules, among other changes.

But its advocates say the act will stand the test of changing political winds.

‘It's clear [ESA reformers] have more momentum this year, but they have the same problem,’ Smith says. ‘The public strongly supports endangered species protection and the act."

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