Selected ESA Recommendations
The Endangered Species Act of 1973 (ESA) turns 50 years old in 2023. Its history includes many conservation successes, but also reveals shortcomings of the law and challenges that face it. Today, we are confronted not only by an extinction crisis but also by a climate crisis and a biodiversity crisis, and if we wish to preserve the world as we know it, we must muster the collective will to meet these challenges.
The ESA is America’s foremost environmental protection law, and it will play a critical role in meeting these challenges over the next 50 years, and beyond. But it is clear that for us to succeed, we will need to continue to innovate, and there is great potential for innovation within the ESA. The Codex of the Endangered Species Act, Volume II: The Next Fifty Years confronts this reality, and answers the questions now before us: How can we improve the ESA? How can we use the ESA to facilitate new approaches to conservation? How can we end the extinction crisis and conserve Earth’s biodiversity?
The Codex of the Endangered Species Act, Volume II: The Next Fifty Years offers recommendations from 27 distinguished scholars , who consider all aspects of the law from multiple angles. They propose legislative amendments, regulatory improvements, administrative flexibilities, best practices, and innovative opportunities not only for federal agencies for but state governments, non-governmental organizations, and private landowners as well. They consider a wide variety of ESA functions, including listing, delisting, recovery planning, “threatened” vs. “endangered” species, critical habitat, habitat acquisition, interagency consultations, habitat conservation plans, state-federal relationships and partnerships, the best available science, funding, monitoring and transparency, collaborative conservation, and human dimensions.
This work provides a comprehensive examination of the current state of the Endangered Species Act, and a prescription for its improvement in the coming years. The recommendations on this page represent a brief selection of ideas from The Codex of the Endangered Species Act, Volume II: The Next Fifty Years. More recommendations, and more discussion of the recommendations included here, can be found in the book.
The greater sage-grouse. Tom Reichner/Shutterstock.
Congress Should Codify the Listing Workplan Approach to the Endangered Species Act
The ESA requires that the U.S. Fish and Wildlife Service or National Marine Fisheries Service promptly consider listing petitions. By law, petitions must be evaluated within 90 days to determine if they present substantial evidence that a listing may be warranted. If so, the agency must then within 12 months of the petition’s submission determine that listing is warranted, not warranted, or warranted but precluded by other activities.
These strict requirements leave little discretion for prioritization of listing activities in a logical manner. Since 1983, the Fish and Wildlife Service has maintained and updated guidelines for the prioritization of species based on a variety of factors including but not limited to the imminence of treats, the potential for recovery, and the presence of active conservation efforts. But these guidelines do not allow the agency to ignore the deadlines set by law.
At the same time, funding for ESA listing activities has never kept pace with the workload imposed on the Services by listing petitions, meaning that some species have inevitably been categorized as “warranted but precluded” or, more commonly, gone without the required determination beyond the statutory deadline. This has opened the door to environmental litigants to file citizen suits under Section 11(g) of the ESA alleging a failure to perform a nondiscretionary duty under Section 4. These suits are open-and-shut cases that are always decided against the government, forcing the agency into judicially-enforceable settlements in which the court and the plaintiff become co-managers with authority over the agency’s activities.
The most impactful of these settlements came in the 2011 multidistrict litigation over Section 4, in which the Fish and Wildlife Service entered into agreements with the Center for Biological Diversity and WildEarth Guardians in which it agreed to make listing or critical habitat determinations for 1,030 species, subspecies, and populations by 2017.
To govern this massive undertaking, the Fish and Wildlife Service developed a listing workplan for 2011-2016, which laid out which species would receive 90-day determinations, 12-month listing determinations, and critical habitat designations in each year. This resulted in multiple benefits to conservation.
It gave the Service have a clear, transparent agenda it could point to in its funding requests and then follow. It greatly reduced deadline litigation, not only because the settlement limited the number of suits that the Center for Biological Diversity and WildEarth Guardians could bring, but also because other potential litigants could see that the agency had made a commitment and was following through on it.
Most importantly, by setting listing deadlines three, four, and even five years in the future, rather than in 12 months because a petition had just been filed, the listing workplan approach created space for voluntary and private conservation efforts that had a chance to succeed. Conservation efforts such as the unprecedented $1.5 billion invested in greater sage-grouse conservation would likely not have been possible without the listing workplan helping to set a target date for everyone to work for, that would define “success” as keeping the species off the threatened and endangered species lists.
The workplan was so successful, it was subsequently updated for 2013-2018, 2017-2023, and most recently 2021-2025. In 2020, the Fish and Wildlife Service followed with its first downlisting and delisting workplan, covering 2020-2023. Together, these workplans have brought more clarity and certainty to the ESA program, greatly reducing litigation. But today, when a petition to list (or delist) a species is filed, the 90-day and 12-month statutory deadlines still apply. When a workplan assigns an action a longer timeframe, the agency is technically violating the law. Thus far, this has not been a problem. Congress should amend the ESA to codify this approach, making listing and delisting workplans part of the law, and even mandating that they be used in order to create opportunities for effective voluntary, collaborative conservation.
Meadow in Riverside County, California. Courtesy of the Western Riverside County Regional Conservation Authority.
The U.S. Fish and Wildlife Service and Congress Should Make Habitat Conservation Plans More Accessible and Effective
Habitat Conservation Plans (HCPs) are among the ESA’s most flexible yet underutilized conservation tools. The tool was first established by Congress in 1982 in order to accommodate a development project on San Bruno Mountain, California (just to the south of San Francisco) that would degrade the habitat of endangered butterflies but was compatible with their long-term protection and survival. The ESA provides that an applicant (which can be a private or public entity) may be authorized to carry out incidental take of a species provided that it is governed by an approved HCP that demonstrates a plan to minimize and mitigate the incidental take.
Initially, this major amendment went virtually unutilized, with just 14 HCPs developed between 1982 and 1992, including the San Bruno Mountain HCP. In 1994, the Clinton administration developed “no surprises,” a regulatory assurance that provides that no additional land use restrictions or financial compensation is to be required of an incidental take permitholder, “even if unforeseen circumstances arise after the permit is issued indicating that additional mitigation is needed.” This breathed life into the HCP tool, and today there are over 1,000 HCPs encompassing over 48 million acres.
Despite this dramatic reversal, there remains considerable potential for HCPs to be more effective conservation tools. The HCP provision of the ESA grants the government considerable discretion to approve HCPs, so long as it finds that the taking will be incidental, will be minimized and mitigated, will not appreciably reduce the likelihood of the survival and recovery of the species in the wild, and that the HCP will be adequately funded. In fact, if these conditions are met, an incidental take permit must be issued. Due to this flexibility, and the statutory preference for approval, the Fish and Wildlife Service need only make simple improvements to its own administration of HCPs in order to enable to more rapid approval of a greater number of HCPs.
Recommended measures include staff training that emphasizes greater familiarity with HCPs among agency personnel, together with streamlined procedures for HCP approval. Centralized tracking and reporting of HCPs and their performance would help show potential applicants, environmentalist critics, and congressional appropriators the untapped potential of HCPs. Some of the greatest potential for efficient conservation and positive outcomes for species and development alike comes from multiple-species and regional HCPs. These plans, such as the Western Riverside County Multiple-Species HCP in California, conceived in 1999 but not approved until 2004, are the most complex to develop and implement, and would benefit the most from greater interest in HCPs at the Fish and Wildlife Service.
Congressional action could also support further development and use of HCPs, especially with regard to funding. HCP approval is a discretionary action for Fish and Wildlife Service offices, and when the agency falls behind in mandatory actions such as listing species, developing recovery plans, or conducting Section 7 consultation, HCPs suffer. More funding for HCPs – and for the ESA program generally – could help. Congress could also make HCP approval a mandatory duty akin to listing and delisting species, although to do so without adequate funding would merely invite litigation. Finally, funds could be made available to the private sector to enable and incentivize innovative approaches to HCPs, including through new commitments to conservation banks, floor-price guarantees, and federally funded below-market rate loans.
Congress Should Fund Innovative Approaches to Habitat Conservation
Habitat Conservation Plans play just one small role within the universe of opportunities for wildlife habitat conservation. Unfortunately, habitat conservation is expensive, as it generally involves land acquisition, conservation easements, and/or changes in land management practices to prioritize conservation at the expense of revenue-generating activities. There are well established tools that can make this trade-off work, including with oversight by Congress and government agencies, such as conservation banking and tax benefits for conservation easements.
There are also innovative private-market approaches to paying for conservation. For example, the National Audubon Society’s Conservation Ranching program offers a certification for bird-friendly cattle grazing practices. The resulting beef can then be sold in the market to conservation-oriented consumers at a premium. But compared to other environmental values such as water quality, water resources, carbon capture, or stormwater resources, wildlife conservation suffers from a lack of federal support through programs such as loans, loan guarantees, tax credits, and tax rebates.
There are many opportunities for innovation, if Congress is willing to make the investment. One possibility is stipulating fixed price floors for wildlife mitigation credits, in which the government would guarantee that credits will garner no less than a stipulated return, with the government promising to cover any shortfall when the credits are put on the market. This would incentivize more credit generation, and the ready availability of credits would then encourage their purchase by consumers, ultimately jump starting a more active market.
Another tool to consider is a wildlife revolving loan fund. Revolving loan funds are pools of capital, usually but not always first seeded by government, that provide gap financing for infrastructure projects that need significant capital to complete and are expected to have future sources of revenue to pay back the loan. As loan capital is repaid, it can be used to issue more loans for additional projects. The Environmental Protection Agency operates the Clean Water Act State Revolving Fund and the Safe Drinking Water Act State Revolving Fund. Since 1987, these funds have generated investments totaling $155 billion, mostly through low-cost financing, to protect waterways and drinking water supplies and to improve water quality.
Because money spent by a revolving fund is later returned to the fund and spent again, these programs generate benefits that greatly exceed their initial investment. For wildlife, revolving fund loans could be used for acquisition of endangered species habitat and acquisition of mitigation lands for Habitat Conservation Plans or species conservation banks. They could also be used to provide capital to private partners carrying out large-scale ecological restoration projects like the removal of Klamath River dams or Western forest management activities to reduce wildfire risk and severity.
As a third example, Congress could fund pay-for-success recovery contracting, where the government directly purchases conservation from a landowner, but the fee is only paid upon delivery of the agreed-upon outcome. This sort of fixed-price contract is akin to purchasing goods or services in the private sector, and creates an incentive for the contractor to complete the required objectives as efficiently as possible, maximizing their profit. This approach has been successfully used in ecological restoration programs in California, water quality programs in Maryland, and coastal protection and restoration programs in Louisiana. In contrast, many existing grants and contracts for conservation work are cost-based and seek to cover the expense of conservation. Under that status quo, whether or not conservation happens is defined by the individual interest of the landowner and the other opportunities that are available to them, leading to a lack of innovation and stagnation.
Finally, Congress could expand direct payments to landowners for conservation. The federal Farm Bill provides almost $6 billion per year to farmers and ranchers who produce water quality, carbon, wildlife and other benefits on their property by adopting various stewardship practices. The vast majority of Farm Bill programs are focused on a wide array of environmental values, with wildlife just one among them. And only the Healthy Forests Reserve Program (averaging $4 million per year or less) explicitly mandates that threatened and endangered species conservation is one of the program’s goals. There is clearly room for new opportunities for direct payments to landowners to conserve listed species.
Kirtland’s warbler. Matthew Jolley/iStock by Getty Images.
Federal Agencies Should Increase Engagement with States in Conservation of Threatened and Endangered Species
The first words of Section 6 of the ESA direct federal agencies to “cooperate to the maximum extent practicable with the States” in carrying out the ESA. What could be read as a legislative mandate to integrate state and federal management and decision-making throughout the ESA program has instead been interpreted, and consistently applied, as a provision for a modest grant program to states,and a tepid requirement to confer with state authorities, such as through courtesy notices when listing and delisting species.
At the same time, the polarization of our politics has led to schizophrenic, contradictory views of state wildlife authority. On the one hand, advocates of federal power point out that states have historically exercised management authority over resident fish and wildlife resources as a public trust, and the result has been an unprecedented extinction crisis that forced the enactment of the ESA, and has only grown worse since then. On the other hand, state advocates counter that states are smaller and more nimble governments, closer to the ground, and they – not the federal government – have the most knowledge of and experience with their landscapes, wildlife, and citizens. Moreover, state fish and wildlife agencies, taken in aggregate, dwarf the U.S. Fish and Wildlife Service, with collective annual budgets of $5.6 billion, and nearly 50,000 employees.
The fact of the matter is that both of these views can be correct. We do have an extinction crisis that is existential for countless species, and perhaps humankind. State agencies have failed wildlife in the past. But so have federal authorities. And we do have a situation where we desperately need every dollar and every person available for the cause of wildlife conservation. We must cut through our partisan bickering, and sometimes acrimonious history, and find innovative opportunities for collaboration between state and federal wildlife authorities.
Such opportunities abound, even in the regulatory rather than legislative sphere. The ESA itself does not say that a given species should or should not be listed. Rather, it says that federal authorities must decide that, and lays out how they must do so. There could be a legislative amendment that would change this and lay out more or more specific ways for states to be involved. Or the U.S. Fish and Wildlife Service could look to that language in Section 6, and “cooperate to the maximum extent practicable with the States” in carrying out the ESA as it is today.
Opportunities for such cooperation are plentiful. The key is for federal and state officials alike to look past previous conflicts and seek out opportunities for constructive collaboration. State resources, personnel, and expertise can make positive contributions to ESA functions including, but not limited to, Species Status Assessments, delisting and planning for post-delisting management, management of threatened species under 4(d) rules, recovery planning, and Section 7 consultations. No legislation is needed to accomplish this. In fact, in most cases no regulations are needed either, simply a different and more inclusive approach to everyday ESA decision-making.
States, for their part, could take actions to make their contributions more readily available and more useful. They should invest more resources in wildlife conservation, including surveys and other studies to better understand and share what species they have and the condition of those species. State conservation lands, also, already provide essential habitat for listed and state-listed species, and more state-led habitat acquisition, protection, and restoration could help make conservation interventions earlier, cheaper, and more strategic, ultimately reducing ESA listings.
Federal agencies should develop 4(d) rules that give states greater management authority and flexibility over threatened species
The ESA defines an “endangered” species as one “in danger of extinction throughout all or a significant portion of its range,” while a “threatened” species “is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” From the earliest drafts of the legislation, the threatened label was intended to provide a new, intermediate status where less imperiled species could be recognized, protected, and conserved before they became endangered.
In developing the statutory protections for listed species, Congress explicitly laid out in Section 9 of the ESA activities that would be prohibited with respect to endangered species, including taking, importation, possession, transportation, buying, or selling. But for threatened species, Congress authorized federal agencies to choose to apply any or all of those protections, or not at all.
For many years, the federal government has exercised this discretion to grant most threatened species the full protections of the ESA. 4(d) rules (which govern threatened species) have laid out protections for specific species, and between 1975 and 2019 the U.S. Fish and Wildlife Service employed a universal, or “blanket” 4(d) rule that provided full protection to any threatened species not subject to an individual 4(d) rule.
Even within this framework, 4(d) rules have been used to facilitate state conservation programs and test innovative conservation schemes. For example, existing 4(d) rules in the Code of Federal Regulations include 43 instances of a special role for a non-federal agency or official, such as a state employee carrying out their duties. There are thirty instances of take being authorized if done by property owners participating in a conservation program. Thirteen regulations authorize take if it is consistent with a specified conservation plan (state or otherwise), effectively incorporating those conservation plans into the ESA. And numerous regulations for take of threatened fish permit take by anglers so long as the angler has complied with state law in their activities.
These rules, and others, form a rich history of 4(d) rules that incentivize conservation and deconflict the ESA. There are many opportunities to do more. For example, the U.S. Fish and Wildlife Service and National Marine Fisheries Service could make it standard practice to make state conservation programs and laws the basis for 4(d) exemptions, simply by stating that take of the species will be allowed provided that it is consistent with state law. This simple approach would effectively convey management authority over a listed threatened species to the states, while keeping the species listed, and therefore subject to other ESA protections such as critical habitat and Section 7 consultation.
A more nuanced, complex approach would be to use 4(d) rules to incrementally delegate management authority to states when certain recovery benchmarks are met. This would be more immediately deasible, and if aligned with a state management plan, could provide a roadmap to recovery. The promise of increased authority and flexibility would incentivize states to invest in conservation. As species recover, federal protections could be loosened, but again, the species would remain listed until fully recovered. This approach is incentive based, not punitive. It offers maximum flexibility to tailor a 4(d) rule that prioritizes species recovery, but recognizes the needs of states, landowners, and others in the regulated community. It permits states the opportunity to prove, prior to delisting, the effectiveness of their management plan, and make changes if necessary. And it can serve as an insurance policy against delisting litigation, as litigation over a delisting would most likely have no effect on the species’ management.
These approaches are already feasible under the ESA today. They need only for the U.S. Fish and Wildlife Service and National Marine Fisheries Service to exercise the discretion they already possess when developing 4(d) protective regulations for threatened species. These possibilities can be leveraged even further if the agencies make a concerted effort to downlist endangered species to threatened when appropriate, granting more species the management flexibility of threatened status.
Peregrine falcon. Frank Doyle/U.S. Fish and Wildlife Service National Digital Library.
Federal Agencies Should Increase the Transparency of the Endangered Species Program
One of the reasons that the ESA has become so controversial is that it is not well understood. It is a complex law, substantially defined by regulations, policies, and day-to-day actions of individuals within the endangered species programs at the U.S. Fish and Wildlife Service and National Marine Fisheries Service. Transparency and public accountability are lacking. This does not mean that the act is not well-administered, or unsuccessful. But the fact that in many respects the act is a black box makes it easy for politics and media soundbites to shape public perception of the law in a way that promotes conflict at the expense of conservation.
Greater transparency, efficiency, and the use of measurable outcomes in the ESA program will help all Americans know and understand what the ESA is actually doing and its impact, on both wildlife and people. Where possible, ESA functions including listing, critical habitat designation, recovery planning, Section 7 consultations, and delisting all should be organized and carried out by priority, and completed in a timely fashion. This approach, combining transparency with accountability, will allow the ESA program to conserve more species with its resources, while building public and political support for increased commitments.
These approaches, which include proposals for legislation, regulations, and agency best practices, touch virtually every aspect of the Endangered Species Act. Opportunities abound to use creative approaches to reduce conflicts, unlock new resources, and achieve more wildlife conservation. Further recommendations can be found in The Codex of the Endangered Species Act, Volume II: The Next 50 Years [link]. If we are willing to look past partisanship and seek practical solutions, we can make the ESA a more effective law over the coming years.