Species Habitat Protections: ESA vs. TESRA

TESRA ISSUE BRIEF - HABITAT - In today's Endangered Species Act (ESA), the designation of "critical habitat" is one of those things that sounds good, but is really a disaster in practice. But don't take my word for it.

The U.S. Fish & Wildlife Service (FWS), under both Democrat and Republican administrations has maintained that the designation of statutory critical habitat under current law actually does more harm than good. The Service says, officially:

"In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The consequence of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed."

Therefore, the bipartisan Threatened and Endangered Species Recovery Act (TESRA) of 2005 eliminates this fruitless process. However, it is important to note that TESRA replaces a broken process. It does not "gut" or "eliminate" habitat, nor does it "gut" or "eviscerate" habitat protections, as its opponents claim.

In fact, here is what Congressman Nick Rahall (D-WV), Ranking Member of Committee on Resources, had to say about eliminating this broken provision on the law:

"...I concluded that certain efficiencies could be built into the law, and chief among them was the elimination of the designation of critical habitat...It occurred to me that available resources could be better put to use by devising strong recovery plans, with species habitat needs more appropriately determined during that process." (Resources Committee markup of TESRA, September 22nd, 2005)

So here are the facts and the truth about the processes:

Current Law: Critical Habitat and other Species Protections

Under statutory "critical habitat" designations today, protections are triggered by proposed federal actions in those areas. When proposed, something called "Section 7" consultations must take place to ensure that such actions do not "adversely modify" the "critical habitat" of a species.

"Section 7" consultations are also required even when a proposed action would affect areas that are NOT designated as "critical habitat." In this scenario, those consultations take place to ensure that actions do not "jeopardize" the continued existence of a species.

Additionally, it is always illegal to "take" a threatened or endangered species. ("take" means harm, harass, shoot, wound, kill, trap, capture, collect, or attempt to engage in any such conduct)

TESRA: Recovery Habitat and other Species Protections

Because the FWS experts and most trained observers agree that "critical habitat" does not work and causes negative consequences (see FWS position above), TESRA eliminates this provision in current law.

Instead, after a species is listed as threatened or endangered, Recovery Teams will immediately begin crafting Recovery Plans. The habitat necessary for the species to be conserved and recovered will be identified here, in this more holistic approach to recovery.

How will this habitat in Recovery Plans be managed for the species? The same way it is today, under current law:

• Any time an agency action is proposed, in any place, "Section 7" consultations must take place with biologists to make sure the action does not "jeopardize" the continued existence of the species.
• And again, it is always illegal to "take" a threatened or endangered species.

The only difference from current law is the "critical habitat" provision, which (see above) just causes conflict, litigation, an extraordinary bureaucratic drain and does little for species. Gone with the broken "critical habitat" process is its "adverse modification" trigger. After all, the "adverse modification" of habitat - any and all habitat, in any place - is something that is studied by the biologists to determine if an action would "jeopardize" the continued existence of a species if the species is imperiled through habitat loss.

In sum, TESRA eliminates the duplicative, ineffective and conflict-causing "critical habitat" designation process so we can get down to the business of recovery.

No protections are lost, but a new focus on recovery is gained.

TESRA has nearly 80 cosponsors from 30 states.