Voluntary conservation efforts have been at the heart of most species’ recovery. However, with the exception of habitat conservation plans (HCP) under Section 10(a), the ESA contains no statutory provisions specifically devoted to voluntary conservation. Voluntary conservation efforts should be promoted and encouraged by creating new avenues for States, local governments, and private property owners to proactively participate in species recovery efforts (e.g., creating a habitat reserve program, tax incentives, loan or grant programs, and other funding initiatives). In addition, existing programs like safe harbor agreements, candidate conservation agreements with assurances, conservation benefit agreements, and ESA mitigation banks should be codified. Finally, participants in voluntary conservation programs need assurances that they will be shielded from potential take liability for their activities and that additional conservation measures will not be imposed in the future.

Section 4(d) rules are valuable tools that allow the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) (collectively, the Services) to determine how the ESA take prohibition will apply to threatened species. Section 4(d) should be expanded to also apply to endangered species, and its use should be required for all listed species on a species-specific basis. In addition, the scope of Section 4(d) should be limited to defining what constitutes a prohibited take, preventing the use of the statute as a mechanism to impose management restrictions on the use and enjoyment of land.

The ESA Section 7 consultation process has proven to be an essential component of the larger federal environmental permitting process, but also administratively unwieldly in practice, with statutory deadlines routinely missed by the Services or various federal action agencies, or avoided by procedural maneuvers. Key elements of the consultation process are so vaguely drafted that they have been the subject of a never-ending stream of litigation, including the scope of effects of the action to be evaluated, definitions for “jeopardy” and “adverse modification,” and the establishment of environmental baselines to allow for evaluation of potential impacts. Further, the consultation process has proven to be too complex for simple permits and inadequate for application to complex regulatory actions, such as the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act. The process for consultation on the effects of federal actions on listed species and critical habitat must be thoroughly reshaped in a manner that avoids consultations for agency actions with only beneficial incremental effects, limits consultations to the footprint of the action proposed, requires consultations to be consistent with the scope of proposed agency actions, takes the current environment and existing facilities as the baseline, promotes innovative permitting approaches like programmatic Section 7 consultations under which the Services can efficiently authorize similar and routine activities, and facilitates the Services’ timely and consistent performance of their consultation obligations, and provides greater certainty and reasonableness regarding the end-result.

The HCP process has the potential to be a success story, but too often private property owners are stymied by the delays and costs of getting HCP approval. HCP approval should be streamlined, including removing the unnecessary and redundant application of the National Environmental Policy Act to a federal action that already has been thoroughly and exhaustively examined by the Services. Further, landowners involved in conservation efforts need to be certain that a “deal is a deal.” The “no surprises” policy must be codified in the ESA and cover all commitments by private parties to voluntary protection and enhancement of species and habitat.

The critical habitat designation process should be improved by: adopting modern data gathering and analysis tools that increase the accuracy and quality of science considered; properly accounting for existing habitat protection measures (including voluntary conservation efforts) that render designations redundant; and minimizing adverse economic impacts from overbroad habitat designations. The ESA also must be clarified to ensure that critical habitat designations only include areas where essential physical or biological features for the species are found to occur and their designation as critical habitat is essential for the conservation of the species. Moreover, for unoccupied habitat, the Secretary of the Interior must affirmatively determine that such area is habitable and that the designation of occupied areas, alone, is insufficient for conservation of the species. Finally, the scale of any critical habitat designation must be consistently applied and be at a level of specificity that ensures that homes, businesses, and other areas that do not support the species or its preferred habitat are not broadly swept into a critical habitat designation.

The ESA must be open to new ideas and data. The decision-making process for listings, critical habitat designations and other decisions under the ESA must allow for full public participation, better data collection and transparency, and robust independent scientific review. The ESA also needs to reflect that States, tribes, local governments, and private parties often have current and accurate data that can be more effectively incorporated into listing, critical habitat, and recovery decisions.

The ESA requires that, as part of recovery plans, the Services identify “objective, measurable criteria” for delisting species. However, many species do not have recovery plans and, consequentially, no criteria for delisting. Establishing meaningful and enforceable delisting criteria will provide a goal for everyone to work toward, streamline the downlisting and delisting process and ensure that species can be removed from the list when warranted.

The ESA’s deadlines for acting on petitions to list species and designate critical habitat are so inflexible and unrealistic that the Services routinely fail to meet their statutory deadlines which results in a sue-and-settle environment that further usurps an orderly management of species decision-making. The Services have no ability to prioritize actions for imperiled species, lack the resources to act in a timely manner, and are forced to act without full and thorough consideration of scientific data. These petition deadlines are enforced through litigation and settlements, without public involvement, which further perpetuates the underlying problem. The Services need additional flexibility to allow for the proper prioritization of ESA petitions and for full consideration of the petitioned action as expeditiously as possible.

State and local governments have unique authorities and expertise on the management, protection, and conservation of species and habitat within their jurisdictions. However, this expertise has been largely marginalized in the implementation of listing and critical habitat decisions by the Services. Further, the framework for interaction with States under Section 6 of the ESA is flawed and must be modified. Many species have been recovered primarily through voluntary conservation actions as well as management programs led by State and local governments, often without support or direction under the ESA. On the ground expertise and abilities must be leveraged by providing more flexibility so that States and local governments have a stronger role in providing their advice and expertise in the listing and critical habitat designation processes. Further, the ESA must be updated to recognize and better integrate State and local governmental programs that protect and enhance species and habitat.