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May 3, 2016

A Tough Pill to Swallow

This column marks the final installment of my three-month series on the need to reform the Endangered Species Act (ESA).  The last two articles discussed the specific problems that need to be addressed and the reasons why real reform has been difficult to achieve.  In a way, I have attempted to provide a diagnosis of the disease (and yes, I am comparing the ESA to a sickness).  In this piece, I will prescribe various treatments for the illness and explain why the medicine may be a tough—though not impossible—pill to swallow.
In my last article, I pointed out two major flaws of the ESA.  First, the use of incomplete or flawed (in many cases, both) science by federal agencies to make their determinations.  This is evidenced in their repeated decisions to restrict operations of the Delta pumps.  Second, the intentional or unintentional (one demonstrates malice, the other incompetence) discouragement of voluntary conservation efforts.  In this regard, I shared the labored experience one of our members has had participating in a safe harbor agreement.
To address these two failings of the ESA will require courageous action from our policymakers.  Here is a blueprint for successful reform:
First, to remedy the deficiencies in the use of science by federal agencies, the informational base for many ESA-related decisions must be strengthened.  The “best available science” mandate placed on the fish agencies in the case of the Delta smelt and salmonids only works if the science is complete and reliable.  In many cases, it isn’t.  One potential solution makes a lot of sense: Congress should authorize and fund a research program aimed at addressing the preponderance of uncertain science.
For example, there is a need to better understand the role other stressors play in the decline of the smelt and salmon populations, such as predation and municipal wastewater and industrial discharges.  In fact, we are not even certain of the true impact pumping levels have on these species.  As I mentioned in my previous article, the phrases “is believed” and “we believe” are not sufficiently credible to rationalize depriving critically-needed water to farms and cities south of the Delta.
Second, to alleviate the time and financial burdens associated with participation in existing voluntary conservation programs, the process must be streamlined and the benefits made more tangible.  As with any volunteer effort, providing incentives for the target audience to engage is key.  In this case, the amount of time and money it takes to negotiate and execute the agreements drive many landowners away.  Through simple administrative remedies, the U.S. Fish and Wildlife Service should standardize and simplify the application and approval process and moderate the monitoring and reporting requirements.
Even with these administrative changes, additional incentives should be considered to encourage voluntary conservation.  As we learned in my last article, one of the primary motivators for landowners to enter into voluntary agreements is to preempt the designation of private property as critical habitat for a listed species, effectively removing the land from production.  If you recall from the kit fox example I used, environmental groups still have recourse to pursue action against the landowner.  Congress should enact a statute ensuring that, given requisite cooperation, land covered under voluntary agreements are generally excluded from critical habitat designations.
In addition to the enactment of a real “safe harbor” law, Congress should also make funding available to off-set the financial burden incurred in the implementation of the voluntary agreements.  Also, Congress should consider creating a crediting mechanism that introduces market dynamics for conservation.  Under this system, private landowners would be allowed to either generate or use credits based on temporary and permanent conservation activities.
Here, I would like to offer up a third consequential defect of the ESA not discussed previously: the peer review process for listing species and developing biological opinions is often tainted by conflict of interest and inherent bias.  In many cases, the experts chosen to determine the validity and significance of the scientific findings have themselves taken advocacy positions related to the species in question.  In some cases, scientists are even asked to review their own work.
The process of selecting peer reviewers is described in policy, not statute.  To cure this deficiency, Congress should authorize a legitimate peer review system…one that promotes scientific rigor and transparency throughout the process.  This would be best achieved by appointing a credible third party, such as the National Academy of Sciences or the National Research Council, to select peer reviewers and facilitate consistent disclosure of results.
Having identified a partial remedy for the ESA ailment, the question becomes how to get Congress and the federal agencies to fill the prescription and swallow the medication.  As Mary Poppins famously sang, “A spoonful of sugar helps the medicine go down.” In this metaphor, I believe we can make the pill easier for legislators and regulators to swallow by building a broad-based coalition in pursuit of bipartisan and constructive solutions.  As we push for reform on Capitol Hill, we will seek out the support of our allies—both within and outside of agriculture—to help us form the proverbial sugar.
Here is the candid truth, however.  We may not be able to garner the type of widespread and sustained support we need to affect real change in this law or the application of its regulations.  ESA is a polarizing issue.  On one side, many liberals view the ESA as sacrosanct.  On the other, conservatives willing to challenge the law simply want to gut the act.  Neither extreme has much vested interest in meeting in the middle, which is why compromise will be difficult to achieve.  But I can assure you that Western Growers will not be a summer soldier or sunshine patriot.  We will stand in the service of our members.
The ESA, as currently constructed and implemented, causes grievous harm to our industry.  To stand idly by would be to complacently suffer the maladies of a curable disease.