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April 8, 2016

Taking a “Fearless and Moral Inventory” of the ESA

Last month, I began a series on the need for federal Endangered Species Act (ESA) reform.  I used the analogy of addiction recovery, in which the first step is to acknowledge the problem.

Extending this metaphor to politics, I noted that few members of Congress are willing to publicly admit that the ESA is fundamentally flawed—let alone tackle real reform—for fear of getting “Pombo’d.” No, you will not find this term in the Urban Dictionary.  But the story of Richard Pombo being ousted from Congress by the environmental left still sends shivers down many a congressman’s spine.

Just how sacred is this law to environmental activists?  The ESA has only been amended four times since its passage in 1973.  As a point of reference, the U.S. Constitution—the founding charter of our country that is extraordinarily difficult to amend—has been amended 27 times.

Am I supposed to believe that the authors of the ESA—Russell Train, Earl Baysinger, Dick Gutting and Jerry Bertrand—were more consummate legal and political minds, and possessed greater foresight, than Alexander Hamilton, James Madison, John Adams and Thomas Jefferson?

The simple fact is that even the most brilliantly-constructed laws must be revisited and revised from time to time as real-world experience exposes unintended or undesirable consequences.

Here is where it may be useful to interject another recovery metaphor.  Early in the process, addicts are encouraged to take a “fearless and moral inventory” of themselves.  In the same way, we must attempt to detail the “wrongs” of the ESA, to use 12-step language.

In the three states we represent, nearly 500 species are listed as threatened or endangered.  These listings disproportionately impact our members as they affect where and how we farm.

Nowhere is this situation more evident than with the Delta smelt, where strident and overly harsh application of the ESA has led to several years of massive fallowing of highly productive farmland in the San Joaquin Valley.

Even under the current El Niño conditions, the Delta pumps are still being heavily restricted as an average of three billion gallons of water—which could be captured within current ESA limits—are being flushed out to sea every day.

All of this lost water seems to be doing next to nothing to help the species recover.  Some prominent biologists predict the Delta smelt will be extinct within the next year or two.  Still the water rushes right past the pumps that could deliver more of it to San Luis Reservoir and other reservoirs in Southern California.  No one wins.

The flaws exposed by decades of ESA implementation are many.  A major flaw revolves around how science is used by the U.S. Fish and Wildlife Service (USFWS) and National Marine Fisheries Service (NMFS) to make their determinations.

There are two specific concerns.  First, the services must adhere to statutory deadlines when preparing their biological opinions, which often leads to rush jobs.

Secondly, the biological opinions are often based on inadequate information.  In fact, the services are required to use the “best available science,” which can be highly incomplete or even obviously flawed.  When relying on such uncertain science, the services generally err on the side of species protection at all costs.

Did you know that the Delta smelt biological opinion (the regulatory instrument used to implement the ESA) actually uses the phrases, “is believed” and “we believe” in determining the conditions that trigger limitations on the pumps that move water to farms and cities south of the Delta?

Essentially, we are thwarting billions of dollars in economic activity and tens of thousands of jobs based on what?  A semi-scientific hunch?  Not good policy.

A secondary flaw inherent in the ESA relates to how the law discourages voluntary conservation efforts.  Under the ESA, landowners are liable for designated species on their property, which brings with it the specter of land use restrictions and fines.  This was Richard Pombo’s motivation to pursue ESA reform.  For property owners attempting to preempt ESA issues, they have the opportunity to participate in voluntary conservation programs.

However, no good deed goes unpunished.  In the early 2000s, one of our members became the first agricultural company in the country to enter into a Safe Harbor agreement with the USFWS to help conserve the ESA-listed San Joaquin kit fox.  This type of arrangement is intended to allow landowners to create or improve habitat for endangered species without fear of new restrictions.

At the time, this company was hailed by the environmental community for its cooperation with the regulatory agencies; indeed, a model for other agricultural operations to follow.  After taking several years to negotiate the actual agreement, the project was finally implemented.  That’s when things got worse.  Bureaucratic headaches escalated over the next few years, driving up the time and costs associated with the conservation efforts.

Fast forward to 2010.  In spite of the Safe Harbor agreement, an environmental activist group, the Center for Biological Diversity, filed a petition to the USFWS to designate critical habitat for the kit fox, which would have permanently taken land out of production for this company.

Fortunately, no critical habitat rules for the kit fox have been published.  Regardless, this company has vowed to never enter into another Safe Harbor agreement.  Is that the type of outcome the most aggressive environmental activists want to create?  Candidly, the answer is probably “yes.”

One truth is exceedingly evident: Many environmental activists have little regard for the fact that farmers are among the most responsible stewards of the land.  They will continue to use the ESA as a tool to prevent economic activity on as much land as they can, as well as the use of resources, such as water, that make economic activity possible.  That is, unless we see meaningful reform to this law.

Next month, I will lay out our strategy for moving this conversation forward.