CFACT points to shocking permitting costs, $1.1 billion in federal spending, decades of litigation
A new report from the Committee for a Constructive Tomorrow (CFACT) argues that, more than 50 years after enactment of the Endangered Species Act, federal implementation of the law has severely distorted congressional intent.
The report, Endangered Species Act Implementation Is Severely Flawed, by Dr. David Wojick, argues that the regulatory machinery of the Endangered Species Act (ESA) has become “seriously overextended.” The report identifies seven major problems with ESA implementation, including prohibitively expensive property development permits, imbalanced spending on certain listed species, a lack of measurable impact on those species, an expansive interpretation of what constitutes harm to a protected species, and court intervention in agency decisions.
For example, according to the report, the Fish and Wildlife Service (FWS) has interpreted a straightforward statute so broadly that virtually any impact on habitat—even speculative impact—can be treated as a prohibited take, even though the law provides a mechanism known as an incidental-take permit for development within endangered-species habitat.
“The law states that a person cannot harm an endangered species without obtaining the required permit,” the report states. “FWS has interpreted ‘harm’ to include any change in the habitat that could negatively impact a species. Cutting down a tree that an endangered bird might nest in could be considered harm. … FWS has stretched this language to its limit.”
The interpretation is not just absurdly expansive, it is absurdly expensive, Wojick asserts. He points to a Florida landowner who wanted to build a house on five acres but faced an incidental-take fee of $139,440, high enough to make construction of the home impossible, he wrote.
“This case is from Charlotte County, Florida, one of several American jurisdictions to adopt what is called a regional Habitat Conservation Plan (HCP),” the report states. “An HCP is required to obtain an ESA incidental take permit, and these plans require substantial, expensive biological research. The county then sublets the permitted take to local landowners who want to improve their property.”
But the cost structure is prohibitive, Wojick reported.
“For anything over 100 acres, such as developing agricultural land, the ESA permit fee is a punitive $2,289,700,” the report states. “This effectively rules out agricultural development. Ironically, it invites projects such as malls and data centers that sterilize the land. Developing even the smallest piece of land, up to 0.22 acres, costs $2,032.”
In most of America where endangered species are present, Wojick wrote, the landowner must apply directly to FWS for an incidental take permit to develop the land.
“The required Habitat Conservation Plan is very expensive and time-consuming,” the report states. “HCP preparation has become an industry of its own. Many landowners cannot afford an HCP, which means their land cannot be developed. This can drastically lower the value of the land.”
Even worse, Wojick continues, FWS has ruled that approval of every HCP must go through a laborious National Environmental Policy Act (NEPA) process.
“This is difficult to justify given that there are typically no direct impacts on the endangered species, only on its habitat,” he wrote. “In sharp contrast, the National Marine Fisheries Service (NMFS) issues incidental take permits to actually harass and harm protected marine mammals without going through NEPA. The Dominion Energy offshore wind project is authorized to harass and harm almost 60,000 marine mammals. NEPA is not involved.”
Paper, Paper on the Desk, What’s the Highest Cost of all
One of Wojick’s more astonishing findings involves the government’s own estimate of the work required to obtain an ESA permit. According to the report, the FWS estimates that preparing a Habitat Conservation Plan associated with an incidental-take permit requires an average of 2,080 hours of applicant labor, or exactly one full-time work year.
“Accepting this huge number for the moment, it is easy to see that few landowners will have the time to apply for a permit,” Wojick wrote. “Big organizations with big plans might throw that much staff time at getting a permit, but, short of that, it is just too much work.”
Also, the report states, there is considerable concern that the already large estimate is likely to be significantly understated.
“Agencies are under substantial pressure to minimize their labor estimates,” he wrote. “The Paperwork Reduction Act (PRA) imposes a regulatory labor budget on each agency. The total allowable annual labor required under all the agency’s regulations taken together is set by the Office of Management and Budget.”
Since agencies continually seek to issue new regulations, Wojick wrote, they need strategies to reduce the labor estimates on their existing rules.
“Sometimes they make meaningful changes, but often they simply reduce the estimates further without substantive basis,” the report states. “The fact that the HCP estimate equals exactly 40 hours/week X 52 weeks strongly suggests that it is not a genuine estimate.”
Another major flaw in the PRA is that it does not require field sampling of actual labor amounts, so bogus estimates are unconstrained, Wojick wrote.
“However, given the drive to minimize them, this huge 2080 hours per permit should be considered the low end of the possibilities,” he wrote. “The actual labor required could easily amount to several person-years.”
$1.1 Billion in Annual ESA Spending
Wojick also questioned how federal ESA dollars are distributed.
“Most notable is the total federal expenditure for the year: $1,135,610,898, or well over $1 billion,” he wrote. “The ESA is a very large program that the public knows very little about. Moreover, this amount does not include the substantial costs that non-federal landowners collectively pay when applying for incidental take permits so they can develop their land.”
Surprisingly, Wojick found, 27 of the top 30 funded species are fish.
“The top 30 species, almost all fish, collectively receive $658,328,316, or over half of the program’s funding,” he wrote. “Last place is shared by a birch, a chub, and a snail at $100 each. The Red Wolf barely exceeds them at $200.”
Wojick says 51 of the first 66 entries in the government’s expenditure ranking are salmon or steelhead populations, leaving much less funding available for the remainder of the more than 1,600 protected species.
Improper court intervention is yet another ESA issue, Wojick asserted.
“In many cases the courts are making policy over the well-reasoned objections of the enforcing agencies,” the report states, pointing to the gray wolf as a good example of how the FWS has tried repeatedly for more than 20 years to delist the wolf, only to be blocked by a court order.
“ESA implementation has been drenched with litigation, and the wolf case has been a prominent example,” he wrote. “In some cases, the litigation has been appropriate. For example, if an agency does not meet the statutory deadline for ruling on a petition to list or delist a species, the court’s role is simply to enforce the law.”
But in other cases, such as the case of the gray wolf, the court appears to be preempting the agency’s policymaking role, Wojick found.
“The FWS is charged under the ESA with determining when a species should be listed or delisted,” he wrote. “That fundamental decision now lies with the court. Whether this is appropriate is far from certain.”
Wojick points to a recent Supreme Court case involving the National Environmental Policy Act (NEPA), in which the high court upheld that the court’s role was to ensure that NEPA procedures were followed, not to second-guess the agency’s decisions: “If this reasoning were followed, it might be concluded that the court erred in rejecting the FWS’s finding that the gray wolf was no longer threatened or endangered.”
The Wisconsin Way
The report also specifically cites Wisconsin, where representatives and senators have introduced legislation to delist the gray wolf and prevent court interference, Wojick wrote.
“One bill to do so has passed the House but is asleep in the Senate,” he wrote. “In the meantime, Wisconsin’s wildlife agency has been building the case for delisting, at least within that state. They have fielded large scale wolf population studies. Their finding is not only that the wolf population is large and stable but also that it is close to the estimated carrying capacity. This means there are about as many wolves as there can be under natural conditions.”
Wojick emphasizes that federal delisting would mean that primary management responsibility would return to state governments where it belongs.
“Surely this data indicates that the Wisconsin wolf is neither endangered nor threatened,” he wrote. “But that determination seems to be locked up in the courts. Is FWS out of the wolf endangerment picture? Is the gray wolf now in legal limbo? The court should be enforcing the procedural requirements of the law, not making policy.”
Delisting a species or a population does not end its protection, Wojick wrote.
“It just transfers it to the states, who may be better qualified to do the job,” he wrote. “The Endangered Species Act needs to be interpreted to recognize these important issues.”
Wojick says part of the wolf controversy originates with Congress’s 1978 decision to expand the ESA definition of “species” to include “any distinct population segment (DPS)” of a vertebrate species that interbreeds when mature. That is problematic because the statute does not itself define a distinct population segment, leaving agencies and courts to determine what qualifies.
“As often happens, the words in a statute can take on meanings that differ from their ordinary usage,” he wrote. “In the ESA, ‘species’ does not necessarily mean species. In some cases, the concept of a DPS works well because the critters interbreed in well-defined geographic groups. For example, salmon are easily grouped by river because adults return to their birth river to spawn. There are over 60 salmon ‘species’ listed under ESA.”
But the concept of DPS absolutely does not work for wolves, Wojick wrote.
“Gray wolves are nomads with huge overlapping ranges,” he wrote. “A young wolf seeking a mate might travel 600 miles to find one. Packs form and then dissolve. The wolf population is basically continuous, not segmented. Thus, the ESA’s practice of listing by segment simply does not work. Congress needs to define a new approach to listing species.”
Finally, Wojick argues that much of the ESA’s regulatory reach flows from the federal interpretation of what it means to “harm” a listed species, which he contends is being interpreted under an impossibly vague standard.
“The law simply says that it is illegal to harm a listed animal without a permit to do so,” he wrote. “In other animal protection laws, harm means harm or directly impacting a protected animal. In the ESA, the concept of harm has been interpreted enormously broader. ‘Harm’ now includes any modification to an animal’s habitat that might someday adversely affect the species.”
For example, Wojick wrote, consider a property that is occasionally visited by a migrating bird that is ESA listed. A landowner wishing to cut down trees and build a house would “harm” one of these listed birds if that act someday significantly impaired its migration.
“There is no way to know today whether this will ever happen, and that is the core problem with the Endangered Species Act,” he wrote. “The same is typically true for ‘breeding, spawning, rearing, feeding or sheltering.’ A concept is vague when it cannot be determined whether it applies to a given situation. This is true for many, and likely most, cases of property development and ESA ‘harm.’ While there may be the potential for such injury, the definition requires actual injury, and whether that will ever occur in the future is simply unknowable.”
The report calls on Congress and the Trump administration to address those problems, particularly the definition of harm, the permitting system, and the statutory treatment of distinct population segments. Its basic contention is that species conservation and property rights need not be opposing objectives, but the current implementation of the ESA too often treats them as such.
“The situation is clear,” Wojick wrote. “FWS’s ESA regulations seriously distort congressional intent. They make it almost impossible for anyone except the wealthy to develop land within the extensive habitat of an endangered or threatened species—not just in Florida, but throughout America. The ESA is not the problem; it is the extreme permitting regulations that Congress must constrain.”
