August 2011, Issue 51: Editors’ Notes

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This editorial is from the August issue of M&A’s Arizona Water Policy Update.

What is the right balance between federal and local environmental protections? The Endangered Species Act often pits federal regulations against local interests.

Lately, the Clean Water and Endangered Species Acts have underscored the tension between those who support federal resource management and those who support local management. In recent months, both of these landmark environmental protection laws have been targets of a Congress that is focused on reducing the reach of the federal government. At the same time, advocacy groups have found ways to leverage the judicial system to increase environmental protections under these laws. We covered the CWA last month; this month, we take a look at the ESA.

The ESA mandates the protection of endangered species, essentially above all other land and water use priorities. When a species is listed, local governments, landowners, and other stakeholders are cut out of land and water use decisions. Since the ESA was enacted in 1973 by President Nixon, a few nonprofit organizations have become adept at using this federal authority to block land development around the country, particularly in the western U.S. Just this summer, the U.S. Fish & Wildlife Service announced an historic agreement with the Center for Biological Diversity to settle many of the petitions and lawsuits that it filed over the past decade. Among these lawsuits is one that the CBD filed against another environmental organization; according to the CBD, it did not go far enough to protect species. The agreement stipulates that the USFWS will review the status of 757 species for protection under the ESA — an unprecedented commitment of agency resources at a time when funding levels are being slashed.

Congress has taken notice. This summer, a rider was included in the House spending bill that would cut federal funding for species listings and critical habitat designations. Although this rider was ultimately defeated in a close House vote (representing a rare environmental victory in Congress this year), legislative intervention remains the primary means to overcome the federal protections granted in the ESA.

Litigation and legislation are both fairly blunt tools when used to manage local land and water resources. Exempting species from ESA protections through legislation means that politics, not scientific data, ultimate determines how species are managed. Science doesn’t necessarily win out in the litigation process either, and the costs and local consequences can be far-reaching. A better solution would combine federal oversight with local input to protect species. Of course, compromise on both sides will be required to refine the tools in our regulatory toolbox.

Juliet M. McKenna, MS, PGTaylor D. Shipman, MS | Mark H. Myers, MBA