The regulatory machinery of the Endangered Species Act (ESA) is incredibly overdone, often making the reasonable use of regulated land impossible. Congress needs to fix this.
The law itself is pretty simple but the U.S. Fish and Wildlife Service (FWS) has interpreted it in an extreme way. The law says you cannot harm an endangered species. FWS has interpreted “harm” to include any change in the species’ habitat that might affect it. Cutting down a tree that an endangered bird might happen to nest in is considered harm.
The law actually allows for property development within an endangered species habitat. It is called an “incidental take” permit because every habitat change is considered a “taking” of the species. FWS has stretched this language to the limit.
The problem is that FWS has made incidental take permits so expensive that only rich landowners can afford them. Since most of us are not rich this incredible fee structure has made reasonable development impossible.
This taking fee overkill can be seen in an example from Florida. A landowner with a modest five acre plot wanted to build a house on that land. The incidental take fee was a choking $139,440 which made building impossible. The landowner has asked the Court to overturn this destructive fee structure but it is really Congress’s job to do that. See the case here.
This case is from Charlotte County, Florida, one of a number of American jurisdiction to do what is called a regional Habitat Conservation Plan, which is required to get an ESA incidental take permit. The County then sublets the take to local landowners who want to improve their property.
The horrendous ESA fee structure is usually secret but Charlotte County has published theirs here.
For anything over 100 acres, such as developing agricultural land, the ESA fee is a punitive $2,289,700. This pretty much rules out agricultural development. Ironically it invites things like 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 there are endangered species about the landowner has to directly apply to FWS for an incidental take permit in order to develop their land. The required Habitat Conservation Plan (HCP) is very expensive and time consuming. So much so that doing HCPs for landowners has become a lucrative industry.
Even worse FWS has ruled that their approval of every HCP has to go through the laborious National Environmental Policy Act (NEPA) process. This is truly strange given that there are no direct impacts on the endangered species, just on its habitat.
In sharp contrast the National Marine Fisheries Service 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.
The situation is clear. The U.S. Fish and Wildlife’s Endangered Species Act regulations seriously distort Congressional intent. They make it almost impossible for anyone except the rich to develop land within the extensive habitat of an endangered or threatened species. Not just in Florida but throughout America.
The Endangered Species Act is not the problem; it is the extreme regulations that Congress must constrain.