The huge cost of property development under the Endangered Species Act (ESA) is largely caused by an impossibly vague concept of “harming” a listed species.
This concept is not in the law, just in its misguided interpretation by the enforcing federal agencies. The law simply says that it is illegal to harm a listed animal without a permit to do so.
In other animal protection laws, harm means harm, that is directly impacting a protected animal. But under the ESA, the concept of harm has been interpreted enormously broader. “Harm” now means doing anything to the animal’s habitat that might someday adversely affect it.
This incredibly broad and vague concept is used by both the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) who jointly enforce the ESA.
Here is how NMFS puts it:
“NMFS interprets the term ‘harm’ as an act which actually kills or injures fish or wildlife. Such an act may include significant habitat modification or degradation where it actually kills or injures fish or wildlife by significantly impairing essential behavioral patterns, including breeding, spawning, rearing, migrating, feeding, or sheltering.”
(“Endangered and Threatened Wildlife and Plants; Definition of ‘Harm’, Final Rule”)
While this sentence is in present tense, when it comes to a permit for property development, we are actually talking about the future, including the distant future, which makes it unworkable.
For example, suppose my property is sometimes visited by a migrating bird that is ESA listed; I want to cut down some trees and build a house. This act will “harm” one of these listed birds if it someday significantly impairs its migration.
There is no way to know today whether this will or will not ever happen, and that is the core problem with the Endangered Species Act. The same will typically be true for “breeding, spawning, rearing, feeding, or sheltering.”
A concept is vague when we cannot tell whether it applies to a given situation. This will be true for many, 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 future is simply unknowable.
This is a very serious problem. The ESA only requires a property development permit if the development is harmful, but in many cases, it is impossible to know if this is so.
How is this fundamental vagueness being administered? This question clearly calls for an investigation, but here is my conjecture.
In impossible administrative situations, agencies typically default to something simple and feasible. In this case, that is to assume that if the animal is found on the property, then the maximum amount of feasible mitigation will be required. Mitigation here means doing expensive things to reduce the risk of injury.
Basically, they are substituting the mere risk of harm for the actual harm called for in the regulatory definition. In some cases, they might even assume that the risk of the animal being on the property sometime in the future is enough to require a development permit. The property being in the over 100 million acres of critical habitat might be sufficient to falsely trigger a permit requirement.
The Endangered Species Act says you need a permit to harm a listed animal. If the FWS and NMFS are in fact requiring property development permits based on the mere risk of possible future harm, that is an enormous case of illegal overregulation.
Congress and the Trump administration both need to look into this incredible situation. The impossibly vague definition of harm must be fixed so reasonable property development can proceed unmolested.