Working Group on Endangered Species Act (ESA) Habitat Issues

Frequently Asked Questions (FAQs)

Background Regarding the Working Group on ESA Habitat Issues
April 28, 2006

In response to a request from six U.S. Senators The Keystone Center recently moderated a Working Group regarding the habitat provisions of the Endangered Species Act. The group sought to answer three questions posed by Senators Chafee, Clinton, Inhofe, Jeffords, Crapo, and Lincoln:

1. As currently written and implemented, is the ESA adequately protecting and conserving the habitat listed species need to recover?
2. If not, how can the ESA be improved to better conserve habitat and help species recover?
3. What specific changes and recommendations can the regulated and NGO communities jointly recommend, advocate for, and help implement?

At three plenary meetings held in Keystone, Colorado, Shepherdstown, West Virginia, and Washington, DC, the working group engaged in rigorous and collegial discussion on all three of the above questions. Members of the group concluded that the ESA is not protecting and conserving the habitat that listed species need to recover as effectively as it might. The group’s final conclusions and recommendations were forwarded to the Senators in a summative letter on February 17, 2006, and are fully described in the Final Report. The Keystone Center encourages interested individuals and organizations to review these documents thoroughly to understand the scope and outcomes of the deliberations.

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Frequently Asked Questions

Who are you?

The Keystone Center is a non-profit organization that was founded in 1975 to help facilitate cross-sector dialogues on pressing environmental, energy, and public health issues. The Keystone Center does not take positions or advocate particular points of view. Instead, it convenes meetings on issues and facilitates practical, consensus-based solutions that break old logjams or that avert unnecessary future science and public policy battles. Please follow this link for more information about The Center for Science & Public Policy.

Who requested this Working Group?

The May 2005 letter requesting this working group was signed by Senators Chafee, Clinton, Inhofe, Jeffords, Crapo, and Lincoln.

What specifically did you focus on?

The discussions focused on the three questions posed to the group:

1. as currently written and implemented, is the Endangered Species Act (ESA) adequately protecting and conserving the habitat listed species need to recover?;
2. if not, how can the ESA be improved to better conserve habitat and help species recover?;
3. what specific changes and recommendations can the regulated and NGO communities jointly recommend, advocate for, and help implement?

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Who participated?

After careful consideration, The Keystone Center invited a small cross-section of people who (a) were knowledgeable about the Act; (b) had standing and recognition among the interest groups they broadly represent; (c) believed that new and creative thinking is needed at this time; and (d) were willing to engage in disciplined give-and-take discussions.
The following people, listed in alphabetical order, participated in working group discussions. Although they all had affiliations with environmental groups, regulated industries, or academic organizations, they spoke from their individual perspectives rather than through the official positions of their respective organizations, trade associations, or coalitions.

Participants
Donald C. Baur, Perkins Coie LLP & Western Urban Water Coalition
Michael J. Bean, Environmental Defense
Bob Broscheid, Arizona Game and Fish Department
Jimmy Bullock, International Paper
Jamie Rappaport Clark, Defenders of Wildlife
Paul J. Conry, Hawaii Department of Land and Natural Resources
Bob Davison, Wildlife Management Institute
Christopher S. Galik, National Association of Home Builders
Paul W. Hansen, Izaak Walton League of America
Robert Irvin, Defenders of Wildlife
John Kostyack, National Wildlife Federation
Richard Krause, American Farm Bureau Federation
John D. Leshy, U.S. Hastings College of the Law
William R. Murray, American Forest & Paper Association
Barry R. Noon, PhD, Colorado State University
Robert J. Olszewski, Plum Creek Timber Company
Cassie Phillips, Weyerhaeuser
Jimmie Powell, The Nature Conservancy
Steven P. Quarles, Crowell & Moring LLP
Daniel J. Rohlf, Lewis and Clark Law School
J.B. Ruhl, Florida State University College of Law
Mark C. Rutzick, P.C.
Sean Skaggs, Ebbin Moser + Skaggs LLP
Gregory Wetstone, International Fund for Animal Welfare (formerly of NRDC)

Observers
Tom Buschatzke, City of Phoenix
Jessica Eskow, International Paper
Benjamin Tuggle, US Fish & Wildlife Service
Andrew E. Wetzler, Natural Resources Defense Council

Co-Chairs
Richard N. Burton, MeadWestvaco Corporation
Rodger Schlickeisen, Defenders of Wildlife

Project Staff
Peter Adler, President, The Keystone Center
Meg Kelly, Associate Facilitator, The Keystone Center
Johanna Raquet, Program Coordinator, The Keystone Center
Doug Thompson, Senior Associate, The Keystone Center

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Final Report, April 28, 2006

Exeuctive Summary of Final Report, April 28, 2006

Press Release, Final Report

Letter to Senators

• Executive Summary of Letter to Senators
  
  
• Press Release, Letter to Senators

Was it worth the effort?

Members of the working group have said:

“The Keystone process has done much in its few months to identify and narrow the ground over which a multitude of stakeholders differ over the future of the ESA. While it did not produce a consensus on reform, or even on why and where reform may be desirable, it has helped crystallize the set of driving issues and is sure to focus continued debate more clearly. For that all should be thankful. Somewhere in the higher otherworld of the ESA there lies a Medal of Honor, which in no doubt will be awarded to The Keystone Center jointly for the work you have done!”
- J.B. Ruhl, Matthews & Hawkins Professor of Property Florida State University College of Law

“The Keystone dialogue was a very productive effort. Thanks to the excellent facilitation work by The Keystone Center staff, the participants reached agreement on some key issues and achieved a better understanding of differing perspectives on other key issues. Conserving endangered species is becoming an increasingly difficult job, considering the increasing pressures on habitat from threats such as global climate change and human population growth. This Keystone dialogue will help Congress navigate this difficult terrain.”
- John Kostyack, National Wildlife Federation

“Over the years, I have been involved in a number of facilitated dialogues concerning reform of the Endangered Species Act, and I found the Keystone dialogue to have been the best-facilitated process. Thanks, in large measure, to the professionalism and skill of the Keystone facilitators, the Working Group on Habitat was able to engage in a collegial and wide-ranging exploration of highly complex issues under the ESA. Although the Working Group was ultimately unable to reach consensus regarding substantial changes to the current Act, the dialogue that emerged from this process will no doubt prove an invaluable guide for future efforts to reform the ESA.”
- Sean Skaggs, Ebbin Moser + Skaggs LLP

“I think this ESA working group has been the most focused, inspired, and dedicated convocation of stakeholders on the ESA in many years, perhaps ever. The Keystone Center assembled very sophisticated people who really understand this complicated statute, the regulatory challenges it posses, and possible and politically realistic ways it could be improved. I think its work could have genuine impact on congressional consideration of measures to reform what is the most powerful natural resource preservation law in the country.”
- John D. Leshy, Professor, UC Hastings College of the Law and The Wyss Foundation

“The ESA is a critical piece of legislation to large landowners as it impacts our operations daily. The Act is up for reauthorization and the Keystone Dialogue effectively brought together some of the country's best thinkers to discuss possible different approaches to the issue that could potentially improve both the plight of threatened and endangered species, as well as raising the level of certainty for private landowners in dealing with the implications of the Act. The Keystone Dialogue appears to have presented a unique format for these discussions to be meaningful.”
- Robert Olszewski, Vice President, Environmental Affairs, Plum Creek Timber Company

“I have been encouraged by the progress we have made in our candid discussions of the Endangered Species Act and how to improve its effectiveness at conserving America's natural heritage. The problem is complex and issues of fairness and an equitable distribution of costs and benefits to the public are not easily resolved. Nevertheless, I cannot envision any other way to address these issues than to have all affected parties at the table and engaged in an open and honest dialogue. We need to continue this effort.”
- Barry R. Noon, PhD, Department of Fishery, Wildlife, and Conservation Biology Colorado State University

Aren’t there a lot of other groups and individuals who should have been part of this?

The Keystone Center recognizes that the group above did not reflect every important organization and person with knowledge and insight about endangered species issues. The Keystone Center sought to give voice and view to most perspectives, especially those from the environmental and regulated communities. To maintain a workable size, The Keystone Center sought strong voices that could speak to their minds, knowing that many shades and variations of such views could easily also have joined the discussions. The working group understands that others can and should offer valuable critiques of their own, and encourages those voices to be heard.

How often did the Working Group meet?

Three meetings were held: The first one in Keystone, CO in November 2005; the second in Shepherdstown, WV in December 2005; and a third in Washington, DC in January 2006.

Who paid for this?

Balanced funding has been received from the regulated and environmental communities including:

Alliance for Habitat Conservation
American Farm Bureau Federation
American Forest & Paper Association
American Forest Resource Council
California Natural Resources Group
City of Phoenix
Crowell & Moring LLP
Ebbin Moser and Skaggs
International Paper
MeadWestvaco Corporation
Metropolitan Water District of Southern California
National Association of Home Builders
Perkins Coie
Plum Creek Foundation
Turner Foundation
Western Urban Water Coalition
Weyerhaeuser Company

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What actually resulted from the Working Group’s dialogue?

Most of the group’s work was dedicated to exploring a potential new approach to habitat protection that would move away from the current critical habitat framework and build on three interdependent components:

1. centralize the role of recovery and recovery planning;
2. significantly boost the role of incentives; and
3. revise the §7 consultation standard.

Although the group did not reach consensus on a full and comprehensive construct, its deliberations offer important new ideas for consideration. It was generally agreed that, if such a construct could be developed, it would likely need to include the following elements: new provisions for integrating habitat protection and conservation into the ESA to replace the current critical habitat framework; a greater focus on the function, content, scope, and mechanics of recovery plans; clarification of the §7 standard; more effective incentives for non-federal parties, and new sources of funding for better coordinated and more workable ESA provisions pertaining to habitat.

There was a broad consensus that incentives that go beyond simple compliance with the law are necessary to make imperiled species more abundant, widespread, or secure. Some of these include:

• Refinements in the selection criteria and re-enrollment considerations for the Conservation Reserve Program (CRP).
  
  
• Strengthened focus of Environmental Quality Incentives Program (EQIP) resources on specific wildlife practices for at-risk species.
  
  
• Increased funding for the Wildlife Habitat Incentives Program (WHIP) to provide conservation incentives and technical support to landowners.
  
• Explicit authorization of cooperative conservation agreements between landowners and the federal government for the conservation or improvement of habitat and species under the ESA.
  

Why should I bother reading the Final Report?

The habitat provisions of the ESA have been fiercely debated for many years and involve complex and contentious issues. The Keystone Center’s Working Group on ESA Habitat Issues Final Report records an important intellectual record and a trail of ideas that others will find useful in the future as the debates continue.

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