It's time to modernize the Endangered Species Act

Dusky gopher frogs, whooping cranes, and Coho salmon, oh my! It might not have the same ring as the iconic line from the Wizard of Oz, but if your utility is neighbors with any Endangered Species Act listed fish, plant, or wildlife species, then you know compliance can be a lengthy, burdensome, and costly process. 

An endangered species designation can impose restrictions that make it difficult and expensive to construct or maintain utility power lines and generate electricity, ultimately saddling customers with higher electricity bills. 

Despite these challenges, public power utilities are actively involved in and committed to species recovery and protection. For example, Chelan County Public Utility District in Washington state went above and beyond the statutory requirements when it committed to a 100 percent “no net impact” on ESA-listed species as part of its operating license for hydroelectric projects.   

After nearly three decades without any major changes, it is time that policymakers modernize the law to make it work better for species recovery and the economy.

In July 2018, the U.S. Fish and Wildlife Service and National Marine Fisheries Service jointly proposed revisions to regulations involving critical habitat designations, updates to the interagency consultation process, and clarifications to key definitions in the act. 

The American Public Power Association is a board member on the National Endangered Species Act Reform Coalition (NESARC) — a broad coalition of more than 50 energy producers, agricultural interests, cities and counties, and other businesses and individuals dedicated to promoting legislative and administrative improvements to the ESA. The group meets regularly to collaborate on and participate in reform activities with congressional staff and other federal officials.

In September, NESARC filed three sets of comments in response to each proposal. The Association worked through the coalition’s drafting process to highlight and incorporate specific areas of interest to public power utilities in the finalized comments. 

ESA reform was also a hot topic on Capitol Hill last summer. In the Senate, Environment and Public Works Committee Chairman John Barrasso (R-Wyo.) released comprehensive legislation, the Endangered Species Act Amendments of 2018. The bill sought to reauthorize the law for the first time since its funding authorization expired in 1992 and to elevate the role of states in species management. A hearing was held on the bill, but it did not advance out of the committee. 

On the other side of the Capitol, the House Natural Resources Committee held a legislative hearing in September on nine bills aimed at amending and modernizing the ESA. The package of bills, introduced by the House Western Caucus, aimed to increase state and local involvement in ESA activities, encourage voluntary conservation efforts, and amend other sections in the law involving listing decisions and critical habitat designations, to name a few. Four of the nine bills were reported out of the committee, but none of them received a vote on the House floor. 

Although none of these bills became law, it is encouraging that there is an understanding among many people in the federal government that the ESA can and should be improved.   

Will the new 116th Congress prioritize ESA reform in the same way as the 115th Congress?  It is unclear, as there are fundamental disagreements about the successes and failures of the ESA among some members in the majority in the House and Senate this year.  It is likely that the Administration will propose additional regulatory actions in 2019.

However things shake out, the Association will continue to engage with the federal government and advocate for reforms that enable public power utilities to build and improve infrastructure in a timely and predictable manner, which would allow conservation measures to be implemented more expeditiously to protect endangered species.