Approved by the Energy, Environment, and Water Policy Committee on February 26, 2020
Approved by the Public Policy Committee on May 18, 2020
Adopted by the Board of Direction on July 11, 2020
The American Society of Civil Engineers (ASCE) recommends that Congress maintain and support the Endangered Species Act of 1973 (ESA) to:
- Require that science and engineering apply to the process of identifying and listing critical habitat.
- Require that critical habitat decisions be based on improved collection and field testing of data and undergo peer review.
- Allow all interested parties to consult with the U.S. Department of the Interior to determine whether a proposed federal action will jeopardize a species.
- Require that risk based social and economic analyses of critical habitat designations be considered.
- Maintain the use of incentives for conservation of species, including "no surprises" assurances and provisions for multi-species conservation plans as required under current federal regulations.
- Require that mitigation through Habitat Conservation Plans be reasonable and prudent, fully funded, and related to the nature and extent of the impact.
- Require the Department of the Interior to update the scientific basis of listing and recovery plans regularly to ensure that the newest, most pertinent science underpins listing.
- Require the Department of the Interior to implement measures to delist species and applicable habitats in a reasonable time when new data and pertinent science demonstrate that recovery has been successful.
The Endangered Species Act is intended to protect and conserve endangered and threatened species and their habitats. Section 4 of the ESA directs the Secretaries of Commerce and the Interior to list threatened and endangered species and to designate their critical habitats based on "the best scientific and commercial data available." Section 7 of the ESA prescribes the steps that federal agencies must take to ensure that their actions do not jeopardize endangered wildlife and flora. It provides that every federal agency consult with the Department of the Interior and the Department of Commerce to ensure that any action authorized, funded, or carried out by a federal agency is not likely to jeopardize the continued existence of any endangered or threatened species.
The decision to list a species as endangered or threatened is made without reference to the economic effects of that decision. Listing alone results in certain protections for the species, including a requirement that federal agencies "insure that any action authorized, funded, or carried out by such agency is not likely to jeopardize the continued existence of any endangered species or threatened species." These protections may impose economic burdens.
In contrast to the listing decision, the agency may designate critical habitat only after considering the economic impact of the designation on any particular area. The agency has discretion to exclude any area from the designation if the agency determines "that the benefits of such exclusion outweigh the benefits of specifying such area as part of the critical habitat," unless exclusion would result in extinction of the species. This can be a delicate balancing act.
Government, business, and industry make investments to protect and enhance the habitat of endangered species. It is essential that these resources are allocated based on peer-reviewed engineering and science as well as a balance between environmental and economic concerns.
A rigorous, risk-based approach should be used to select an appropriate level of protection for public safety, health, and welfare, and to compare alternatives for managing consequences. Furthermore, the public should be informed in clear and concise terms of potential consequences of decisions being made.
ASCE Policy Statement 438
First Approved in 1995