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A Texas Welcome to the Endangered Species Act?

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The author of this entry is responsible for this content, which is not edited by the Wilson County News or wilsoncountynews.com.
May 20, 2013 | 3,898 views | 1 comment

By Kathleen Hartnett White

The Texas legislature is one step away from making Texas a welcome mat for the federal Endangered Species Act. The biologists at Texas Park and Wildlife Department (TPWD) will host the party for the U.S. Fish and Wildlife Service (FWS). And the location is private land.

The fate of House Bill 3509 regarding “endangered species habitat conservation,” long thought dead- on-arrival in this legislative session, now hangs on a final vote of the Texas Senate. When major land ownership organizations inexplicably changed from opposing to supporting this bill a few minutes before midnight on May 9, HB 3509 was resuscitated, readily passed the House and slipped out of the Senate committee at an impromptu last meeting. Those organizations now shift to a neutral position but the bill remains alive.

And what is the problem with HB 3509? The bill gives the Texas Park and Wildlife Department (TPWD) an expansive authority to enable and enforce federal land use controls on private land under the Endangered Species Act (ESA). Such regulatory authority over basic land use – like grazing, brush clearing or constructing drilling pads - has been long denied to the TPWD.

HB 3509 would transform TPWD from a state agency protective of private property rights to an agency which enforces federal mandates. The bill stipulates that TPWD “shall provide the state’s scientific response to proposed [species’] listings.” Because science drives decisions under the ESA, TPWD’s wildlife biologists are in the driver’s seat of HB 3509’s expansive program to address the 100 species in Texas now candidates for ESA listing.

Science in the hands of government is easily politicized. Extremely rare is the government employee who wants less funding and authority. HB 3509 incentivizes biologists in TPWD to promote the need for more and more species’ conservation plans. FWS’s never-ceasing additions to the candidate lists will reinforce the biologists at TPWD. The biological data on which TWDP would conduct its science is on private land. Rural Texas landowners may see more of those helicopters or drones in the skies above their land, a practice reportedly used to identify habitat for the Lesser Prairie Chicken.

How can this happen in Texas?

Recall that the ESA operates not at all like United States Department of Agriculture’s voluntary conservation programs. The ESA has earned the moniker of “the pit bull” of environmental laws because of the breadth of its rigid authority. Since a U.S. Supreme Court ruling in 1978, regulatory protection of species as federally listed as endangered or threatened is to be “accorded the highest of priorities … regardless of costs.” Ask the farmers in the San Joaquin Valley of California how their voluntary efforts on the Delta Smelt panned out. Landowners with direct experience of the ESA’s regulatory yoke know that reports of the ESA’s flexibility are greatly exaggerated!

HB 3509 assumes that the FWS inevitably will put the 100 Texas candidate species, from which no federal mandates now flow, on the official list. Occasionally, FWS will accept a federally enforceable plan for a candidate species in place of official listing as endangered. The law, however, provides no guarantee against future listing with more draconian restrictions on private land use.

Decisions to accept the perhaps lesser burden of a CCP should not be made in Austin by TPWD, multiple boards, advisory committees and a “Science and Biology Workgroup,” as HB 3509 now stipulates. The last thing rural landowners need is more meetings in Austin to protect their property rights!

Response to endangered species issues should be made by those landowners and local governments directly impacted.

HB 3509’s capitulation to federal authority under the ESA is a grave departure from the “Texas Model” of promoting property rights, economic growth and state authority. Let’s hope the Texas Senate will realize HB 3509 is a dangerous step away from freedom that requires principled resistance to federal overreach.

Kathleen Hartnett White is the Distinguished Senior Fellow in Residence and Director for the Armstrong Center for Energy and Environment at the Texas Public Policy Foundation, a non-profit, free-market research institute based in Austin.
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Your Opinions and Comments

Senior Citizen  
Wilson County  
May 20, 2013 3:28pm
Puh-leeze ... NOT in Texas!

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