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Don Barry, a former assistant secretary of the interior under former President Bill Clinton, has called the federal Endangered Species Act the pit bull of American environmental laws. Signed into law by then-President Richard Nixon in 1973, the ESA just observed its 30th anniversary to mixed reviews. While on its face, and particularly as used in the courts by citizens groups, the ESA is powerful and often affects a wide variety of economic activities, in practice the implementation of the ESA has been unpredictable and largely underfunded. Although often associated with creatures from the American wilderness such as bald eagles and grizzly bears, the ESA increasingly exerts influence in urban settings around the country. This is attributable, in part, to the fact that urban areas, particularly in the southern and western United States, are growing. Such growth encroaches on wild lands inhabited by rare species. The perceived reach of the ESA also is no doubt in part due to the fact that citizens’ groups discovered the ESA’s power to limit urban growth and thus regularly “discovered” species lying in the path of the urbanization they oppose. Central Texas, including the metropolitan areas of San Antonio and Austin, is one of the recognized hotspots around the country for the conflict between urbanization and endangered species. No less than two-dozen listed species and dozens of additional rare species that could find their way onto the list in the future inhabit the region. Hardly any aspect of political or economic life in Central Texas west of Interstate Highway 35 has escaped the impact of hosting listed species and the requirements of the ESA. The clash of business and environmental interests takes on true David vs. Goliath proportions in the case of the 16 species of endangered cave bugs scattered in various limestone holes and cracks from San Antonio to Georgetown. Cave bugs? Yes, various species of small, blind, strange spiders and beetles that live in the caves and fractures of the Texas hill country. The ESA offers no less protection to these rare animals than it does to the whooping crane, and from a lawyer’s perspective, the only difference is that at least the whooping crane migrates and is elsewhere for part of the year. Indeed, the regulatory structure of ESA has required all kinds of projects, including shopping centers, highways, schools and new communities, to spend years in the permitting and compliance process, and sometimes in litigation, as a result of their potential impacts to listed cave bugs. The end result of this process usually is a permit that allows the project to go forward on a smaller scale in exchange for what can be millions of dollars in “mitigation” costs. For all the controversy, however, builders, developers, and state and local governments can overcome cave bug and other species problems. In fact, the ESA provides affected parties a number of tools to address the presence of endangered species. For example, organizers of projects with significant federal ties can get the green light to go ahead with a project that impacts endangered species through an inter-agency consultation under �7(a)(2) of the ESA. The Texas Department of Transportation has obtained Fish & Wildlife Service authorization for two new highway projects � U.S. Highway 183A and State Highway 45 � that impact various listed species through this mechanism. In addition, nonfederal parties can obtain incidental take permits, also known as a habitat conservation plan, under �10(a). These habitat conservation plans can operate on a relatively small scale (such as for an individual real estate development), or on a regional scale (as in Travis County’s Balcones Cayonlands Conservation Plan, which offers landowners a simple and affordable fee-paying method to address cave bugs and other listed species). Recently, the Fish & Wildlife Service has worked on even more innovative approaches to addressing cave bug and other species issues, including conservation or mitigation banks, candidate (as opposed to listed) species conservation agreements and safe harbor agreements. Affected interests such as businesses, builders, and state and local governments are making significant strides in learning to use these various ESA tools to minimize economic and social disruption while fostering conservation. The reality is that the ESA generally is a popular law serving an important role, and it is unlikely to go away. If lawyers approach species issues with the same level of care, diligence and creativity they bring to bear in similar land use and environmental debates, they can often successfully overcome the issues and avoid being bugged. Lawyers must take care in crafting solutions, however, as the law provides citizens’ groups ready access to the watchful federal courts. U.S. District Judge Fred Biery of the Western District of Texas upheld a habitat conservation plan in a 2002 ESA case, Center for Biological Diversity v. FWS. The San Antonio jurist wrote, “[T]he real estate magnates are winning thus far. But Mother Nature bats last. She is a jealous manager of her players. It is the top of the eighth.” Alan M. Glen is a partner in Austin’s Smith, Robertson, Elliott, Glen, Klein and Bell. He specializes in environmental and natural resources law and is recognized nationally for his expertise on the Endangered Species Act.

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