Shooting the Albatross: Why a State Takeover of Federal Public Lands Would Make Endangered Species Act Compliance More Expensive and Difficult

Abstract

The goals underpinning state efforts to seize control of federal lands — to reduce regulatory complexity and accelerate resource development — are at odds with changes in the Endangered Species Act (ESA) compliance process that a public land transfer would bring about. The ESA would continue to apply, prohibiting the "take" of a listed species. However, by removing a federal nexus, the procedural mechanisms for complying with the ESA would change. These changes would increase the time and expense involved in ESA compliance, potentially chilling the economic development transfer backers desire. This paper compares and contrasts the ESA compliance requirements that would apply under federal versus non-federal land ownership scenarios. We show that transferring lands out of federal ownership would invalidate Incidental Take Permits covering over 3,200 producing oil and gas wells in Utah alone, while complicating efforts to process pending drilling applications for over 1,100 additional oil and gas wells. Absent an Incidental Take Permit, operators would need to develop costly Habitat Conservation Plans, if they are to protect themselves from liability for activities that harm a listed species. With each well on federal lands in Utah generating an average of over $28,000 annually in royalty revenue for the state, the consequences of permitting delays could be significant.

Keywords: transfer of public lands, endangered species act