US Fish and Wildlife’s indecision over bird on Endangered Species List causes problems for Central Texas landowners

For more than 25 years, a tiny songbird has created a loud racket for Central Texas landowners, thanks to the Endangered Species Act and its mishandling by the U.S. Fish & Wildlife Service.

The golden-cheeked warbler is a small songbird that breeds exclusively in the Ashe juniper trees native to Central Texas and has been listed as endangered under the Endangered Species Act since 1990. Yet, despite federal law requiring that it do so, the USFWS has refused to designate critical habitat for the warbler, leaving landowners in 39 counties in regulatory limbo.

Critical habitat is just what it sounds like — a specific geographic area that contains features essential to the conservation of an endangered species. It is common sense that to protect an endangered species, you also have to protect its habitat. Congress understood this, and the Endangered Species Act makes it mandatory for federal agencies to identify critical habitat at the same time a species is added to the endangered list.

When USFWS first listed the warbler as endangered in 1990, it claimed that habitat destruction was one of the main reasons for protecting the warbler. However, it’s now been 26 years — and USFWS has never designated critical habitat, ignoring both common sense and federal law. If USFWS doesn’t know which habitat is critical for the warbler, how can habitat destruction justify the listing?

Central Texas landowners are at a loss. Ashe juniper, locally known as cedar, is possibly the most hated shrub in Texas; it causes severe allergic reactions, slurps up to 35 gallons of water a day in drought-prone regions, suffocates nearby trees and grasses, and provides quick-burning fuel for wildfires. Cattle won’t eat it. Its wood is too soft for construction. The only way to remove it permanently is by controlled burn.

Landowners who try to develop or clear cedar on their property risk the wrath of the federal government for disturbing the warbler. Causing a “take” — or disturbing a protected species — subjects the property owner to criminal and civil penalties. Even the suspected presence of warblers can decrease a property’s value significantly. But unless you’ve actually seen warblers nesting on your property, you can’t know for sure whether you’d be breaking federal law by clearing cedar or building near a stand of the trees – all because USFWS ignored the clear rules of the Endangered Species Act and never designated critical habitat for the warbler.

This problem is not limited to Central Texas and the golden-cheeked warbler; USFWS regularly refuses to designate critical habitat. As of 2009, only about 40 percent of threatened or endangered species had critical habitat designations, and most of that was the result of lawsuits forcing USFWS to act.

The likely reason why the USFWS has not identified critical habitat for the warbler has recently become apparent, thanks to a 2015 study by the Texas A&M Institute of Renewable Natural Resources. Researchers found that, despite USFWS’s refusal to designate critical habitat, there is approximately five times more warbler habitat (about 6,480 square miles) and approximately 19 times more warblers (about 263,339 males) in existence today than USFWS thought when the warbler was listed in 1990.

Rather than celebrate the recovery of the warbler, USFWS ignored the study, much as it ignored the Endangered Species Act’s rules on critical habitat. It’s now 26 years later, and Central Texas property owners are still paying the price.

If landowners are expected to follow the law, so are the federal agencies entrusted with carrying out that law. As shown by the warbler, a breakdown in this system results in costly confusion instead of success. Property owners, and the warblers, deserve much better.


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