Safe Harbor Master

• Pages: 44-48

Page 44 ❧ THE ENVIRONMENTAL FORUM Copyright © 2009, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, March/April 2009

Safe Harbor

Master

e Environmental Defense Fund’s

Michael J. Bean has been a low-keyed

but persistent voice of pragmatism and

problem solving, imaginatively working

with the tools the Endangered Species Act

provides and honing new ones based on

the statute’s core provisions

Pr o f i l e

The Endangered Species Act was passed

by a near unanimous Congress in

1973, but opinion on conserving

biodiversity under the federal statute

and its state progeny has seldom been

voiced with so little dissent. From the

snail darter to the spotted owl to the

California gnatcatcher, the process of listing species

and preserving their habitat in the face of encroach-

ing development has become synonymous with en-

vironmental strife.

For more than 30 years, Michael J. Bean has tried

to wring the conf‌lict out of the bedrock law pro-

tecting our genetic heritage. Director of the Envi-

ronmental Defense Fund’s Wildlife Program since

1977, Bean has been a low-keyed but persistent voice

of pragmatism and problem solving, imaginatively

working with the tools the ESA provides and hon-

ing new ones based on the statute’s core provisions.

“My goal has been to f‌ind within the four corners of

the existing law the means to do things that weren’t

necessarily obvious but were clearly desirable, to f‌ind

f‌lexibility through creative interpretation of existing

authorities,” he said in a recent interview.

One lesson became clear to Bean early on — that

successful recovery for most species would depend

not on governmental action alone. Two-thirds of the

contiguous United States is private property and the

critical habitat required in recovery plans for listed

species, plus the obligations that f‌low from that des-

ignation, spreads across both the public and private

domains.

“Like a mirage that recedes into the distance as

one approaches it, the recovery of many endangered

species is likely to be an unreachable goal without

the active cooperation of private landowners,” he

said as lead author of an article published in 2001

in Conservation Biology in Practice. “Ironically, how-

ever, the stringent requirements of the Endangered

Species Act have sometimes made it harder to get

that cooperation. Fearing new restriction on the use

of their land, many landowners have been reluctant

to do things that would attract endangered species

to their property or increase the numbers of those

already there. Some have even practiced ‘defensive

management,’ preemptively destroying habitat to

prevent endangered species from later occupying it.

e consequence has been that strict regulatory con-

trols intended to protect rare species have prompted

private landowners to do the opposite of what is

needed to help those species.”

Managers of public lands are subject to unique