House Committee Approves Revisions to Endangered Species Act

By J.R. Pegg

WASHINGTON, DC, July 22, 2004 (ENS) - The House Resources Committee passed two bills on Wednesday that alter how the federal government designates critical habitat and uses science in the implementation of the Endangered Species Act (ESA).

Proponents say both measures are needed to modernize and strengthen a law that has become mired in litigation, but environmentalists contend the bills would have the opposite effect and would undermine federal protection of imperiled species.

"The Endangered Species Act requires us to look before we leap in making decisions that could eliminate valuable parts of our natural heritage," said Marty Hayden, legislative director for the nonprofit environmental law firm Earthjustice. "These two bills would try to cut so many holes in that safety net that even an elephant would slip right through."

Committee Chairman Richard Pombo, a longtime advocate of Endangered Species Act reform on behalf of agricultural, development and private property interests, took on critics of the two bills for questioning the intent of the proposals.

"There is no attempt on the part of this committee to gut, eviscerate or rollback the ESA," said the California Republican. "These bills will modernize the law to improve our results for recovery, and in that regard, there is certainly nowhere to go but up."

Pombo told colleagues that only seven of the more than 1,300 species listed under the Endangered Species Act have been recovered and removed from the endangered species list.

The battle over how the government protects critical habitat is vital, conservationists say, because Shrinking habitat imperils most species on the endangered species list, including the severely endangered Florida panther. (Photo courtesy Fish and Wildlife Service)

The bill takes aim at the Endangered Species Act's critical habitat provision - activities, such as logging and mining, on federal lands designated as critical habitat must not further imperil listed species.

Private lands designated as critical habitat are only affected if the landowner plans to engage in an action that requires a federal permit - such as a stormwater construction or wetlands dredge and fill permit.

The Endangered Species Act calls on the federal government to designate critical habitat when it lists a species and then develop a recovery plan.

But federal agencies have more often than not failed to carry out this mandate - of the more than 1,300 species listed under the Endangered Species Act, about one-third have designated critical habitat and only 25 percent have recovery plans.

These delays and inactions have caused a slew of lawsuits by environmental groups, something proponents of Cardoza's bill repeatedly cited as justification for the bill's reforms.

"We have been driven off course from a system that should be directed by science to one that is driven by litigation," said Cardoza, who represents a California district with several listed species.

The legislation prohibits the designation of critical habitat until a recovery plan is developed - a concept there is broad support for among environmentalists.

But the bill sets no firm deadlines for action and allows the Interior Department Secretary to issue a critical habitat designation only if "practicable, economically feasible and determinable."

House Resources Committee Chairman and California Republican Richard Pombo has come through on his pledge to get ESA reform legislation out of his committee this session. (Photo courtesy Pombo for Congress )

"The bill weakens our ability to recover species and does not address the source of the greatest frustration," said Washington Democrat Jay Inslee.

"Critical habitat is not getting designated because the agency has never offered guidelines and regulations to field offices on how to do this," Inslee said. "This is an Executive Branch failure and this bill is not going to solve that problem."

Much of the debate over Cardoza's bill centered on language that directs the Fish and Wildlife Service to give priority to the use of field data.

Proponents said the bill only calls for the agency to first look at field data and does not preclude the use of scientific modeling to determine the extent of critical habitat for an imperiled species.

West Virginia Democrat Nick Rahall, the ranking member of the committee, said at the very least the bill gives greater weight to field data over scientific models and could be interpreted to allow them to be precluded entirely.

"This would strip scientists of a tool they use to predict the risk of extinction," he said.

The Bush administration has sought to extend court ordered deadlines for designating critical habitat for 32 species currently under consideration, including the mexican spotted owl. (Photo courtesy U.S. Fish and Wildlife Service )

The bill, authored by Oregon Republican Greg Walden, passed by a vote of 26 to 15.

The current ESA calls on the Fish and Wildlife Service to use "best available data" when making decisions about listing species, designating critical habitat and forming recovery plans.

Walden's bill alters that definition and requires the Interior Secretary "to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed."

"Field data should have a higher value," said Walden, who added the bill will "ensure that sweeping policy decisions are based on sound science, representing the best interests of species, people and communities."

Critics say the bill forces agency scientists to jump through many more hoops when making key decisions under the ESA, dismisses the importance of scientific modeling in wildlife research and seeks to make political appointees the arbiters of what constitutes sound science.

"This bill is political science and will not result in scientifically made decisions," said Rahall.

The Elfin woods warbler has been on the candidate list for more than two decades. (Photo courtesy Jose Pepe Gonzalez National Audubon Society)

Skeptics of the two bills note that the push to reform the Endangered Species Act comes amid growing evidence that conservation measures within the United States - and the world - are faltering.

The world faces a wave of extinctions prompted by human growth and development and scientists estimate the current extinction rate is 100 to 1,000 times the natural level.

"We are weakening the one bill dedicated to something about the problem," Inslee said. "That is quite an irony."

Both bills will now go to the full House for consideration.