House Panel Eyes Critical Habitat Reform

By J.R. Pegg

WASHINGTON, DC, May 3, 2004 (ENS) - The Bush administration and some in Congress are pushing forward with an array of efforts to relax the Endangered Species Act (ESA), with a particular focus on altering the law's critical habitat provision. But there is heated debate as to whether it is the law - or its implementation by federal agencies - that really needs to be reformed.

The issue took center stage last week at a House Resources Committee hearing that offered the first view of a new legislative proposal to change how the federal government designates critical habitat.

Representative Dennis Cardoza, a California Democrat and author of the legislation, called the critical habitat provision "a poster child of a broken policy."

Under the ESA, which was enacted in 1973 and amended in 1978, the federal government must list animals and plant species that are endangered or threatened, designate critical habitat and develop a species recovery plan.

The law calls on the federal government - under most circumstances - 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 ESA, 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 the administration and some in Congress cite as a need for reform of the ESA.

House Resources Committee Chairman and California Republican Richard Pombo says he will get ESA reform legislation out of his committee this session. (Photo courtesy Pombo for Congress )

But the bill sets no deadlines for action and would call on the federal government to only issue a critical habitat designation if "practicable, economically feasible and determinable."

It would also call for involvement of local governments and private landowners and would exempt areas from critical habitat designations that are already covered by other state or federal conservation plans.

The Fish and Wildlife Service "needs to be put back in the driver's seat," Cardoza told colleagues at the hearing.

"Biology and sound science, not litigation, should drive the critical habitat program," he said. "I have no intention of gutting, dismantling or eliminating this important conservation program."

But critics say that is exactly what Cardoza's proposal would do.

"This bill will render the critical habitat provision toothless," said Representative Raul Grijalva, an Arizona Democrat. "It will do nothing to further the goals of the Endangered Species Act, instead it will make it more difficult and less likely we will recover species."

Defenders of Wildlife Executive Vice President Jamie Rappaport Clark told the committee the lack of enforceable deadlines and the caveat that calls for critical habitat designation only when "practicable, economically feasible and determinable" completely undermines the Act.

Interior Department Assistant Secretary for Fish and Wildlife and Parks Craig Manson says the critical habitat provision of the Endangered Species Act is in dire need of reform. (Photo courtesy U.S. Fish and Wildlife Service )

Supporters of Cardoza's bill repeatedly noted the negative impacts critical habitat designation has on private landowners - a complaint Clark told ENS is often overstated.

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.

"It irrelevant unless there is a federal connection," Clark said.

The Bush administration declined to formally support Cardoza's bill, but Interior Department Assistant Secretary for Fish and Wildlife and Parks Craig Manson said the legislation looks like "a step in the right direction."

"Habitat is essential but critical habitat as the Act outlines it presently is not the best way to do that," said Manson, who has been a vocal critic of the provision.

Conservationists are alarmed by the Bush administration's desire to delist the gray wolf, a move critics say will undermine one of the nation's greatest conservation success stories. (Photo courtesy State of Montana)

The critical habitat provision provides "a hook for litigation," Manson said.

Recovery of listed species, Manson explained, will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat.

But conservationists and some Democrats say the main thing preventing the Fish and Wildlife Service from protecting endangered species is the Bush administration.

They acknowledge that Fish and Wildlife Service failed to follow the law under prior Presidents, but argue the Bush administration is far more hostile to implementing the law than any other and continues to cut funding for the ESA program.

The Bush administration is the only presidency not to have designated a single critical habitat except under court order.

Those that it has designated have, on average, reduced Fish and Wildlife Service proposals for critical habitat by 76 percent. This compares to an average reduction of 9 percent by the Clinton administration.

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 )

Inslee blasted Manson for "extremely distressing" comments the Interior official made to the press in which he cast doubt on the importance of efforts to keep species from going extinct.

The Washington Democrat cited scientific evidence that the world is facing the "sixth great extinction," prompted in large part by unfettered human growth and development.

Scientists estimate the current extinction rate is 100 to 1,000 times the natural level - a recent study by The Nature Conservancy finds that some 550 species have gone extinct in the United States in the past 200 years and 4,000 known U.S. species face the danger of extinction.

"We do not know enough about how the world works to know all the causes of extinction," Mason told the committee, "or to know if it is not something nature has as part of a greater plan."

Inslee also took Manson to task for taking three years to announce new implementation guidance for ESA programs designed to encourage private landowners to improve habitat and protect endangered and threatened species.

"No wonder Americans are griping about it," Inslee said. "You have been deliberative like a glacier is deliberative."

The Fish and Wildlife Service issued the guidance late Wednesday - critics say it is little more than a restatement of existing principles and was cobbled together in order to coincide with the hearing.