Blue Planet: Congress may act on ESA

By Dan Whipple
UNITED PRESS INTERNATIONAL

Boulder, CO, Jan. 4 (UPI) -- The long, lonely flight of the Endangered Species Act might just result in revision and reauthorization this year as all sides have been worn down by the debate over its future.
 
The ESA is at once one of the most popular and most vilified pieces of legislation ever to grace the American legal landscape.
It is popular because of what it does -- helps ensure the survival of animal species imperiled by a variety of threats. It is unpopular because it can be tough, inflexible, litigious and counterproductive. 

The ESA was first passed in 1974. It expired in 1992 but has limped along as the law of the land since then, awaiting a complete reauthorization. 

Since its passage 30 years ago, the ESA has become the 600-pound gorilla of federal land management policy. Because of the law's strong legal language, protection of an endangered species trumps all other activities on federal land and extends the reach of federal regulators to private lands that have rare animals and habitats that sustain them. 

Michael Brennan, a partner in the law firm Holland and Hart and a former Interior Department official, told a news conference a few years ago, "The Endangered Species Act is the single tool best suited to catalyze a comprehensive federal strategy to manage ecosystems." 

This strict regulation and the long federal reach to private land has resulted in some spirited opposition to the law. 

"Have you heard the term, 'Shoot, shovel and shut up?'" U.S. House Resources Committee Communication Director Brian Kennedy asked UPI's Blue Planet rhetorically. 

He was referring to the rumored behavior of some private landowners when they discover an endangered species on their property -- kill it off, bury it and tell no one, avoiding the regulation and red tape that will follow an endangered designation. 

The House is considering two changes to the ESA. One would change the way "critical habitat is designated" and the other would require better scientific findings to back up threatened and endangered designations. 

These changes will "hopefully put a halt to the incidences of conflict between the federal government and the landowner," Kennedy said. 

"Ninety percent of the species in the United States have habitat on private land. So if we do not improve the law so that we embrace the private landowner to engage in recovery efforts, we're going to have a very hard time improving that less than 1 percent recovery rate over the last 30 years," he said. 

Jamie Rappoport Clark was director of the U.S. Fish and Wildlife Service -- the federal agency responsible for administering the ESA -- during the Clinton administration in the 1990s. Now an executive vice president with the environmental group Defenders of Wildlife, Rappoport also wants changes in the ESA -- just not the ones the House committee is proposing. 

"Starting with the notion that the ESA is long overdue for reauthorization, the notion that the act needs some kind of updating is a fair one," she told Blue Planet. "I will say, however, that there is no consensus around the two bills that were floated in the House. From my perspective, those two bill seriously roll back today's standards. 

"What's been frustrating is that they criticize the act for failing to recover species. But the standards they put forward will only enhance a negative trend," she said. 

Prospects for reauthorization may be better this year than in the past, however. 

"All sides are tired," Clark said. "They're tired of debating this." 

There even is wide disagreement within the environmental community about what needs to be changed in the law, if anything. Clark said conservationists are committed to providing more incentives to private landowners to protect species, rather than relying on coercive regulation. 

Clark said she agrees something needs to be done about the designation of critical habitat but the administration is deliberately confusing two different issues -- procedural matters and the need to provide actual land on which to recover threatened species.  

"We've got to do something about the habitat part of the program," she said. "There's a lot of conflict over the notion of critical habitat. It hardly matters what you do for a species if you don't provide them with suitable habitat. Habitat loss has been flagged as the leading cause of species decline and endangerment." 

She added there is a lot of misleading rhetoric about critical habitat. 

"The administration has really tortured the process in a way I would never have imagined," she said. "The timing process by which it's developed and the elaborate nature of how it gets developed is counterproductive. But that's very different from saying that the identification of habitat for survival of a species is not important." 

Kennedy said the House committee, at least, "has reached a huge consensus that the way critical habitat is designated is inefficient and the system is broken. 

"It is driven by litigation. The agency (USFWS) is completely hamstrung by litigation. They are not able to get out of the courtroom and into the field for recovery efforts," Kennedy said. 

Kennedy blamed the "arbitrary deadline" of the ESA, which requires USFWS to rapidly designate critical habitat. When the agency misses the deadline, it gets sued, he said. 

"The Fish and Wildlife Service director and the secretaries of Interior under Clinton and Bush have said on the record in testimony that the service believes that critical habitat offers little if anything to species recovery." 

Clark, for her part, said she never said any such thing and added that is an example of conflating the bureaucratic problems of critical habitat designation with the ecological necessity of providing a threatened species with what it needs to live. 

The Western Governors Association, at a meeting last December in San Diego, considered a number of recommendations for changing the ESA. The constituents in the western states often have felt most put-upon by ESA regulation, since ranchers and other landowners in the West's open spaces or in Hawaiian habitats often own a lot of the property considered critical to recovery efforts. 

The governors called for increasing landowner certainty to assist states in protecting and recovering species; looking at alternative solutions, such as mitigation banking and other market-based solutions; improving cooperative efforts, such as regional conservation planning; recognizing successes that happen on the ground and encouraging proactive planning; and, increasing public participation in recovery planning and implementation.    

The governors did not, however, make a strong condemnation of the ESA or its intentions. 

Clark said: "I was at the Western Governors meeting and was very heartened by their thinking on this. It is heartening to see them recognize the importance of the law and its popularity. They understand the significant positive public support for the ESA." 

With reauthorization in the wings, Clark said, "The devil will be in the details. That's the problem. There's a lot of will -- but I will sleep with both eyes open." 

****This message contains copyrighted material the use of which has not always been specifically authorized by the copyright owner. I am making such material available in an effort to advance understanding of environmental, political, human rights, economic, democracy, scientific, and social justice issues, etc. We believe this constitutes a 'fair use' of any such copyrighted material as provided for in section 107 of the US Copyright Law. In accordance with Title 17 U.S.C. Section 107, the material on this site is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes. For more information go to: http://www.law.cornell.edu/uscode/17/107.shtml. If you wish to use copyrighted material from this site for purposes of your own that go beyond 'fair use', you must obtain permission from the copyright owner.