Resources Committee OKs plan to overhaul ESA, 26-12

The House Resources Committee yesterday handily approved a bill that would make the biggest changes to the Endangered Species Act since it was first passed 32 years ago -- replacing many of the act's mandatory programs with more voluntary measures.

The committee approved the measure, H.R. 3825, "The Threatened and Endangered Species Act of 2005," in a 26-12 vote. Committee Chairman Richard Pombo (R-Calif.), who authored the bill, said it is on a fast track to passage on the House floor next week.

Pombo said the new ESA bill aims to fix many of ESA's problems for landowners, who complain the act is burdensome and ineffective. Pombo claims that in addition to inhibiting the use of property, ESA has not done enough to recover protected species, almost all of which are still listed under the act.

But the effort is not without its hurdles. Environmental groups and some Democrats who have criticized the proposal say it would put at-risk species in peril, providing more assurances for landowners than for the plants and animals in question. And 23 House Republicans -- led by House Science Committee Chairman Sherwood Boehlert (R-N.Y.) -- yesterday sent a letter to House leaders asking them to slow down the ESA process.

"The bill is complex, highly controversial and aims to make perhaps the most profound changes to environmental law since the Clean Air Act Amendments of 1990," the letter states. "To rush the bill to the floor the week after its introduction would improperly deprive members of this House of their right to consider its significant implications."

Yesterday's debate of the proposal stretched out over the whole day, with over 20 amendments brought up for consideration. But the debate was not as inflamed as much of the rhetoric from environmental groups, and in the end, half of the 16 Democrats present voted in support of the legislation.

Committee ranking member Nick Rahall (D-W.Va.) voted against the bill but commended Pombo for working with Democrats to try to include some of their concerns.

"In the end, it came down to a philosophical difference, a point at which I had to draw a line in the sand," Rahall said. "But a lot of progress was made and amendments were accepted."

Rahall did not rule out the prospect that changes could be made to win his support on the floor. "This is just the start of the process, it is still ongoing," he said. The philosophical difference which kept him from supporting the bill in committee were the property rights and takings issues, which are a key part of Pombo's proposal.

The panel yesterday approved alterations to two of the more contentious landowners protections in the bill, which includes an array of safeguards for private property owners and programs to compensate landowners when they improve species habitat on their land.

One would have allowed private development to go forward if the Interior Department did not respond within 90 days on how it might affect a species. Representatives on both sides of the aisle had complained that the timeline might be too short, hampering FWS officials and possibly allowing development to go forward that could potentially harm species.

Members accepted an amendment yesterday from Rep. Dennis Cardoza (D-Calif.) that would double the response time to 180 days and allow the Interior Department to request additional time.

The bill also includes an amendment that tweaks another landowner protection, which requires the Interior Department to pay private property owners for the market value of any development they could no longer undertake on their land, if it is found to be endangered species habitat.

Pombo passed an amendment limiting the legal definitions of when a landowner can apply for payments, but kept the basic tenant in place. Environmentalists have characterized the provision as potentially bankrupting the act.

The panel also approved an amendment that would eliminate a section of the bill that would have altered protections for threatened species.

Under current law, threatened and endangered species are effectively treated the same way, since they must both have critical habitat designations and federal consultations for activities that might harm or kill the species. Pombo's bill had included a provision that said FWS officials may draft special plans for threatened species on a case-by-case basis, though they were not necessarily required.

Critics said it would effectively remove protections for threatened species, sending them down a slippery slope to extinction.

"If we do not do anything to help threatened species, they are going to become endangered," said Rahall.

Rep. Mark Udall (D-Colo.) successfully proposed language to strike that section, putting threatened species back in the same realm with endangered species. Pombo accepted the amendment after lengthy debate but said he would like to work out something on the floor to make sure there is some distinction between threatened and endangered species.

The bill throws out the existing ESA's critical habitat provisions, which require the Fish and Wildlife Service to designate land where development is restricted for each listed species. Critical habitat has been one of the more contentious areas of the act and its chief source of litigation.

The new proposal replaces that requirement with recovery plans, which include an option for including habitat.

Pombo included an amendment yesterday altering the language that would have made the recovery plans "nonbinding." His amendment would give the recovery plans legal authority but still mandate that the federal government may not issue across-the-board regulations for the plans.

To draft the recovery plans, FWS officials must set criteria for how the species could be taken off the list, then establish site-specific guidelines to achieve delisting. The plans must also include estimates of time and cost. They have the option of including recommendations for habitat protections, stating that "where practicable" FWS could recommend acquiring "specific areas that are of special value to the construction of species."

Critics of the bill said those plans would not do enough to ensure habitat for species.

"Areas of 'special value,' what is that? Is that where species go to die? Where they have homecoming celebrations?" said Rep. Jay Inslee (D-Wash.). Rep. Jim Saxton (R-N.J.) proposed an amendment to restore the critical habitat provisions, which was turned down by voice vote.

The bill seems to be on a fast track to at least make it out of the House of Representatives. Pombo said the bill is on the schedule for the House floor late next week, though it is possible that if Hurricane Rita devastates Texas, the House could instead

And even detractors to the bill acknowledged that it would likely pass in the House, though they said they hope some alterations can still be made.

"I saw the writing on the wall, with the support the chairman has in the committee and the full body," Rahall said.

"I have no illusions about this vote, but I hope it won't be the last," Udall said.

But Pombo noted the real obstacle will be moving the bill through the other side of Capitol Hill. "We'll be fine on the floor, what we're looking at is not just our strategy for that, but the Senate," he said.

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