Property rights gain traction in overhaul of Endangered Species Act
By Bill Lambrecht
POST-DISPATCH WASHINGTON BUREAU
Sunday, Oct. 02 2005

WASHINGTON

Missourians in Congress bedeviled by a homely fish and two skittish shorebirds
exacted revenge last week by voting to strip the Endangered Species Act of
protections on the books since 1973.

The new version of the law approved by the House is unlikely to pass muster in
the Senate, at least right away. Critics worry especially about a murky
provision that could pay landowners tens of millions of dollars in damages for
property devalued by restrictions due to rare critters or plants.

Nonetheless, sponsors' success in getting this far and winning bipartisan
backing shows widespread recognition of problems in one of the nation's most
venerable environmental laws.

In a barometer of emotions flowing on the issue, no fewer than four Old
Testament books (Genesis, Psalms, Ecclesiastes and Isaiah) were quoted during
the daylong debate on the House floor.

Members pointed fingers at one another as they spoke with passion about their
core beliefs, whether they be saving "God's creatures" or protecting private
property.

Rep. Dennis Kucinich, D-Ohio, likened voting for the overhaul to poisoning the
bald eagle. Rep. Dennis Rehberg, R-Mont., brought a shovel to the House floor
to demonstrate, he said, what ranchers and farmers need after shooting
endangered creatures.

Only after a late lobbying push by the White House and GOP House leadership did
the proposed new law - called the Threatened and Endangered Species Recovery
Act - pass, by a less-than-expected margin of 36 votes.

The bill would do away with designations of "critical habitat" that limit what
the Army Corps of Engineers and other federal agencies can do on land with
protected species; remove controls on pesticide use that could threaten
creatures; and give political appointees more authority to decide the science
used in making decisions on protecting animals and plants.

But nothing provoked more debate than a proposed compensation plan that would
pay developers or farmers for economic losses if the use of their property is
restricted by a U.S. Fish and Wildlife Service determination that development
plans would harm protected species. Critics called the provision an entitlement
program that could cost billions of dollars.

That argument didn't faze Rep. Richard Pombo, R-Calif., a rancher and the
driving force in Congress behind the overhaul of the law.

"In our bill, we protect the small property owners. Yes we do. You know what?
We should. If the federal government steps in and takes someone's land for a
highway, we pay for it. And I don't see people running down here saying 'it's
an entitlement'," Pombo, chairman of the House Resources Committee, replied to
critics.

"Shoot, shovel and shut up"

The debate focused on what is seen even by diehard supporters of the current
law as one of its flaws - the lack of incentive for landowners to go along with
federal programs that can devalue their land by putting restrictions on it.
Farmers and developers receive neither financial support for potentially costly
decisions nor assurance that they won't get in regulatory trouble for admitting
discovery of rare species on their land.

Critics of the law told stories of development blocked, farm land idled and
levees unrepaired because of restrictions forced by the Endangered Species Act.

Rep. Joe Baca, D-Calif., said a hospital in his district was forced to spend $3
million to move a building because of the presence of an endangered fly.

As a result of the threats posed by the law, "Shoot, shovel and shut up" has
become the mind-set among many farmers, Rep. Sam Graves, R-Mo., asserted on the
House floor.

Graves said afterward that he didn't know of any instances in which farmers had
killed a federally protected species, which could bring criminal penalties and
even jail time.

But, he added: "The last thing you want on your property is an endangered
species, because you're going to do everything you can to prevent people from
knowing it's there. But if we can get landowners to have an interest in the
law, we could go a lot farther to save species."

The battle in Missouri

Graves' district borders nearly 100 miles of the Missouri River, which has been
the location of one of the nation's most contentious endangered species battles.

For 15 years, the U.S. Fish and Wildlife Service and the Army Corps of
Engineers have sparred over what the government must do - and not do - to
preserve three federally protected species: the pallid sturgeon, which looks
like a cross between a shark and an alligator; the least tern, a diving bird
that skitters along the shoreline; and the piping plover, a stocky little bird
hard to see because of its camouflage colors.

Following terms of the Endangered Species Act, the federal agencies have sat
across tables from each other in years of negotiations over how the corps
should operated the dam- controlled Missouri.

Because of the federal law, the corps will be spending more than $60 million
along the Missouri River this year to create sandbars, backwaters and make
other physical changes to improve conditions for species in the dammed and
channelized river.

But to the dismay of many farmers, the corps plans to announce shortly a river
operating plan for next year that is supposed to include a spring rise - a
pulse or pulses of high water for the benefit of the sturgeon.

Tom Waters, a farmer and levee district head from Orrick, in western Missouri,
is among those who worry that the high water will flood farm ground and impede
draining at planting time. He blames the federal law.

"I think that all the problems we're having stem from the Endangered Species
Act. If we didn't have that butting up against us all the time, the corps could
manage the river in a way that would suit everybody," he said.

Hearing such complaints prompted the majority of House members from Missouri
and Southern Illinois to vote for the Pombo rewrite.

Under the House-passed legislation, farmers who suffered crop losses from water
levels ordered changed to protect endangered species likely would qualify for
damages. And there could be fewer efforts under the force of law to repair
habitat for the benefit of species.

Rep. Jerry Costello of Belleville was among 36 Democrats who voted for the
overhaul.

"I hear from property owners who say that it shouldn't take forever to resolve
a matter and that things shouldn't be tied up in court for eight years," said
Costello.

Costello said he sees problems with the legislation but voted for it anyway in
hopes of getting a better version later.

Rep. Jo Ann Emerson, R-Cape Girardeau, said the restoration of just a
half-dozen of some 1,300 species listed for federal protection since 1973
attests to the law's ineffectiveness. The bill she voted for, she said "shows
real promise of getting species off the list, and keeping them off. It cannot
possibly be worse than the law now on the books."

A proposal to change the Endangered Species Act would:

Eliminate the designation of certain land as "critical habitat" for endangered
species. The current law limits the use of such land.

Require the government to come up with a plan to save endangered species; the
plans must be finalized within two years after a plant or animal is designated
"endangered."

Require the government to reimburse landowners for the value of developments
that are blocked because of potential harm to endangered species.

Expand the power of the secretary of the interior to decide what scientific
data to use in designating and protecting endangered species.

Repeal restrictions on the use of pesticides that could harm endangered
species.

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