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Endangered Species Act Faces Big Changes

Changes to Species Act gain steam as the Senate considers the bill already passed by the House that would gut the ESA

For years, the Endangered Species Act has been a lightning rod attracting the ire of farmers, ranchers and other private property owners.

Environmentalists consider it a bedrock law for protecting plants and animals and for preserving healthy ecosystems.

Attempts to revamp the law have been launched in the past but always fell short.

That appears to be changing.

Sweeping revisions to the act already have passed the House- changes that would make life easier for farmers and ranchers while eroding key legal footing for environmental groups in land-use battles.

The bill, sponsored by House Resources Committee Chairman Richard Pombo, R-Calif., would compensate property owners for the impacts of protecting endangered species and eliminate the contentious "critical habitat" for species.

It would also give property owners a chance to get a protective Endangered Species Act clearance for development projects and require the government to provide more information about the costs of species protection.

Here's one way Pombo's bill might play out in New Mexico: Rather than risking possible hassles down the road, a developer wanting to build homes on 1,000 acres of private property in the Sacramento Mountains could ask the U.S. Fish and Wildlife Service for a determination on whether the project complies with the Endangered Species Act.

If the agency did not respond within 180 days, the developer could go forward whether or not the project would harm nearby endangered Mexican spotted owls.

Or, the Fish and Wildlife Service could give the developer the green light but require 10 acres of riparian habitat used by spotted owls to be left untouched. The government would pay the developer for the lost profits on that 10 acres of private land.

Currently, a developer could face sanctions if a project harmed an endangered species, and property owners are not reimbursed for costs incurred to meet the act's requirements.

"Pombo's bill would be a disaster," said Nicole Rosmarino, conservation director for Santa Fe-based WildEarth Guardians in New Mexico. "It would rip a hole in the safety net the Endangered Species Act provides."

Not surprisingly, farmers, ranchers and developers see it differently. They say a comprehensive reform is overdue and support many of the provisions of Pombo's bill.

"Unfortunately, the ESA has failed its original mission to protect endangered species (and) passed much of the economic burden to landowners," John Bryant, director of federal affairs in Washington, D.C., for the National Association of Industrial and Office Properties, said in a statement.

Critical habitat

Pombo, a leading critic of the Endangered Species Act, isn't the only one in Congress pushing broad revisions to the landmark environmental law signed by President Nixon in 1973.

His bill, though, is the leading proposal, having already passed the House on a 229-193 vote and moved on to the Senate.

Sen. Mike Crapo, R-Idaho, has introduced legislation, and a bipartisan group of senators led by Sen. James Inhofe, R-Okla., is expected to unveil a bill by early April.

Pombo's bill is unlikely to make it to the White House as is. Compromises will be considered, and defenders of the act could try to stall its progress in hopes that a more sympathetic Congress is elected this fall.

Under Pombo's bill, critical habitat- a geographic area considered essential for protection of a species- would be replaced with a requirement that recovery plans identify areas "of special value" to conservation of a species.

Where critical habitat exists, federal agencies must now meet a higher standard of protection because no "adverse modification," or damage, of the habitat is allowed. Absent critical habitat, the test of a federal project is whether it would jeopardize the species in question.

The effectiveness of critical habitat is already in contention. The Fish and Wildlife Service, the federal government's principal scientific agency on Endangered Species Act issues, has said critical habitat does not help protect animals. Meanwhile, conservationists cite a recent study published in the peer-reviewed journal BioScience that found species with critical habitat are twice as likely to be recovering.

Critical habitat has been the foundation of many lawsuits filed by environmental groups. WildEarth Guardians, for example, has used protection of critical habitat for the Mexican spotted owl in New Mexico as the basis of suits over logging and livestock grazing restrictions on forest land.

The Fish and Wildlife Service is now working on critical habitat for two threatened Gila River fish, the loach minnow and spikedace.

"If we lose critical habitat, there's no barrier to a water project on the Gila that would drain all the water in the river except during high flows," said Michael Robinson of the Center for Biological Diversity in Pinos Altos.

Landowner compensation

Another provision in Pombo's bill allows private property owners to get their land-use proposals reviewed in advance for compliance with the act, in a sense giving them insurance against penalties for future violations.

If the Fish and Wildlife Service didn't provide the landowner an answer within 180 days, the project- anything from an industrial development to conversion of grassland to farming- could go forward.

In addition, the legislation would require the federal government to pay property owners for conservation measures imposed by the act.

"The compensation proposals would be good for farmers and ranchers because they're the ones with habitat and they're the ones usually ending up with the brunt of protecting species," said Karen Budd-Falen, a Wyoming attorney who has represented New Mexico ranchers in endangered species cases.

Chuck Hayes, who heads the New Mexico Game and Fish Department's endangered species work, said compensating landowners could have a "tremendous impact" on the federal agency's roughly $140 million annual endangered species budget and lead to fewer protections for species in New Mexico if Congress doesn't appropriate extra money.

"This would most likely bankrupt the endangered species budget," said Liz Godfrey of the Endangered Species Coalition in New Mexico.

Brian Kennedy, spokesman for the House Resources Committee, said the Congressional Budget Office estimated the cost would be just $10 million over several years, in part because "agency behavior would be changed."

But Rosmarino of WildEarth Guardians worries the provision "provides an incentive for people to violate the Endangered Species Act" by proposing a development just to force the government to pay him or her not to do it.

The legislation also includes incentive programs for private landowners that "would enable them a lot more flexibility to help recover species," said Rick Krause, senior director of regulatory relations for the American Farm Bureau Federation.

For example, eastern New Mexico ranchers could be paid to improve or maintain habitat for the lesser prairie chicken, a candidate for endangered species listing.

An amendment by Rep. Steve Pearce, R-N.M., would specifically allow the federal government to pay ranchers for cattle killed by reintroduced wolves, even if they can't produce a carcass.

"That would certainly help people accept (the program) a little bit more," Krause said.

The costs

The Pombo bill also addresses how endangered species decisions are made and the costs of protecting rare plants and animals.

For example, listings of new species would include an analysis of the economic and national security impacts and benefits.

Now, the Fish and Wildlife Service looks at "whether the species needs to be listed based on threats that they're facing," said Joy Nicholopoulos, former head of ecological services for the Fish and Wildlife Service in New Mexico. "That's a pretty pure methodology."

Budd-Falen argued it's critical that people understand the costs of species protection so they can decide whether to support endangered species programs.

The science

The legislation also would require the Interior secretary to decide what constitutes the "best available scientific data."

Bob Sivinski, botanist with the New Mexico Forestry Division, said the scientists writing the plans usually are the ones who know the most about the species.

"Leaving it up to somebody who doesn't know anything about the plant or animal, the secretary, doesn't make sense," he said.

Sivinski and 5,700 other biologists- including more than 100 from New Mexico- wrote to senators this month saying "recent legislative proposals would critically weaken" the scientific foundation of the act.

Krause of the farm bureau said the science provision "could be very helpful in terms of eliminating a lot of the controversies that come with listings or ESA decisions."

"There's been a lot of lawsuits coming out of New Mexico," he said. "If the scientific information is honed a little bit better and people understood what was used and why, that would lessen the frequency of these lawsuits."

Proposed changes

Key provisions of proposed House changes to the Endangered Species Act:

  • Compensate property owners for conservation measures or other impacts associated with the act.
  • Add incentive programs to pay private landowners for helping protect species.
  • Eliminate "critical habitat," a geographic area considered essential for a species.
  • Analyze economic and national security impacts and benefits when new species are listed.
  • Allow property owners to get assurance they won't face future sanctions for proposed developments.
  • Allow the Interior secretary to define "best available scientific data" to be used in Endangered Species Act decisions.

Copyright 2006 Albuquerque Journal - Reprinted with permission

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