| 
Major Revisions to the Endangered Species Act Pass the House of Representatives
By James P. Walsh
[October 2005]
At the end of September 2005, the U.S. House of Representatives approved the first major amendments to the Endangered Species Act in over 20 years. H.R. 3824, dubbed the “Threatened and Endangered Species Recovery Act of 2005,” was approved by a margin of 229-193 after a contentious debate over an alternative bill that failed by 10 votes. The U.S. Senate has yet to act on its own legislation but is also considering revisions to the law.
Long considered the most powerful environmental law in the nation, the Endangered Species Act has been under considerable criticism in the last few years for spawning over-regulation, excessive litigation, and expansive Federal control while trampling on the rights of private property owners, particularly in the West where most threatened and endangered species are found. Environmental groups, on the other hand, continue to champion the law in its current form as the most effective way to prevent the accelerating loss of biodiversity in the United States. The best known battles have been over timber harvesting and the spotted owl, and water use and various species of salmon. There are 1,268 species of animals and plants listed as threatened or endangered in the United States.
The House bill, drafted by the Chairman of the Resources Committee, Rep. Richard Pombo (R.-Calif.), would make several major changes in the way species are listed, how habitat is protected, and the preparation of recovery plans. Rep. Pombo’s theme has been that the Act needs restructuring because very few species have ever recovered despite pervasive regulation and extraordinary cost, particularly to private landowners, such as farmers and ranchers. One of the most controversial provisions of H.R. 3824 provides a mechanism for payment of compensation to private landowners who agree to provide special protections to listed species. The current Endangered Species Act operates on regulatory mandates that must be observed by private land owners under threat of penalty. Congressman Pombo wants to create more incentives for cooperative efforts to protect listed species, or provide compensation if the burden is too great for individual landowners.
Summary of Key Provisions of H.R. 3824
The Listing Process
Under H.R. 3824, the standards and procedure for placing species on the threatened or endangered list, or removing them, would be substantially changed. First, a new standard defines the scientific data to be used in any such determination, allowing the Secretary of the Interior1 to use data which is available at the time of the determination and judged to be the most accurate, reliable, and relevant for use in a particular decision or action. In addition, the Secretary is to give greater credence to data that is empirical and peer-reviewed. The term of art is “best available scientific data.” Critics claim this new definition will make it harder to list species where data is incomplete or lacking.
Second, every listed species would be subject to a review every five years as to whether continued listing is appropriate. All presently listed species would be subject to review under the new listing standards. Some believe that these regular reviews will allow a culling of listed species because of lack of data. Now, very few listings are changed once adopted.
Third, although biological considerations would remain the primary basis for any listing or delisting decision, the Secretary must also do an analysis of the economic impact and benefit of protecting the particular species, the impact or benefit on national security, or any other relevant impact or benefit. Consequently, the economic cost of a listing decision will be highlighted during the decision process.
Finally, the bill would make several changes to the process for listing and delisting species, in particular providing a greater role for the Governor of any State in which the species is located. Many of their procedurals changes seem to have general support.
Critical Habitat
The bill would eliminate the requirement that critical habitat be designated for listed species. For many years, the responsible Federal agencies did not designate critical habitat when listing species, asserting that the other protections of the Act were sufficient to conserve listed species. However, Federal Courts have begun ordering the agencies to designate critical habitat and to evaluate the biological and economic consequences of the designation, as required by current law. The Act places special restrictions on any activity that would modify critical habitat, even if those modifications would not result in the death of a listed species. H.R. 3824 would eliminate entirely the Act’s existing critical habitat provisions.
Recovery Plans
While the goal of the Endangered Species Act has always been the recovery of listed species, recovery plans have not always been a central part of the administration of the Act. Under H.R. 3824, every listed species must be the subject of a recovery plan, unless the Secretary finds that such a plan will not promote the conservation and survival of the species. In developing these plans, the Secretary is to give a priority to those species that are most likely to benefit from such plans, particularly those species that are, or may be, in conflict with construction or other development projects or other forms of economic activity. The goal is to put such plans in place within two years of any new listing and, for any currently listed species, as soon as possible (but within 10 years of enactment of H.R. 3824) based on a priority ranking prepared by the Secretary. The bill also lists what should be included in the plans, such as objective and measurable criteria to determine when a species should be removed from the regulatory controls of the Act, a description of site-specific measures that assist recovery, estimates of time and expense associated with recovery (including for areas to be acquired on a willing seller basis), and an identification of specific areas that are of special value to the conservation of the species. The bill states that any area designated under existing law as critical habitat shall be deemed a special area for purposes of the new compensation program, until a new recovery plan is put in place.
Recovery teams are to plan an active and iterative role in overseeing a recovery plan. The plans are to be reviewed at intervals of not more than five years. The teams must ensure that the plans are “scientifically rigorous” and the estimate of costs “economically rigorous.” The plans are to be subject to extensive public review and must be reviewed by the governor of each affected state. Monitoring must also be included in each recovery plan.
Species Recovery Agreements and Species Conservations Contracts
H.R. 3824 creates authority for the Secretary to enter into a species recovery agreement (of not less than 5 years) with “persons who own or control the use of private land.” These agreements specify the way in which the land will be managed to protect identified listed species found on the land. A part of the agreement would state the “amount of compensation” to be provided by the Secretary under the agreement.
Species conservation contract agreements are intended to have terms of 10, 20, or 30 years duration. The purpose is to establish a contractual basis on which private land will dedicate that land to conserve listed species, in return for compensation. There is a compensation formula in the bill that is based on the landowner’s actual costs to implement the agreed-upon conservation measures, scaled for the length of the agreement.
The Secretary is also authorized to make conservation grants to private property owners to “alleviate the burden of conservation measures upon private property owners by the Endangered Species Act.” Furthermore, a property owner may request the Secretary to make a determination as to whether an activity, that is lawful under State or local law, nonetheless constitutes a “taking”2 of a listed species under the Act. If the Secretary fails to reply, the activity shall be deemed to be in compliance. If the activity is deemed a “taking”, then the property owner is eligible to receive compensation in an amount no less than the fair market value of the foregone property use.
These new provisions, which would have taxpayers underwrite the cost of protecting listed species on private land, are controversial. Cases alleging the unconstitutional taking of private property because of the Endangered Species Act have almost always been denied by the U.S. Court of Federal Claims. One case involving California water rights was settled by this Administration and compensation was paid.
Overall, the most significant policy change in H.R. 3824 is to move from regulatory controls to compensation incentives with respect to private lands. To this end, the bill also codifies the “no surprises” rule developed by the Clinton Administration for habitat conservation plans reviewed and approved for private development.
Federal Agency Actions
While the basic thrust of Section 7 agency consultations—which have had impacts on such things as Federal timber harvests and dam operations—would remain essentially the same under H.R. 3824, the new bill would provide for greater public notice of consultations and flexibility in arriving at reasonable and prudent alternative actions that avoid jeopardizing listed species. The consultation would also be narrowed to only the effects of a proposed agency action that are distinct from a baseline of all effects. Any proposed reasonable and prudent alternatives would be limited to being “roughly proportional to” the impact of an authorized incidental taking resulting from an approved action. Any mitigation would be limited to no greater than acre-for-acre.
Prospects for Enactment
The Senate has yet to formulate their own version of amendments to the Endangered Species Act, although it appears that everyone agrees that some amendments are appropriate. H.R. 3824 has engendered great public debate, with almost all environmental groups loudly opposed to the key changes supported by the House of Representatives. Consequently, the debate over the Endangered Species Act will continue into the Second Session of the 109th Congress. It is possible that some form of a bill will emerge and become law before the end of 2006. The themes of the public policy debate have now been clearly drawn by the House action approving H.R. 3824.
FOOTNOTES
1 The Endangered Species Act is currently administered by the Secretary of the Interior, for land species, and the Secretary of Commerce, for marine species. The House-approved bill requires a transfer of all authority, including for marine species, to the Secretary of the Interior within one year of enactment.
2 Under the Act, to “take” means to harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect, or to attempt to engage in any such conduct.
For more information, please contact:
Other DWT Contacts:
Jim Greenfield, Seattle, (206) 628-7679, JimGreenfield@dwt.com
Richard M. Glick, Portland, (503) 778-5210, RickGlick@dwt.com
Daniel M. Adamson, Washington, D.C., (202) 508-6640, DanAdamson@dwt.com
Craig Gannett, Seattle, (206) 628-7654, CraigGannett@dwt.com
This Environmental Law Advisory is a
publication of the Environmental Law Department of Davis Wright
Tremaine LLP. Our purpose in publishing this Advisory is to
inform our clients and friends of recent developments in environmental
law. It is not intended, nor should it be used, as a substitute
for specific legal advice as legal counsel may only be given
in response to inquiries regarding particular situations.
Copyright © 2005, Davis Wright
Tremaine LLP.
return to Advisory Bulletins main page
|
