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July 22, 2004

Divided House committee advances ESA reform bills

Allison A. Freeman, Environment & Energy Daily reporter
The House Resources Committee passed two bills yesterday that would alter
controversial areas of the Endangered Species Act, including critical
habitat designations and the required science for listing of species.

In a vote mostly divided along party lines, the committee voted 28-14 to
approve H.R. 2933, Rep. Dennis Cardoza's (D-Calif.) critical habitat reform
measure, and 26-15 in favor of H.R. 1662, a "sound science" bill from Rep.
Greg Walden (R-Ore.).

Backers of the legislation said the bills would streamline and modernize a
broken act that has been characterized more by litigation than by actually
recovering species. Critics of the reform measures claimed they would
weaken ESA, potentially placing species at greater risk, and further cloud
the legal quagmire that has surrounded sections of the act.

Overall, the votes came as a victory for Committee Chairman Richard Pombo
(R-Calif.), who had targeted the two bills as the standard bearers for ESA
reform, his top priority this session. But with only four Democrats voting
in favor of the Walden bill and six backing the Cardoza proposal, the
measures face a rocky road to further passage.

At the beginning of the markup yesterday, Pombo said he would hold out hope
that Democrats and Republicans could work out their differences before the
bills head to the floor and pass them on the suspension calendar. But in an
interview after the hearing, Pombo said the bills as they stand right now
would be "too big" and contentious to bring to the suspension calendar.

"My hope is we can work out parts of the bill in dispute," Pombo said.

So far, those negotiations have not been completely successful. Democratic
and Republican staffers said efforts were made on both sides of the aisle
to iron out differences before the markup, but opposing sides were not able
to reach complete consensus.

"We came close, but no cigar," said Resources Committee ranking member Nick
Rahall (D-W.Va.).

Critical habitat deadlines set, requirements dropped

The Cardoza bill aims to further define the critical habitat designation
process, altering the deadlines for habitat and excluding land that is
involved in any other federal, state or local habitat conservation plan
from critical habitat consideration. The legislation also gives more weight
to landowners and state and local governments in the decisionmaking process.

ESA's critical habitat requirements have been a source of contention and
lawsuits for years. The act mandates designation of critical habitat -- an
area deemed essential for a species' survival and recovery -- for almost
all federally listed species.

But FWS rarely designates critical habitat when it lists a species. Current
and Clinton-era FWS officials have said that in 30 years of implementing
ESA, they have found little to no additional protection from the

Environmental groups maintain habitat is crucial for species health and
have frequently sued FWS to force the designations. Once habitat proposals
are made, they often meet more lawsuits from industry groups, which have
dragged FWS back into court for allegedly not weighing economic effects

The Cardoza bill gives landowners and state and local governments a ticket
into the process from the beginning, requiring FWS to take into account
data from those groups, including local land use maps. And economic
analysis would be completed before, not after, the critical habitat

"The more data the Service obtains, the better informed the decision,"
Cardoza said. Environmental groups opposed to the bill respond that the
requirements would further slog the process.

The bill also details that the critical habitat itself must be within areas
where field survey data has shown existence of the species and must include
physical and biological features that are necessary to avoid jeopardizing
the species' continued existence.

"It is only logical to look at occupied areas first. The way to determine
is with field surveys, not some wild-ass guess," said Pombo, arguing FWS
has made past habitat designations, including for the red-legged frog,
without such data.

Cardoza successfully offered a substitute amendment to his previous version
of the bill that met at least one concern of critics, setting specific
deadlines for the critical habitat designations. Previously, the bill had
said critical habitat should be completed with species recovery plans but
did not mandate when, which critics said would essentially leave species
without either protection for years.

The measure now requires the Fish and Wildlife Service to designate
critical habitat within one year of the recovery plan or three years after
the final listing of the species, whichever comes first.

Nevertheless, Rahall said negotiations for full support of the Cardoza bill
largely broke down over one word: practicable. The Cardoza measure requires
the secretary of the Interior to designate critical habitat when it is
"practicable, prudent and determinable."

Rahall and other critics said use of the word "practicable" might give too
much legal leeway for the Interior Department to rule out critical habitat
in tight budgets or other circumstances.

"What is practicable to me might not be practicable to the secretary of the
Interior on a bad hair day," Rahall said.

"Frankly, I am ashamed that in this period of extinction, we are weakening
out ability to address the problem," said Rep. Jay Inslee (D-Wash.).

But Pombo said "practicable" -- used nine times in ESA, as well as in the
National Environmental Policy Act and other legislation -- should not put
the proposals back in the court room.

"I'm a little mystified as to why this word has become such a hang up in
this legislation," Pombo said.

The committee turned down 14-30 a substitute amendment from Rahall that
would have set a higher standard for critical habitat, requiring the
habitat in all cases unless it would "preclude conservation of the species"
rather than just to keep the species from jeopardy.

The panel accepted by voice vote the only other amendment, from Rep. Joe
Baca (D-Calif.), which includes Indian tribes' plans among the state and
federal habitat plans that FWS can accept as an alternative to critical

'Sound science' measure pushes through

The Walden "sound science" measure made it through the committee with just
one amendment proposal, a substitute amendment from Walden. But the bill
did meet some contention, with debate on the measure stretching on for over
an hour.

The Walden bill would require the Fish and Wildlife Service and the
National Marine Fisheries Service to give greater weight to field-tested
and peer-reviewed data before listing a species under ESA. Sen. Gordon
Smith (R-Ore.) has introduced a companion bill in the Senate.

The legislation would require agencies to gather more information before
writing a recovery plan for each proposed species. The substitute would set
minimum standards for scientific or commercial data, requiring it to
include some field-survey data and give greater weight to field work that
has been peer-reviewed.

Walden's substitute amendment also mandates consultation with a state's

"Sound science is kind of like pornography, you know it when you see it,"
said Rahall in criticizing the bill. He said ESA's current requirement for
"best available data" is more appropriate.

Rep. Billy Tauzin (R-La.) countered that the best available data
requirement is no better.

"I love the acronym of the current law, best available data, BAD," Tauzin
said. "The best available data is often bad. We have to rely on the worst
data, just because it is available to us."

The Cardoza measure also requires the Interior secretary to create a peer
review board of three individuals from a list of qualified individuals from
the National Academy of Sciences to weigh in on the designation.

Critics of the bill said the panel could overly politicize the designations.

Representatives backing the bill said Interior has wrongly estimated
species too many times in the past. Walden proposed the bill partially in
response to conflicting data Interior released on salmon recovery in the
Klamath basin. Tauzin said federal alligator reproduction rates were off by
300 percent. And Rep. Stephanie Herseth (D-S.D.) complained that the black
tailed prairie dog was found to be endangered one year and plentiful the

Despite its support in committee, even one of the bill's backers said it
could see a rough future. "I doubt it will fly through Congress any faster
than anything else right now," Tauzin said.


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