The Endangered Species Act of 1973, long considered the premier conservation law for protecting rare plants and animals, would be severely altered under a rewrite that has already cleared the U.S. House of Representatives.
U.S. Rep. Richard Pombo, a California Republican and property-rights barrister, has teamed up with Democratic Rep. Dennis Cardoza, also of California, to overhaul how endangered and threatened species are protected. Their bill has momentum but must still pass the generally more ecofriendly Senate.
Democratic Congressman John Salazar, representing western Colorado, voted in favor of the bill. House Bill 3824 would limit conventional scientific scrutiny of endangered species, eliminate critical-habitat designations and vastly expand compensation to landowners for development profits lost because of critical-habitat designations.
A draft version of the bill provided for the ESA to sunset off the books by 2015, but that measure was removed from the legislation.
Environmentalists are largely opposed to the ESA revision. “This bill has huge flaws,” said Sara Deon, outreach representative for Defenders of Wildlife in Denver. “For the House to pass it shows they do not feel accountable towards the huge public support for wildlife preservation in Colorado and the nation.”
Pombo, who heads the Natural Resources Committee, has been fighting the ESA for 12 years. He claimed (falsely, it was later proven) that the efforts to save the endangered San Joaquin kit fox in California had caused his farm to go broke.
“You’ve got to pay when you take away somebody’s private property,” Pombo said during speeches on the House floor. “That is what leads to (species) recovery.”
Other proposed legislation Pombo has sponsored unsuccessfully included selling some national parks and marketing untapped mineral rights within national parks.
Since it was signed into law by President Nixon, the ESA has endured, despite numerous court challenges and criticism that it locks up natural lands desired for urban development, industry, logging, drilling, mining, ranching and dams.
Critics also say the ESA is not effective because very few of the plants or animals listed under the act are ever removed.
However, celebrated success stories of endangered-species recovery include saving the bald eagle, California condor, Mexican spotted owl, snail darter, red-legged frog, gray wolf, grizzly bear, lynx, black-footed ferret and river otter from the brink of extinction in the United States.
Still, hundreds of animals, fish and plants are on track for extinction, but are not listed because the U.S. Fish and Wildlife Service, which oversees endangered species, does not have the resources to devote to them.
“Here in America we have so much land, but we are squandering it, and the result is loss of species,” said Donald Bruning, a biologist from the Bronx Zoo, during a recent lecture at Fort Lewis College in Durango. “Thinking about where we build could make a big difference in saving wildlife.”
Bruning cited the California condor recovery as a success story, albeit an expensive one. At one point there were only nine condors left in the wild, he said.
They were captured, bred and then released back into the wild. Now there are an estimated 80 condors soaring along the southern California coast and along the Vermillion Cliffs on the north rim of the Grand Canyon.
The birds, however, remain in danger from hunters, lead bullets in the carcasses they eat, power lines and other perils.
It took 20 years at a cost of $4.5 million per year for the condor-recovery program, Bruning said, but for many Americans it was a worthy cause, “for it would be a shame to lose a species with such pre-historic origins.”
Also, the black-footed ferret, the rarest mammal in North America, at one point was down to three animals in the wild. A successful captive-breeding and release program resulted in the animal’s recovery, Bruning said.
“Some people will say, ‘Let them go extinct,’ but I can’t accept that, because animals like the condor don’t die off from natural causes,” Bruning said.
“They are shot, poisoned from lead and DDT, or get caught in power lines. Without humans, they would live a healthy life, and I would like to think in 20,000 years they will still be here. It just takes people being a little more careful.”
There are 1,246 plants and animal species listed as endangered or threatened under the ESA, meaning they appear on the way to extinction. Under the act, listed species have recovery plans. However, only 13, including the bald eagle, have ever been removed from the list because of successful recovery efforts.
Pombo maintains this is a 99 percent failure rate and that the act is too costly and bogs down the U.S. Fish and Wildlife Service with endless litigation by environmental groups. Supporters argue that without recovery plans under the ESA, endangered species would have even less chance of survival.
According to an April 2005 study on the ESA by BioScience, a peer-reviewed scientific journal, threatened species with protected critical habitat were twice as likely to survive as those without.
The study, which analyzed 1,095 species studied by the USFWS, also found that the longer a plant or animal was protected under the act, the less likely it was to continue to decline.
The Bush administration has added only 32 threatened or endangered species awaiting recovery plans under the ESA since taking office, all under court order. President Clinton listed 512 species during his tenure, and Bush’s father added 234 species for protection during his presidency.
Opponents of the ESA decry lawsuits as expensive and time-consuming, but environmentalists counter that without litigation, nothing would ever be listed for protection under the current administration.
One of the most controversial components of endangered-species recovery under the act is the idea of “critical habitat,” blocks of land and/or water required for a species’ recovery. It is such habitat that opponents of the act want to see more widely opened up to human development, environmental- ists claim.
Furthermore, if denied development rights, property owners and companies want compensation, which Pombo’s critics argue translates to an absurd legal precedent: paying property owners to comply with environmental law.
The ESA’s habitat designations have, on rare occasions, stopped dams and commercial development, re-allocated water resources, and eliminated largescale old-growth logging in the Northwest for the sake of improving a species’ population.
“The Endangered Species Act is the nation’s most important conservation law in history. To change it the way Pombo wants is the dream of every irresponsible developer out there,” Deon said. “We have to look to the Senate to ensure that Americans have a strong Endangered Species Act.”
Under Pombo’s bill, standards would be less stringent for how much land is needed for each threatened or endangered species. For example, the current law allows for the documented historic range of a species when considering protection measures. The new law would limit studies of habitat range to “empirical data,” meaning setting aside protected land only where species can be accurately counted.
The ESA now obligates the federal government to protect all species in danger of extinction “throughout all or a significant portion of their ranges” and also includes “species likely to become endangered in the foreseeable future.”
The rewritten law implies that the government should be only responsible for maintaining the minimal level of population of threatened species, rather than working to fully recover them.
Property-rights advocates support the proposed law for provisions granting an increase in compensation for landowners who lose development value due to species listed under the Endangered Species Act.
But that is an expensive solution that will likely backfire, maintained Erich Zimmermann, senior policy analyst for Taxpayers for Common Sense, in the October Grist Magazine.
“Pombo’s bill creates a perverse incentive for landowners to come up with a plan to develop on the most biologically sensitive areas of their property simply so they can cash in on a government rebate,” he said.
The price tag for paying off landowners with property including habitat for sensitive species is estimated to be $220 million, according to the Congressional Budget Office.
Conservationists are also concerned about provisions in the bill that would remove, for five years, restrictions on pesticides known to be harmful to aquatic species, including sea turtles and Pacific salmon.
“We’ve already learned that lesson with the bald eagle and DDT,” said Deon of Defenders. “Pesticides accumulate up the food chain to harm wildlife. Pombo’s bill returns us to that time by exempting pesticides decisions from ESA compliance.”
Improvements are needed to the ESA, but Pombo’s bill falls short, according to Chris Pague, senior conservation ecologist with the nonprofit Nature Conservancy.
What’s needed are real incentives for property owners to protect critical habitat on their land, he said in a phone interview. “We’re very concerned that the bill does not represent an incentive base; it takes away tools that makes conservation a success.”
For example, the bill discourages communities from working with local land agencies to help save a species, preferring instead a government buyout.
“In the case of the Gunnison sage grouse, protection under the act was warranted but precluded, meaning nothing was being done,” Pague said. “So instead of waiting for the (USFW) to tell them what to do the community stepped up and helped to solve the problem by conserving private lands in cooperation with the local BLM officials.”
More incentives are needed for conservation easements also, Pague said. If they were easier to get and compensated enough for losses, more landowners would be willing to get on board, but this is not addressed in the new bill.
“Species protection is a value for the American people,” he said. “But a strong stand for society is not to strip struggling landowners of all possibilities on their land. Rather it is giving them, and planners, alternatives that help them reach their financial goals, without sacrificing the viability of species.”
