Most Recent Action   Background

Update on Endangered Species Act Legislation (4-5-02)

The implementation of the Endangered Species Act (ESA) has been a highly controversial issue for conservationists,  industry, and Congress in recent months.  The geosciences are largely effected by ESA's impact on land use restrictions and mitigations for industrial development.  Some groups have questioned the effectiveness of ESA in light of recent species litigation such as the sucker fish in the Klamath River Basin, the Canada Lynx, and fish and birds in the North Platte River.  The recent focus of the House Resource Committee has been on the quality of the scientific data used in the ESA litigation.

Most Recent Action
U.S. District Judge Stephen Wilson overturned the California gnatcatcher and San Diego fairy shrimp critical habitat designation ruling for a complete reevaluation of the federal government protection plan.  The litigation may result in the critical habitat designations for these species being thrown out or federal officials rewriting them.  Industry backlash on the implementation of ESA is also causing the debate to heat up.  In Klamath Falls, Oregon, PacifiCorp has threaten to sue if the U.S. Fish and Wildlife Service requires them to install fish screens along to Link River to protect the sucker fish.  In cases such as this one, judges have ruled that the federal agencies have not completely assessed the economic impact of the designation, which overrules the critical habitat designation.

On March 20, 2002, the House Resource Committee evaluated ESA in light of recent controversy with the sucker fish in the Klamath River Basin, the Canada lynx issue, and endangered fish and birds in the Nebraska Platte River.  Rep. Greg Walden (R-OR) introduced H.R. 2829 that amends the Endangered Species Act of 1973.  The bill would require the Secretary of the Interior to give greater weight to scientific or commercial data that is empirical or has been field-tested or peer-reviewed.  H.R. 2829 would not only establish standards for data collection and interpretation but would also strongly support peer-reviewed processes prior to any legal designations.  Although there is some peer reviewing in current ESA plans, Walden states that it is purely administrative.

The House Resource Committee also discussed H.R. 3705, introduced by Rep. Richard Pombo (R-CA) titled, Sound Science Saves Species Act of 2002.  H.R. 3705 requires specific scientific data on the historical ranges of species, current population, and proof that population decline is more than a normal fluctuation.  This bill has been perceived to be inflexible and not realistic.  Both H.R. 2829 and H.R. 3705 worry some environmental organizations.  "If you look at the way these hearings have been scheduled -- three straight weeks on what they claim is bad science -- it's clearly a part of a strategy to build some momentum around these bills.  I don't think they succeeded.  . . . But we have to take any attack against the ESA seriously because we don't know what the reaction will be," stated John Kostyack of the National Wildlife Federation.

In response to recent hearings, Kathleen Clarke, Director of FWS, said that "the service has come to realize that by making critical habitat a low agency priority they were not fulfilling their responsibility to work for habitat conservation as a primary means of recovering listed species." (4/5/02)

On February 16, 2002,  the House Committee on  Resources meet for an oversight hearing to discuss the the Grand Island, Nebraska, issue on the Platte River Cooperative Agreement and critical habitat designation.   (4/5/03)

The ESA of 1973 is a comprehensive bill intended to protect threaten or endangered species.  The Endangered Species Act (ESA) of 1973 itself has always been controversial among industry and environmentalists, but recently the definition of critical habitat has confused the issue.  The term "critical habitat" within in the Endangered Species Act allows for the protection of threatened or endangered species by setting aside a specific geographic area.  ESA states that the federal agencies must make these designations based on the best scientific data in addition to assessing the economic impact of such decisions.  Recent court rulings on critical habitat have confused the issue by sending contradictory messages.  In addition, Congress has not passed any recent legislation that does a better job of defining critical habitat or sound science.  The mixed message come from courts that charge the Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS) for failing to protect endangered species, while other cases are throwing out previous litigation that sets aside critical habitat areas.  According the the Fish and Wildlife Service, only 152 of 1,256 threatened or endangered species have the critical habitat designation.  Further information of the congressional activity can be found at the National Library for the Environments and the Library of Congress website.

Sources: the Library of Congress website Thomas, Environmental and Energy Study Institute, Greenwire, National Library for the Environments

Please send any comments or requests for information to the AGI Government Affairs Program at

Contributed by AGI/AAPG Spring 2002 Geoscience Policy Intern Heather R. Golding.

Last updated April 4, 2002

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