American Geological Institute

Government Affairs Program

Women in Government Relations and Women in Mi ning Briefing on the Endangered Species Act (3-26-98)

Women in Government Relations and Women in Mining sponsored a briefing on the Endangered Species Act on Monday March, 23, 1998 in Room 2257 of the Rayburn House Office Building from 3 to 5 p.m .

Suzanne Bacon - Legislative aide for Senator Dirk Kempthorne (R-Idaho)
Monica Medina - General Counsel for the National Oceanic and Atmospheric Administration
Michael J. Bean - Head of the Wildlife Program of the Environ mental Defense Fund
Nancie G. Marzulla - President of Defenders of Property Rights
Kim Delfino - Staff attorney with U.S. Public Interest Research Group

Ms. Bacon stated that virtually all environmental legislatio n -- including reauthorization of the Endangered Species Act proposal S.1364 -- was doomed in the 105th Congress because of the all-consuming interest in the federal budget deficit. She emphasized that Senator Kempthorne believes the Endangered Species Act is sorely in need of reform. His proposal, S.1180, is designed to be pro-species and non-bureaucratic, intended to treat property owners fairly while protecting species. He believes the most critical weaknesses of the existing Act are: it does not req uire scientific data to support federal decisions; its greatest failure is that it has not resulted in the recovery of any endangered species; and the required consultation process is costly and cumbersome. S.1180, therefore, offers the following reforms : The Secretary of the Interior is required to base any decisions on good science; an independent reviewers panel is to be appointed based upon nominations by the National Academy of Science; the filing of recovery plans must utilize scientific criteria; require that recovery plans are reasonable and cost effective; requires the Secretary to appoint a recovery team composed of academics, industry representatives; federal, state and local governments; eliminate consultation requirements when federal manage rs have not identified a habitat problem; eliminate the need for landowners to file a plan when minor alterations to their property is planned; limit land owner liability for disturbed habitats; and require federal managers or litigants to show scientific proof that actual endangered species exist on the property in question.

Ms. Medina stated she represented the entire federal government and not only the Commerce Department. The primary NOAA connection to the Endangered Species Act is within the Nati onal Marine Fisheries program. The existing Act was characterized as decisively in need of reform and revision, and NOAA supported the Chafee-Kempthorne bill. In order to overcome the existing Act's many weaknesses, NOAA has been required to promulgate op erating regulations. It has also devised a habitat conservation plan to assist landowners. Further, it has incorporated a "no surprises rule" where landowners would not be punished for actions taken innocently. NOAA emphasis has been on working through st ate agencies, and therefore supports Senator Wyden's amendment of the Act which gives states considerable implementation authority.

Ms. Delfino opposed the Kempthorne bill, and outlined the following problems: the listing process requires too much red tape to get an endangered species on the list; the mandatory peer review is too cumbersome; the deadlines for recovery planning is too short; there is too much analysis required to determine property values; while implementation plans and limited judicia l review are good concepts, there are too many loop holes; while the federal government is required to correct blameless habitat damages, there is no funding within the federal budget for such purposes; there are no biological goals or adaptation plans. T here are no guidelines for functional equivalents to recovery planning, especially in view of the Congressional Research Service indication that it averages 6 1/2 years to do recovery planning. She indicated support for H.R. 2351, introduced by Rep. Georg e Miller (D-Calif.), which has been characterized as the environmental counterpart to S. 1180.

Mr. Bean, who is a member of the Nature Conservancy and author of The Evolution of National Wildlife Law, reported on the history of the Endangered Species Act. It is 25 years old and was signed by President Nixon. There are now 1200 protected species including plants, animals and insects. Although there are many examples of successes such as the California Condor, most endangered species have not recovered. The major problem with the existing Act is it does not save endangered species. It punishes landowners for doing bad things, but it does not require them to do good things. Congress has not been able to reauthorize the Act since 1992, because there is no flexibility within the two implacable camps. One wants to make the law tougher, and the other wants to lessen the regulatory requirements. He believes that the Kempthorne bill deserves credit for moving in the right direction, but the recovery plan proc ess is convoluted, costly and too slow. Also, the courts have not considered recovery plans as binding. While it has a "no surprises" element in which the Administration assures landowners it will pay if a recovery plan does not work, there is no funding in the federal budget to cover such costs.

Ms. Marzulla claimed the Endangered Species Act has not accomplished anything, and is seriously in need of revision. The Act's poor performance has generated powerful resistance by property owners. Several ho rror stories were related where land owners were deprived of the use or sale of their properties on the suspicion that endangered species might be affected. Millions of acres of private property have been diminished in the name of endangered species, yet there is no evidence of any species being protected. Habitats have been identified where no one has ever seen an endangered species. The determination has been made on the basis of it being a suitable habitat where an endangered species could exist. Ther e is nothing within S.1180 on how to repropagate endangered species, rather it concentrates on habitat protection. The correct procedure seems to be the process of repropagating species in captivity and then releasing them into the wild as evidenced by th e examples of the California Condor, and the wolves into Yellowstone Park.

While the speakers identified many areas of disagreement, there were two points of absolute consensus. The Endangered Species Act is badly in need of revision, and in view of the numerous unresolved conflicts, there is not enough time left in the 105th Congress for reauthorization

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

Contributed by John Dragonetti, AGI Government Affairs Program Senior Advisor
Posted March 26, 1998

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