Roadblocks to Reauthorization: The Latest Controversies in the ESA Debate

By: Sara Barth

Even by Congressional standards the Endangered Species Act (ESA) is considered an exceptionally divisive issue. Since the Act came up for renewal in late 1992, Congress has unsuccessfully tried each year to reauthorize this crucial species protection law. During that time, the existing law has remained in effect, but the failure to reauthorize has not been without costs. Necessary changes to the ESA, which would address implementation problems and potentially improve the dismal rate of species recovery, have been blocked by the reauthorization impasse. Failure to reauthorize has also left the Act vulnerable during the annual appropriations process, where frustrated opponents have tried to slash the Act's funding and place restrictions on its implementation. For example, in 1995, Congress passed an emergency supplemental appropriations bill that included language prohibiting the listing of new species under the ESA­this listing moratorium was lifted a year and a half later after a grueling legislative battle. For these reasons, members of the conservation community and others would like to see the ESA reauthorized.

The recent introduction of a bipartisan bill in the Senate­S. 1180 The Endangered Species Recovery Act of 1997­may loosen the existing legislative logjam. The bill is a political compromise that has garnered the support of some important constituents, including key Republicans and Democrats in the Senate, Secretary of Interior Bruce Babbitt, and many members of the regulated community. This support makes it more viable than any ESA proposal to emerge in the recent past. The precarious position of most listed species, the finality of extinction, and the strong likelihood that the next ESA bill will not be revised again for another 10 years, however, demand the most carefully crafted compromise possible. The unanimous assessment of the conservation community, despite their strong desire for reauthorization, is that S. 1180 in its current form is not careful enough. The question remains, however, whether these substantive concerns will reach the ears of Senators who are weary of dealing with the seemingly endless endangered species debate. Even without the support of the conservation community, S. 1180 has a reasonable chance of being passed by the Senate.

The House of Representatives is expected to wait for the Senate to move on S. 1180 before it begins serious consideration of its own bill. In preparation, Representative George Miller (D-CA) introduced an ESA bill, H.R. 2351, which is rapidly gaining bipartisan support (at press time, the bill had 88 cosponsors). Although the House bill is also known as The Endangered Species Recovery Act of 1997, it differs significantly from the Senate bill. Like S. 1180, H.R. 2351 incorporates a number of provisions intended to make the Act more friendly to landowners. House bill 2351 approaches these changes more cautiously, however, by incorporating safeguards to ensure species¹ needs are met and by maintaining the fundamental protections of the current ESA. Not surprisingly, H.R. 2351 has been broadly endorsed by an array of conservation organizations, but other important players (e.g. the Administration) have yet to take a position. At this point, H.R. 2351's fate is still unknown as it faces an uphill and extremely polarized battle in the House.

Because the Senate bill will almost certainly be dealt with before H.R. 2351, it will likely have a significant impact on legislative developments in the House. Thus, this article focuses heavily on S. 1180 and identifies the serious concerns that have kept the National Wildlife Federation and other mainstream conservation groups from supporting the bill.

Much has been written about the current Act¹s failure to adequately protect species on private lands and it is clear that improvements are needed to address this issue. The Clinton Administration has actively promoted Habitat Conservation Plans (HCPs) and Candidate Conservation Agreements (CCAs) as a means of engaging private and non-federal landowners in species conservation. As an added incentive to landowners, the Administration developed the ³No Surprises² policy. ³No Surprises² allows private and other non-federal landowners to lock in long-term land management plans (e.g. HCPs or CCA's) for up to 100 years or more and leaves them exempt from any further conservation obligations for the length of the plan. The rapid proliferation of HCPs under ³No Surprises², from less than a dozen before the arrival of the Clinton Administration to nearly 400 HCPs currently completed or on their way, demonstrates how attractive the policy is to landowners. With hundreds of new HCPs now available for review, scientists and others are raising troubling questions about whether the expanded use of HCPs has been beneficial for species. During a recent comment period on the proposed ³No Surprises² rule, the U.S. Fish and Wildlife Service and the National Marine Fisheries Service (referred to collectively as the Services) received nearly 1000 comments from scientists, tribes, religious organizations, conservation organizations and concerned citizens. In all, only 49 respondents (primarily those from the regulated community) endorsed the policy.

Two underlying problems with ³No Surprises² have consistently been raised, but unfortunately, S. 1180 codifies the policy without addressing either of them. First, neither S. 1180, nor the Administration¹s ³No Surprises² policy provide a reliable bail out mechanism for HCPs that fail to adequately protect species. Under S.1180's ³No Surprises² provision, management adjustments over the term of the HCP are nearly impossible and are contingent upon funding from the federal taxpayer. The bill merely gives the developers of the HCP the option to include a list of management modifications that may be required in the event of extraordinary circumstances. There is no provision for addressing circumstances not anticipated in the original plan. In fact, S. 1180 is worse than the Administration¹s version of ³No Surprises² in that it precludes revisions to the HCP without consent of the permittee­even if the government is willing and able to pay for those revisions. Instead of addressing this issue, the Senate bill goes beyond the Admin-istration¹s policy by mandating the inclusion of a ³No Surprises² provision in every HCP.

The Senate bill should be amended to include a mechanism for responding to unanticipated management changes that may become necessary 20, 50, or 75 years into a plan. Specifically, HCPs should include monitoring provisions designed to alert landowners and the Services when an HCP is not adequately protecting a species covered under the plan. Furthermore, legal mechanisms that require adjustment of failing plans and a reliable funding source to cover the costs of these management adjustments should be included in the bill. Without sufficient funding, necessary changes will never be implemented.

These modifications can be designed in a way that still provide certainty to landowners. House bill 2351, for instance, requires that HCPs outline ³reasonably foreseeable² changes for which the landowner is responsible over the life of the plan. Thus, the landowner agrees to incorporate certain adaptive management features into the plan from the outset. The House bill holds the Services responsible for responding to any other unforeseen circumstances that might justify plan changes. To ensure that landowners can pay for responses to ³reasonably foreseeable² changes, the bill requires them to post a bond or other security that guarantees available funds. Likewise, the bill establishes a federal trust fund that will cover the cost of needed management changes for which the Services are responsible. Currently, Senate bill 1180 includes an HCP Insurance Fund, to cover the Services¹ future management expenses, but the $10 million cap is likely to be inadequate and even that amount must be allocated through the unreliable appropriations process.

The second major criticism of HCPs with ³No Surprises² is that they are approved, and often allow significant amounts of habitat destruction, without adequate consideration for the impact that they will have on the recovery of species. In some regions like the Pacific Northwest, HCPs are an increasingly predominant land-management tool. For some species, particularly endemics that occur only in localized areas, HCPs may cover the majority of habitat available to a species. In these instances, a set of HCPs, or even a single HCP, become de facto recovery plans and management of those lands will determine whether the species ever recovers. Yet, S. 1180 allows HCPs to be developed without consideration of their cumulative effects on species or an analysis of their impacts on the Services¹ ability to recover listed species. Instead, the approval standard for HCPs merely requires that plans do not jeopardize a listed species¹ ability to survive in the short-term. Ironically, S. 1180 provides a more significant level of protection under HCPs for unlisted species than listed species (even though unlisted species should be in more stable condition and require less protection than listed species). House bill 2351 requires the Services to evaluate all HCPs in the context of their long-term impacts on the recovery of listed species and it prohibits the approval of any HCP that would undermine recovery efforts. This higher standard ensures that long-term land management plans of 100 years or more are equally focused over those 100 years on the recovery of species.

The existing law's Section 7 consultation process, which requires the Services to review the actions of other federal agencies to ensure that they do not jeopardize species, has proven to be one of the bedrocks of species protection. In most cases, the consultation process works smoothly and quickly, with fewer than 2% of projects actually halted; most are modified only slightly as a result of the review process. Not surprisingly, however, the effective protections of Section 7 also make it the subject of bitter complaints. Opponents of the ESA argue that Section 7 has been used by the Services to delay federal projects for unreasonable periods of time.

The Senate bill includes substantial changes to Section 7 that have been viewed unfavorably by the conservation community. One of the most controversial changes in S. 1180 is a waiver of Section 7 for activities that are part of a ³recovery implementation agreement.² The existing law has been relatively ineffective at actively engaging agencies other than the Services in recovery efforts. Senate bill 1180 adds a welcome new provision to the ESA that requires federal agencies to develop ³recovery implementation agreements² that outline their plans for contributing to species recovery efforts. The waiver of Section 7 is intended as a streamlining measure to keep agencies from continually having to review their recovery implementation agreements. In lifting the normal review process, however, S. 1180 removes an essential precautionary tool for reconsidering and updating these management activities to ensure benefit to the species. Second, the bill's language leaves the terms of these recovery implementation agreements to the discretion of the Secretary, thereby precluding judicial review of the basic question of whether activities are promoting or undermining recovery.

Senate bill 1180 makes two other changes to Section 7 that undermine the current law¹s cautious approach to project evaluation. As it stands, a project cannot move forward until the Services have affirmatively concluded that it will not jeopardize the survival of a listed species. Under S. 1180, agencies like the U.S. Forest Service and Department of Defense will make the initial determination as to whether their activities are ³likely to adversely affect² a listed species. If the Services fail to challenge an agency¹s finding within 60 days of determination, the project moves forward without modification. Thus, the risk of the Services not responding within 60 days is shifted to the species.

Unlike the existing ESA, S. 1180 allows certain site-specific activities on federal lands, such as individual timber sales, to move forward before the cumulative impact of these projects on newly listed species has been considered. Currently, site-specific activities that have been approved under Section 7 must await the completion of a plan-level (e.g. a forest plan) consultation when a new species has been listed. Such consultations ensure that the cumulative impact of individual site-specific projects is thoroughly reviewed and considered. The changes proposed under S.1180 would allow site-specific projects to move forward during a 15 month period, after which the plan-level consultation is supposed to be completed. In the 15 month interim, a great deal of habitat may be destroyed and the findings of the plan-level consultation rendered irrelevant. Furthermore, if the agencies do not meet the 15 month deadline, the Section 7 waiver could remain in place indefinitely until the plan-level consultation is completed. This language was inserted into S.1180 in an attempt to prevent timber sales and other projects from getting caught in a cycle of endless review that must restart every time a new species is listed. But the impact of these provisions limits the Services¹ ability to adequately review and evaluate the cumulative impacts of individual federal activities.

House bill 2351 recognizes the Section 7 consultation process as one of the primary tools for species protection and it leaves the existing provisions largely intact. In an effort to respond to complaints about delays, the House bill allows initiation of the consultation process for candidate and proposed species awaiting listing. Hence, the process can be completed before the species has even been listed avoiding the need to re-initiate consultation after listing.

Under the current listing process, hundreds of imperiled species have been denied listing because the Services lack either the resources to process petitions or the political will to make listing decisions that are unpopular with regulated interests. Rather than addressing this problem, S.1180 builds in a number of new, burdensome requirements that create more obstacles to listing. Although there is no evidence to suggest that the Services have been promulgating frivolous listings, the bill requires that all listing petitions be subject to scientific peer review even when there is no scientific dispute over the data. The bill also outlines the minimum set of data required for listing petitions. Failure to provide these data, for any reason, can be used as an excuse to reject an otherwise warranted listing petition. Currently, species listed as threatened are granted the same level of protection as endangered species except where 4(d) rules, allowing for less protection, are developed. This bill adds to the Services' burdens by requiring development of 4(d) rules for every species listed as threatened, thus opening the door for reduced protection of these species.

The recovery planning process suffers from the same sort of backlog as the listing program. Currently, almost half of all listed species lack a recovery plan. Senate bill 1180 makes major changes to the recovery planning process, including some promising new features. For instance, S. 1180 insulates the development of biological recovery goals from the rest of the recovery planning process in an effort to ensure that they are based solely on science. It also requires recovery teams to include representatives from a broad range of interests. The bill, however, inserts so many additional layers of review and planning that the recovery planning process is likely to become a bureaucratic morass. For example, the bill forces recovery teams to include costly, speculative, and potentially useless economic analyses of all potential recovery measures considered by the team.

The existing backlog of species awaiting listing and recovery plans is indicative of the severe funding shortages now facing the agencies that implement the ESA. Unless the new procedures devised under this bill are streamlined, funding demands will increase and the listing and recovery plan backlogs are certain to grow.

In addition to the "No Surprises" regulatory-relief type of incentive, S. 1180 incorporates a separate set of incentive programs that involve cost-sharing and grants to landowners, states, and others in exchange for proactive conservation activities. For instance, the bill includes a grant program to assist private landowners and others in developing recovery implementation agreements and a revolving loan fund to assist in the development of Habitat Conservation Plans. Senate bill 1180 also creates a Habitat Reserve Program to pay landowners for managing habitat in ways that benefit endangered species. In addition, S. 1180 codifies the Administration¹s ³Safe Harbor² policy, which ensures that landowners who actively improve their land beyond the existing requirements of the ESA will not face additional obligations if species are attracted to their lands.

These programs could potentially lead to significant improvements in species conservation, particularly on private lands. With the exception of the "Safe Harbor" policy, however, these incentive programs will only be successful if substantial funding is made available. Annual federal appropriations have proven to be an unreliable funding source for the Services¹ endangered species programs. Instead, a funding source outside the appropriations process is needed to make funding for these programs real. Without this type of steady, reliable funding, these incentive programs will be empty promises that exist in name only.

Alternatively, incentives could be added to S. 1180 that were not dependent upon the annual appropriations process. The House bill, for instance, includes estate tax deferrals for lands that are managed proactively to protect species and tax credits for the costs of implementing these measures.

In all, S. 1180 provides some potentially beneficial new features, however, it fails to include necessary safeguards that ensure adequate species protection. Furthermore, the Senate bill includes some problematic roll-backs in existing protections and fails to address some of the much-needed improvements to the existing ESA. A package of amendments to improve the Senate bill may be successful, but it is widely expected that the best hope for significant environmental improvements lies in the House. It is also possible that anti-environmental amendments (e.g. compensation for private landowners or subversion of federal water rights) will pass in the Senate and severely reduce the likelihood of the bill becoming law.

Unless a set of improving amendments is passed, the conservation community is likely to continue opposing the bill. While this opposition may not keep the Senate from passing S. 1180, it makes it harder for the House to pass an ESA bill and this may ultimately be where the reauthorization process­for better or worse­once again grinds to a halt.

Sara E. Barth is Legislative Representative for the National Wildlife Federation's Endangered Habitats Team, 1400 16th Street, N.W., Washington, DC 20036.

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