ESA talks end in stalemate

While major disagreements remain, Pombo claims consensus

  • The desert tortoise, listed as a threatened species in 1980, has 16,000 square miles of designated critical habitat in Nevada, Utah, Arizona and California.

    Gray Hardel/Corbis

How do you massage the Endangered Species Act so that it’s both more effective in saving endangered species and less burdensome on landowners, ranchers, timber companies and local governments? For now, the answer seems to be, "You can’t."

After four months of meetings, 23 experts could not reach consensus on how to untangle the myriad disputes over the act’s critical habitat provisions (HCN, 2/20/06: High Noon for Habitat).

The nonprofit Keystone Center convened the working group at the request of six U.S. senators. The group, which included environmentalists, landowners, academics, attorneys, timber companies and home builders, met three times over the winter.

In a letter to the senators dated Feb. 17, the panel wrote that the entire group agreed "in short order" that the act could do a better job of protecting wildlife habitat. The question of "how that ought to be accomplished," the letter continued, is a much stickier subject.

The panelists agreed that the government needs to create more incentives for landowners and industry to preserve habitat. Their soon-to-be-published final report will include suggestions to strengthen habitat protection programs in the Farm Bill, and to legally authorize, for the first time, "cooperative conservation agreements" between landowners and the federal government. The panel members also agreed that a better definition of "species recovery" would help wildlife agencies create scientifically sound, financially reasonable and politically credible recovery plans.

The effort stalled, however, on the much touchier subject of changing the act’s regulatory requirements. The group failed to come up with a replacement for the current critical habitat standard limiting destruction or "adverse modification" of habitat. Much of the discussion centered on whether members could produce language that would be significant enough to protect species without burdening landowners.

The group’s members also disagreed on how to deal with actions that would hurt a species’ recovery. Some argued that the law should bar federal agencies from authorizing anything that would reduce the likelihood of recovery. Others argued that agencies need only ensure that their activities do not "preclude the possibility of recovery."

"The general perspective from the conservation community inside Keystone and out is that you can give the feds more resources to do good science and you can integrate habitat protection into recovery planning," says John Kostyack, an attorney with the National Wildlife Federation who took part in the talks. "What the people in the regulated industries seemed to be looking for is to remove mandatory protections and make it sort of a voluntary program. I don’t think there will be support for that."

These disagreements did not, however, stop Rep. Richard Pombo, R-Calif., chair of the House Resources Committee, from claiming that the Keystone committee echoed his arguments about the Endangered Species Act. Pombo’s bill, which would retool the law to eliminate critical habitat, narrowly passed the House in December.

"The Keystone Center’s letter to the Senate reaffirmed the 229 House Members who voted to update and modernize the ESA," Pombo said in a statement on his committee Web site. "One thing is certainly clear: it is not a question of IF, it is a question of HOW (the act will be updated), and I look forward to working with the Senate to get this job done."

"We in no way endorsed Pombo’s efforts to eliminate critical habitat from the law without providing adequate alternative protection for habitat necessary for wildlife to recover," committee member Bob Irvin, of Defenders of Wildlife, shot back in a letter to the Stockton Record, a paper in Pombo’s district. The committee’s recommendations for improving incentives, he added, were quite different from provisions in Pombo’s bill that would require the federal government to pay landowners who are affected by the law.

In fact, Pombo’s bill, which most environmentalists agree would gut the Endangered Species Act, was both the impetus behind the Keystone meetings, and a barrier to reaching consensus, according to some participants. Environmentalists were concerned that any bill that the Senate passes would have to be reconciled with Pombo’s bill in conference. That concern hobbled consensus efforts, says Keystone group member Sean Skaggs, a former Clinton administration attorney now working in private practice.

Environmentalists will not comment on their future strategy. Some have called for reforming the Endangered Species Act in the past, but this is a risky time to be retooling a bedrock environmental law. The safer strategy may be stonewalling, since mid-term elections make it unlikely that the Senate will approve any bill that could be construed as destroying the law.

Sen. James Inhofe, R-Okla., the chair of the Senate Environment and Public Works Committee, is trying to force some movement on the issue. Environment and Energy Daily reports that he might introduce his own ESA bill by the end of March if Sen. Lincoln Chafee, R-R.I., who chairs the subcommittee working on the Endangered Species Act, does not produce a bill by then. Inhofe has declined to say what kind of bill he would propose, but environmentalists fear his bill would closely resemble Pombo’s.

In a statement, Chafee said the Keystone report makes it clear that the law’s emphasis must shift from protecting habitat to promoting species recovery. "While it is unfortunate that consensus could not be reached on how to transform ... critical habitat ... there is no doubt that change is necessary," he said.

The author is the Arizona Daily Star’s environment reporter.

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