Bipartisan Substitute to the Pombo ESA Bill

(September 28, 2005 — Washington) A bipartisan amendment to Congressman Richard Pombo’s Threatened and Endangered Act of 2005 offers responsible solutions to the challenge of reconciling conservation and development. The Substitute is expected to be offered this week by: John Dingell (D-MI), George Miller (D-CA), Sherwood Boehlert (R-NY), Jim Saxton (R-NJ), Wayne Gilchrest (R-MD), Norman Dicks (D-WA), Ellen Tauscher (D-CA) and Mark Kirk (R-IL).

Congressman Dingell is the author of the original Endangered Species Act of 1973.

Rather than dismantle a program that has helped hundreds of species of American wildlife gain a more secure foothold on survival, the Substitute presents creative, workable solutions that promise better results in both recovering imperiled species and reducing burdens for regulated interests.

The substitute bill…

…better achieves recovery and puts the primary obligation for doing so on federal agencies. Under the Substitute, federal agencies will play an enhanced role in furthering the recovery of endangered and threatened species. Federal agencies since 1973 have been required by Section 7 of the ESA to ensure that their actions not “jeopardize the continued existence” of listed species, but this fundamental standard has never had a statutory definition. In practice, federal agencies have regularly and routinely undertaken actions that have reduced prospects for species recovery, thus effectively increasing the burden on private landowners. The substitute would change that with a clear and strong definition that makes it clear that any federal action that reduces the likelihood of recovery, or that significantly delays or increases the cost of recovery, will contravene the requirements of Section 7.

…ensures the continued integrity of the inter-agency consultation process. The consultation process mandated by Section 7, in which federal agencies proposing to authorize, fund, or carry out activities that may affect endangered or threatened species consult with conservation agencies (the Fish and Wildlife Service or NOAA Fisheries), has worked remarkably well for more than three decades. The consultation process almost always identifies ways to remove or reduce the detrimental impacts of federal agency actions. Unlike the Pombo bill, the Substitute does not attempt to fix what is not broken. The Pombo bill authorizes unspecified alternative procedures to evaluate the impact of federal agency actions on listed species. What those procedures may be and to what activities they may apply are left completely unanswered by the Pombo bill.

The Substitute keeps the existing, effective consultation procedures in place. …improves recovery planning and better integrates recovery plans into the rest of the ESA. The Substitute requires that all newly listed species have recovery plans completed within three years and directs the existing backlog of overdue plans be eliminated within ten years. Recovery plans can play a more useful role in guiding the implementation of the ESA by being better integrated with the other provisions of the ESA. The Substitute assures this by requiring that plans identify all areas necessary for the conservation of listed species, which will help inform the implementation of the federal agency duty described in the preceding paragraph. The Pombo bill disavows any link between recovery plans and the other requirements of the ESA.

…offers Improved Guidance Prior to the Development of Recovery Plans. After a species is added to the threatened or endangered list, and before a recovery plan for it is written, states, landowners, and others often seek guidance to aid conservation efforts and avoid conflicts. The Substitute helps promote conservation and avoid conflicts by encouraging the development of guidance that identifies particular types of activities or particular areas where those or other activities could impact conservation prospects.

…defines “best available scientific data” in a straightforward and scientifically credible way, thereby allowing sound decisions to be made without unnecessary delay. In contrast, the Pombo bill requires the promulgation of new regulations and compliance with a complex set of new procedures that would make compliance with existing statutory deadlines for decision-making more difficult.

…provides financial incentives for voluntary actions by landowners to further the conservation of imperiled species. The Substitute establishes an uncomplicated program of incentives, in the form of cost-share assistance and technical assistance, to encourage landowners to undertake voluntary habitat improvements and other conservation actions helpful to threatened and endangered species. Unlike the Pombo bill, it does not force the taxpayer to pay businesses and others to comply with the law, nor does it sacrifice the well-being of endangered wildlife if the government misses a deadline.

…keeps pesticide protections in place. The Pombo bill creates a five-year exemption for pesticides from the existing requirements of the ESA. Inadequately regulated pesticides have been a significant threat to many imperiled species, including the nation’s symbol, the bald eagle, as well as the peregrine falcon, brown pelican, rare amphibians, and other species. The Substitute does not carve out any special exemption from the normal requirements of the ESA for pesticides, but keeps those requirements in place so that continued progress in conserving species like these can be made.

Contact: Colin Rowan Environmental Defense 512-691-3416 Michael Bean Environmental Defense 202-572-3312