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Environment vs. Property Rights
Endangered Species Act reform needed?
YES: The law is outdated

by Congressman Richard W. Pombo. Richard W. Pombo represents the 11th Congressional District, including San Joaquin, Alameda, Contra Costa and Santa Clara counties, in the House of Representatives. He is the chairman of the House Resources Committee.

July 5, 2006

California, as much or more than any other state, has witnessed first-hand the Endangered Species Act's (ESA) shortcomings.

The Golden State has the second highest number of listed endangered species in the nation, from the captivating California condor to the less-than-charismatic Delhi Sands flower-loving fly.

It's not too surprising, then, that California leads the lower 48 states in acres of officially designated critical habitat. Nearly 20 percent of the state's approximated 100 million acres is in the regulatory clutches of this designation.

Despite the state's obvious stake in the act, little has been done by state officials to move reform legislation through the U.S. Senate. Californians, with untold sums and resources tied up in compliance or lawsuits over land use due to the restrictions of the act, deserve real reform and should demand action from their elected officials.

Even with the act's unsuccessful track record, the U. S. Fish and Wildlife Service designated critical habitat for the California red-legged frog. The estimated economic impact of this designation in San Luis Obispo County alone is $165 million. Projected costs for the entire state, such as regulatory costs imposed on homebuilders that are passed on to home buyers, are $497 million over a 20-year period.

What are we getting in return for all that money? The answer, unfortunately, is not much. Officials within the Fish and Wildlife Service, over successive administrations, have criticized the critical habitat provision as ineffective and conflict ridden.

In 1999 congressional testimony, Jamie Rappaport Clark, then the service's director, said:

"... in 25 years of implementing the ESA, we have found that designation of 'official' critical habitat provides little additional protection to most listed species, while it consumes significant amounts of scarce conservation resources. We believe that the critical habitat designation process needs to be recast as the determination of habitat necessary for the recovery of listed species. This 'recovery habitat' should be described in recovery plans."

For a federal agency to say that its program provides little benefit, while consuming huge resources, translates in normal English to a program that is useless, at best. After leaving public service for a post as executive vice president of the environmental organization Defenders of Wildlife, however, Clark changed her tune. When she testifies now, she calls critical habitat "a crucial tool for ensuring the survival and recovery of imperiled species."

Like many aspects of the Endangered Species Act, critical habitat is driven by litigation, providing an endless supply of slam-dunk lawsuits to activist groups that can bag taxpayers' dollars in the form of attorney's fees.

Critical habitat is not the only outdated provision of the act. After more than three decades of implementation and billions spent in taxpayers' dollars, Fish and Wildlife Service documents reveal that only 10 -- or less than 1 percent -- of the act's roughly 1,300 listed species have recovered. Of those that remain under its care, just 6 percent are classified as improving, and a staggering 70 percent are classified as either "in decline" or of "unknown" status.

No wonder the U.S. Office of Management and Budget (OMB) recently assessed the endangered species program as "not performing."

Furthermore, many costs have skyrocketed beyond what recovery plans intended. For example, the decurrent false aster's (a plant) recovery plan anticipated recovery by 1997 at a cost of $58,000. In 2006, the Fish and Wildlife Service announced it will finally review its status, after spending more than 800 percent of what was originally projected. Similarly, the least tern's recovery plan anticipated the bird could be recovered by 2005, at a cost of $1.75 million to $2 million. By fiscal 2004, least tern expenditures had exceeded $23 million.

These are just a few of the act's shortcomings, but they more than justify the Office of Management and Budget's assessment that the program is "not performing," and are just some of the reasons that the House of Representatives, with a strong bipartisan vote, passed HR3824, the Threatened and Endangered Species Recovery Act.

HR3824 provides many long-needed improvements, including eliminating wasteful critical habitat provisions. Instead, it identifies habitat in recovery plans -- just as Defenders of Wildlife's Jamie Clark testified was needed when she was with the Fish and Wildlife Service.

But HR3824 also accomplishes much more. It requires timely, comprehensive recovery plans and allows affected parties, including property owners, to have a say in those plans to reduce conflict. When conflict is unavoidable, it requires compensation for private property owners' loss of property or the use thereof. Further, it provides commonsense exemptions for emergencies and national security while strengthening scientific standards, improving reporting and mandating transparency in decision-making.

To work, the Endangered Species Act must refocus on recovery instead of conflict. For HR3824 to work, the U.S. Senate must pass corresponding legislation. Endangered species, and Californians, deserve better. Ignoring the need to improve the Endangered Species Act is a dereliction of congressional duty and an unrecorded vote to perpetuate a failing conservation program.

Richard W. Pombo represents the 11th Congressional District, including San Joaquin, Alameda, Contra Costa and Santa Clara counties, in the House of Representatives. He is the chairman of the House Resources Committee.




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