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"I must say I have to seriously question the timing and appropriateness of considering a bill that would cut the heart out of one of our nation's major environmental protection laws in the wake of one of the worst human environmental tragedies in history.
"It has been little more than three weeks since Hurricane Katrina's landfall in the Gulf region resulted in perhaps the most devastating natural disaster our nation has ever seen.
"The environmental toll of this tragedy, especially in New Orleans and the Mississippi Delta region is no less serious. The flooding in New Orleans turned the city into a toxic and contaminated stew. The storm also caused multiple oil spills, devastated wildlife refuges, and resulted in heavy damage to wetlands. Katrina also wiped out virtually all of the fishing industry in the Gulf, which was already stressed by foreign competition and the reduction of critical wetland habitat.
"The hurricane raised all sorts of questions that this Committee should be considering carefully. What should we be doing to rebuild the fishing industry and help those who lost their jobs? How should we reexamine our coastal policies to mitigate the effects of future disasters like this one? How have sensitive fish and wildlife populations been affected?
"That is what the Committee should be considering in the wake of one of the worst environmental disasters in our nation's history, not a special-interest bill that guts a critical environmental safety net.
"I want us to be clear what exactly we are talking about here today. We're not talking about trying to improve the rate at which we recover endangered species.
"Instead, we're talking about a bill that is written to gut many of the critical protections in the Endangered Species Act for the benefit of developers and other special interest groups. I am especially concerned that this bill contains a provision that would effectively result in a massive giveaway of taxpayer dollars to corporate developers whose projects may be affected by the Endangered Species Act.
"Under this legislation, if the Fish and Wildlife Service or the National Marine Fisheries Service determines that a developer's proposal would violate the Endangered Species Act and harm protected habitat, the Service would have to pay the developer for lost profits on any part of the proposed project that cannot be completed.
"This opens the door to incredible giveaways to developers coming straight out of taxpayers' pockets -- especially since the affected party would determine the value of lost profits. Moreover, it would devastate the budgets of the very agencies that we are relying on to protect and recover species.
"The developer giveaway provision is just one example of how this bill does effectively the opposite of what it is intended to do and devastates not only the letter but also the spirit of the Endangered Species Act.
"Supporters of this bill like to point out the relatively small number of endangered species that have been recovered to healthy populations since the passage of the Act. It is more appropriate, however, to note that 99 percent of the species listed since 1973 are still with us today -- a pretty good success rate.
"Mr. Chairman, in my district people are appalled to hear that Washington politicians are trying to give taxpayer money away to big developers at the expense of endangered species. I share their feelings, and I urge my colleagues not only to oppose this legislation but also to have the Committee examine the serious problems in the fishing industry and the environment in the Gulf region."
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H.R. 3824 (Pombo)—An Analysis of Major Provisions
H.R. 3824, a bill introduced yesterday by Rep. Richard Pombo (R-CA), would drastically scale back this nation’s commitment to conserving its endangered wildlife and habitat for future generations. This analysis sets forth some of its most damaging provisions.
Removes Prohibition Against Killing Threatened Species (Section 8)
· Unlike endangered species, species listed as “threatened” under the Endangered Species Act do not enjoy the prohibitions of the Act’s statutory prohibition against killing or injuring them. (ESA § 9). Instead, the Act requires that the Service issue regulations as necessary to provide for the conservation of the species. (ESA § 4(d)). In one of its first acts after the law was passed, the Service issued a default regulation pursuant to this authority extending the Endangered Species Act’s protections to all threatened species except those (a small handful) for whom special rules have been crafted.
· HR 3824 removes these protections requiring that any regulation issued to protect threatened species be issued on an individualized species-by-species basis. The Bill also removes language in the Act requiring that such regulations be promulgated to further the overall conservation of the species. Considering the enormous cost that would be entailed in issuing separate regulations for each threatened species (over 400 threatened species are currently protected by the Act), and the repeal of the statutory mandate to do so, the Service is unlikely to restore the necessary protections.
Eliminates All Critical Habitat Protections (Section 5)
· HR 3824 ignores the crucial role of protecting wildlife habitat, repealing all of the critical habitat provisions of the Act.
· To justify this repeal, Rep. Pombo claims that he has replaced critical habitat with a better habitat protection tool, set forth in the bill’s recovery plan provisions. However, the Pombo bill merely states that recovery plans must identify areas of “special value” to the conservation of the species. Moreover, the Bill provides that nothing in recovery plans (including the identification of “special value” habitat) shall be binding.
Requires Fish and Wildlife Service to Either Allow Unfettered Habitat Destruction or Make Big Payoffs to Developers (Sections 13 and 14)
· The Endangered Species Act currently requires a destructive project cannot proceed until it is reviewed and approved by government scientists. HR 3824 would allow the majority of developers to proceed with environmentally harmful projects without carrying out any of the offsetting habitat conservation measures ordinarily required by the Endangered Species Act. Specifically, if the Fish and Wildlife Service cannot review permit applications within 90 days, it is deemed to have consented to the permit. Since the Services already cannot meet existing deadlines, the inevitable result is that the agencies would be completely overwhelmed, allowing myriad destructive projects to slip through unreviewed. (Section 13)
· In those cases where the Fish and Wildlife Service does review a project within 90 days and request modifications or mitigation, the Service would then become obligated to pay the developer for any foregone profits. Thus, for example, if the Service allows a subdivision to be built on all of a 2,000-acre tract except a 10-acre riparian habitat area used by an endangered toad, the developer would be entitled to a federal government check for any profits not earned on the last 10 acres - even if the overall project is highly profitable. (Section 14)
· Furthermore, this provision requires that these payments (labeled as “aid” in the Bill) be paid from the budget of the Interior Department by the end of the fiscal year. “If sufficient funds are not available to pay an aid award in full, the Secretary shall pay any remaining balance when funds next become available.” The Bill also provides that “the Secretary shall pay the aid required by this section from any funds available to the Secretary that are not mandated by law to be spent for other activities or obligations.” These payments would take priority over all other programs not just of the endangered species program, but the entire Department of Interior.
Allows Politicians To Define Best Available Scientific Data (Section 3)
· The Endangered Species Act leaves the decision of what constitutes the “best available scientific data” to the scientific community. HR 3824 requires a political appointee, the Secretary of the Interior, to issue regulations predetermining the definition of best science. The proposed new definition of best science also gives greater weight to empirical data – ignoring the importance and integrity of scientific modeling.
· HR 3824 also includes a restrictive definition of “best available scientific data” (the standard by which decisions are made pursuant to the Act) limiting it to the “most” accurate, reliable, and relevant” science, but does not define what “most” means. This is a significant departure from current regulations, which defines “best available science” to be all relevant scientific information.
· Finally, HR 3824 removes the phrase “commercial data” from the “best available scientific and commercial data,” available for use in scientific decisions. This could preclude the use of fishing haul data (landings) in the assessments of fish populations.
Other Damaging Provisions
· Weakens recovery plans by allowing key decisions to be made by “recovery teams” , which must include representatives from each “constituency” with a direct interest in the species and its “economic and social impacts”; and removes the Act’s requirement that recovery plans be prepared for the “conservation and survival of endangered species and threatened species…” (Section 10).
· Imposes a new, weaker, definition of “distinct population segments” that reduces the likelihood that species will be protected at the population level, even when such a proactive measure would be the most effective and least costly conservation strategy. (Section 4).
· Codifies a damaging “no surprises” rule, which limits the ability to reopen permits for incidental take of listed species, without addressing the widely-recognized need for monitoring and adaptive management to rescue species declining toward extinction. (Section 13).
· Weakens the consultation provisions by allowing the Secretary of Interior to exempt any federal agency action or “categories of actions” from its requirements. (Section 12).
· Exempts states from the Act’s consultation requirements and authorizes habitat destruction pursuant to newly-created state conservation agreements without mitigation requirements. (Section 11).
· Requires that numerous new bureaucratic hurdles be imposed on the Services, despite the already severe shortage of resources and the likelihood that substantial appropriations increases will not be forthcoming.
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