< Return to Articles

'Critical Habitat' About to Go on Endangered List
A House bill rolling back key provisions of the U.S.' main species protection law is likely to be OK'd. It faces a tougher time in Senate.

by Julie Cart And Janet Wilson, Times Staff Writers
September 28, 2005, The Los Angeles Times

The House of Representatives is expected to approve a sweeping overhaul of the Endangered Species Act on Thursday that would curtail protection of wildlife habitat and require the federal government to compensate developers and others whose land use is restricted by the act.

The legislation has been put on a fast track by its chief sponsor, Rep. Richard W. Pombo (R-Tracy), who has long argued that the 1973 law is unfair to property owners and ineffective at saving species.

Critics of the bill say it would disable one of the nation's most important environmental laws, and by weakening habitat protection, erase the benefits to humans derived from landscapes that sustain plants and animals.

"Critical habitat is 86'd," acknowledged Pombo spokesman Brian Kennedy, referring to the existing requirements for tracts of land where imperiled species can remain unmolested.

The legislation is likely to face stiffer opposition in the Senate, where Rhode Island Republican Lincoln Chafee, who heads a key environment subcommittee, has indicated his displeasure with elements of Pombo's bill, particularly its elimination of critical habitat.

"If you gut the habitat, you're really gutting the act," Chafee said. "This is a critical part of any recovery. Habitat is absolutely essential to any species."

Chafee said his subcommittee on Fisheries, Wildlife and Water would consider its own revisions to the act but probably not until next year.

Pombo's bill, which has some Democratic support in the House, would also require the federal government to compensate a developer or property owner if land use is restricted as a result of the act.

Moreover, the bill is designed to expedite development decisions by giving federal officials a six-month deadline to determine whether a proposed project would harm a species protected under the act.

The bill would eliminate the requirement for an independent group of scientists to arbitrate endangered species disputes and put the secretary of Interior in charge of determining the "best available science" regarding protected species.

One controversial amendment, by Rep. Greg Walden (R-Oregon), would exempt the use of pesticides from regulation under the Endangered Species Act for five years. The amendment removes the requirement limiting the use of a pesticide known to kill an endangered species.

A broad group of wildlife and conservation organizations opposes the bill, saying it rolls back 30 years of progress in staving off extinction for scores of species, including the bald eagle, which is proposed for removal from the endangered species list.

According to Bob Irvin, an attorney for the environmental group Defenders of Wildlife, who edited the American Bar Assn. textbook on the act, Pombo's bill is an outright attack on the law.

"Mr. Pombo has spent much of his career criticizing the Endangered Species Act for its failure to get species off the list," Irvin said. "Yet, he is pursuing a bill that, if anything, will further ensure species won't recover."

But to Chuck Cushman, executive director of the American Land Rights Assn., Pombo's bill gives landowners incentives to do the right thing to help recover the species.

"If I find gold on my property, my property value goes up. If I find a spotted owl on my property, my property value goes down," Cushman said. "This [bill] changes that equation."

Laer Pearce, executive director of the Coalition for Habitat Conservation, a group of corporate landowners that works to develop alternative approaches to protecting habitat, called the bill's elimination of critical habitat "fabulous. It's absolutely fabulous."

His group includes The Irvine Co., Rancho Mission Viejo, and Lennar Homes.

Farmers, developers and others strenuously object to the current law's tight restrictions on private land use where an endangered species is discovered.

Critics of the act have argued that it backfired by creating a culture of "shoot, shovel and shut up"— in which private property owners destroy endangered wildlife or its habitat, rather than face the prospect of limited land use or undergo the lengthy process of applying for permits to use their land or pay to mitigate the effects of development.

Pombo, whose Central Valley district includes many farmers, ranchers and developers, is a leading congressional opponent of many current environmental laws and policies, including the National Environmental Policy Act, which he also wants to change.

Pombo recently proposed selling 15 national park units to help offset the federal budget deficit. And in another pending bill, Pombo would loosen environmental restrictions on energy exploration on on-shore and off-shore federal lands.

Pombo's proposed revisions to the Endangered Species Act — titled the Threatened and Endangered Species Recovery Act — is the latest in several attempts by Congress to rewrite the act since Republicans took control of the House in 1994.

Kennedy said the bill had bipartisan support from 70 co-sponsors and predicted it would "pass with flying colors."

On Tuesday, Susan Holmes, a Washington-based lobbyist for the environmental group Earthjustice, said that "by any measure, this legislation is on an extremely fast track. The public is only now hearing about it."

Pombo released the bill just two days before holding a single hearing, in which there was testimony from only one witness opposed to the revisions of the act.

Chafee said that he was surprised by the aggressive approach taken by Pombo and others in the House, and that, if necessary, he or other Senate colleagues would call for a filibuster to stop the bill in its present form.

Sen. James M. Inhofe (R-Okla.), chairman of the Committee on Environment and Public Works, and Sen. Michael D. Crapo (R-Idaho) are working on a bill that could be more in line with Pombo's, according to a spokeswoman for Crapo. That bill may be ready for consideration before the end of the year.

Interior Secretary Gale A. Norton, who has jurisdiction over the U.S. Fish and Wildlife Service, has indicated that she shares Pombo's view of critical habitat. But defenders of the current law point to a study published in the April issue of BioScience magazine analyzing Fish and Wildlife Service data demonstrating that species with designated critical habitat have recovered at twice the rate of those without it.

Biologists have also noted an umbrella effect occurring in critical habitat areas — unexpected improvements among other plants and animals, as well as enhanced air and water quality, according to Douglas Wheeler, a Republican lawyer who was California's resources secretary under Gov. Pete Wilson.

In an interview this week, Paul N. "Pete" McCloskey, a former California GOP congressman who co-wrote the 1973 endangered species law, said habitat protection was the centerpiece of the bill.

"What we understood at the time was that the death of anything in an ecosystem could affect human health. The whole purpose of preserving endangered species is you can't preserve them without habitat. This is an outrageous bill."