ESA changes spark federal debate

House Committee approves Threatened and Endangered Species Resources Act

September 28, 2005

U.S. Rep. Greg Walden, R-Ore., said the Klamath Basin is “Ground Zero” in the fight to update the 32-year-old Endangered Species Act (ESA).

He contends the 2001 federal decision to cut off irrigation water to 1,200 ranchers and farmers during a dry summer was not based on good science. And, because of that action, about 80 percent of these families either went bankrupt or required federal aid to keep financially afloat.

Walden said the National Academy of Science later determined the action taken to protect endangered sucker fish lacked “substantial scientific support” and was of “doubtful utility.” But that report came too late for many of the affected landowners.

“We want to make sure that the decisons we are making that affect species and those who live in communities around these species are based on data that can withstand the rigors of the scientific community when peer reviewed,” said Walden, who has co-sponsored House Resolution 3824.

The Threatened and Endangered Species Recovery Act of 2005 has been approved by the House Resources Committee (TESRA). It is expected to be voted upon by the full House sometime this week and then presented to the Senate for consideration.

Columbia Riverkeeper is protesting draft changes to the ESA, legislation it believes has saved many fish and wildlife from extinction. The conservation group is basing its central arguments on the death of 30,000 salmon in the Klamath Basin when water was prioritized for agricultural use in 2002. Although Oregon farmers point to other factors in the salmon kill, including warmer water temperature and the presence of an infectious disease during spawning season, Brent Foster, Riverkeeper’s executive director, believes the largest fish loss in the history of the west speaks for itself.

“The ESA has been the main safety net for many species, ranging from the Columbia River salmon to the Bald Eagle. The legislation that’s being proposed would cut huge holes in that net,” said Foster.

Walden contends that TESRA will make “common sense” changes to the ESA to improve its overall implementation. He said the ESA has seen a recovery rate of less than one percent and has not been significantly updated since its enactment in 1973. Under TESRA, the decision whether to add or delete a species on the endangered list will be based upon peer review science. And scientists must provide, within 90 days, an answer to any landowner’s question about whether a planned activity would run afoul of the federal law. If the government has not answered within that time limit, the property owner can proceed with his/her plans.

“I cannot stress how important these changes are to the success of the ESA, for the protection of both species and communities,” said Walden. “We have a responsibiltiy to update this law, making changes that will shed light on the process, hold the federal government accountable for its actions and financial expenditures, protect private property rights, encourage a cooperative relationship with states and local governments and, most importantly, ensure that faulty decisions do not lead to disaster for all species – human included.”

He continued by saying, “It’s time to make the federal agencies charged with administering this law open up their process to the public. It’s time to set standards to make sure the data they use represents the best scientific data available. It’s time to make sure that state governors have a direct role to bring their vast resources into the process. It’s time to reach out to private property rights owners in order to protect their rights and encourage their participation in recovery efforts. And it’s time to make sure no region of the country ever suffers again as the Klamath Basin did when faulty decisions by the government led to disaster,” Walden said.

Under TESRA, the government is required to use “the most accurate, reliable, and relevant” scientific data available in all of its ESA decisions. Government officials are mandated to establish critiera that will ensure that the best science has been factored into all species listing and habitat mitigation efforts.

For the first time, government agencies will be required by TESRA to prioritize listed species most in need of recovery and develop timelines and strategies based on those priorities. They must report on these efforts to Congress and the public on a regular basis.

Foster said there are several problems with this methodology. He said the final approval for TESRA priorities will be given by a political appointee, the Interior Secretary. And that, he said, could make any decisions partisan and very difficult to challenge.

“Nobody’s against sound science but the reality is that the ESA already requires the ‘best available science’ so it would be illegal to use anything less,” he said.

He said TESRA impedes the ability of federal agencies to impose protection standards on critical habitat. Because land use restrictions have to be voluntarily accepted by the owner, or compensation paid, he believes it will play out similar to Measure 37 where agencies back away from their regulatory role.

“This spins nicely but it’s a very different goal than making a law that places the first priority on species protection,” he said.

Foster also challenges the 90- day timeline for response as “unrealistic” and negating the possibility of endangered species protection being based on science.

“If you really want to ensure the protection of fish and animals you don’t add something like this. You can barely get a reply in 90 days from an underfunded agency, let alone a decision,” he said.

Walden said agenices are also called upon to work closely with private landowners to develop long-term conservation plans. Under the proposed law, the government would not only provide new incentives to help private landowners with these efforts, but compensation to individuals who lose the use of their property, thereby lowering its value.

Foster said if the government had to compensate every landowner in America in order to protect the environment, it would completely “gut” the ESA and other preservation standards.

“We don’t pay people to comply with most laws, it’s part of being a member of society — and endangered species laws shouldn’t be any different,” he said.

Walden believes the “fixes” in the new legislation will also improve the data collection measures and open up the process for more public participation.

“We establish a clear and formal role for the governors, private landowners, tribal landowners or local governments. We prioritize the work for the government to do the most for species most in need. And we set realistic timelines for actions and decisions. If adopted, these modest changes will bring tangible and positive results for the environment and the people we represent,” said Walden.

Foster said Riverkeeper has asked Oregon’s two senators, Ron Wyden and Gordon Smith, to vote against TESRA if it comes their way.

“I think many federal officials are viewing this as an extreme bill. So, although we’re taking it seriously, there’s a lot of questions about whether it will even make it through the Republican Senate,” said Foster.

Walden said TESRA is intended to make ESA rulings less arbitrary, and provide protection for not only species, but the communities and individuals who share their habitat and also need to survive economically.

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