Endangered Species Act Reform Passed

By Todd Neeley
DTN Staff Reporter

OMAHA (DTN) — Though a bill passed by the U.S. House of Representatives offers some reforms of the Endangered Species Act, lawmakers who have been pursuing changes to the law that has been a headache for farmers and ranchers for decades say more reform is needed.

The "21st Century Endangered Species Transparency Act" passed Tuesday is the product of efforts by Western lawmakers and agriculture groups that have for years been calling for changes to help ease the pressure on agriculture. A companion bill, 2635, was referred to a Senate committee on July 22, but faces a steep uphill battle to pass.

Environmental groups have said the House measure guts the ESA, though the bill would require more transparency when it comes to data used in ESA determinations and provides for reform on taxpayer litigation funding.

The implementation of the ESA in the West has often triggered crop losses from lack of access to adequate water supplies and left agriculture communities in doubt about their future. The act has been the impetus for a more than a decades-long battle for water in the Klamath Basin of southern Oregon and northern California. In addition, if an ongoing lawsuit is successful, hundreds of agriculture chemicals could face restrictions if the EPA is required to review how or if those chemicals affect endangered species.

Both the Public Lands Council and the National Cattlemen’s Beef Association lauded the measure Tuesday as a good start toward reforming an act that has led to less than 2% of species on the endangered list being recovered.

"Environmental activist groups have a habit of suing the federal government to force the listing of a species, then suing to prevent species delisting, even after recovery goals have been met," said Bob McCan, NCBA president. "Their legal expenses are often reimbursed by the American taxpayer. By comprehensively tracking all costs associated with the ESA and capping the attorney fees, we can limit the incentive those groups have to file suit and keep the federal agencies accountable for the taxpayer dollars being spent."

Public Lands Council president and Colorado rancher Brice Lee said the ESA has made it difficult for ranchers to stay in business.

"The ESA, while designed to protect species from endangerment of extinction, has proven to be ineffective and immensely damaging to our members’ ability to stay in business," he said.

Just four months ahead of the November elections, Brett Hartl, endangered species policy director at the Center for Biological Diversity, said the bill was the brainchild of Tea Party members in the House that favor the oil industry.

"This remarkably shortsighted legislation is yet another Republican scheme to push politics and corporate profits ahead of protecting endangered species and the long-term health of the world we live in," Hartl said. "Diverting the Fish and Wildlife Service’s budget and manpower to punitive reporting requirements hamstrings endangered species recovery efforts. This is nothing more than a Tea Party gift to the oil and gas industry and other powerful special interests.

"Despite overwhelming evidence that we’re in the midst of the greatest extinction crisis in human history, House Republicans keep voting to weaken the Endangered Species Act."

THE REFORMS

At times the act has made it difficult for farmers and ranchers to work lands that include important habitats for endangered species.

The bill passed this week would require data used by agencies for listing decisions to be made available to the public online. Federal agencies would be required to disclose data used to affected states before making ESA listing decisions. It also would require federal agencies to incorporate scientific data and input from states, tribes, and counties.

The U.S. Fish and Wildlife Service would have to make available online the amount of taxpayer dollars used to respond to ESA lawsuits, the number of employees dedicated to litigation, as well as the amount of attorney fees awarded during litigation and settlement. The bill places caps on attorney fees in the ESA. According to Rep. Doc Hastings, R-Wash., attorneys are being awarded rates as high as $600 per hour on ESA litigation. Other federal agencies have capped those awards at $125 an hour.

The Endangered Species Act affects farmers and ranchers across the country. Earlier this year, the U.S. Fish and Wildlife Service designated the lesser prairie chicken as threatened, raising the ire of farm groups and federal lawmakers in Kansas, Oklahoma, Texas, Colorado and New Mexico.

Rep. Tim Huelskamp, R-Kan., said the newly passed bill was the first step in what should be an overhaul of the ESA.

"Western Kansas specifically has seen and continues to see major disruptions as a result of the listing of the lesser prairie chicken earlier this year," he said. "Farmers, ranchers, oil and gas producers, and our electric cooperatives are facing tremendous uncertainty and costs because of this federal mandate. It is even so silly that the federal bureaucrats identified specific times of the day that no oil and gas activity can take place in certain areas — for fear it might disturb the bird.

"I salute my colleagues for joining me in passage of the ESA Transparency Act. Although this is only one step in the right direction, it is an important one in reforming an ESA that does not work."

Rep. Greg Walden, R-Oregon, said the bill is an important part of federal efforts to create more transparency in government.

"Too often, listing decisions under the ESA are driven by litigation and made behind closed doors with little public input," he said. "Oregonians deserve more transparency and the ability to better participate in the decision-making process that so greatly affects their livelihood."

For instance, Northern spotted owl critical habitat designations have led to federal timber harvests dropping by more than 90% in the past 30 years, Walden said.

Last month, Walden and 42 other federal lawmakers asked the Obama administration to give more time for public comment on three proposed ESA regulations that would make changes on how critical habitat designations are determined. The administration granted a 90-day extension — far less than the six months requested by the lawmakers.

Todd Neeley can be reached at todd.neeley@dtn.com

Follow Todd on Twitter @toddneeleyDTN

(AG/SK)