Congress Moves Toward Revising the Endangered Species Act

After years of deadlock, Congress may finally revise the Endangered Species Act. SB 1180, "The Endangered Species Recovery Act of 1997," does not alter the basic thrust of the Act, but makes needed revisions to several of its implementing provisions. The bill aims to bring better science to the listing and de-listing process, improve procedures for developing recovery plans, confirm that conservation plans can be developed for multiple (rather than just a single) species, provide long-term assurances to landowners who enter into habitat conservation plans, and clarify the kinds of evidence that can be used to show violations of the Act.

Under the Act, listing decisions must be based on the "best available scientific and commercial data." The bill would define this standard to require the government to give greater weight to data that is empirical, field-tested, or peer-reviewed. Hopefully this standard will restrict approvals of applications such as the Fairy Shrimp.

Under the bill, recovery plans would be developed according to time schedules by "recovery teams" including representatives of local governments, academic institutions, private individuals, and business. Minimum requirements for the contents of such plans would be established, including biological goals expressed by measurable and objective criteria and general and site-specific measures to achieve the stated goals. In developing those measures, recovery teams must consider the "social and economic impacts," including "costs on a municipality, county, region or industry" and "effects on … value of property." These considerations are wholly lacking in the present Act.

The Act's provisions on Habitat Conservation Plans ("HCPs") would be revised in important respects. Questions have arisen whether the Act authorizes such plans to cover not only listed species, but other species that may be listed in the future, and whether the plans can lawfully give assurances to landowners that more onerous restrictions will not be imposed at a later date. The government, as a matter of practice, has entered into some HCPs that cover unlisted species and contain "no surprises" provisions by which the government agrees that additional mitigation requirements will not be imposed upon the landowner in the future, except in extraordinary circumstances. Uncertainties about the legality of these practices would be rectified by provisions specifically authorizing HCPs to cover one or more listed species, candidate species, and requiring HCPs to include a "no surprises" provision.

The Act's enforcement provisions would be amended to clarify that in an action against any person for taking a listed species in violation of the Act, the government must establish, "using scientifically valid principles," that the person's acts have caused or will cause the take of a listed species. This provision seeks to end prosecutions predicated on skimpy evidence, assumptions, and unsound science.

Generally speaking, the proposed amendments have received strong support from industry and landowner groups, and mixed reviews from the environmental community. As always, it remains to be seen if these amendments will be adopted in anything like their present form.

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