GOP Senate Seeks To Undermine Endangered Species Act

by J.R. Pegg

This process needs "major surgery," said Alaska Senator Lisa Murkowski, a Republican. "The potential for abuse remains inherent in the statute as written."

Under Section 7 of the Endangered Species Act (ESA), all federal agencies must consult with either the Fish and Wildlife Service (FWS) or the National Marine Fisheries Service (NMFS) if they believe any proposed action may affect the continued existence of any endangered or threatened species.

Murkowski and other critics of Section 7 say that it is a mass of red tape and is needlessly delaying federal projects and permits, bogging down agencies with paperwork, and costing private citizens and companies considerable money.

"The services are expending colossal resources on a process that produces a lot of paperwork without a lot of positive impacts on recovery," said Senator Michael Crapo, an Idaho Republican and chair of the Senate Subcommittee on Fisheries, Wildlife and Water.

But according to the General Accounting Office (GAO), it is hard to get any read on whether this is indeed the case. Critics talk of the burden of paperwork, but GAO is having trouble tracking down that paper trail in order to draw conclusions about the overall impact of Section 7.

"No one really has any good information about how long this entire process actually takes," said Barry Hill, director of the GAO's Natural Resources and Environment Office.

"There is not a lot of data out," said Hill. "You hear some horror stories, but we do not really know how prevalent those are."

The GAO is compiling a review of the consultation process within the Pacific Northwest and expects to have a final report in August.

Crapo voiced concerns about the amount of time it takes to carry out a consultation process under Section 7, but Hill says it is hard to determine if there is prevailing trend.

Informal consultations, which are to be completed with 30 days, are often concluded with a phone call or a letter, Hill said.

If a formal consultation is deemed necessary, the particular Service has 135 days to document its decision.

Although this may sound like a lot of time, Hill explained, determining the impact to a species "can be difficult because of uncertain scientific information and professional judgment."

But the timeframe can be even longer, he said, because the trigger on the either the formal or informal timeframe is not activated until the FWS or NMFS determines it has enough information to make a decision, and that is often the source of controversy.

The uncertainty of that timeframe is a problem, testified Alan Glen, a Texas lawyer who frequently advises represents industry and local governments in ESA issues.

"I do think this can be an efficient and beneficial process, but it often is not," Glen said. "There are good federal regulations on what should trigger consultations but those regulations are often not followed."

The increase in Section 7 consultations that Senators are concerned about comes largely from two factors, Hill explained. The increase in listed species -- there are now 1,263 listed species, nearly double the number in 1992.

The second factor is fear of litigation.

On one hand, staffers are trying to "bulletproof" decisions to prevent legal action, Hill said, and this can cause delays.

And on the other side, "action agencies in the past had more of an inclination to go ahead without consultation," Hill said. "Now, with the fear of litigation, there is more of an inclination to play it safe."

That is not a bad thing, conservationists told the subcommittee.

"There are immense benefits in having the government look before it leaps," said John Kostyack, senior counsel for the National Wildlife Federation. "These are great conservation gains at modest resource outlays."

The vast majority of consultation processes conclude informally, Kostyack says, even though both the FWS and the NMFS are under funded and understaffed.

"We hear about delays and that is a legitimate concern, but the heart of the problem is inadequate funding and staffing at the agencies," he said. "Funding increases do not match the increased workload."

Both agencies have taken steps to improve and streamline the process, Hill told the subcommittee. Staff levels have been increased, interagency teams are working together on multiple projects, and agency guidance and training have been expanded.

Still, the GAO has found both agencies echoed Kostyack's concern about workloads increasing faster than staff numbers and voiced additional concerns that roles are not clearly defined.

And the overall effectiveness of the process is difficult to measure, Hill said, because there "is not a lot of information on the benefits of this consultation process," Hill said.

Crapo asked the GAO to try and measure some of those benefits, in addition taking into account federal actions that are considered positives for the environment -- such as fish habitat restoration -- that may have been delayed by the consultation process.

He said the increasingly contentious nature of the consultation process is shown by a lack of individuals willing to testify to it.

"There are a lot of people who did not want to talk because they do not want to irritate anyone at the agency," Crapo said. "I assume that is the kind of dynamic we are dealing with."

New Mexico Senator Pete Domenici, a Republican, was one willing to speak to the committee, using his time to rail against a court decision that affords greater protection to the silvery minnow.

The U.S. Tenth Circuit Court of Appeals ruled earlier this month that the Bureau of Reclamation, when renewing and implementing the federal contract with irrigation districts and the city of Albuquerque, must take the plight of the endangered fish into account. This could lead to water destined for irrigation or public use being diverted to provide adequate habitat for the fish.

Domenici says the decision shows the consultation process -- and the Endangered Species Act -- is in dire need of reform.

"The law is being applied without any common sense," said Domenici. "This decision puts the needs of this small endangered fish over the needs of the people of our state."

The New Mexico Republican has introduced legislation to reverse the requirements put forth by the court's decision and said he is looking for "any vehicle to stick it onto."

Conservationists fear Domenici's bill mirrors the intent of some Congressional Republicans and the Bush administration to roll back federal protections for endangered species.

"This case is not about taking water out of people's mouths or farmers' fields for the silvery minnow," said Bill Snape, legal counsel with the Defenders of Wildlife and chairman of the Endangered Species Coalition. "This is a balanced decision."

As populations throughout the West continue to expand, these kinds of struggles over water will only increase and conservationists believe decisions must focus on the long term survival of endangered species.

"Too frequently species are managed to hang on for survival, to hang on near extinction," Snape said. "We should all agree that the point of ESA is to recover these species and get them off the list."

Snape agreed that more information should be gathered to understand how the consultation process is working, but said this is not reason to reform it yet.

The increased activity is evidence that Section 7 is "fundamentally sound and is a process that is working," Snape told the subcommittee.