With Anti-Forest Law Passed, Bush Now Targets Endangered Species Act

by J.R. Pegg

Under the ESA, land management agencies -- such as the U.S. Forest Service and Bureau of Land Management -- are required to consult with biologists at the U.S. Fish and Wildlife Service or the National Marine Fisheries Service (NMFS) before authorizing, funding or carrying out actions that could harm species or critical habitat protected by the law.

The regulations put in place by the Bush administration remove that obligation for actions that fall under the National Fire Plan. Instead of consulting with either agency tasked with enforcing the ESA, biologists within the federal land management agencies will make the initial determination of whether there is likely to be an adverse effect on listed species or habitat.

It will allow federal land managers to better protect communities and wildlife habitat from catastrophic fires, according to Steve Williams, director of the Fish and Wildlife Service.

"All of these land management agencies have biologists who have been trained to assess the likely impact of their actions on listed species," said Williams. "By issuing these regulations, we are tapping into their expertise and accelerating review of much needed forest health projects."

Bush administration officials say the move will free up biologists to address projects that actually have an impact on threatened and endangered species.

But conservationists are far from convinced and see an inherent conflict in allowing the decision of impact to imperiled species to be made by agencies charged with approval of logging projects.

The policy is part of the administration's "relentless and unreasonable attack" on the ESA, Defenders of Wildlife President Rodger Schlickeisen said Wednesday in a speech highlighting the 30th anniversary of the law.

The law was signed by President Richard Nixon on December 28, 1973 -- it passed the House by a vote of 355 to 4 and the Senate by 92 to 0.

It calls on the Fish and Wildlife Service, along with NMFS, to list animals and plant species that are endangered or threatened, designate critical habitat and develop species recovery plans.

Conservationists say the law has been a resounding success -- some 1,250 species are afforded protection by the ESA and it has helped save species such as the gray wolf, American bald eagle and California sea otters.

But Bush administration officials, who called Schlickeisen's speech a partisan attack, say the law is "broken" and in need of a major overhaul.

The administration's polices reflect the view held by some developers and many natural resource extraction companies that the ESA is too rigid, is not working to keep species from becoming imperiled and is being used by environmentalists to challenge development of public lands.

The effort to roll back the law began in the first week of the Bush administration, when it immediately froze all pending ESA regulations, halted all listing of new species and blocked all pending designations of critical habitat.

The White House has supported exemptions from the ESA for the U.S. military and is pushing a policy to allow U.S. hunters and business to capture, kill and import some endangered species from foreign countries. The U.S. Environmental Protection Agency is considering a rule change to weaken ESA compliance for pesticide approval and use.

Perhaps of greatest concern to conservationists is the May 2003 announcement by the administration that the ESA -- in particular the critical habitat provision -- does little to protect endangered or threatened species and has caused a slew of lawsuits that is draining the scarce funds available to protect endangered species.

"This flood of litigation over critical habitat designation is preventing the Fish and Wildlife Service from protecting new species and reducing its ability to recover plants and animals already listed as threatened or endangered," Craig Manson, assistant secretary of the Interior for Fish and Wildlife and Parks, said in May.

Internal reports by the agency find that addressing the backlog of these duties would require some $153 million. Only one third of the 1,250 species on the ESA list have designated critical habitat and there are 259 species under consideration for listing.

The Bush administration is the first in the history of the law not to have listed any species or designated any critical habitat except under court order.

It has listed 25 species since 2001 -- by contrast, the Clinton administration averaged 65 species listings per year and the first Bush administration averaged 58 per year.

Manson explained that the administration has not requested supplemental funding for this year, even though Congress suggested this, because that would not solve the long term problem of critical habitat.

Recovery of listed species, Manson says, will not come through regulatory actions such as listing species and designating critical habitat, but through voluntary cooperative partnerships and incentives.

Such partnerships and incentives are important -- but meaningless without the backstop of the ESA, conservationists say.

The law has been historically underfunded but prior administrations made a "good faith" effort to carry out the provisions of the ESA, said Schlickeisen, and blaming environmentalists for suing the agency when it does not enforce the law is "disingenuous."

He unveiled a new report from Defenders of Wildlife and Vermont's Environmental and Natural Resources Clinic that provides analysis of more than 120 cases involving the ESA. It finds that in 76 cases Bush administration attorneys argued contrary to standing interpretations of the law and in 68 of these cases, the courts ruled that the Bush administration had violated the ESA.

"The Act was not written to prevent species becoming endangered," Schlickeisen said. "It is not a preventative health care system -- it is a species emergency room, the place where species go when they are already on the brink of extinction, when the conservation measures that should prevent a species from becoming endangered have failed."

There is growing evidence that conservation measures within the United States -- and the world -- are failing. The world faces a wave of extinction prompted by unfettered human growth and development and scientists estimate the current extinction rate is 100 to 1,000 times the natural level.

A recent study by The Nature Conservancy finds that some 550 species have gone extinct in the United States in the past 200 years and 4,000 known U.S. species face the danger of extinction.