To developers, factories and even some farmers and homeowners,
the Endangered Species Act is a lot like a pit bull.
Environmentalists have unleashed the law to achieve their aims.
They forced pumping limits on the Edwards Aquifer in the 1990s.
Those fighting a new Wal-Mart in Helotes may invoke the law against
the retail giant. Others have used it to crumble dams, halt
developments and fight major logging and mining projects.
Now, on the heels of one of the most comprehensive rewrites of
the act in almost two decades, some believe lawmakers are trying to
turn the environmental law into a lapdog.
"We certainly are in a new era," said John Kostyack of the
National Wildlife Federation. "This is the first time since the act
was last updated in 1988 that one of the bodies of Congress has
passed a bill to update the act, and one that radically weakens the
law."
The changes, passed by the House in September, set up a possible
showdown in the Senate over what Environmental Defense's Michael
Bean calls the "most wide-ranging attack on the act I have seen."
There is a slim change the Senate will take up the issue before
the end of the year, but it most likely will wait until 2006, said
Matt Streit, spokesman for the House Resources Committee.
The author of those changes is U.S. Rep. Richard Pombo,
R-California.
An ardent supporter of property rights, Pombo won a seat in
Congress in 1992 campaigning on the need to reform the Endangered
Species Act.
He took a major step toward the goal earlier this year when, as
chairman of the resources committee, he was able to push through his
changes.
Among them, Pombo wants the federal government to compensate
landowners for lost property value. He also wants to eliminate the
critical habitat designation that has caused so many lawsuits
between environmental groups and the federal government.
Pombo defends his bill, called the Threatened and Endangered
Species Recovery Act, as a much-needed change of a 32-year-old-law
that hasn't worked.
"We know that the act is not recovering species," said Streit,
who works for Pombo. "We don't have to say anything, because the
data speaks for itself."
That data includes an "abysmal 1 percent success rate for species
recovery," and only 6 percent of all endangered species classified
as improving, according to the House committee Web site.
Kostyack calls the characterization of the act "the most
misleading dishonest report I have seen in a long time." He said
more than 99 percent of protected species have been saved from
extinction in the three decades since the law was created, and that
data suggest that the longer species are protected, the more likely
they are to become stable or recover.
"There are some serious problems with the law," responded Streit.
"These changes are common-sense updates."
Bean maintains the changes won't accomplish anything except
gutting the act's ability to protect species. The new bill, for
instance, gives developers the ability to ask U.S. Fish and Wildlife
Service to make a determination of whether a development will harm
an endangered species, and then gives federal regulators 180 days to
make the decision. If the agency can't meet the deadline, the
project is essentially approved.
Pombo also wants the federal government to pay developers for
lost revenue for complying with the act. Currently, it only requires
them to repair damage to endangered species.
With the passage of Pombo's bill, the Senate now will take up the
issue. Five senators, led by Rhode Island Republican Lincoln Chafee,
have set up a series of meetings between environmental and industry
representatives to try to come up with fixes to the Endangered
Species Act. That group, mediated by the nonprofit Keystone Center,
is expected to report back early next year.
Most in the environmental community expect the Senate to propose
less severe changes than those passed by the House. But if the
Senate approves any changes, it must then hammer out a compromise
with the House in conference committee. That possibility troubles
many in the conservation community.
It doesn't trouble the National Association of Homebuilders, one
of the industry organizations on the Keystone Group. Spokesman
Michael Strauss said his organization likes what it sees in Pombo's
legislation.
"We want to ensure common- sense conservation programs. Not
litigation," he said.
Alan Glenn, an Austin-based environmental attorney, believes the
most likely political compromise will entail the elimination of or
substantial change to the act's critical habitat designation.
Under the law, any habitat deemed critical for a species survival
is given an extra layer of protection. This kicks in when
development plans trigger federal permits. Attempts to fill wetlands
are a common trigger.
The federal government is loath to make such designations, and it
is usually only done after a lawsuit, said Bob Pine, supervisor of
Fish and Wildlife's Austin office.
There are 85 threatened or endangered species in Texas. Nineteen
have critical habitat. The majority are either cave bugs in Bexar
County or aquatic species that depend on springs associated with the
Edwards Aquifer.
"People here look at the Endangered Species Act as one of the few
ways to protect the aquifer," said Annalisa Peace of Aquifer
Guardians in Urban Areas.
Peace's organization, along with the Helotes Heritage Association
and the Austin-based Save Our Springs Alliance, has threatened to
use the act to sue Wal-Mart over its proposed store in Helotes.
Endangered cave bugs live near Wal-Mart's proposed site. The groups
filed a letter of intent to sue late last year.
Helotes Mayor Jonathan Allan also invoked the Endangered Species
Act and critical habitat in a recent letter to Wal-Mart CEO Benton
Scott, asking him to reconsider the proposed big-box store.
The city is not part of the potential lawsuit and has not taken a
stand on endangered species issue. But Allan, a strong supporter of
conservation, is also keeping an eye on Washington.
"This is a biggie. They're saying, 'Let's get rid of critical
habitat so we don't have to worry about the species any longer,'" he
said. "I'm really disturbed by all this.
"What we have here is a war on the environment. We're coming down
to a critical point. What are we going to do, develop all the open
space?"
acaputo@express-news.net
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