ESA Overhaul a 'Work in Progress' for Obama Admin

The Fish and Wildlife Service is considering wide-ranging revisions to the 1973 Endangered Species Act, the agency director said in an interview last week.

"There is no question there are places we can make improvements in the way we do business," the service director, Sam Hamilton, said. "We are taking a hard look ... to see regulatory-wise, administrative-wise, are there ways to improve?"

The regulatory revisions are a "work in progress" that he said could provide new definitions for some key provisions, including those addressing critical habitat and consultations between service biologists and other agencies over projects that could harm protected animals and plants.

Hamilton said also wants to find new ways to encourage landowners to protect species, expanding on the new "safe harbor" program that promotes private habitat protection while allowing normal land-use practices, like farming.

"We need more thinking like that ... to encourage landowners," Hamilton said. "We are going to spend a lot of time with that."

Efforts to make major changes in ESA have not gone far in the past, in part, because of strong feelings about the law from both landowners and environmentalists.

Western Republican lawmakers, landowners and businesses blame ESA for hindering development while doing little to recover imperiled species. Environmentalists, on the other hand, say the law has protected hundreds of species from extinction.

"No matter which way you turn, somebody is not going to be happy," Hamilton said. "Our focus is on trying to recover endangered species; our goal is to try to get them off the list. So as long as we keep our eye on that goal and work on definitions and work on policy to further that goal, we'll be in good shape."

In its final months, the Bush administration's Interior Department managed to finalize ESA regulatory changes that would have made optional project consultations between Fish and Wildlife biologists and other agencies.

But in response to an outcry from environmentalists and biologists, Congress allowed the Obama administration to retract the Bush rules without going through normal reviews, and Interior Secretary Ken Salazar withdrew the rules last April.

In overturning the rules, Salazar asked for public comment on what ESA regulatory changes should be made, initiating the current re-examination of the law.

Defining 'adverse modification' of habitat

The Bush administration's regulatory revision started by focusing on one issue: What constitutes "adverse modification" of critical habitat? The effort expanded to address dozens of other issues, but left "adverse modification" alone.

Hamilton said the service is now re-examining the issue.

"It's on the list," he said. "Hopefully, we can deal with that. I am optimistic because we have some of the best and brightest working on it."

While the law prohibits the "destruction and adverse modification" of critical habitat, multiple federal courts have said the agency needs to clarify the meaning of that phrase.

"It is long overdue. That was thrown out by the courts eight years ago," said John Kostyack, an attorney with the National Wildlife Federation. "Hopefully, it is a high priority."

The phrase came into play in a 2007 lawsuit filed several years ago by environmental groups against Interior in an effort to block livestock grazing on Colorado habitat for Preble's jumping mouse.

The groups argued grazing was "adverse modification" because it would not promote the recovery of the mouse. But the government and ranching and homebuilder groups said grazing should be allowed, since "adverse modification" doesn't require "recovery." They said grazing itself was not jeopardizing the mouse.

The 10th U.S. Circuit Court of Appeals sided with environmentalists, ruling in December 2007 that the "adverse modification" standard requires agencies to consider recovery. The court said any permitted actions should allow for species "conservation." But Interior has yet to issue new regulations to clarify the definitions.

"We would like them to make it clear that any action that results in appreciably diminishing the value of critical habitat for survival or recovery is considered as adverse modification," said Bob Irvin, senior vice president for conservation programs at Defenders of Wildlife.

Larissa Mark, an environmental policy analyst at the National Association of Home Builders, said the major problem for her group is the maze of requirements for ESA permits that can delay projects for months or years. Consultations that are supposed to be completed in less than one year can take up to four times that long, according to an analysis from the Government Accountability Office.

"Either builders pass on those costs or have to absorb those costs, and in today's market, it is hard to absorb additional costs," Mark said.

NAHB supported regulatory changes put forward by the Bush administration that would have streamlined the consultation process.

Call for swift revision

Environmentalists say the Obama administration can change the law without going through the complex process for redrawing regulations.

For instance, they say, the Bush administration changed how Fish and Wildlife determines whether a species is "threatened" or "endangered" through internal guidance. The 2007 guidance from Interior Solicitor David Bernhardt told Fish and Wildlife to focus on plants and animals in current locations rather than throughout their historic ranges.

Nearly 130 scientists asked Interior this month to reverse that policy, which they said sharply limits ESA's scope as habitat ranges shift in response to climate change.

The policy could be overturned, they said, by a memo from Salazar or the new Interior solicitor, Hilary Tompkins.

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