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Old 10-20-2003, 09:01 AM   #1 (permalink)
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Endangered Species Act faces challenge

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Article published Oct 19, 2003
Endangered Species Act faces challenge

WASHINGTON - Environmentalists won a legal battle in 2000 when they forced the government to declare critical habitat for piping plovers, a threatened bird that migrates from the Great Plains to North Carolina, Florida and other Southern states.

Now farmers and beach towns are suing to overturn it.

So goes the escalating legal warfare over an Endangered Species Act requirement that the U.S. Fish and Wildlife Service, part of the Interior Department, declare critical habitat within a year of a species being listed as endangered or threatened. The designation defines habitat considered essential to a species' survival and can severely hamper development and other activities that might harm it.

The agency would prefer to spend its limited funds on other conservation efforts but has been paralyzed by dozens of lawsuits since 1997. A Justice Department official estimated that Interior has at least 30 active habitat cases at any given time, and about that many court orders to satisfy.

The Bush administration and Republicans in Congress want to change the 1973 Endangered Species Act, arguing that lawsuits are the biggest threat.

"I certainly would hope that the Congress would see merit in doing this because the diversion of resources into the courtroom certainly hasn't done conservation any good," said Craig Manson, assistant secretary for fish, wildlife and parks at Interior.

The agency ran out of money for critical habitat in July, leaving many court orders unfulfilled and prompting Manson to complain that the money could have been better spent. Manson said he is working with lawmakers on changes, which he declined to specify.

The 30-year-old act has been due for a rewrite since 1991 but changing it has been a political taboo. Some observers of the stalemate say they would be shocked by a successful rewrite, particularly in an election year. But there is a sense of impending backlash against environmental groups, which are portrayed as blocking conservation by diverting resources to the courts and away from better methods.

"The environmental community is their own worst enemy," said Brian Kennedy, spokesman for House Resources Committee Chairman Richard Pombo, R-Calif., who intends to press the issue early next year. "Any time you use such radical, emotional rhetoric to further a cause and ignore facts and science you key yourself up to have your credibility destroyed."

Invitation for mischief
At stake is the ability of environmental groups to sue for protections they consider essential to keeping species from extinction.

Kennedy said Pombo intends to explore a variety of changes, especially to critical habitat requirements. A Republican Senate aide made similar statements.

"It's pretty clear they're just building the PR political machine and they're going to push for it when they think they can get it," said Kieran Suckling, executive director of the Center for Biological Diversity.

There are 1,263 species listed as endangered or threatened, but only 450 of them have critical habitat declared. Most of the habitat has been drawn under court orders since 1997.

Florida, for example, has more than 100 endangered and threatened species but only 18 have designated critical habitat, according to the Center for Biological Diversity, a lead plaintiff in numerous lawsuits.

The center recently analyzed a species-by-species update to Congress by the Interior Department. The group concluded that species with critical habitat are twice as likely to improve as species without it.

The Interior Department, however, argues that the analysis doesn't prove critical habitat causes improvement.

"The Fish and Wildlife Service has long believed there was not a great deal of conservation benefit added by critical habitat," Manson said.

The Clinton administration also considered critical habitat relatively useless and burdensome. Environmental groups, however, say the Bush administration is more hostile, scaling back proposed critical habitat designations left from the Clinton years and erasing some.

Critics of the habitat law may score this year. House and Senate versions of a defense policy bill would allow military installations to be exempt from critical habitat requirements. The argument is the military can't afford to sacrifice readiness for woodpecker habitat.

Environmental groups say those are bad signs.

Moreover, a recent report by the General Accounting Office suggested two ways to short-circuit lawsuits. One is a uniform policy guiding how the Interior Department draws critical habitat, which would provide legal cover when boundaries are challenged as arbitrary. Manson said he intends to complete a policy by January. Another is legislation to change the critical habitat requirement.

"Any invitation for the Bush administration to legislate in this area is nothing more than an invitation for mischief," said Andrew Wetzler, a lawyer for the Natural Resources Defense Council.

Endangered dollars
Manson declared the system "broken" when the department ran out of money for critical habitat three months before the fiscal year ended.

The department's entire 2003 budget for listing endangered species and designating critical habitat was about $9 million. For 2004, Bush requested and is likely to receive a $3 million increase to $12.3 million. Most of that increase likely would go toward satisfying court orders covering more than 30 species.

An Interior Department document filed this past spring as part of a court fight over owls in the West said it would need $153 million through 2006 to designate habitat just for species listed since 1997.

Manson said he doesn't believe the department will run out of money in 2004. Environmentalists disagree. They say the administration plans to use self-inflicted budget holes to blame environmentalists and win changes to the Endangered Species Act.

"It's a dilemma I don't think it's very sorry to find itself in," Wetzler said.
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