Critical Habitat Endangered by Bush Policies

By J.R. Pegg

May 29, 2003 (ENS) - The Bush administration believes the Endangered Species Act is broken and in need of a major overhaul. The provision for designating lands essential to the survival of a species - known as "critical habitat" - does little to protect endangered or threatened species, says a top Interior Department official, and has caused a slew of lawsuits that is draining the scarce funds available to enact the law.

"Conserving habitat is essential for endangered species, but critical habitat as mandated by the Endangered Species Act frustrates that goal," said Craig Manson, assistant secretary of the Interior for Fish and Wildlife and Parks, in a statement released late Wednesday. "This is a classic example of good intentions failing the test of reality."

Manson said the agency expects to run out of funds to designate critical habitat for threatened and endangered species within two months because of obligations created by court decisions and legal settlements.

The administration has asked Congress for authority to shift money from other endangered species programs to cover the shortfall and will ask courts and plaintiffs to seek extensions for deadlines for 32 species, including the pygmy owl and the California red-legged frog.

The agency - which has an annual budget of some $1.3 billion - was given $9 million to list species and designate critical habitat under the Endangered Species Act (ESA) in fiscal 2003, $6 million of which was earmarked for critical habitat.

Under the ESA, enacted in 1973 and amended in 1978, the Fish and Wildlife Service is required to list animals and plant species that are endangered or threatened, designate critical habitat and develop a species recovery plan. boy

Some endangered species, like the grizzly bear, need large ranges of protected habitat in order to survive. (Photo by LuRay Parker courtesy U.S. Fish and Wildlife Service (FWS))
Courts have ruled that the Fish and Wildlife Service must fund critical habitat designation when a species is listed and before a recovery plan is implemented, and conservation groups increasingly rely on this legal interpretation to force action on critical habitat designations.

The total cost of complying with all court orders and settlements requiring the Fish and Wildlife Service to work on critical habitat for already listed species in fiscal 2003 is about $8 million, Manson said, leaving a $2 million shortfall.

"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," said Manson.

But conservationists say the main thing preventing the Fish and Wildlife Service from protecting endangered species is the Bush administration. They argue that the administration has engineered a funding crisis as part of a broad agenda to rollback protection for endangered species to benefit oil, gas, timber and mining interests.

And the administration's hostility to the law, says Andrew Wetzler, senior attorney with the Natural Resources Defense Council, is likely to cause more lawsuits, not less.

The ESA could not be clearer, Wetzler said, "except in the rarest of circumstances, every listed species must have its habitat protected through critical habitat designation."

"If the Bush administration tries to get around this clear legal requirement, the environmental community is more than ready to use the courts to stop them," Wetzler said.

This latest announcement is a "thinly veiled invitation to Congress to rewrite the law," said Susan Holmes, senior legislative representative for the environmental law firm Earthjustice.

Some in Congress, in particular House Republicans, are keen to reform the ESA - a rider to the 2004 military spending bill would have done just that. Led by House Resources Committee Chairman Richard Pombo, a California Republican, critics of the ESA tagged on a provision that would have given the Secretary of the Interior discretion over where, when and how to designate critical habitat for endangered species.

That provision was removed on the House floor, but conservationists are bracing for a renewed effort that is likely to use the Fish and Wildlife's funding problems to fuel a Congressional push to change the ESA.

Many of the lawsuits the administration is complaining about, Holmes said, could be avoided if Bush officials would enforce the law and adequately fund the program.

When the administration fails to "follow the laws protecting endangered species, citizens are left with no choice but to take their case to court," added Sierra Club Executive Director Carl Pope.

The $9 million that the administration asked for and received is well known to be far from adequate for the Fish and Wildlife Service to carry out its duties under the ESA.

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. boy

The Bush administration wants to extend the deadline for designating critical habitat for 32 species currently under consideration, including Arizona's pygmy owl. (Photo by Robin Silver courtesy Center for Biological Diversity )
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.

The process of designating critical habitat is too time consuming and expensive, Bush administration officials say, because it requires the agency to prepare detailed maps of species habitats, provide time for public comment and complete economic analyses of the critical habitat designation. Officials say the average cost of designating critical habitat for a species is $400,000 and contend that they could list two species for that same sum.

Recovery of listed species, Manson explained, will come through voluntary cooperative partnerships, not regulatory measures such as critical habitat.

"The absence of critical habitat is far more likely to secure the sort of voluntary cooperation needed to recover species than to imperil them," according to a statement issued Wednesday by the Fish and Wildlife Service.

The Bush administration is the only presidency not to have designated a single critical habitat except under court order.

Those that it has designated have, on average, reduced Fish and Wildlife Service proposals for critical habitat by 76 percent. This compares to an average reduction of nine percent by the Clinton administration.

And the administration's distaste for the critical habitat provision of the ESA has prompted it to insert a "disclaimer" into critical habitat designations and news releases that says such designation "provides little additional protection to species."

This language is an open invitation for opponents of specific critical habitat designations to sue, Holmes said, and would further the administration's habit of using favorable court settlements with industry to undermine environmental laws.

The Bush administration says there are other laws and requirements under the ESA that identify and protect habitat, but many strongly dispute this premise.

They are "attacking critical habitat because it works," added Kieran Suckling, executive of the Center for Biological Diversity.

"Species with critical habitat are recovering twice as fast as those without it," Suckling said, citing reports from the Fish and Wildlife Service and the National Marine Fisheries Service.

Habitat loss is the primary threat to 85 percent of endangered species and removing the critical habitat provision of the ESA is "like removing the engine from a car," Suckling said. panther

Habitat loss is the primary threat to some 85 percent of endangered species, including the Florida panther. (Photo courtesy FWS))
A 1995 report by the National Academy of Sciences on the ESA found that habitat conservation is "absolutely crucial to species survival" and is an "essential component of any program to protect endangered species."

Conservationists find the administration's "funding excuse" outrageous when the sum of money is considered in the context of the nation's $2.2 trillion budget and compared with the irreversible loss of the nation's biodiversity.

"This should be a wakeup call to everyone who loves our natural heritage," said Bill Snape, chief counsel with Defenders of Wildlife and chairman of the Endangered Species Coalition. "We must speak up now, or risk losing the magnificent diversity of species that our grandchildren might want to see in their natural environment, not in a zoo or history book."