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Week Ending September 30, 2005
H.R.3824 To amend and reauthorize the Endangered Species Act (ESA) of 1973 to provide greater results conserving and recovering listed species, and for other purposes.
BRIEF
The bill amends the 1973 legislation put in place to protect endangered species in the US.
Bill supporter Representative Joe Baca (D-CA) noted that the bill “modernizes the ESA to allow for more scientific review, better conservation plans and a recovery process based on collaboration not conflict.” Less than one percent of species are making a comeback, 31 % are declining in numbers, he noted. There are over 1,200 species on the endangered or threatened lists.
The bill, then, takes a look at the 1973 laws from the stand point of effectiveness and success and has found areas for improvement.
The bill would determine if a species is endangered by considering if the habitat is threatened by destruction, modification or curtailment or human activities, competition from other species, drought, fire or natural disaster or is being over utilized by commercial, recreational, scientific or educational purposes, or impacted by disease or predation, inadequate regulatory mechanisms or other natural or manmade mechanisms.
Five years would be taken to review the current endangered list to determine if a species should be removed from the list, changed from threatened to endangered status or the reverse. The list would be reviewed every five years. The list reached 1800 species since the Act was passed 32 years ago.
Recovery plans are directed to give priority to species that will benefit the most from such a plan. The Secretary could enter into recovery agreements with private sector individuals for conservation activities to protect the species of concern. Further, the Secretary can provide grants to private land owners to voluntarily conserve and protect the species on private property. Loss of land use due to the presence of an endangered species can be translated into financial loss and, although the land may be used for other profits, the Secretary may reimburse the landowner for the original loss. Opponents concerned themselves that compensating private landowners as such could lead to abuse of tax dollars if owners filed for compensation but never intended to use the land in the first place.
The bill would take steps to analyze just how much is being spent for conservation measures nationwide. The US Fish and Wildlife Service, for example, would submit a once-yearly report on money spent exclusively on conservation. The report would list, species by species, the funds spent. Local governments can voluntarily report on similar spending but would not be reimbursed for the cost of the report in the first fiscal year. If a livestock owner suffers loss of livestock due to a listed endangered species the Secretary of Interior may reimburse the livestock owner for the loss. The owner does not have to produce the dead livestock to qualify for the grant.
The Endangered Species Committee is eliminated.
Sponsor: Representative Richard W. Pombo (CA-11th)
Vote: Passed House 229 to 193 (RC 506). A motion to replace the bill with a substitute failed 206 to 216 (RC 505) September 28, 2005.
Cost to the taxpayers: “CBO estimates that the U.S. Fish and Wildlife Service (USFWS) and the Animal and Plant Health Inspection Service (APHIS) would spend a total of about $2.7 billion over the 2006-2010 period to carry out and enforce the ESA as amended by this legislation, assuming appropriation of the necessary amounts. (That total includes spending from funds already appropriated for 2006 and prior years.)”
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MORE INFORMATION
BACKGROUND AND NEED FOR THE LEGISLATION
BACKGROUND AND NEED FOR THE LEGISLATION
Prior to 1966, authority for wildlife protection rested primarily with the States, except where the wildlife was highly migratory or where wildlife was taken in violation of State or federal law or was transported across State boundaries. In response to a concern that various species had become or were in danger of becoming extinct, the federal government began to enact legislation protecting endangered and threatened fish, wildlife and plants. Congress' efforts culminated in 1973 with the passage of the Endangered Species Act of 1973 (ESA, Public Law 93-205, 16 U.S.C. 1531 et seq.) which has become our Nation's strictest and most stringent environmental law. In conjunction with the Convention on International Trade in Endangered Species of Wild Flora and Fauna, the ESA embodies a rigid and comprehensive approach to species protection in the United States and throughout the world.
The ESA was passed by Congress with the intent to protect and preserve species that have been identified as threatened or endangered. Over the past 32 years more than 1800 species have been listed for protection. Under the ESA, the Secretary of the Department of the Interior, though the U.S. Fish and Wildlife Service, has responsibility for plants, wildlife and inland fishes. The Secretary of Commerce through the National Marine Fisheries Service, is responsible for implementing the ESA with respect to ocean-going fish and marine animals. In addition, the Department of Agriculture's Animal and Plant Health Inspection Service (APHIS) oversees the import and export of endangered species from foreign countries through the Nation's ports.
Once a species is listed as endangered or threatened, ESA section 4 requires the relevant Secretary to declare `critical habitat' for an endangered species which limits uses of the declared lands or waters. Different protection standards can be issued for threatened species. Section 6 of the ESA authorizes the Secretary to enter into cooperative or management agreements with States for conservation of listed species. Under ESA section 7, federal agencies whose actions (including actions authorized, funded or directly carried out by the agency) are `likely to jeopardize the continued existence' of an endangered or threatened species must consult with the Secretary. After the consultation, the Secretary is to issue a written `jeopardy opinion' detailing how the proposed agency action affects the species or its critical habitat, and the Secretary may suggest reasonable alternatives to the proposed action which will not jeopardize the species or its habitat. The Secretary may also conclude that the agency action does not violate the ESA or results only in ` incidental take' of the species. Section 9 of the ESA prohibits various actions regarding the species, including the `take' of a species, which includes harassment, harm, pursuit, capture or killing. Section 7 also establishes the Endangered Species Committee to resolve conflicts in the administration of and grant exemptions from ESA. Under ESA section 10, the Secretary may permit any act that would otherwise violate ESA section 9 for scientific purposes or if the `taking' of the species is incidental to and not the purpose of an otherwise lawful activity.
The ESA has been marked by conflict, litigation and cumbersome processes and failed to produce the goal all Americans share, recovering and endangered species. According to the U.S. Fish and Wildlife Service, only 10 (or less than 1%) of the roughly 1300 domestic species listed as endangered or threatened have been recovered in the ESA's 34-year history. What is the status of the remaining listed species? According to the Fish and Wildlife Service data: 39 percent of the ESA's listed species are classified as being in `unknown' status, which could include extinction; 21 percent are classified as `declining;' 3 percent are classified as `believed to be extinct,' though they remain on the list; 30 percent are classified as `stable,' though for many species in this category, this classification is a result of corrections to original data error, rather than actual accomplishments of the ESA; and only 6 percent are classified by the Fish and Wildlife Service as `improving.' Moreover, according to official Fish and Wildlife Service data, 77 percent of all the listed species have only achieved somewhere between zero and one quarter of their recovery goals. 1
[Footnote] These are not the statistics of a successful law after more than three decades of implementation.
[Footnote 1: In fairness, this number includes the species in the `unknown' category because of the inability to gauge their status.]
H.R. 3824, the Threatened and Endangered Species Recovery Act of 2005 (TESRA), will place a new emphasis on conservation and recovery, eliminates the dysfunctional critical habitat provisions that the last two Administrations have recognized as ineffective for conservation, removes the conservation burden that has been unfairly imposed on private property owners and reestablishes a meaningful distinction between endangered and threatened species. It also provides for more transparency in the ESA program, accountability, and stronger scientific safeguards, improves numerous aspects of the consultation program and provides incentives and larger roles for States, local governments and Indian tribes.
Among TESRA's provisions are those aimed at fostering recovery of endangered species, drawing not only on those who have knowledge and skills essential to guide effective conservation efforts but also those who have property or livelihoods affected by species--where any successful program must be made to work--to foster collaborative rather than confrontational recovery programs.
TESRA provides new tools like Threatened and Endangered Species Incentives Program to enlist private property owners as allies in species conservation. The bill provides landowners who participate in Habitat Conservation Plans assurances against surprises. TESRA requires the Secretary of the Interior to provide a clear answer for landowners whether a proposed property use would violate the ESA. In those cases where there is a conflict, TESRA provides for conservation aid that reduces the burden of regulation on property owners when use of their private property has been restricted for conservation, thus ensuring that individual property owners are not forced to shoulder the financial burden of conserving endangered and threatened species for all Americans.
Section 4(d) of the ESA authorizes the Secretaries of the Interior and Commerce `by regulation' to apply to `any threatened species' any of the prohibitions (most notably the `take' prohibition) that section 9 of the ESA establishes for endangered species. The fundamental purpose of this provision is to allow each Secretary to tailor prohibitions for any less imperiled threatened species that the ESA automatically applies to all of the more imperiled endangered species. While the Secretary of Commerce has interpreted this language to mean that he or she is to issue individual rules tailoring whatever prohibitions are needed to each specific threatened species, the Secretary of the Interior has issued a blanket rule that applies all of the ESA section 9 prohibitions automatically to virtually all of the threatened species whenever they have been or will be listed.
Section 8 of TESRA, as introduced, would have directed the Secretaries to take the approach followed by the Secretary of Commerce. The provision would have required that the underlying intent of ESA section 4(d)--to require the tailoring of, and application to, threatened species on a species-specific basis any of the general statutory prohibitions for endangered species--be accomplished by the elimination of the Secretary of the Interior's blanket applicability approach and the application of any ESA section 9 prohibitions to any threatened species by the issuance of individual rules for particular threatened species (or groups of threatened species whose specific threats or biological conditions are sufficiently similar to
warrant application of identical prohibitions). An amendment striking TESRA section 8 was adopted when members of the Committee pointed out that the problem that section addressed was created by a single U.S. Fish and Wildlife Service rule which could be remedied by rulemaking without statutory change. The amendment striking section 8 was agreed to on that basis. The Committee expects and directs the Secretary of the Interior to conduct promptly a rulemaking to reconsider and eliminate or restructure the U.S. Fish and Wildlife Service rule--50 CFR 17.31(a)--in light of this report and legislative history.
Resources Committee Chairman Richard Pombo (R-CA) offered an en bloc set of technical amendments to sections 10 and 13 of the bill. They were adopted by voice vote.
Congressman Tom Udall (D-NM) offered an amendment to strike the definition of `best available scientific data' from section 3 of the ESA. The amendment failed by voice vote.
Congressman Greg Walden (R-OR) offered and withdrew an amendment regarding the application of `jeopardize the continued existence.'
Congresswoman Stephanie Herseth (D-SD) offered and withdrew an amendment regarding peer review.
Congressman Peter DeFazio (D-OR) offered an amendment to strike the determination of distinct population of vertebrate fish or wildlife only sparingly. The amendment failed by voice vote.
Congressman Jay Inslee (D-WA) offered an amendment to deem a species as endangered or threatened if the Secretary of the Interior fails to make a determination within 180 days of the species being proposed. The amendment failed by voice vote.
Congressman John E. Peterson (R-PA) offered and withdrew an amendment which required the Secretary of the Interior to prepare an analysis of the economic impact, the impact on national security and other relevant impact of a determination that a species is endangered or threatened.
Congressman Jim Saxton (R-NJ) offered an amendment to strike section 5 of the bill (Repeal of Critical Habitat Requirements). The amendment failed by voice vote.
Congressman Jim Saxton offered and withdrew an amendment to strike the repeal of the critical habitat requirements under section 4 of the ESA and insert instead provisions on protection of critical habitat and survival habitat.
Congressman Mark Udall (D-CO) offered an amendment to strike section 8 (Protective Regulations). The amendment was adopted by voice vote.
Congressman Jim Costa (D-CA) offered an amendment to section 9 of the bill to include counties along with Governors and State agencies in commenting on regulations issued by the Secretary of the Interior under section 4 of the ESA. Chairman Pombo offered an amendment to the Costa amendment to include units of local government. The Pombo amendment to the Costa amendment was adopted by unanimous consent. The Costa amendment, as amended, was adopted by voice vote.
Congressman Jim Saxton offered an amendment to strike the recovery plan process in section 10 of the bill and replace it with a different process. Chairman Richard Pombo offered an amendment to the Saxton amendment to strike all the text but the requirement that recovery plans be prepared or revised within 10 years of the date of enactment of TESRA. The Pombo amendment to the Saxton amendment was agreed to by unanimous consent. The Saxton amendment, as amended, by adopted by voice vote.
Congressman Edward Markey (D-MA) offered an amendment to strike the language in section 10 of the bill regarding the regulatory nature of recovery plans. The amendment failed by voice vote.
Congressman Greg Walden offered and withdrew an amendment to allow the
modification of specific measures in an agreement between the Secretary of the Interior and a federal agency after considering the direct, indirect and cumulative costs and benefits resulting from the implementation of a recovery plan.
Congressman Jim Costa offered an amendment to section 10 of the bill to require the Secretary of the Interior to consult with any pertinent State, regional or local land use agency before approving a new or revised recovery plan. Chairman Pombo offered an amendment to also include the designee of a local land use agency. This amendment was adopted by unanimous consent. Congressman Rick Renzi (R-AZ) offered an amendment to the Costa amendment to include Indian tribes and to provide a definition of Indian tribes. This amendment was adopted by unanimous consent. The Costa amendment, as amended, was adopted by voice vote.
Congressman Rick Renzi offered an amendment to allow the Secretary of the Interior to enter into cooperative agreements with Indian tribes under section 11 of the bill. The amendment was adopted by voice vote.
Congressman Raul Grijalva (D-AZ) offered an amendment to strike alternative procedures for the federal agency consultation requirement under section 7(a)(2) of the ESA. The amendment failed by a roll call vote of 12 to 21, as follows:
Insert graphic folio 28 HR237.001
Congressman Ken Calvert (R-CA) offered and withdrew an amendment which exempted from the ESA section 7(a) requirements certain agency action that may affect a species for which a permit has been issued under section 10 of the ESA if the action implements or is consistent with any conservation plan or agreement incorporated by reference in the permit.
Congressman Dennis Cardoza (D-CA) offered an amendment to change from 90 to 180 days the length of time the Secretary of the Interior has to respond to a request for a written determination of compliance with section 9(a) of the ESA. The amendment also provided a sunset for the written determination and allowed the Secretary to withdraw the determination under certain circumstances. The amendment was adopted by voice vote.
Chairman Pombo offered an amendment to clarify that the request for a written determination of compliance must apply to a proposed use which is lawful under State and local law. The amendment also required the requestor to send the request by certified mail, that the request must describe the lawfulness of the proposed action under State and local law, as well as demonstrate that the property owner has the means to undertake the use, and the request must describe the anticipated adverse impact to a species. The amendment also allows the Secretary of the Interior to request more information regarding the determination and allows the requestor to supply such additional information. The amendment was adopted by voice vote.
Congressman Jim Gibbons (R-NV) offered an amendment to allow the President, after consulting with the appropriate federal agency, to exempt any act or omission from the provisions of the ESA if the exemption is necessary for national security. The amendment was adopted by voice vote.
Congressman Jeff Flake (R-AZ) offered and withdrew an amendment regarding an exemption from liability for take of listed aquatic species.
Congressman Bobby Jindal (R-LA) offered an amendment to authorize the President to suspend the application of the ESA in a declared disaster area and directed the Secretary of the Interior to issue regulations regarding the application of the ESA in the event of an emergency involving a threat to human health or safety or to property. The amendment was adopted by voice vote.
Congressman Neil Abercrombie (D-HI) offered an amendment providing a definition of `experimental population.' The amendment was adopted by voice vote.
Chairman Richard Pombo offered an amendment to section 14 of the bill to clarify the provisions regarding the distribution of aid, including the legality of the foregone use which would be subject to aid, the timing of the aid, the documentation and calculation of fair market value of the foregone use, and the availability of aid. The amendment was adopted by voice vote.
Congressman Jay Inslee offered an amendment to require that before any aid can be granted under section 14 of the bill, the property owner would also have to demonstrate that the application of ESA section 9(a) to prohibit the foregone use constitutes a taking of privately owned land for which the payment of compensation is required by the 5th Amendment of the U.S. Constitution. The amendment failed on a roll call vote of 10 to 27, as follows:
Insert graphic folio 30 HR237.002
Congressman Stevan Pearce (R-NM) offered an amendment regarding the reimbursement for depredation of livestock by reintroduced species. The amendment was adopted by voice vote.
Congressman Greg Walden offered an amendment which deemed certain actions in compliance with other laws to also be in compliance with section 7(a)(2) and section 9(a)(1)(B) of the ESA for a period of time. The amendment was adopted by a roll call vote of 26 to 11, as follows:
Insert graphic folio 32 HR237.003
No additional amendments were offered and H.R. 3824, as amended, was ordered favorably reported to the House of Representatives by a roll call vote of 26 to 12.
Section 1. Short title; Table of contents
Section 1 provides a short title for the bill--`The Threatened and Endangered Species Recovery Act of 2005'--and a table of contents.
Section 2. Amendment references
Section 2 clarifies that, unless otherwise noted, all amendments are to the Endangered Species Act of 1973 (16 U.S.C. 1531 et seq.).
Section 3. Definitions
TESRA section 3 establishes a new definition for the ESA and directs the Secretaries of the Interior and Commerce to provide guidance and direction on the development and use of scientific data. The fundamental goal of adding this definition is to ensure that sound and defensible science is used in all relevant decisions including: a proposed listing or delisting of an endangered or threatened species; a proposal to reclassify a species from threatened to endangered or vice versa; the development of a recovery plan for an endangered or threatened species; and a biological opinion on a federal agency action.
Each agency follows a regulatory process to list species as threatened or endangered and to conserve or recover a species. Currently, the ESA requires `the best scientific and commercial data available' for listings and other actions. However, this term is not defined, and there are no objective standards to ensure a uniformly high quality of scientific data. Further, many question the cost, magnitude and validity of the ESA's requirements and implementation since the ESA has produced very limited recovery results. This has led to concerns about the adequacy of science supporting implementation of actions under the ESA. To address these issues, this definition is established and the Secretaries are to set standards for the `best available scientific data' that are used to take actions under the ESA.
TESRA section 3 also provides a new definition of `permit or license applicant' to replace the old definition that was tied to the now-repealed Endangered Species Committee exemption process. A permit or license applicant under ESA section 7 is a person who has applied to a federal agency for a permit or license or for another type of formal legal approval to perform an act, such as a bidder on a federal contract.
TESRA section 3 also defines the term `jeopardize the continued existence' of an endangered species or threatened species. The term is used in ESA section 7, under which federal agencies must insure their actions are not likely to jeopardize the continued existence of an endangered or threatened species. Under this definition, the agency action must reasonably be expected to significantly impede, directly or indirectly, the conservation of the species in the long-term. This definition strengthens the current jeopardy standard by adding to the jeopardy analysis consideration of `conservation,' defined in the ESA as the use of all methods and procedures to restore a species to the point where the protections of the ESA are no longer necessary. A significant impediment to conservation is one that, by itself, makes the future use of such methods and procedures unlikely to be successful, thus jeopardizing the continued existence of the species and risking its extinction. Before an impediment can be considered `significant,' there must be sufficient scientific basis in existence at the time of the consultation, such as a recovery plan if one has been prepared under TESRA, to conclude that the conservation is possible. As provided by the definitions of `endangered species' and `threatened species' in the current ESA, a significant impediment must be likely to frustrate, directly or indirectly, conservation throughout all or a significant portion of the species' range, not just in one region or locality, although for some species an action occurring only in one such area could indirectly have significant effects in a broader area. In addition to being significant, the harmful effects of the agency action must persist over the long term, which may vary from species to species. A short-term impediment to conservation, no matter how significant, that has no lasting long-term effects would not support a jeopardy finding under the definition. To find jeopardy, it would be necessary to demonstrate that the effects would be likely to create a significant long-term threat to the ability to successfully conserve the species. Finally, this definition would consider only the conservation of the species in the wild, not taking into account, for example, captive-breeding programs or the maintenance of members of the endangered species or threatened species in zoos, aquaria, or other refuges.
This term, as it appears in section 7 of the current ESA, is not defined, and has been implemented by the Secretary through regulatory provisions. The term is also accompanied by a second standard in section 7 of the current ESA for evaluating federal actions destruction or adverse modification of critical habitat. Although the greatest threat to endangered and threatened species is habitat loss, and protection of habitat is a key concern of the ESA, the legal concept of critical habitat in the ESA has proven to be poorly understood, controversial and difficult to implement, with both the Clinton and Bush Administrations speaking out forcefully as to its cost in time and money and relative ineffectiveness as a conservation tool. Litigation over the concept's meaning and application in ESA section 7 has also increased dramatically, shifting valuable conservation resources away from on-the-ground restoration to often ineffective process costs. Reflecting these realities, the concept of critical habitat and the second standard in ESA section 7 that incorporates it have been dropped. To assure that ESA section 7 continues to give broad protection for species and habitats, the new jeopardy definition has been added so that, when a future agency action is evaluated for risk of jeopardizing the continued existence of a species, consideration is given to preserving the potential for species' conservation and not just the effect on the species' survival. Habitat will continue to be a central focus of the analysis under ESA section 7 since ultimate conservation of so many endangered and threatened species is habitat-dependent. Moreover, the amendments contained in TESRA to strengthen the recovery planning process increase the focus on habitat, since recovery plans will be required to include the identification of habitat that is of special value to the conservation of the species. This will able the recovery plan to serve a role formerly played by critical habitat to inform the public of the importance of key habitat areas. Additionally, recovery teams can develop plans that incentivize conservation on privately owned lands that have been subject to sound land management practices that have benefitted species but were never acknowledged under the current regulatory-based critical habitat system. Recovery plans can be given the force and effect of law if adopted through other existing authorities, and federal agencies may enter into implementation agreements with the Secretary to enforce recovery plan provisions. In any event the recovery plan should inform all discretionary decision-making under the ESA even where the obligations of the affected agencies or parties differ from the standards of a recovery plan. The Secretary's regulations will have to be updated to implement the new jeopardy definition in the wide range of circumstances that exist among endangered and threatened species.
Section 4. Determinations of endangered species and threatened species
TESRA section 4 provides that the `Secretary shall use the authority * * * to determine any distinct population of any species of vertebrate fish or wildlife to be an endangered species or a threatened species only sparingly.' The Senate Report on the 1979 ESA Amendments recognized the `great potential for abuse' in providing an ability to extend the ESA's protections to a `distinct population,' and directed that this authority be used only `sparingly.' S. Rep. No. 96-151 at 7 (1979). TESRA elevates that legislative intent to a statutory directive.
The Committee has done so because, despite the intent in the U.S. Fish and Wildlife Service's 1996 DPS Policy to designate distinct populations only `sparingly' (61 Fed. Reg.
4722-25 (Feb. 7, 1996)), in practice the `Services have concluded that potential populations qualify as a distinct population over 80 percent of the time.' Geoffroy and Doyle, Listing Distinct Population Segments of Endangered Species: Has It Gone Too Far?, Natural Resources & Env't 82, 84 (ABA Fall 2001). The Secretaries need clear direction and authority to limit the number of `distinct populations' that are found and listed. The historic overuse of that authority is diverting limited resources from more important ESA goals, is trivializing the ESA by protecting less-significant units, and is needlessly increasing the conflicts between the ESA and desired human land uses.
Section 4 of TESRA provides that in evaluating the adequacy of existing regulatory mechanisms in making a decision whether to list a species as threatened or endangered, the Secretary shall consider ongoing conservation efforts described in ESA subsection 4, and provides that such efforts include those by federal agencies as well as States, local governments and foreign nations. The amendment made by this subsection clarifies that the ESA subsection 4(b)(1) factors should be considered as part of the ESA subsection 4(a)(1) analysis rather than separately after consideration of the ESA section 4(a)(1) factors.
Section 5. Repeal of critical habitat requirements
This section repeals the critical habitat provision contained in the current ESA. TESRA eliminates critical habitat because, according to successive Democratic and Republican administrations, the provisions cause nothing but litigation and waste resources. The official position of the U.S. Fish and Wildlife Service is:
`In 30 years of implementing the ESA, the Service has found that the designation of statutory critical habitat provides little additional protection to most listed species, while consuming significant amounts of conservation resources. The Service's present system for designating critical habitat is driven by litigation rather than biology, limits our ability to fully evaluate the science involved, consumes enormous agency resources, and imposes huge social and economic costs. The consequences of the critical habitat litigation activity is that limited listing funds are used to defend active lawsuits and to comply with the growing number of adverse court orders. As a result, the Service's own proposals to undertake conservation actions based on biological priorities are significantly delayed.'
In TESRA, habitat of special value to the conservation of a species is identified and included in recovery plans and given priority in recovery contracts. Any proposal that would initiate a review of an action's effect on habitat will be reviewed under TESRA's recovery habitat, as required under the ESA section 7 consultation process. This process is described in greater detail under section 9 of the bill.
Section 6. Petitions and procedures for determinations and revisions
The Secretary's determination that a petition to list a species as endangered or threatened may be warranted can only be made if the petitioner has provided the Secretary with all information cited in the petition. TESRA section 6 also modifies the notice provisions to provide that the Governor, as well as the appropriate State agency, receives notice of a proposed listing determination or revision.
This section further provides that: (1) a complete record of all information concerning the proposed listing determination or revision must be made available on a publicly available website; (2) the posted information must include any status review and information, information referred to in the proposed regulation, and all information submitted by third parties; and (3) the Secretary must withhold any document consistent with the requirements of section 552 of the Administrative Procedure Act.
The section also provides that any withdrawal of a proposed listing determination or revision must be accompanied by written findings explaining such withdrawal, and clarifies that the emergency provisions set forth in ESA section 4 only apply to listing determinations and requires that the Governor as well as any affected State agencies be given notice. The posted information must include any status review and information, information referred to in the proposed regulation, and all information submitted by third parties. The Secretary must withhold any document consistent with the requirements of section 552 of the Administrative Procedure Act.
Section 7. Reviews of listings and determinations
This section provides that status reviews that propose a change in the species status must have taken into consideration either: (1) the objective, measurable criteria identified in the recovery plan which, if met, would result in a downlisting or delisting decision; (2) for species with no recovery plan or established downlisting or delisting criteria, the listing determination factors under ESA section 4(a); (3) a finding of a fundamental error in the initial determination; or (4) a determination that the species is no longer an endangered or threatened species or in danger of extinction based on an analysis of the listing factors under ESA section 4(a).
Section 8. Secretarial guidelines; State comments
The ESA has had a more far reaching impact than anticipated when signed into law in 1973. It has become clear that the impacts and benefits are not just at a State level, but actually have trickled down to the local government level. In response to growing concerns by county, local and other equivalent governments on the need for greater opportunity to comment on the actions of the federal government as it manages threatened and endangered species, the Committee has extended the authority to these groups. The Committee has done this in TESRA by adding Governors, counties or units of local governments to the provisions of section 4 of the ESA.
Section 9. Recovery plans and land acquisitions
Subsections (a) and (b) of section 9 of TESRA expand upon and strengthen the ESA's provisions concerning recovery plans. In keeping with the more detailed coverage of the recovery planning process, section 10 of TESRA moves the recovery plan provisions from section 4 of the ESA, which focuses on listing and delisting of endangered species and threatened species, to a more prominent position at the beginning of ESA section 5. In effect, existing ESA section 4(f) would become ESA subsections 5(a) through (j).
Among the most significant changes that section 9 of TESRA would make to the current ESA recovery planning provisions are the following:
Section 9 would require that, for any species determined to be endangered species or threatened species after TESRA's enactment, the recovery plan must be prepared within two years after the final determination rule.
Section 9 would require that recovery plans be based on `best available scientific data.' The current ESA requires use of such data in listing species and in consultations on federal agency actions, but omits the requirement for recovery plans. Given the greater attention paid to recovery plans in TESRA, such plans should also be governed by the same data standard as applies to species' listings and agency action consultations.
Section 9 also specifies in more detail requirements for the contents of recovery plans. The plans must contain objective measurable criteria that, when met, would allow a
determination to delist the covered endangered species or threatened species or to downlist an endangered species to a threatened species. Measurable criteria are important because they set the goals for all other plan elements. Moreover, if and when such criteria are met, they should automatically trigger a downlisting or delisting rulemaking. Currently it is difficult to determine in many recovery plans what constitutes conditions that would warrant delisting or downlisting, or, when the plans do contain measurable criteria and they are met or exceeded, the Secretaries fail to take any delisting or downlisting action.
The plans must also contain a description of site-specific or other measures that would achieve the criteria, including intermediate measures. Again, it is difficult to locate any discussion of practical measures in many existing recovery plans. Perhaps because they are often prepared by recovery teams dominated by academics, many of those plans emphasize research, some to the exclusion of any practical measures.
TESRA would also require that recovery plans contain estimates of the time and cost of the plans' recommended measures. Too many current plans do not provide realistic assessments of the time needed to undertake specific measures; some fail even to suggest when such measures should be initiated, thus encouraging either a rush to do everything at once or delay everything to the later years of the plans' terms. Many existing recovery plans also provide ample evidence that those who prepared them gave insufficient thought to the cost of proposed measures. The new requirements for time and cost estimates should remedy these problems and make recovery plans far more useful and realistic documents.
Finally, the recovery plans should identify areas of special value for conservation. This requirement for plan contents ensures that attention will continue to be paid to the covered species' habitat needs, even with the deletion of the current ESA's critical habitat provisions. These lands are not to be identified for the regulatory purposes that accompanied critical habitat. Rather their identification should inform, but not dictate, other decisions under the ESA. It is also hoped that these lands are given the highest priority in the implementation of any landowner incentive programs, including those authorized under the ESA currently, those authorized in this bill, and any that may be authorized in the future. The lands to be identified in any recovery plan should be those that are required to meet the delisting or downlisting criteria, and secure the delisting or downlisting determination, contained in the same plan.
Section 9 also has additional provisions refining these required plan contents. For example, it allows the establishment of `interim criteria' intended to improve the status of the covered species where insufficient best scientific data exist to permit a determination of the criteria necessary for delisting or downlisting. TESRA requires reviews at least every five years of plans containing interim criteria to ascertain whether full delisting or downlisting criteria can be established. Prompt revision of any plan is required if the data are found to be available. For species that occupy more than one State, the recovery plans are to contain criteria that, when met, would allow delisting or downlisting of the portion of the species in each of the States. Related to the cost concerns, the bill requires the recovery plans to include, whenever possible, alternative measures and the identification of the least costly measure among alternative measures of comparable efficacy. The plan is also to contain the estimate of the cost of acquisition on a willing seller basis of any of the identified special value lands. As a transition matter, any critical habitat designated prior to the bill's enactment would be treated as special value land until the relevant recovery plans are drafted or revised.
Another significant change would be the detail TESRA section 9 would add to the recovery team concept. It requires the promulgation of regulations to contain criteria for establishing recovery teams to prepare recovery plans that are diverse (including representatives of constituencies that would be affected favorably by the plans' goals of, and contents to effect delisting or downlisting, and constituencies that could be economically or socially impacted by implementation of those goals and contents) and can achieve timely completion of the plans. Broadening the teams' membership will ensure those most directly affected by the plans have a voice in their preparation. They may also supply new insights, particularly concerning land and water management constraints and opportunities. These additional insights will be particularly valuable in devising the recommended measures. Although TESRA provides that only scientific members of the recovery teams are to establish the delisting or downlisting criteria, any of the broader constituencies can select scientists as their representatives who would participate in the criteria-setting process. The recovery team regulations also are required to ensure that the plans are scientifically rigorous and, where costs analyses are required, economically rigorous. Finally, those regulations are to provide guidelines as to when the appointment of recovery teams is unnecessary.
TESRA section 9 also adds language that will make the Secretaries' biennial report to Congress more informative and a better gauge of performance under the ESA. Moreover, new provisions attempt to make the planning process be more transparent and open by providing for review and comment by the affected States, Indian tribes, regional or local land use agencies, and the public.
The new recovery plan provisions in section 9(a) of TESRA also makes explicit what is implicit in the current ESA section 4(f) recovery plan language--the intended effect of the recovery plan. The paragraph is also fully consistent with long-held federal judicial precedent interpreting that intended effect. Consistent with Fund for Animals v. Rice, 85 F.3d 534, 547 (11th Cir. 1996),2
[Footnote] TESRA states that the recovery plan does not impose any regulatory requirements on federal agencies and nonfederal persons. As stated elsewhere in this report, recovery plans are intended to inform, but not dictate, relevant decision making under the ESA. That recovery plans do not have the force and effect of law not only is the law, given the absence of any direction to the contrary in the current recovery plan language in current section 4 of the ESA and the consistent interpretations by all Administrations and by the courts, but also is a matter of practical necessity. As a practical matter, the recovery plan cannot have such force and effect because it is prepared on the basis of statutory standards (both those in the current ESA section 4 and in the new section 5 language of TESRA) that are more stringent than the statutory standards for most other decisions under the ESA, e.g., consultation on federal agency actions under ESA section 7 and approval of incidental take permits and safe harbor agreements under ESA section 10.
[Footnote 2: `[T]he practical effect of the Plaintiffs' position would be to elevate the * * * Recovery Plan into a document with the force of law. We cannot take such an approach. Section [4(f)] makes it plain that recovery plans are for guidance only.']
The Committee did adopt an amendment that eliminated a phrase which stated recovery plans can have no `effect other than as non-binding guidance.' In point of fact, they can have binding effect if a federal agency decides to adopt all or part of any specific plans (and the adoption of those provisions does not have the effect of exceeding the limits of authority provided by the ESA to impose the restrictions that may be contained in those provisions, particularly on non-federal entities or landowners) or if the nonfederal entities or landowners voluntarily choose to adopt such provisions in cooperative agreements, habitat conservation plans, safe harbor agreements, etc. After such adoption, the conservation plan provisions would then become binding either under the ESA or under contract law.
TESRA section 9 also explicitly allows a federal agency to agree to undertake particular identified measures in any specific recovery plan through an agreement with the Secretary of the Interior and/or the Secretary of Commerce. Each agreement is to be focused on particular measures in a specific recovery plan. This provision requires that any recovery plan-specific
agreement be made subject to public review and comment, and that the Federal agency responds to the public comment. Moreover, the Committee does not intend that any agreement waive, alter, or encumber any public participation, administrative appeal, or due process requirements contained in the laws and implementing regulations that authorize and govern agency activities covered by the agreement.
Finally, TESRA section 9 provides for the development of priorities and a schedule for development of recovery plans for species listed prior to the bill's enactment that do not yet have such plans.
The two landowner incentives programs included in the section 9 of TESRA are intended to provide alternative mechanisms to those contained in current programs for landowners to secure immunity from liability under the ESA while providing additional habitat and protection for endangered and threatened species on nonfederal lands. Currently there are several incentive programs (e.g. the habitat conservation planning and incidental take permitting process under ESA section 10) that are explicitly authorized, and several more incentive programs (e.g. safe harbor agreements and candidate conservation agreements) that are not authorized by the ESA. There are also landowner incentive programs under other statutes, e.g. the Forest Legacy Program. The programs established in this bill are not intended to be additive. They, instead, are expected to provide a wider array of alternatives for landowners who would otherwise have made use of the existing programs. The new programs simply provide standards and procedures that landowners already inclined to enter a landowner incentive program may find better tailored to their needs.
Section 10. Cooperation with States and Indian tribes
These provisions strengthening ESA section 6 State cooperative agreements are responsive to the repeated requests of the States, particularly the Western Governors' Association, to be accorded the opportunity to participate more actively and fully in species conservation efforts. The States' participation is critical because they know their residents' needs better (and the residents know the States better) than the Secretaries of the Interior and Commerce, and, consequently, the States are likely to be far more effective in enlisting landowners in the cause of species' conservation.
A number of States, with active encouragement of the Secretary of the Interior, are seeking to make greater use of the cooperative agreement provisions of ESA section 6. In the past many States chose to prepare and submit bare-bones cooperative agreements applicable to all listed species within their borders. The principal purpose of such agreements was to secure Federal funding. Recently several States have prepared or are in the process of preparing cooperative agreements for particular species that are far more detailed, containing very specific land and water management guidance and requirements to protect those species. Often these species-specific agreements provide for the voluntary enrollment of landowners, who are then bound to the agreements' terms by contract. The advantage to enrollment is that the landowners secure the protection of the incidental take statement that the Secretaries may issue after consulting under ESA section 7 on approval of the relevant agreement. The broader agreements come under the provision of ESA section 6 concerning agreements `to conserve resident species * * * determined by the State agency or the Secretary to be endangered or threatened.' The species-specific agreements come under the provision of ESA section 6 concerning agreements that contain `plans' which address resident endangered or threatened species' which the Secretary or the State agency agree are most urgently in need of conservation programs. These agreements not only secure the enlistment of States and landowners in the efforts to conserve listed species, but also reduce the strain on the species conservation resources available to the Secretaries and Federal land management agencies.
Section 10 of TESRA strengthens and broadens the ESA's section 6 conservation agreement authority in several ways. First, it encourages agreements to address candidate species by providing that the incidental take statement will cover those species if and when they are listed. Second, it amends the Federal funding provision to authorize the Secretary to provide financial assistance for agreements that establish conservation programs for the protection of, and are not just limited to monitoring, candidate species, as well as other species at risk and species that are determined by the Secretary to be recovered species and no longer subject to the constraints of the ESA.
Third, TESRA section 10 eliminates a significant barrier to the completion and implementation of these agreements. ESA section 6 currently requires that these agreements be reviewed annually. As each annual review could be considered a Federal agency action, the agreements, the States, and the Secretaries could become mired in an increasingly larger number of annual consultations, particularly if section 10's intended effect of stimulating the States to produce multiple cooperative agreements is effective. TESRA section 10 addresses this problem by changing the annual reviews to triennial reviews, and specifying the circumstances in which additional consultations must occur on agreements after the initial consultations on the agreements' approvals. Those circumstances are, in brief, whenever the Secretaries determine, during the reviews or on obtaining new information, that the agreements may be having any `adverse effects' on the covered species that had not been considered previously or whenever either Secretary approves the renewal or amendment of an agreement that covers or affects newly listed species.
Fourth, TESRA section 10 contains a provision that clarifies that any cooperative agreements that call for the enrollment of lands or water rights in the agreements' conservation programs may not require enrollment and must ensure that any enrollment is voluntary.
Fifth, TESRA section 10 adds provisions to ESA section 6 that specify procedures for suspension and termination of cooperative agreements, including procedures for curing deficiencies. The current ESA section 6 is silent as to how the Secretaries may address cooperative agreements that no longer meet the requirements of ESA section 6 or are found in consultations to likely jeopardize the covered species' existence.
Finally, the Committee adopted an amendment to accord to Indian tribes the same authority to enter into cooperative agreements that ESA section 6 now provides to the States. Indian tribes with the capacity and desire to prepare species conservation programs should be encouraged to do so. This amendment would provide such encouragement.
Section 11. Interagency cooperation and consultation
This section of TESRA adds to the current ESA section 7 language which authorizes the Secretary to adopt by regulations alternative procedures to those described in other provisions of ESA section 7 to implement ESA section 7's jeopardy standard for Federal agency actions. The paragraph has a number of safeguards to ensure that the regulations cannot alter the jeopardy standard, and that they will require virtually equivalent procedures to those in the current ESA provisions for agency actions which are likely to adversely affect listed species.
In effect, the Secretaries have already exercised this authority in the regulations they adopted in 1986 (50 CFR Part 402). Under those regulations, over the last two decades countless Federal agency actions have been allowed to proceed without any `consultations' by the Federal action agencies with the Secretaries, and without the preparation of any biological `opinion[s]' by the Secretaries on those actions, using the procedures in the regulations for `informal consultation.' Yet, since 1979, ESA section 7(a)(2) has referred to `consultation' on `any [agency] action,' ESA section 7(b)(1) has set deadlines for concluding `consultation' on
`any agency action,' and ESA section 7(b)(3) has required the preparation by the `Secretary' of a written biological `opinion' `after conclusion of consultation under' ESA section 7(a)(2), which is not prepared in an informal consultation.
The 1986 rules have allowed such informal consultation with the Secretaries for all agency actions that the Federal action agencies (e.g., Corps of Engineers, Bureau of Land Management, Bureau of Reclamation, and Department of Transportation) determine are not likely to adversely affect listed species, with only a brief written concurrence from the Secretary rather than a biological opinion. Moreover, those same regulations have excused any communication by an action agency with the Secretary for `no effect' agency actions. The 1986 regulations also authorize the further adoption of additional regulations that establish other alternative `consultation' procedures for categories of Federal agency actions (50 CFR 402.04), which the Secretary has done twice.
The new language added to section 7 puts into the ESA both authority to adopt alternative `consultation' procedures which the Secretary exercised in promulgating in the 1986 regulations for informal consultation, and authority to devise additional alternative `consultation' procedures tailored to particular agencies or agency actions as exercised twice previously. This new language would constrain these alternative procedures authorities in several ways. First, it does not alter the ESA section 7 substantive jeopardy standard for agency actions. Second, it allows the adoption of alternative `consultation' procedures only by notice-and-comment rulemaking, and only by the Secretaries who have the duty to protect listed species, not the Federal agencies proposing the agency actions. Third, it maintains all the key requirements of the current ESA section 7 statutory procedural steps for agency actions that may adversely affect listed species.
Under the current statutory procedures, the only way that a Federal action agency (and any applicant for a Federal permit, license, funding, etc.) can obtain immunity from adverse effects to a listed species caused by an agency action is to obtain an incidental take statement from the Secretary under ESA section 7(b), after consultation with the Secretary under ESA section 7(a) and preparation by the Secretary of a biological opinion under ESA section 7(b). Under the new paragraph, if any agency action has the likelihood of adversely affecting a species, the agency (and the applicant) will still have to seek consultation with the Secretary, and the Secretary's preparation or concurrence in a biological opinion, to obtain the protection of the issuance of an incidental take statement. Also, under current ESA law, if the agency action's adverse effects are significant enough to fail to meet the ESA section 7(a) jeopardy standard, the Federal action agency (and applicant) for all intents and purposes only can proceed, and only can secure an incidental take statement, if it engages in consultation with and obtains a biological opinion from the Secretary, and agrees to undertake a `reasonable and prudent alternative' to the action suggested by the Secretary under ESA section 7(b). Under this new language, the same steps--consultation, biological opinion, Secretarial suggestion of or concurrence in a reasonable and prudent alternative--would have to occur and could not be avoided by any alternative procedure established under the new language.
Section 11 of TESRA adds a new provision to ESA section 7(a) providing that any analysis under ESA section 7(a) shall consider only the effects of the proposed agency action under review that are distinct from the baseline of effects on the relevant species that have occurred or are continuing to occur as a result of past human activities or natural events. The ESA section 7(a) analysis is to determine the incremental effects of a proposed Federal agency action. Federal actions such as the ongoing operation of existing facilities cannot be expected to compensate for past activities or events in many cases occurring long before the ESA was originally enacted. Thus, this section provides that a jeopardy finding under ESA section 7(a) as amended would have to be based only on the incremental effects of the proposed action and not on pre-existing conditions.
TESRA would establish a requirement in new ESA section 7(b) that any terms and conditions in the Secretary's written statement following consultation must be `roughly proportional' to the extent that the land use activity results in incidental take of a species. Similarly, under new ESA section 10(a)(3), terms and conditions in a ESA section 10 incidental take permit and habitat conservation plan must be `roughly proportional' to developmental impacts on listed wildlife. This `roughly proportional' language clarifies the intent of the two provisions to provide for mitigation of project or development impacts. Indeed, the `roughly proportional' language is modeled after similar language contained in the rigorous State of California Endangered Species Act (Cal. Fish & Game Code 2052.1, 1081(b)).
The `rough proportionality' language is also intended to codify the principle from Dolan v. City of Tigard, 512 U.S. 374, 391 (1994), in which the Supreme Court recently recognized that `the government may not require a person to give up a constitutional right--here the right to receive just compensation when property is taken for a public use--in exchange for a discretionary benefit conferred by the government where the benefit has little or no relationship to the property.' Lingle v. Chevron, U.S.A., 125 S.Ct. 2074, 2087 (2005) (citing Dolan, 512 U.S. at 385).
Dolan stands for the proposition that government can only demand conditions on land use activity that are tailored to address the particular impacts that will accrue from the project under review. As the Court stated, `no precise mathematical calculation is required, but the [government] must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development.' Id. at 391. Under Dolan, it is the government's burden to prove `rough proportionality' between species impacts and the proposed development. Accordingly, for purposes of TESRA, the Secretary must quantify his or her findings for ESA sections 7 and 10 terms and conditions as much as possible. The Secretary cannot rely on conclusory statements regarding hypothetical impacts of a project as justification to impose excessive conditions on private land use activities to address the incidental take of species. In short, the government must develop a sufficient administrative record to justify terms and conditions under the `rough proportionality' standard.
Section 12. Exceptions to prohibitions
In adding paragraph (4)(E) to ESA section 10(a), it is the intent of the Committee to confirm the validity of the `No Surprises' and Permit Revocation regulations that have governed ESA section 10(a) permits for the last seven years, and to require the inclusion of `No Surprises' and Permit Revocation assurances in future permits. To this end, new ESA section 10(a)(4)(A) through (E) enacts `No Surprises' and Permit Revocation assurances and requires that these assurances be included in all future ESA section 10(a) permits, except permits issued for scientific purposes. For ESA section 10(a) permits issued before the date of enactment, new ESA section 10(a)(4)(E) makes clear that the existing `No Surprises' and Permit Revocation regulations, codified in 50 CFR Parts 17.22 and 17.32, constitute the governing law pursuant to which existing permits will be implemented and enforced.
Under TESRA, the habitat conservation plan content (HCP) requirements--the biological goals, monitoring, and adaptive management provisions--are NOT new, but are taken from an existing policy implemented in 2000. All three elements of HCPs were established in 65 Fed. Reg. 35242-35257 (June 1, 2000) (`Notice of Availability of a Final Addendum to the Handbook for Habitat Conservation Planning and Incidental Take Permitting'). These new statutory requirements are not intended to go beyond the existing notice provisions and therefore are not more stringent.
TESRA also amends the ESA section 10(j) provisions to advance recovery while respecting property rights and other local concerns. Such solutions have been worked out under
the existing law, which allows rules for introduced species to be tailored to local conditions, and the committee intends to facilitate more such solutions. The Committee finds that application of section 10(j) of the ESA can provide clear benefits to endangered species as demonstrated by the California condor recovery in northern Arizona and southern Utah where recovery actions have involved and are supported by States, Tribes, local communities, and private landowners. The Committee desires to clarify and improve this provision.
Application of section 10(j) of the ESA requires the Secretary to make two determinations before establishing an experimental population. Those are: (1) that doing so will `further the conservation' of the species; and (2) that there are no naturally occurring populations of the same species in the area where the experimental population is to be established. A point of confusion has been the meaning of `population' when considering appropriateness for establishment an experimental population. The Committee believes that periodic sightings and even occasional breeding are insufficient to be considered a natural population, and that such sightings are no bar to the establishment of an experimental population.
Consequently, TESRA revises ESA subsection 10(j)(1) to clarify this point of confusion and potential controversy by describing the term `areas occupied by nonexperimental populations' as `areas characterized by the sustained and predictable presence of more than negligible numbers of successfully reproducing individuals over a period of many years.' Endangered and threatened species conservation will benefit as this clarification will firmly establish those circumstances where the section 10(j) provision may be used and reduce the potential for conflict which has often resulted in litigation.
TESRA also provides for a written determination of compliance provision that would become subsection 10(k) in the ESA. This provision affords a property owner the means of receiving a final agency determination whether a proposed property use would be in violation of the ESA section 9(a) prohibitions. The most important of these prohibitions is that against the `take' of a species. As defined in the ESA, `take' includes the elements `harm, harass, pursue, hunt, shoot, wound, kill, trap, capture or collect' with regard to an endangered species or, by prohibitions promulgated in regulations, of a threatened species. While most of the actions that constitute a take require a direct relation between the person committing the take and the species the elements `harm' and `harass' may provide for a proximate relationship. Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515 U.S. 687, 713-714, 115 S.Ct. 2407,2420-2421 (1995). Consequently, a use that a reasonable person might conclude as not violating this prohibition may do so.
TESRA's provision that provides for a written determination affords landowners certainty regarding a proposed use of their property and, in the case the Secretary determines that the use would not comply with the current ESA's prohibitions against take of a listed species, it provides for a written determination that may serve as the basis for a request for conservation aid to offset the burden of conservation measures imposed upon the property owner.
The newly created section 10(k) provides that a property owner who desires a determination by the Secretary whether a proposed use would violate the ESA's section 9(a) prohibitions may request, by certified mail, such a determination provided that the property owner describe: (1) the nature, location, anticipated schedule and duration of the proposed action; (2) lawfulness under State and local law; (3) the property owner's means to carry out the proposed use; and (4) anticipated adverse impacts to a listed species is expected to occur. Under section 10(k)(3) the Secretary may request and the property may provide any other information either believes will aid the Secretary in making a determination. Section 10(k)(4) provides that the Secretary may make no determination if the property owner requesting the determination failed to include information required under section 10(k)(2) and allows, in such a circumstance, that the property owner may resubmit the request.
Provided with the information under section 10(k)(2), the Secretary must, pursuant to section 10(k)(5), provide a written determination within 180 days unless a written extension is granted by the requesting party. The Secretary may extend the deadline by 180 days if the Secretary determines that he or she cannot make a determination because of seasonal considerations which would include such considerations as migration patterns and dormancy. If the Secretary fails to issue a determination within the required window, pursuant to section 10(k)(6), the proposed use is deemed to be in compliance with ESA section 9(a).
Subsection 10(k)(8) provides that uses of the property or other actions taken in reasonable reliance upon a written determination which finds the use would not violate ESA section 9(a) prohibitions or that are deemed to comply with section 9(a) based upon the Secretary's failure to respond are not subject to liability for violations of ESA section 9. Subsection 10(k)(9) limits the time period a landowner can rely on the Secretary's determination or failure to respond to ten and five years respectively. The Committee intends that reasonable reliance tests allows for variation of the proposed use when it is undertaken by the property owner so long as the nature of the use is essentially of the same scope, scale and area as the proposed use.
Under subsection 10(k)(10) the Secretary may withdraw a determination of compliance if, as a result of unforeseen circumstances, the continuation of the use would preclude conservation measures essential to the survival of an endangered or threatened species. This provision accounts for the possibility a species was newly discovered to be in the area affected by the use or a species that would be affected by the use is added to the endangered species list. Such withdrawals become effective ten days after a property owner has been notified of the withdrawal and make the property owner eligible for aid equivalent to the fair market value of the foregone use.
Pursuant to section 10(k)(7), property use that is subject to consultation under ESA section 7 consultation cannot be the subject of a request for a written determination of compliance as the ESA provides an assessment of the effect of an agency action on listed species under ESA section 7's consultation provisions.
TESRA provides reasonable requirements to prevent abuse of this determination authority. For example, a property owner requesting a determination must include basic information about the proposed use such as the use's consistency with State and local law, the property owner's means to undertake the proposed use and any reasonably anticipated adverse impacts to a species included on the lists published under the current ESA section 4(c). Given that this section is provided in large part to reduce conservation burdens imposed on private property owners, the Committee does not intend for these requirements to impose yet another burden on private property owners. Accordingly, TESRA neither imposes any requirement on nor provides any authority for the Secretary to require a property owner to obtain and provide completed State and local permits or approval from any other governmental agency to be eligible for a written determination. Similarly, TESRA imposes no requirement on the property owner nor provides the Secretary with authority to require that detailed or extensive financial, design or other such information be provided by a property owner to demonstrate the means to undertake the proposed use. Likewise, in assessing `anticipated adverse impacts' TESRA does not require nor provides the Secretary with authority to require the property owner to provide detailed studies, analyses or surveys. Rather, the intent of these provisions is to require a good faith effort on behalf of the property owner to provide the Secretary with relevant information to make a determination.
Finally, because this provision is intended to assist property owners who, in many instances, may not even know of the existence of an endangered or threatened species in the vicinity or that their particular activity (e.g., farming, forestry, home building) may impact an
endangered or threatened species, the failure of any property owner to request a written determination under this subsection should not count against the owner in any legal proceeding or permit process.
Section 13. Private property conservation
Section 13 of TESRA would replace section 13 of the ESA which consists of amendments to other laws that have been executed. Section 13 provides two additional mechanisms to the ESA, conservation grants and conservation aid. This section affirms that the Committee places the conservation of endangered and threatened species among the highest of priorities and that TESRA evidences the Committee's recognition that the burden of carrying the costs of a conservation program that is intended to benefit all should not be borne by the few. The conservation aid provisions are at the heart of improvements the Committee considers essential to modernize and update the ESA. It is designed to compensate private property owners who have been denied use of their property as evidenced by a written determination that the owner's proposed use of the property would violate the ESA prohibitions at section 9(a) (or a withdrawal of a written determination of compliance). Providing such a mechanism not only reflects the societal commitment to conservation of endangered and threatened species but also reduces the unintended and counterproductive consequence of devaluing private property through regulations. Without such a provision, the actual effects of a law designed to conserve endangered and threatened species can be the destruction of habitat or the species itself compelled by the potential threat to the value of private property.
Under new ESA section 13, the Secretary may issue conservation grants to promote conservation of endangered species and threatened species on private property. This authority is intended to complement other tools at the Secretary's disposal under the ESA and that would be provided by TESRA. Subsection (b) provides basic restrictions on grants prohibiting their use to fund litigation, general education, general outreach, lobbying or solicitation. It also prohibits use of grants for land acquisition or leases or easements of more than 50 years and requires that any grant activities carried out on private property are supported by the property owner. Subsection (c) establishes a priority ranking to guide the Secretary's decision to award grants, giving top priority to grants that promote conservation of endangered species or threatened species on private property while making economically beneficial and productive use of the property. The Committee's intent is for grants provided under this section of TESRA to be directed to producing tangible and direct conservation benefits for endangered and threatened species but to also allow the Secretary room for ingenuity and creativity in forming partnerships with private landowners and others.
Subsection (d) establishes the eligibility requirements for conservation aid that the Secretary provides under TESRA. To be eligible, property owners who received a written determination indicating the proposed use would violate ESA section 9(a) or had written determination of compliance withdrawn under section 10(k) must request aid with 180 days. Additionally, the property owner must have foregone the proposed use or, in the case of a withdrawn written determination, terminate activities that would fall under the withdrawn compliance determination when such withdrawal became effective. Further, the proposed use, as in the case of request for a written determination, must be one the property owner has the means to carry out and the use must be one that would be lawful under State and local law. These later requirements reiterate requirements that property owners need to meet to receive a written determination under section 10(k), and the Committee's intent is identical to their applicability under that provision.
Subsection (f) establishes the means of documenting the foregone use, or, alternatively, the mechanism by which the Secretary shall acquire an interest in the property. The provision provides that the Secretary shall enter into negotiations with the property owner regarding the possible means of documenting the use which may include contracts, leases, easements or acquisition or transfer of title. If the agreement is not reached within 60 days of the request for aid, then the Secretary must select the means by which foregone use will be documented, selecting the means `with the least impact of the ownership interests of the property owner necessary to document the use.' The Committee clearly intends and interprets this provision as forbidding the Secretary, after failing to reach agreement with the property owner on a means of documentation from determining that title transfer will be used as the means of documenting the foregone use. Transfer of title is excluded as a means of documenting the foregone use as it would have the greatest impact on the ownership interests of the property owner. While the Committee is unaware of instances in which the application of section 9(a) prohibitions has resulted in removal of all uses of a property, the option of transfer of title is provided during the initial 30 day negotiation period. In conjunction with the baseline that the aid provided by the Secretary be `not less than the fair market value' of the foregone use, this provision allows, with the property owner's agreement, acquisition of a larger interest in the property than would otherwise occur with aid equivalent to the fair market value of the use of the affected portion of the property which has been foregone.
Subsection (g) establishes that fair market value of the foregone use means what a willing buyer would pay to a willing seller in the open market for the affected property interest, here the foregone use that is documented under paragraph (f). See e.g. U.S. v. Miller, 317 U.S. 369, 374 (1943) (`market value is what a willing buyer would pay in cash to a willing seller.') Fair market value should take into account reasonably potential uses of the affected property, taking into account the likelihood and difficulty of obtaining permits for any particular use. Thus, section 13 further states that `Fair market value shall take into account the likelihood that the foregone use would be approved under State and local law.' Fair market value should also not be affected by the influence of the ESA itself. The Supreme Court has held that under the `scope of the project rule,' determinations of fair market value usually do not take into account impacts on value caused by the government action that gives rise to the government's liability in the first place. See e.g. Almota Farmers Elevator & Warehouse Co. v. U. S., 409 U.S. 470, 478 (1973) (`It [government] may not take advantage of any depreciation in the property taken that is attributable to the project itself.'). Thus, the Committee does not intend that a reduced ability to use the property because of the direct or indirect influence of the ESA should affect the determination of fair market value.
To establish fair market value, after the means of documentation of the foregone use has been determined, the Secretary and the property owner are to jointly select two licensed independent appraisers. If these appraisers are unable to reach resolution as to a fair market value of the foregone use within 180 days, a third appraiser is jointly selected by the property owner and the Secretary, who establishes the fair market value within an additional 90 days. This is binding on the Secretary and the property owner.
Subsection (e) establishes a schedule by which the Secretary is to provide aid and grants provided under this section. The Secretary is to provide aid within 180 days of the request for aid if there are not unresolved issues regarding the fair market value or at the resolution of any issues regarding fair market value which shall be accomplished in no more than 360 days from the date of the request. Aid is paid in order of the date of request. Grants are to be paid on the last day of the fiscal year.
Subsection (h) provides a provision to guard against abuse of the section by prohibiting a person from receiving aid for the same forgone use, on the same property for the same period of time, more than once.
Under subsection (i) annual reports are to be submitted on January 15 to the Committee on Resources of the House of Representatives and the Environment and Public Works Committee of the Senate for all aid and grants paid by the Secretary during the previous year.
Section 14. Public accessibility and accountability
TESRA's section 14 add a new requirement to the ESA that the Secretary maintain a publicly accessible website that includes: (1) endangered and threatened species lists; (2) all final and proposed endangered and threatened species regulations issued under ESA section 4; (3) draft and final recovery plans; (4) the results of five year status reviews; and (5) all reports and supporting data to Congress required under what would be ESA section 5 and the annual cost analyses under ESA section 18. Much of this information is provided now by the U.S. Fish and Wildlife Service on its Threatened and Endangered Species Database System. This provision codifies this as a requirement for the Secretary and specifies the information to be contained. Given the increased emphasis within TESRA on recovery plans and the important role of the five-year review provision requiring these materials to be easily accessible to the public, this provision is viewed as essential by the Committee. In providing these requirements within TESRA the Committee's intent is not merely that these documents be eventually made available on the website, but that preparation of these documents should be done with the intent that they become immediately available in electronic format as soon as they are complete and finalized. Further, the Committee expects that the requirements of this section and TESRA's amendments to ESA section 4(b) requiring the Secretary to make `available a complete record of all information concerning the determination or revision' would be addressed in an integrated manner with this section's requirements.
TESRA section 14 provides a new requirement to include on the publicly accessible website a database that may be searched by the variables contained within the reports to Congress on the status of domestic endangered and threatened species and efforts to develop and implement recovery plans for these species which are required by TESRA's amendment to section 5 of the ESA and the annual cost analyses prepared under TESRA's section 16. Both of these reports are, with similar parameters, required under current law and that information would be required to be included in the database as well. This provision would merge the largest available data sources on the conservation effects of and costs of implementing the ESA into one location, providing the public with a greater understanding of this conservation program.
Section 15. Annual cost analyses
TESRA section 15 modifies the reporting under the current ESA section 18 in several ways to provide consistent and more comprehensive reporting of costs associated with implementing the ESA. The existing law requires the reporting of expenditures that are primarily for the conservation of an endangered or threatened species on a species by species basis. In practice, many costs related to endangered and threatened species cannot be easily segregated on a species by species basis as conservation measures may benefit more than one species. Under this section, federal and State costs that are not attributable to a specific species are to be reported. Although not currently required by law, such reporting has been implemented in recent years as `other ESA' expenditures. Codifying this practice as a requirement will ensure that more comprehensive cost data is provided and that reporting is systematic from year to year.
The Committee intends for this report to provide as comprehensive a picture of ESA expenditures as possible so that the societal commitment to endangered and threatened species conservation can be more accurately tracked. Consistent with this, the Committee expects the reporting by federal agencies, such as the Forest Service and the Bureau of Land Management, to include foregone revenue as the Bonneville Power Administration has been consistently reporting.
TESRA also provides for a requirement to establish a prerequisite for eligibility for financial assistance under ESA section 6. Under this provision a State must report its expenditures on endangered and threatened species, including those expenditures that are not attributable to a specific species for the previous year, to be eligible for section 6 funding in the following year. The intent of this provision is, again, to provide as comprehensive a picture of ESA expenditures as possible. The Committee interprets this provision as requiring not only the reporting of costs borne by State fish and wildlife agencies or departments of natural resources but also those costs borne by other State agencies such as transportation departments.
TESRA also requires the Secretary to provide a means where units of local government may, voluntarily, report and certify the accuracy of costs attributable to the conservation of endangered and threatened species. This provision as well reflects the Committee's intent to provide as comprehensive a picture of ESA costs as possible and the Committee's recognition that many of the costs associated with the ESA are borne by local government. The Committee expects that in providing the means to electronically report and certify the accuracy of these expenditures, the Secretary is to make the system user friendly so that local governments are not discouraged by an additional burden.
Section 16. Reimbursement for depredation of livestock by reintroduced species
This section authorizes the Secretary, through the Director of the U.S. Fish and Wildlife Service, to reimburse the owner of livestock for any loss of such livestock resulting from depredation by any population of a species listed under the ESA and includes or derives from members of the species that were reintroduced into the wild. Eligibility under this section is not conditioned on the presentation of the body of any animal for which reimbursement is sought. The Secretary is authorized to accept and use donations of funds to pay reimbursement under this section.
Section 17. Authorization of appropriations
This section authorizes such sums as are necessary for Fiscal Year 2006 to 2010 for the Secretary of the Interior. It also authorizes sums as necessary for Fiscal Year 2006 and 2010 for the Secretary of Agriculture to carry out functions and responsibility of the Department of the Interior with respect to the enforcement of the ESA and the convention which pertains to the importation of plants.
Section 18. Miscellaneous technical corrections
This section makes miscellaneous corrections to other portions of the ESA to correct cross references and to conform the text with the amendments made by earlier portions of the bill, as well as to provide gender neutral references within the text of the ESA.
Section 19. Clerical amendment to table of contents
This section makes a technical change to conform the table of contents of the ESA to changes made in earlier portions of this bill.
Section 20. Certain actions deemed in compliance
Section 20 of TESRA addresses a significant action taken by the Secretaries and the Environmental Protection Agency to remedy the alleged failure of the government (and, as a
consequence, manufacturers, and farmers, utilities, mosquito control districts, and other applicators of pesticides) for over three decades to comply with ESA section 7(a)(2) in the registration and use of pesticides under the Federal Insecticide, Fungicide and Rodenticide Act (FIFRA, 7 U.S.C. 136-136y). ESA section 7(a)(2) requires federal agencies to consider, and consult with the Secretaries on the effects of federal agency actions on endangered or threatened species. On August 5, 2004 (69 Fed. Reg. 47732-47762), following coordination with the Environmental Protection Agency and the U.S. Department of Agriculture, the Secretaries published a joint rule (50 CFR Part 402, Subpart D) establishing procedures to ensure ESA section 7(a)(2) compliance for regulatory actions under FIFRA.
Critics have alleged that the FIFRA pesticide registration program has never complied with the requirements of the ESA, and that no Administration since the ESA's enactment in 1973 has developed a program to ensure compliance. Congress addressed this problem as early as 1988 when it enacted section 1010 in the 1988 ESA Amendments Act, which directed all involved federal agencies to design a FIFRA/ESA compliance program to `minimize the impacts to persons engaged in agricultural food and fiber commodity production.' Public Law 100-478, section 1010(b), 102 Stat. 2313-14 (1988), 7 U.S.C. 136a note. The alleged continued absence of a comprehensive ESA compliance program for FIFRA actions has prompted significant litigation over the last three years. On January 30, 2004, the Secretaries proposed a rule that would establish the comprehensive ESA compliance program for FIFRA actions. In a bipartisan letter sent to the Secretary of the Interior on June 25, 2004, 92 members of the House of Representatives praised the decision to establish a compliance program and urged prompt publication of a final rule, which occurred less than a month and a half later.
The August 5, 2004, rule which established specific procedures to ensure that FIFRA actions comply with the ESA section 7 consultation requirements was promulgated under the authority of the Secretaries' 1986 general consultation regulations. The 1986 regulations authorized the development of alternative rules focused on certain federal agency actions that may benefit from ESA implementation procedures specifically tailored to those actions. The new 2004 rule constitutes such a focused regulation for ESA compliance on FIFRA actions, consistent with the 1988 ESA Amendments Act. However, the procedures mandated in the ESA compliance program established by the new rule will take some time to complete for all registered pesticide products (675 primary products) and all listed species.
Section 20 of TESRA was adopted by the Committee to give the affected agencies breathing room to properly implement the new rule. It states that, for a specific period of time, satisfaction of FIFRA's rigorous requirements for collection and submission of scientific data and scientific review of ecological risks (including effects on wildlife and ESA listed species) will constitute, for registration and use of any particular pesticide, compliance with the ESA's consultation and `take' avoidance requirements. So as to ensure expeditious proceedings under the new rule's ESA compliance program, the amendment is effective only for a period of five years or until the pesticide undergoes those proceedings, whichever is earlier. Moreover, TESRA's section 20 states that it may not affect any court order or settlement. The Committee expects that all of the currently filed litigation should be settled or concluded before enactment of TESRA; indeed, half of the cases filed to date have already been settled or concluded (and orders issued). This section 20 will ensure that use of pesticides critical for control of pests, disease vectors, and destructive invasive plants and animals, and for protection of food and fiber production, will not be terminated or compromised, and that manufacturers, and farmers, utilities, mosquito control districts, and other users will not be at risk of violating one environmental law (ESA) while complying with another (FIFRA) during implementation of the 2004 rule adopted to remedy the alleged three-decade-long non-compliance by federal agencies.
The cost of providing payment of aid to certain land owners is uncertain and would depend on how the legislation would be interpreted by the Administration, private property owners, and the courts. While CBO cannot predict the impact of the aid requirement on the total costs of carrying out the ESA over time, we estimate that federal payments over the 2006-2010 period would likely total less than $10 million because of likely delays in resolving conflicting interpretations of the law, implementing the necessary administrative mechanisms, and processing requests. The costs of those payments the program has been fully implemented could be much more significant-despite the likely small size of individual payments--because the volume of requests could be very large at first. After 2010, we expect that such payments would probably average less than $20 million a year--though annual amounts would likely vary significantly from year to year.
H.R. 3824 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates Reform Act (UMRA), and would impose no significant additional costs on state, local, or tribal governments. Some provisions in this bill would give state or local governments a greater role in carrying out the Endangered Species Act. Any costs they might incur in response would be incurred voluntarily.
Estimated Cost to the Federal Government: The estimated discretionary budgetary effects of implementing H.R. 3824 are summarized in the following table. The costs of this legislation fall within budget function 300 (natural resources and environment).
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By fiscal year, in millions of dollars--
2005 2006 2007 2008 2009 2010
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SPENDING SUBJECT TO APPROPRIATION
ESA Spending Under Current Law:
Budget Authority1,2 358 379 0 0 0 0
Estimated Outlays 340 350 200 100 0 0
Proposed Changes:
Estimated Authorization Level 0 118 614 630 649 668
Estimated Outlays 0 91 354 453 528 600
ESA Spending Under H.R. 3765:
Specified Authorization Level 1 358 497 614 630 649 668
Estimated Authorization Level 340 441 554 553 528 600
CHANGES IN DIRECT SPENDING
Estimated Budget Authority 0 0 0 0 1 5
Estimated Outlays 0 0 0 0 1 5
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Amounts in the table include only the costs of ESA activities carried out by the USFWS and APHIS. H.R. 3824 would not authorize appropriations for ESA programs carried out by the National Oceanic and Atmospheric Administration, which is responsible for protecting threatened or endangered marine species. Also, the activities of other DOI agencies such as
the Bureau of Land Management and the Bureau of Reclamation (both of which incur significant costs to protect endangered and threatened species on lands under their jurisdiction) and the costs of other federal agencies who must comply with the ESA are not included in this estimate.
Basis of estimate: For purposes of this estimate, CBO has assumed that H.R. 3824 will be enacted during fiscal year 2006 and that the entire amounts estimated to be necessary to carry out the bill will be appropriated for each of fiscal years 2006 through 2010. This estimate is based on information provided by the Office of Management and Budget, the Department of the Interior, nonprofit organizations, and various state agencies. Outlays for administrative activities have been estimated on the basis of historical spending patterns for ongoing ESA programs. Spending rates for new assistance programs under the bill reflect expected delays because of the time that would be required to promulgate new regulations and develop administrative procedures.
Spending subject to appropriation
The Congress appropriated $358 million for 2005 and $379 million for 2006 to carry out ESA activities. CBO estimates that, under H.R. 3824, discretionary funding could rise to more than $600 million a year.
Administrative Costs. Although authorizations for funding under the ESA expired in 1992, Congress has continued to provide funds each year for programs carried out under the act. For fiscal year 2005, the Congress provided $234 million for traditional ESA activities and programs carried out by the USFWS.
CBO estimates that the USFWS would need additional funding of $118 million in fiscal year 2006 and a total of $2.6 billion over the 2006-2010 period to carry out its responsibilities as the primary agency charged with implementing the ESA (as amended by H.R. 3824). In total, this estimated funding level is more than double the agency's ESA operating budget in recent years. The higher estimated authorization levels reflect the costs of developing and administering new financial assistance programs, modifying USFWS regulatory procedures to incorporate amendments made by the bill, and meeting new planning deadlines. We estimate that funding for APHIS, which helps to enforce the act, would continue at its existing level of roughly $7 million a year.
The estimated authorization levels for the USFWS include:
About $240 million a year to carry out traditional FWS regulatory programs to identify, evaluate, and protect threatened or endangered species, develop and implement habitat conservation plans and species recovery plans, and consult with other federal agencies that carry out, authorize, or fund projects that may affect protected species;
$6 million annually for the implementation of the Convention on International Trade in Endangered Species (CITES);
About $115 million a year to implement changes to existing ESA programs required by the bill, including costs to incorporate new definitions to be used in USFWS regulatory procedures, expedite the development of recovery plans to reflect new deadlines, and establish new financial assistance programs mandated by sections 9 and 13 of the bill;
$2 million in each of fiscal years 2006 and 2007 to create and maintain an online database of ESA information as required by section 14;
Between $5 million and $10 million annually to process requests made by property owners under sections 12 and 13 of the bill. Under section 12, persons whose land may be home to a protected species could request the Secretary of the Interior to provide a written determination that a proposed use of that property would comply with the ESA. The Secretary would have 180 days to make a determination unless an extension is negotiated; failure to do so would be deemed to be an approval of the proposed use. Section 13 would allow property owners to apply for aid to compensate them for the loss of property value if they receive a written determination from the Secretary that a proposed land use would not comply with the ESA; and
$1 million a year to compensate landowners for livestock killed by protected species that have been reintroduced to the wild as part of a recovery plan.
Discretionary Grants, Cooperative Agreements, and Other Assistance. H.R. 3824 would authorize the USFWS to provide nonfederal entities with several forms of financial assistance, subject to the availability of appropriated funds. The assistance programs authorized by the bill would provide annual payments to states, local governments, nonprofit organizations, and private landowners who assume conservation and planning responsibilities under the ESA. The bill also would expand the purposes for which state grants from the Cooperative Endangered Species Fund (CESF) may be used.
CBO estimates that the USFWS would need $240 million annually to fully fund and administer the grant programs and cooperative agreements envisioned by the bill, or about $140 million more than the amounts appropriated for similar programs for fiscal year 2006.
Direct spending
Section 13 of the bill would provide an administrative procedure for providing payment of aid to landowners whose use of their property has been restricted by ESA regulatory decisions. CBO expects that enacting this provision would result in new direct spending, but the level of such spending is uncertain. This provision would direct the Secretary of the Interior to make a one-time payment to any landowner who requests aid within 180 days of receiving a written determination under section 12 of the bill that a proposed use of the landowner's property would not comply with the ESA (or that a prior, favorable determination has been withdrawn). The amount of any payment would be equal to the fair market value of the forgone use of the affected portion of the property, as determined by an independent appraisal and taking into account whether or not the proposed use would have been allowed under state and local law. The Secretary would be required to pay the landowner within 180 days of receiving the request or within 180 days of resolving any valuation disputes or other conflicts. Such mandatory payments would increase direct spending costs.
CBO estimates that such costs would likely be small over the next five years--probably less than $10 million.
This provision would make it much easier (and cheaper) for private landowners to seek and obtain compensation from the federal government by allowing them to request such aid directly from the Secretary rather than filing a lawsuit against the United States (as they must under current law).
In addition to providing an alternative to litigation, the bill would change current law in two important ways that could affect how property owners seek, and how the government pays, compensation. First, the bill would delineate specific standards, definitions, and valuation procedures to be used in determining when and what the government is obligated to pay when its actions under the ESA prohibit the use of private property. Second, the procedure created by section 12 of the bill (to allow property owners to obtain written determinations permitting or rejecting a proposed use of their property) would provide these owners with a definitive agency action that would constitute the basis of a claim for compensation if they still choose to sue.
Compensation Under Current Law. Under existing law, persons who wish to seek compensation for property that they believe has been adversely affected by a government action (including administration of the ESA) usually must do so through litigation--generally in the United States Court of Claims.
The process is time-consuming and expensive. In order for a property owner to sue for compensation, he or she must first overcome the costly administrative hurdle of seeking and being denied an incidental take statement or obtaining some other regulatory determination from the government. Property owners who pursue such claims can wait years before their cases are heard. Decisions unfavorable to the government have been rare in the past because of the high loss thresholds and other valuation hurdles that the landowner must overcome before the courts will award compensation, and the government often appeals such awards. Because the costs of obtaining the necessary permit denial and associated legal costs are greater than most property owners can afford, relatively few compensation claims are brought against the United States (although there has been a steady increase in the past decade). Those cases that are brought typically involve relatively large claims ($100,000 to more than $100 million) and are usually brought by corporations or other large property owners. Such claims can require more than a decade to resolve. Smaller claims are rarely pursued because small landowners are unable to obtain the necessary permit denials or other agency decisions, cannot afford to sue the government, or would not expect to receive enough compensation to justify the substantial expense of attorneys and scientific experts.
Compensation Under H.R. 3824. The creation of an administrative forum would make it much easier for private property owners to seek reimbursement when they are prohibited from using their property as a result of ESA regulations. Although the number of administrative claims could be quite large at first, CBO expects that relatively few or no payments would be made over the next several years because of the time required to implement the necessary procedures and make other case-by-case determinations. For example, no request could be processed under section 13 until the landowner receives a written determination against his or her proposed use under section 12, and CBO expects that it would take the USFWS one or two years to establish the administrative mechanisms needed to implement section 12 and begin processing the first requests for written determinations. Only then would landowners who receive notice that their proposed use is prohibited be able to request aid under section 13. Such landowners would likely face similar delays at this stage of the process, especially in the early years of the program, while the agency determines the property interest affected by its earlier decision and the fair market value of that interest.
Once the aid program has been fully implemented, total payments to landowners would almost certainly be greater than the costs of compensating individuals who bring suit under existing law (particularly since there are so few such claims at present). CBO expects that
most aid payments eventually made by the government would be relatively small (often as little as a few thousand dollars) because the vast majority of aid requests would likely involve small parcels of land or some minor fraction (`affected portion') of larger tracts. However, the agency may face a large volume of requests, at least initially, because the availability of an administrative process would make it economically feasible for small landowners who often cannot afford to sue the government under existing legal avenues to seek compensation.
We expect that it would be difficult for landowners to receive aid for larger claims above $1 million under the section 13 process because most larger land-use projects would be ineligible to receive written determinations under section 12.
After 2010, CBO estimates that payments would average less than $20 million a year. Such payments could vary significantly from year to year.
CBO expects that civil litigation would increase as a result of H.R. 3824, at least in the short run, because many requests for aid would likely involve conflicting interpretations of the statute that could require the courts to resolve. Moreover, we expect that smaller landowners who choose to sue the government rather than apply for aid under section 13 would find it easier to do so because they would be able to use the written determination prohibiting their proposed use as a basis for their claims. CBO cannot predict the outcomes of any lawsuits that might be brought as a result. Even if the government would ultimately lose more lawsuits as a result of the legislation, additional compensation costs would probably be minimal in the 2006-2010 period because claims would take several years to resolve. We expect that the effect on the number of larger claims would be less significant for the same reasons that we expect larger requests for aid to be unsuccessful.
Intergovernmental and private-sector impact: H.R. 3824 contains no intergovernmental or private-sector mandates as defined in UMRA, and would impose no significant additional costs on State, local, or tribal governments. Some provisions in this bill would give state and local governments a greater role in carrying out the ESA. Any costs they might incur in response would be incurred voluntarily.
Estimate prepared by: Federal Costs: Deborah Reis. Impact on State, Local, and Tribal Governments: Marjorie Miller. Impact on the Private Sector: Selena Caldera.
Estimate approved by: Peter H. Fontaine, Deputy Assistant Director for Budget Analysis.
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