Endangered Species Act

2005 Legislative Action

House of Representatives On Sept. 29, 2005 the House passed H.R.

3824:

Threatened and Endangered Species Recovery Act of 2005

Recorded vote: 229-193

http://resourcescommittee.house.gov/

House of Representatives Statement of Administration Policy:

http://www.whitehouse.gov/omb/legislative/sap/109-1/index-number.html

Supportive: Focus on recovery Improved cooperation & consultation Focus on partnerships with landowners

Concerns: Recovery planning deadlines Recovery agreements (mandatory compensation

payments) Private landowner foregone uses (Mandatory

compensation payments)

Senate Fisheries, Wildlife and Water Subcommittee

activity in 2005, 3 Hearings Conducted:

Sept 21, 2005: ESA and Roles of State, Tribes and Local Governments

July 13, 2005: ESA and Incentives for Private Landowners May 19, 2005: Oversight on the ESA

Senators Chafee, Clinton, Inhofe, Jeffords, Crapo, and Lincoln commissioned a workgroup:

Keystone Center for Science and Public Policy workgroup on ESA

Threatened and Endangered Species Recovery Act of 2005 Definitions: Best Available Scientific Data

Requires issuing regulations that establish criteria to determine which data constitute the best available scientific data

The regs. would need to assure: Compliance w/ Information Quality Act; and Data consist of empirical data; or Data are found in sources subject to peer review by

qualified individuals recommended by the National Academy of Sciences

Applies to: Listing Determinations Consultations (Biological Assessments) Recovery Planning HCPs (Changed Circumstances)

Threatened and Endangered Species Recovery Act of 2005 Listing determinations: No other significant changes except for

the new requirement to prepare analysis of: Economic impact and benefit Impact and benefit on national security Other relevant impact and benefits

Threatened and Endangered Species Recovery Act of 2005 Repeals all Critical Habitat

determinations and requirements

Threatened and Endangered Species Recovery Act of 2005 Recovery Plans

Identify “areas of special value” – in the interim, Critical Habitat designations are considered to be areas of special value for recovery

Must be published within 2 years of the listing To the extent a recovery plan covers more

than one state, delisting/downlisting criteria must be identified on a state-by-state basis

Voluntary recovery agreements for landowners

Threatened and Endangered Species Recovery Act of 2005 Section 7 Consultation

The jeopardy analysis conducted under Section 7(a)(2) is limited to considering only the effect of any agency actions that are distinct from a baseline of all effects upon the species that have occurred or are occurring prior to the action

Threatened and Endangered Species Recovery Act of 2005 Exemptions

Terminates the Endangered Species Committee Process

Exempts officially declared disaster areas

Exempts operators of water storage reservoirs, water diversion structures, canals or other artificial water delivery facilities from take of aquatic species resulting from effects of recreational fishing programs managed by state agencies

Threatened and Endangered Species Recovery Act of 2005 Exemptions (cont.)

Exempts pesticides that comply with the Federal Insecticide, Fungicide, and Rodenticide Act until…

…further effects analyses are completed under FWS/NOAA-Fisheries counterpart regs. with EPA, or five years from enactment of this Act, whichever occurs first

Threatened and Endangered Species Recovery Act of 2005 Private Landowner Exemptions and

Compensation Property owners may request a determination from

the Secretary as to whether a proposed use of the owner’s property will comply with ESA

A written determination from DOI/FWS must be provided within 180 days, and failure to issue the determination within the required window deems the proposed use in compliance with ESA

For actions that are determined to not comply with ESA-- DOI must provide financial compensation

The amount of the compensation is based on the fair market value of the forgone use of the affected portion of the property

Threatened and Endangered Species Recovery Act of 2005 Habitat Conservation Plans (HCP)

Codifies “No Surprises” policy and other aspects of current regs. and practices

Provides that an incidental take permit may be revoked due to changed circumstances only if the continued activity would appreciably reduce the likelihood of survival and recovery of the species in the wild (jeopardy standard)

Threatened and Endangered Species Recovery Act of 2005 Other

Section 21: Consolidation of Programs: Transfers all ESA functions currently in Department of Commerce to the Secretary of the Interior

Section 24: Requires Secretary of Interior to survey all BLM and Forest Service lands to assess value of those lands for management for the recovery of listed species and for addition to the National Wildlife Refuge System