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Saving Law From Extinction

WASHINGTON -- After years of effort, landowners, developers and other business interests might finally see changes in the Endangered Species Act, a landmark environmental law that has itself become endangered owing to growing dissatisfaction among supporters and critics.

The 1973 law, which grants federal protection to species threatened with extinction, hasn't been significantly updated since 1988. While it is widely seen as in need of reworking, though, there is little consensus over how to revise a central provision that restricts use and development of land considered essential to preserving a listed animal or plant species.

In September, that began to change. The House approved revisions that would eliminate the so-called critical habitat program, which restricts encroachment in areas containing physical or biological features essential to the conservation of an endangered species. That change would relieve builders and loggers, among others, of the lengthy development permitting process and the costs of complying with critical habitats and make the government pay for economic losses owners suffer when use of their property is restricted.

But the vote was close -- 229-193 -- and there was considerable support for a less-sweeping alternative. Now a showdown is brewing in the Senate, which will begin debating the law's future when Congress reconvenes next month.

Congress added critical habitat restrictions to the law in 1978 to better protect species. Landowners say that forces them to pay for the program by denying them the full use of their property.

Rep. Richard Pombo (R., Calif.) has used his post as chairman of the House Resources Committee to remove this onus. Legislation he drafted and pushed through the House would, among other changes, eliminate the critical habitat designation and adopt a new approach that involves landowners in planning ways to protect a listed species on their property and compensates them for any resulting economic loss.

Mr. Pombo said he is willing to consider changes as the bill proceeds through the Senate. "Sure, none of this is written in stone," he said. But the seven-term congressman and cattle rancher -- who has made changing the ESA one of his top legislative priorities -- added he is confident the Senate will come back with a bill that also calls for a sweeping overhaul. "They've got to come to the same conclusion as the House -- that the current system is broken and needs to be fixed."

The critical habitat provision affects a variety of industries, including developers, paper companies and agriculture. In the Pacific Northwest, for example, critical habitats have resulted in forest lands being protected, restricting lumber company harvests and driving up lumber prices.

Business groups have pushed for changes in the law for more than 15 years. One, the National Endangered Species Act Reform Coalition, has grown to about 150 member organizations ranging from county governments to ranchers to utilities. They have pressed their case with lobbying and congressional testimony to advocate overhaul of the ESA.

One of the ESA's most-vocal critics is the National Association of Home Builders, which says the law restricts development and drives up home prices. Jason Lynn, the group's legislative director, also contends that it isn't even effective in its primary mission.

Only 10 of the 1,304 species listed since the law's inception have been "recovered," or saved to the point the species can be removed from the list, Mr. Lynn said. "The critical habitats cause tremendous delays and don't provide additional protection for endangered species."

Environmentalists and other supporters of the law say the House bill turns the ESA on its head. Under current law, builders and others with plans for an area listed as a critical habitat can't proceed until the government determines the project doesn't threaten the species in question. Mr. Pombo's proposal would let development proceed if, after a limited consultation period, the government couldn't prove the project poses a threat.

"The whole consultation section is what makes the ESA effective," said Bob Irvin of the Defenders of Wildlife. The House bill "would undermine the essential element of protecting species, which is protecting these habitats."

Mr. Irvin also denies the law fails to protect endangered species, noting that only nine listed species have become extinct. Species with protected critical habitats have been shown to recover at twice the rate as those without, he added.

Both sides, however, agree something must be done. The critical habitat dispute has spawned hundreds of lawsuits filed by environmentalists charging that the U.S. Fish and Wildlife Service -- the agency that administers the law -- is slow to designate habitats, and by business interests arguing that the designations are government "takings" for which they should be compensated.

Renne Lohoefener, who heads the endangered species program, says the cost of defending the government in all the lawsuits eats up much of the agency's time and budget, hindering new listings. "If our money wasn't tied up in litigation, we would be able to work on more species," he said.

As the issue heads to the Senate, direction for updating the law passes to one of Congress's most-ardent environmentalists. Sen. Lincoln Chafee (R., R.I.) chairs the subcommittee on Fisheries, Wildlife and Water, and is skeptical of the House's far-reaching changes. A Chafee spokesman said the senator hopes to reinstate the critical habitat program, but with other senators he has asked a Colorado-based nonprofit group that specializes in collaborative problem solving to work with representatives of different business and environmental interests to come up with an acceptable compromise.

While environmentalists have an ally in Mr. Chafee, Sens. Mike Crapo (R., Idaho) and Blanche Lincoln (D., Ark.) last week introduced an ESA bill that could attract considerable business support. The bill would prioritize species for recovery and provide incentives, including tax credits, for landowners who aid in species recovery.

Cost, however, will be an issue if a compromise ever makes it to President Bush's desk. Running for re-election last year, Mr. Bush called for rewriting the ESA, and officials say he supports many provisions in the House bill. Money to run the program this fiscal year will total $379 million, and the Congressional Budget Office estimates that could balloon to more than $600 million a year to implement landowner-compensation measures and other provisions in the bill. Mr. Crapo's bill, which provides tax credits instead of compensation, may be more appealing to the White House.

Write to Eric Bontrager at eric.bontrager@wsj.com