Congressional Panel Approves Endangered Species Act Reform Legislation

Profession:Holland & Knight LLP

By Michael Galano and Lawrence R. Liebesman (Washington, D.C.)

Originally published 4th Quarter 2004

On July 21, 2004, the House Resources Committee approved legislation that would amend the Endangered Species Act (ESA). The Committee reported the measure to the full House by a vote of 28-14. The bill, H.R. 2933, the "Critical Habitat Reform Act of 2003," is sponsored by Rep. Dennis Cardoza (D-CA). The bill would revise the process by which the Fish and Wildlife Service (FWS) designates land as "critical habitat" to restrict development in an attempt to help an endangered species recover. Critical habitat is a specific geographic area, whether occupied by a listed species or not, that is essential for its conservation and has been formally designated by rule. Critics believe the current system of land designation, which is often challenged in court, is too burdensome and unpredictable for landowners.

Specifically, H.R. 2933 would require critical habitat decisions to be based on better science, and tie such designations to approval of species recovery plans since recovery is the ultimate goal of the Act. It would give the FWS up to three years after a species is listed as endangered, or up to one year after a recovery plan is approved - whichever is sooner - to designate critical habitat and would encourage the agency to use data collected from field studies instead of scientific models. The bill would prevent an area from being designated if it already was subject to a habitat conservation plan, or a state or federal land conservation program, that provided "substantially equivalent" protection. Additionally, the bill would require a cost-benefit analysis and a review of the economic impact that designation as a critical habitat would have on a piece of land. Presently, habitat that is "essential to the...

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