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Kinder, Gentler Species Act
No issue is a more sensitive barometer of environmental politics than the Endangered Species Act (ESA). As the 104th Congress draws to its rocky close, it now looks as if ESA reauthorization will be delayed once again. But the battle lines are being drawn now, with Republicans drafting what is being called a more centrist ESA that nonetheless could have drastic consequences for the Bay Delta Accord.
At the same time, a tough cadre of grassroots and Washington, D.C. environmentalists are recovering from last year's onslaughts and rallying around a new and stronger version of the act. By the end of May, the politics of endangered species had moved considerably from the hot seat they occupied at the beginning of the session when Alaska Congressman Don Young pledged to make sweeping changes in the law. Most people expected a tougher fight after the momentum gained when Young's committee held a series of controversial briefings around the country.
Ignoring criticisms that the briefings were stacked with pro-development forces, Young and California Congressman Richard Pembro introduced a bill that would have made the goal of species recovery optional and established takings compensation.
After the initial brouhaha, the Young-Pembro bill went nowhere. House Speaker Newt Gingrich reportedly played a crucial role in halting the action. If Gingrich had not intervened, it's not clear whether the environmental community would have had the clout to stop Young's efforts.
The lead group on the issue was the Endangered Species Coalition, an alliance of the so-called "Big 10" green groups and others. The coalition fell prey to the classic conflict between uncompromising grassroots activists and inside-the-Beltway pros who believe they have a hammerlock on the art of the possible. After months of infighting, the coalition went into hibernation in early winter.
In early 1996, the Endangered Species Coalition regained momentum. But a splinter group of high-level environmentalists, including the Environmental Defense Fund's Michael Bean and the Nature Conservancy's John Sawhill, entered into secret negotiation with the Republican majority aimed, reportedly, at developing a kinder, gentler ESA - one with more carrots and fewer sticks. One veteran environmental lobbyist thinks the Bean group didn't necessarily expect a bill to emerge out of the negotiations, but they wanted to be regarded as open to dealing with Republicans in case Democrats failed to regain control of Congress in November.
Once the negotiations came to light in April, coalition members felt free to adopt the strategy they had believed in all along. They released a draft of a stronger ESA called the Endangered Natural Heritage Act (ENHA). Written over the winter by representatives of national environmental organizations and grassroots activists, this new act has been endorsed by 160 organizations nationwide.
"We sat down with activists who have been implementing the law for years and years and said where are the loopholes?" says Kieran Suckling of the Southwest Center for Biological Diversity.
Suellen Lowry of the Sierra Club Legal Defense Fund says the ENHA clarifies the current law by establishing that recovery is the goal of endangered species preservation. In past years, developers have argued that projects which would not impact current population levels of an endangered species are acceptable. Conservation biologists, of course, don't agree - stressing the importance for establishing viable populations of species. ENHA would also make implementation plans mandatory, include species listed before 1978 in critical habitat protection, and eliminate the 60-day notice for lawsuits on ESA implementation.
Neither ENHA nor the compromise Republican bill are expected to hit the floor this session. Moderate Republicans were reportedly not able to convince Young and Pembro to support the compromise bill negotiated by EDF's Bean and others. But even if it isn't radical enough to satisfy Pombro and Young, the compromise being circulated from the office of Congressman Jim Saxton is already worrying California resource managers. There's a good possibility that an obscure, densely worded provision could exempt existing water projects from ESA consultation.
The importance of the Endangered Species Act in managing the Bay and Delta cannot be overestimated, says U.S. Fish & Wildlife's Mike Thabault. Not only was a lawsuit over the act responsible for the Bay-Delta Accord - a temporary truce in the water wars - but as the various aspects of the accord are implemented, they must go through the ESA process. Essentially, the ESA is a stick that is used intermittently to help move ecosystem management efforts forward, according to Thabault. If water projects were exempted from the species act, there would be little incentive for all parties to stay on board.
There's no question that whatever happens with the act, the Bay Area will be among the most affected places in the country. The future of Delta smelt and winter run Chinook salmon may be decided in a tangle of Republican re-election efforts and rifts between grassroots and Washington, D.C. environmentalists - many of whom may not even know that a multi-million dollar effort at ecosystem management is in their hands.
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