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Changes proposed to endangered act

New rules would reduce mandatory reviews



Photo by The Associated Press



Photo by The Associated Press

WASHINGTON -- Parts of the Endangered Species Act may soon be extinct.

The Bush administration wants federal agencies to decide for themselves whether highways, dams, mines and other construction projects might harm endangered animals and plants. New regulations, which don't require the approval of Congress, would reduce the mandatory, independent reviews government scientists have been performing for 35 years, according to a draft first obtained by The Associated Press.

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  • Interior Secretary Dirk Kempthorne said late Monday the changes were needed to ensure that the Endangered Species Act would not be used as a "back door" to regulate the gases blamed for global warming. In May, the polar bear became the first species declared as threatened because of climate change. Warming temperatures are expected to melt the sea ice the bear depends on for survival.

    The draft rules would bar federal agencies from assessing the emissions from projects that contribute to global warming and its effect on species and habitats.

    "We need to focus our efforts where they will do the most good," Kempthorne said in a news conference organized quickly after AP reported details of the proposal. "It is important to use our time and resources to protect the most vulnerable species. It is not possible to draw a link between greenhouse gas emissions and distant observations of impacts on species."

    If approved, the changes would represent the biggest overhaul of endangered species regulations since 1986. They would accomplish through rules what conservative Republicans have been unable to achieve in Congress: ending some environmental reviews that developers and other federal agencies blame for delays and cost increases on many projects.

    The chairman of the House Natural Resources Committee, which oversees the Interior Department, said he was "deeply troubled" by the changes.

    "This proposed rule ... gives federal agencies an unacceptable degree of discretion to decide whether or not to comply with the Endangered Species Act," said Rep. Nick Rahall, D-W.Va. "Eleventh-hour rulemakings rarely if ever lead to good government."

    The new regulations follow a pattern by the Bush administration not to seek input from its scientists. The regulations were drafted by attorneys at both the Interior and Commerce Departments. Scientists with both agencies were first briefed on the proposal last week during a conference call, according to an official who asked not to be identified.

    Last month, in similar fashion, the Environmental Protection Agency surprised its scientific experts when it decided it did not want to regulate greenhouse gases under the Clean Air Act.

    The rule changes unveiled Monday would apply to any project a federal agency would fund, build or authorize that the agency itself determines is unlikely to harm endangered wildlife and their habitat. Government wildlife experts now participate in tens of thousands of such reviews each year.

    The revisions also would limit which effects can be considered harmful and set a 60-day deadline for wildlife experts to evaluate a project when they are asked to become involved. If no decision is made within 60 days, the project can move ahead.

    "If adopted, these changes would seriously weaken the safety net of habitat protections that we have relied upon to protect and recover endangered fish, wildlife and plants for the past 35 years," said John Kostyack, executive director of the National Wildlife Federation's Wildlife Conservation and Global Warming initiative.

    Under current law, federal agencies must consult with experts at the Fish and Wildlife Service or the National Marine Fisheries Service to determine whether a project is likely to jeopardize any endangered species or to damage habitat, even if no harm seems likely. This initial review usually results in accommodations that better protect the 1,353 animals and plants in the U.S. listed as threatened or endangered and determines whether a more formal analysis is warranted.

    The Interior Department said such consultations are no longer necessary because federal agencies have developed expertise to review their own construction and development projects, according to the 30-page draft obtained by the AP.

    "We believe federal action agencies will err on the side of caution in making these determinations," the proposal said.

    The director of the Fish and Wildlife Service, Dale Hall, said the changes would help focus expertise on "where we know we don't have a negative effect on the species but where the agency is vulnerable if we don't complete a consultation."

    Responding to questions about the process, Hall said, "We will not do anything that leaves the public out of this process."

    A couple of environmentalists from the Las Vegas Valley said they fear that the proposed rule changes, if put in place, will erode protections for many birds, fishes, frogs, plants, invertebrates and the Mojave Desert tortoise, a threatened reptile.

    Despite Hall's comment that major projects will still be subject to the same consultation and review process that has been followed for three decades, John Hiatt, conservation chairman for the Red Rock Audubon Society, questioned what that means

    "My perception is that it is all about the details, and the big detail here, which is unanswered, is what's the definition of a major project and who will determine that?" Hiatt asked Monday.

    Concerning the desert tortoise, Hiatt said he foresees critical habitat could be affected by road widening projects or decisions not to close certain roads that are made in the absence of consultation with U.S. Fish and Wildlife Service biologists.

    Consultation for a project to build a water pipeline to Southern Nevada would still be required. But for smaller development projects, the rule changes would remove "the Fish and Wildlife Service from the table a good share of the time," he said.

    Hall said environmental review for construction of a culvert along the Lower Colorado River system, for example, would be left to the affected agency without consultation with Fish and Wildlife Service biologists on species issues if no protected species would be killed or displaced during the project.

    Henderson zoologist James Deacon, founder of the Environmental Studies Program at the University of Nevada, Las Vegas, described the proposal as "a terrible move" that's "part of the general attempt by the Bush administration to reverse the Endangered Species Act."

    If put in place, Deacon foresees the rule changes could be short-lived and reversed under a new administration.

    "That's the only hope I could offer for what would be an environmental disaster," he said.

    The new rules were expected to be formally proposed immediately, officials said. They would be subject to a 30-day public comment period before being finalized by the Interior Department. That would give the administration enough time to impose the rules before November's presidential election. A new administration could freeze any pending regulations or reverse them, a process that could take months. Congress could also overturn the rules through legislation, but that could take even longer.

    The proposal was drafted largely by attorneys in the general counsel's offices of the Commerce Department's National Oceanic and Atmospheric Administration and the Interior Department, according to an official with the National Marine Fisheries Service, who spoke on condition of anonymity because the plan hadn't yet been circulated publicly. The two agencies' experts were not consulted until last week, the official said.

    Between 1998 and 2002, the Fish and Wildlife Service conducted 300,000 consultations. The National Marine Fisheries Service, which evaluates projects affecting marine species, conducts about 1,300 reviews each year.

    The reviews have helped safeguard protected species such as bald eagles, Florida panthers and whooping cranes. A federal government handbook from 1998 described the consultations as "some of the most valuable and powerful tools to conserve listed species."

    In recent years, however, some federal agencies and private developers have complained that the process results in delays and increased construction costs.

    "We have always had concerns with respect to the need for streamlining and making it a more efficient process," said Joe Nelson, a lawyer for the National Endangered Species Act Reform Coalition, a trade group for home builders and the paper and farming industry.

    Sen. Barbara Boxer, D-Calif., chairwoman of the Environment and Public Works Committee, called the proposed changes illegal.

    "This proposed regulation is another in a continuing stream of proposals to repeal our landmark environmental laws through the back door," she said. "If this proposed regulation had been in place, it would have undermined our ability to protect the bald eagle, the grizzly bear and the gray whale."

    The Bush administration and Congress have attempted with mixed success to change the law.

    In 2003, the administration imposed similar rules that would have allowed agencies to approve new pesticides and projects to reduce wildfire risks without asking the opinion of government scientists about whether threatened or endangered species and habitats might be affected. The pesticide rule was later overturned in court. The Interior Department, along with the Forest Service, is currently being sued over the rule governing wildfire prevention.

    In 2005, the House passed a bill that would have made similar changes to the Endangered Species Act, but the bill died in the Senate.

    The sponsor of that bill, then-House Natural Resources chairman Richard Pombo, R-Calif., told the AP Monday that allowing agencies to judge for themselves the effects of a project will not harm species or habitat.

    Review-Journal writer Keith Rogers contributed to this report.



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    Jon H. wrote on August 13, 2008 08:04 AM: Randy,

    Yes I do have a copy of Chaos on my library book shelf, right next to Lovelock's "The ages of Gaia" and Darwin's "The Origin of the Species". So yes, I am aware of the butterfly effect.

    I do not deny that Global warming or cooling may be occurring, but the final thought I want to make is, that the strength of any species is the ability to adapt to change.


    Randy wrote on August 12, 2008 07:15 PM: what torotises - what if the little green men in flying saucers turn out to actually exist? They might land someday and decide that we are the species that is okay to eliminate.

    Far fetched - very probably, but something to think about.


    jesus christ wrote on August 12, 2008 07:15 PM: "Wilderness in the desert is a waste land to wildlife and humans"

    wow, you are really, really stupid.


    Randy wrote on August 12, 2008 05:31 PM: douglas - I am one who believes in environmental conservatism. Having said that, I agree with both of the points in your post to 'ed'.

    Thinning forests is absolutely the right thing to do. Most people will not believe it, but thinning a forest by fire is the best way to do it.

    As to your compaints about US 95, right again. I hope that everyone will remember that the "Sierra Club" is responsible for the garbage delays. They are irresponsible radicals. I don't recall any of their campaigns that I have been in complete agreement.

    I like your way of thinking.


    what tortoises wrote on August 12, 2008 05:19 PM: 100 million dollars later the BLM Doesn't know how large are small the tortoise population is in southern nevada. Then the cattle ranchers were bought out to save the tortoise, has it changed the population of the tortoise once again the feds don't know. This is another fill good smokey the bear reptile that is used to lock up thousands of acres of public lands with seudo science. The environmental wack jobs that think the wilderness areas in Clark County are working let me see you hike into the wilderness today, you can't haul enough water to enjoy it. Wilderness in the desert is a waste land to wildlife and humans, unless you concerned about the three legged insect population. Lets re-establish the habitat for tortoises where you live and you can find a nice tree to rap yourself around instead of Clark County.


    Randy wrote on August 12, 2008 05:11 PM: Jon,
    I do indeed mean both categories of deniers, although those that deny man is the cause of the current warming trend. Their philosophy seems to be that fire is going to do any harm - lets throw some gasoline on it anyway.

    A formal degree in the proper field of science is not required. I would settle for someone who has gained at least enough knowledge that they can make a valid evaluation. Do they know how much the sea levels will rise if the ice packs do melt? Do they know the effect that industrial growth has had on the atmosphere since the late 19th centuries, how about the effects of the volcanic eruptions since 1800 - Tambora, Krakatau, Pinatuba, Mt. St. Helens.

    Also, with every year that passes, the number of scientists that believe in man as the cause of the current global warming trend is growing.

    Some of the sciences may not be as 100%, crystal clear as you would like. But then no field of science is. I firmly believe in the butterfly effect. I would rather that the butter fly flutter in the safer direction.

    Lastly, the property that all of this involves is land that is in "public trust'.Your right to make unilateral decisions about land that belongs to 250 million people is limited. The 'common good' is a very nebulous area.

    You throw all of the gasoline on your house fire - just stay away from mine.


    douglas wrote on August 12, 2008 02:20 PM: as to poster "ed"'s comment on the tortoise and trees...

    what i've heard is that those discovered tortoises, instead of being relocated, many are destroyed because the surrounding areas cannot support higher populations. as to trees in this village, the vast majority of land is federally owned and managed. most trees are second growth both in "the forest" and on the some 600 acres of private "in-holdigs". that since this village was logged years back. today, it might be a good idea to thin out much of the forest. for starters, the trees most affected by the pine bark beetle infestation should be removed.

    as to environmentalist activities in the valley, what i see are intentionally obstructive, frivolous law suits delaying needed projects. the poster child is the delay costing taxpayers, for the u.s. 95 widening. if the highway wasn't widened, i thought that the next best solution was to divert the heavy trucks to the residential streets. the traffic wasn't going to disappear because of the intentionally obstructive antics of the eco-loonies.

    and again, those who demand that any habitat for endangered weeds be "set aside", must immediately dismantle their own homes to return that habitat. if not, they are phonies.


    LVDawg wrote on August 12, 2008 12:57 PM: People tend to deal in extremes. Here in Clark County we have a great example of how developers and environmentalists can work together, each achieving their goals. It's called the Multiple Species Habitat Conservation Plan. While it's not perfect, it is a good example of how the ESA should work. Developers don'pay exorbitant fees to develop, they pass the extra expense on to willing buyers by adding the tortoise fees onto the cost of the developed property. The funds are collected by the County, which is then utilized to implement conservation measures for a myriad of local species. In the process, we learn about why the species became endangered or threatened, and how to counteract the threats to its existence. Knowledge is power, and helps us avoid similar situations in the future. The problem is when extremists on either side try to use inflammatory or controversial issues to sway the public's opinion. We are smart enough to know that George Bush has interest in oil exploration in Alaska and beyond, and that ESA has the potential to hamper that. On the other hand, we are smart enough to know that Global Climate Change is too nebulous a term to hang endangered status of a major predator on. Let's just call it what it is, which is loss of habitat. Both sides are over reacting to a buzz word.


    Jon H. wrote on August 12, 2008 12:22 PM: Ed wrote:

    “There needs to be a limit to everything we build, a balance between humans and nature”

    Good observation and comment on your part, Ed. I too have been a student of vernacular, sustainable housing and of the New Urbanism movement for at least thirty years. As you have an interest in the field read the collective Architectural works of authors like Christopher Alexander and Hassen Fathy. The real trick here is how do we obtain that balance you seek? Being a classic liberal I recognize a mans Natural Human rights, liberties and freedoms. I also recognize that without property rights, man cannot be free, but is in truth reduced to nothing but a slave of a Collective State.

    Randy,

    I dispute your claim that in order to comment on environmental issues that one needs formal training in those soft sciences. These so called scientific fields are far from rigorous, and IMHO often include more indoctrination than learning of the physical sciences. A second point, when you speak of Global warming deniers, are you speaking of the concept of Global Warming, or of the concept that Humans are a major cause of Global Warming? It would be best not to confuse that issue, unless that was in fact your intent.


    ed wrote on August 12, 2008 11:54 AM: Actually douglas, most environmentalists are very pro city but anti sprawl. It's good to develop the city to a certain extent and make it a great place to live, but we need to protect the sensitive areas around it. Without the wilderness areas around Las Vegas this city would suck. If it weren't for environmentalists there would be subdivisions in Red Rock. There wouldn't be any protected areas for species like the desert tortoise. Mt. Charleston would have no trees, etc, etc. There needs to be a limit to everything we build, a balance between humans and nature.


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