[Congressional Record Volume 143, Number 112 (Friday, August 1, 1997)]
[Extensions of Remarks]
[Pages E1595-E1596]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


          INTRODUCTION OF THE ENDANGERED SPECIES RECOVERY ACT

                                 ______
                                 

                           HON. GEORGE MILLER

                             of california

                    in the house of representatives

                        Thursday, July 31, 1997

  Mr. MILLER of California. Mr. Speaker, today I and 52 of my 
colleagues are introducing the Endangered Species Recovery Act of 1997, 
legislation which we believe will make this law work--both for species 
and for landowners.
  Why this bill and why now? The efforts of the last 3 years to either 
gut or reform the ESA, depending on your perspective, have proven three 
things: that the law in its current form is allowing many species to 
fall through the cracks; that something must be done to provide some 
relief to landowners; and that, in spite of its problems, the ESA still 
has tremendous support among the American people.
  Last year, we reported a bill out of the Resources Committee that was 
so bad that

[[Page E1596]]

Gingrich refused to bring it to the floor. This year, the same group 
who supported that legislation tried again with a rider to the flood 
supplemental that would have effectively waived all ESA requirements 
for any water project anytime, anywhere. And again, they failed. The 
Senate's been trying to come up with a deal for a year and a half--and 
yesterday they announced that they still hadn't been able to do so.
  What we've tried to do with this bill is get out of the black box and 
think in new ways, and I believe we've put some really interesting, 
workable new solutions on the table. We've provided serious incentives, 
other concessions for landowners while actually strengthening some of 
the basic protection provisions. Is this bill going to be enacted, word 
for word? Of course not. But it's a great place from which to begin 
seriously talking about ESA reauthorization in this Congress.
  Endangered species have been used as a whipping post for the left and 
the right, to no one's advantage. My hope is that we have learned our 
lessons, that we recognize that landowners and businesses have 
legitimate concerns that must be addressed, and that the ESA is a law 
that is invaluable to our country and its future.
  That said, what does this bill do to improve our species protection 
efforts? The single most important change this bill would make to 
existing law is to ensure that all our actions under the ESA--Federal 
actions or the actions of private landowners--do not undermine the 
recovery of a species. Recovery and delisting should be the standard we 
use for permitting incidental takes, approving habitat conservation 
plans, and allowing Federal actions to go forward.
  Everyone on both sides of the ESA debate complains that we don't do 
enough to get species off the list. They're right--we hold both species 
and landowners in limbo. The bill passed by the Resources Committee 
last year would have attempted to resolve that problem by changing the 
most basic tenet of the act, and allowing the Secretary to choose not 
to recover species, to simply allow them to retain their endangered or 
threatened status indefinitely. Who benefits from that approach? All 
that means is that landowners have to live with ESA regulations on many 
species forever. There's no planning certainty, all development comes 
to a halt--that`s insanity.

  Let me give you an example of how important it is to hold our actions 
up to a standard that means permitted actions can`t undermine recovery. 
When the Alabama beach mouse was listed as endangered in 1985, fewer 
than 900 individuals occupied less than 350 acres of habitat. Today, 
scientists estimate a population low of 45 animals. This species plays 
an important role in the beach dune ecosystem of the Gulf of Mexico by 
dispersing the seeds of the sea oat--its principal food source--which, 
in turn, forms the basis for the formation of dunes and protects them 
from erosion. The dunes protect inland housing from coastal flooding 
and hurricanes.
  The recovery plan for the beach mouse calls for maintenance and 
improvement of all remaining beach mouse habitat. Four habitat 
conservation plans [HCPs] have been issued since then, authorizing 
permanent destruction of about 10 percent of the remaining habitat. Two 
new permits for large condominium complexes in the fragile dune 
ecosystem are now being challenged by local citizens. These 
developments would destroy permanently another 44.5 acres of beach 
mouse habitat. Neither the construction nor the mitigation is 
consistent with the recovery strategy to improve all existing habitat--
yet these permits were issued by the same agency that approved the 
beach mouse recovery plan.
  This bill would address the problems of the Alabama beach mouse by 
making it clear that permits for incidental takes of listed species 
cannot undermine the recovery of that species, and thus delay efforts 
to delist the species. Any activity--clearcutting, damming, housing 
development--must be judged by whether it moves species closer to 
recovery. Current law requires that actions be judged by whether they 
move species closer to extinction, a measure that fails to move species 
off of the national list.
  At the same time, establishing a clear recovery standard, backed up 
by agency recovery plans with biological goals, provides certainty for 
landowners in terms of permit requirements and mitigation actions.
  What would we do for the landowners who feel so besieged by this law? 
The current law fails to give businesses and landowners the certainty 
they need in the economic development process, so that the first 
problem we tackled. We`ve streamlined the permitting process, clarified 
the requirements of the law, and provided tax incentives and liability 
limits to the private sector.
  Developers and other business interests, as well as counties and 
local governments, need certainty more than anything else so they can 
move ahead with their planning efforts. We`ve combined that need with a 
recommendation by scientists that regional, multiple land owner, 
ecosystem-wide conservation plans do the most to save species to allow 
a one stop shop for incidental take permits when landowners and 
regional governments come together to develop a regional habitat 
conservation plan. This provision is built after the San Diego NCCP 
model. If the county gets the permit from the Fish and Wildlife 
service, local landowners can go to the county for their own permits as 
long as they're in compliance with the county's plan. That eliminates 
the need for each landowner to make sure he's OK with the county plan, 
then go back to the Feds for an ESA permit.
  We would also streamline interagency consultations, some of which can 
hold landowners actions up for months, by allowing Federal agencies to 
consolidate their consultations. For a number of similar or related 
agency actions within a particular geographical range or ecosystem, the 
Federal agency may request one consolidated consultation. In the case 
of the levee repairs that caused so much concern in the California 
floods of this year, the Army Corps of Engineers could request that all 
levee repairs in the same area be consolidated under one consultation, 
decreasing delay and expense. This also may benefit endangered species 
by allowing the agency to consider cumulative impacts. In addition, by 
conducting these consolidated consultations well before and emergency 
strikes, the Corps of Engineers or a local water district can formulate 
an emergency plan of action.
  What about some financial assurances? This bill would guarantee that 
permit holders--whether a county or an individual, business or small 
landowner, will not incur unforseen mitigation costs if they file a 
performance bond to cover the cost of reasonably foreseeable mitigation 
measures necessary to protect species. This provision not only protects 
landowners by capping their liability but it also protects taxpayers 
from having to pay for negligence by other parties.
  As part of the specific requirements of an HCP, landowners, working 
with FWS, will determine the reasonably anticipated costs of the 
mitigation measures they are required to undertake as a condition of 
receiving an incidental take. Those reasonably anticipated costs will 
be used to determine the amount of the performance bond.
  The landowner's economic liability is effectively capped by this 
provision. Landowners will know the cost of the mitigation up front, 
and will be able to proceed with their project. More importantly, in 
return for the performance bond requirement, landowners receive an 
assurance that the financial burden of any additional mitigation 
required by unforseen circumstances will be borne by the Federal 
Government.
  For smaller landowners who may have difficulty obtaining a 
performance bond, we allow the use of certificates of deposit, letters 
of credit, or other financial securities to fulfill this provision. In 
addition, for large habitat conservation plans that may have formidable 
mitigation costs, we allow the use of phased bonds. Using these, a 
landowner can obtain a bond for the portion of a project currently 
underway. The legislation also authorizes the use of adjusted bonds, by 
which a landowner can request to have a portion of the bond released 
after that portion of the project is completed.
  To encourage the development of regional, multiple landowner plans, 
the bill authorizes a county or other local government authority to 
obtain the incidental take permit and the bond. Landowners under that 
regional plan would not then be required to get individual bonds. 
Landowners wishing to work together without a government authority can 
pool their bonds.
  Finally, there's tax relief. If landowners are willing to enter into 
endangered species conservation agreements that go beyond what's 
already required by law, they can qualify for a deferral on estate 
taxes, a Federal deduction equal to 25 percent of the deduction allowed 
for State and local property taxes, and a credit for the costs of 
complying with the agreement.
  In addition, land donated to a habitat conservation land--by which 
you would be giving up all use of the land--would qualify as a 
charitable deduction.
  In the coming months, I intend to pursue additional ways in which we 
can offer tax relief to businesses and landowners who want to conserve 
species on their lands. I believe that most landowners want to preserve 
species, and that with a little creative effort we can find a number of 
ways to provide economic relief without undermining our efforts to 
recover and delist species.




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