[Congressional Record Volume 144, Number 53 (Monday, May 4, 1998)]
[Senate]
[Pages S4214-S4215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




    COSPONSORSHIP OF S. 1180, ENDANGERED SPECIES REAUTHORIZATION ACT

 Mr. CRAIG. Mr. President, I would like to take a few minutes 
today to talk about S. 1180, the Endangered Species Act reauthorization 
bill, and why I have decided to cosponsor it at this time.
  As our colleagues know, this bill was passed by the Environment and 
Public Works Committee last fall, and it is currently on the calendar, 
ready for consideration by the full Senate. I have been slow to 
cosponsor S. 1180 because of some reservations I had--and still have--
about the bill. I will talk in more detail about those reservations 
later.
  However, I am absolutely convinced that the current Endangered 
Species

[[Page S4215]]

Act is not only a dismal failure at saving species, but is actually 
working against that goal. Furthermore, everyday we tolerate this 
defective law, its unfair and unnecessary burdens increase on citizens 
and the economy. Yet at the same time, the American people continue to 
believe that conserving fish and wildlife species for the enjoyment of 
future generations is the right thing to do and I agree. They want to 
make changes to the law, but don't want to see the Endangered Species 
Act thrown out.
  That's why for the last three years, my colleague and friend from 
Idaho, Senator Kempthorne, has been working mightly to improve this 
complex law. He has held hearings, built coalitions, drafted and re-
drafted language to correct the problems while still advancing the 
goals of the Endangered Species Act. I congratulate him, as well as our 
other Senate colleagues who have worked with him to produce this bill.
  S. 1180 would make some positive reforms to the current system. It 
would re-focus the process on actually saving species. It would create 
opportunities and benefits for people who are affected by the 
government's actions in these areas.
  For example, the bill emphasizes sound science--instead of politics--
to guide actions taken to conserve and recover species. It requires 
independent peer review for listing and delisting decisions, and for 
the establishment of a biological recovery goal in a recovery plan. 
Specific time limits would have to be observed, and States and local 
citizens would have a larger role in the process.
  I believe these provisions and others would make significant 
improvements in our current process, to the benefit of both our 
wildlife and our citizenry. While additional corrections could be made, 
those who drafted this bill believe that a more comprehensive overhaul 
of ESA is not going to pass this Congress. I tend to agree with that 
assessment and am willing to pursue the strategy of trying to pass 
these reforms now as a foundation for further reforms in the future. 
That is the message I would like to send with my cosponsorship of S. 
1180.

  Having said all that, Mr. President, I cannot endorse each and every 
provision of this legislation. I will be supporting amendments that 
will change or add to the bill in a number of areas.
  For instance, while I support S. 1180's stated goal of providing 
incentives to promote voluntary habitat conservation by private 
landowners, I am very concerned about what the bill as a whole will 
fail to do in the area of protecting private property rights.
  This is no small matter. The right to own and use property goes to 
the very heart of our American democracy. It was so important to our 
founding fathers that they enshrined the protection of private property 
in the Constitution's Bill of Rights.
  It is equally important today. Yet our federal government has 
increasingly ignored these rights. President Clinton rejected the 
Constitution's guarantee outright when he pledged to veto any 
``compensation entitlement legislation'' intended to strengthen 
Americans' private property rights. Representatives of this 
Administration have even suggested that the idea of private property is 
an outmoded notion.
  Nowhere is the Administration's hostility to private property rights 
more evident than in the area of endangered species regulation. Let's 
take a look at Secretary Babbitt's ``no surprises'' policy, for 
example. The basic idea is that if landowners surrender control over 
the use of part of their property for ESA purposes, then the federal 
government will let them use the rest of it without interference. To 
put it another way, Secretary Babbitt proposes that you pay the 
government for the right to use your own land. By comparison, the 
Constitution of the United States promises that if the federal 
government wants your land used a certain way, the federal government 
has to pay you for it.
  Mr. President, even more outrageous than Secretary Babbitt's program 
is the fact that many landowners think it's actually a pretty good 
deal. How oppressive and tyrannical has ESA regulation become, when 
citizens are willing--even eager--to give up their property and their 
constitutionally-protected right to compensation, just to get the 
government to leave them alone?
  I applaud S. 1180's goal of reducing regulatory burdens and improving 
the certainty and finality of government action in protecting 
endangered species. It is bad policy to require the American people to 
sacrifice their constitutionally-protected rights for any federal 
program--even this one. I would like to see S. 1180 strengthen and 
protect the Fifth Amendment right to compensation. I will vote for 
amendments and or legislation that strengthens our citizen's private 
property rights.
  Private property rights are not the only critical issue that concerns 
me in this legislation. I also had hoped that S. 1180 would directly 
address the issue of water rights, and specifically deny that any of 
its provisions create an express or implied federal water right.
  Mr. President, the paramount natural resource issue for the American 
West is the sovereignty of the states over the water that flows and 
exists within their borders. It is easy to say that all we need to do 
is remain silent on this issue and all will be well. In fact, however, 
preserving state water sovereignty is not so easy. The reality of how 
federal water rights are created, or not created, requires that we 
speak to the question in legislation.

  The appropriation doctrine is the water law of western states and has 
as its central premise that the first person to claim a water right has 
priority on its use over those water claimants who assert claims at 
later dates. In the arid West, this principle lies at the very heart of 
our economy. It is the ability to allocate this precious resource 
(water) for uses that allows us to exist.
  It is for this reason we westerners become particularly agitated when 
the federal government tries to disrupt this principle or to ``take'' 
our water. Does this legislation create a federal reserved water right? 
There are those who would say ``no,'' and there are those who would 
press to assert such a right.
  It is for this reason that this legislation should clearly state the 
Congress' intent. For the record, this Senator does not intend for the 
endangered species reauthorization legislation to create a federal 
reserved water right. This is why I believe S. 1180 must state clearly 
that no implied or express federal water right is created in this 
legislation. I will support and vote for such an amendment.
  With these areas of concern in mind, I am also inclined to support a 
shorter term of reauthorization than S. 1180 provides. As I mentioned 
previously, it is my goal to build additional improvements on the 
foundation laid by this legislation. Accelerating the opportunity for 
Congress to re-open the issue would only advance that goal.
  In closing, Mr. President, let me repeat my endorsement for the goals 
that Senator Kempthorne and the other supporters of this bill set out 
to ahieve in reauthorizing the Endangered Species Act. I think the bill 
will make improvements that are critical to ongoing ESA efforts in my 
state and elsewhere in the nation, and amendments in the areas I have 
discussed today will enhance those improvements.

                          ____________________