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Proposed Reform to Endangered Species Act Gets Cool Response by Rocky Barker Idaho Statesman, August 17, 2008

It would give federal officials more leeway when dealing with wildlife agencies and is similar to a plan
Kempthorne pushed as a senator. Now that he heads Interior under Bush, fewer seem willing to compromise.

Interior Secretary Dirk Kempthorne returned to Washington, D.C., with a history of bringing environmentalists and business interests together in searching for a way to reform the federal Endangered Species Act.

But when he announced that he and the Bush administration want to change the rules to give agencies more flexibility to bypass scientific oversight in ESA decisions, no environmentalist stepped forward to defend him.

The rules proposed last week aren't all that different from what Kempthorne tried to do as a senator. What has changed is where they are perceived to be coming from - and that could make a huge difference.

More than a decade ago, then-Sen. Kempthorne worked to forge a compromise reform bill that gained some momentum - but never passed - in 1996 and 1997.

He wanted to streamline the relationships between the federal agencies that operate dams, approve power plants and harvest timber and the agencies that ensure federal operations don't jeopardize the existence of fish and wildlife.

The idea attracted support from both sides of the aisle in the Senate and even the Clinton administration. But now that Kempthorne is the face of the Bush administration on environmental issues, his own past and reputation may not matter.

Michael J. Bean was one of the environmentalists who worked with Kempthorne in the 1990s. Today, he has joined a united chorus from an environmental community that universally characterized the new proposed rules as a threat to hundreds of endangered species.

"This disastrous proposal makes about as much sense as eliminating homeland security at airports," said Bean, an attorney with the Environmental Defense Fund. "Sure, it would make air travel more convenient, but it would put passengers at greater risk, just as this proposal would put wildlife at greater risk."

KEMPTHORNE STARTED FROM A TOUGH SPOT

Early in his Interior tenure, Kempthorne sought out some of his former Democratic colleagues, looking to see whether together they could resume the effort to reform the ESA.

But he had an uphill battle.

By the time Kempthorne arrived back in Washington in 2006, the Bush administration already had lost its credibility on the Endangered Species Act, said John Freemuth, a Boise State University professor and fellow at the Andrus Center for Public Policy.

As Kempthorne was seeking - unsuccessfully - to bridge the gap between Congress and the White House on species issues, the administration's actions were questioned on several fronts.

Interior's own inspector general has criticized how Bush's appointees used their power to skew the science used to make decisions, including whether to list a species for more protection.

And the U.S. Fish and Wildlife Service has been ordered by judges to reconsider several endangered species decisions, specifically because scientific documents were rewritten by former Deputy Assistant Secretary for Fish, Wildlife and Parks Julie MacDonald.

So in May, when Kempthorne made the historic decision to list the polar bear as a threatened species, few were pleased.

The decision angered Alaska's congressional delegation and other Republicans. And because the decision was forced by a lawsuit, Kempthorne got little credit from the environmental community.

Still, the decision heralded back to his Senate efforts to compromise.

"He was on the horns of a dilemma, and he finessed it," Freemuth said then.

But even though they pinned the bear's struggles on climate change, neither Kempthorne nor Bush wanted the decision to be used to regulate greenhouse gases or to halt every coal-fired power plant proposed, and that required a change in the rules.

CHANGING ONE OF THE NATION'S TOUGHEST LAWS

Kempthorne and Bush are targeting Section 7, an unusually strong section that has become perhaps the most important part of the 1973 law.

But whether they seek to "streamline" it or "weaken" it depends on your point of view.

In most instances, federal agencies are required to follow laws "where practicable." But Section 7 requires agencies to take "such action necessary to ensure ... the actions authorized, funded or carried out by them do not jeopardize the continued existence of endangered species."

With that one line, Congress elevated protecting endangered species - and preventing extinctions - to one of the government's highest priorities.

Now, federal agencies have to consult with Fish and Wildlife or the National Marine Fisheries Service to determine when federal decisions "will not adversely effect," "may adversely effect" or "will adversely effect" a species or its habitat.

The process gives the oversight agencies power to determine when species are jeopardized and to suggest "reasonable and prudent" alternatives.

The proposed rules would give federal officials more leeway to avoid even consulting with the fish and wildlife agencies and impose a 60-day deadline for them to respond when a request for consultation is made.

"The existing regulations create unnecessary conflicts and delays," Kempthorne said in a press release last week. "The proposed regulations will continue to protect species while focusing the consultation process on those federal actions where potential impacts can be linked to the action and the risks are reasonably certain to occur. The result should be a process that is less time-consuming and a more effective use of our resources."

The current drawn-out process delayed for three years rules included in the Nez Perce Water rights deal that were aimed at helping salmon and steelhead, said Jim Riley, president of the Intermountain Forest Association.

"That's a waste of time that stops positive things from happening on the ground," he said.

"Dirk Kempthorne as governor, as senator and as interior secretary has always stood for incentive-based, moderate approaches to protecting species," Riley said. "This proposal is consistent with that."

And though he believes the proposed changes threaten hundreds of species, Bean acknowledged that their impact is narrower than many environmentalists are saying.

Even now, fish and wildlife agencies can issue permits that allow federal officials, without penalty, to make decisions that could kill some endangered species.

But the new rules could block Fish and Wildlife or the National Marine Fisheries Service from having a say or even knowing when an agency decision is made - if the agency itself determines the action won't harm species or habitat, Bean said.

In fact, he says, the new rules would have prevented Fish and Wildlife from overturning a recent Bureau of Indian Affairs decision that a coal-fired power plant on a Navajo reservation in New Mexico wasn't endangering any species.

Idaho Conservation League Executive Director Rick Johnson worked with Kempthorne in the mid-1990s and was pleasantly surprised at how much common ground they found then. Johnson doesn't support the changes Kempthorne proposes now.

He thinks Kempthorne's inherent role as just one voice in the Bush administration has kept him from using his traditional roadmap for seeking resolution of tough issues.

"He had a record of throwing out the gauntlet and then following up with a more nuanced, common sense proposal," Johnson said. "In this case he's just throwing down the gauntlet."