October 27, 2004

Congressional Panel Approves Endangered Species Act Reform Legislation

Holland & Knight Newsletter
Michael Galano

On July 21, 2004, the House Resources Committee approved legislation that would amend the Endangered Species Act (ESA). The Committee reported the measure to the full House by a vote of 28-14. The bill, H.R. 2933, the “Critical Habitat Reform Act of 2003,” is sponsored by Rep. Dennis Cardoza (D-CA). The bill would revise the process by which the Fish and Wildlife Service (FWS) designates land as “critical habitat” to restrict development in an attempt to help an endangered species recover. Critical habitat is a specific geographic area, whether occupied by a listed species or not, that is essential for its conservation and has been formally designated by rule. Critics believe the current system of land designation, which is often challenged in court, is too burdensome and unpredictable for landowners.

Specifically, H.R. 2933 would require critical habitat decisions to be based on better science, and tie such designations to approval of species recovery plans since recovery is the ultimate goal of the Act. It would give the FWS up to three years after a species is listed as endangered, or up to one year after a recovery plan is approved – whichever is sooner – to designate critical habitat and would encourage the agency to use data collected from field studies instead of scientific models. The bill would prevent an area from being designated if it already was subject to a habitat conservation plan, or a state or federal land conservation program, that provided “substantially equivalent” protection. Additionally, the bill would require a cost-benefit analysis and a review of the economic impact that designation as a critical habitat would have on a piece of land. Presently, habitat that is “essential to the conservation of the species” can be set aside and current law requires the FWS to designate critical habitat one year after a species is listed as endangered.

On April 28, 2004, the House Resources Committee held a hearing on H.R. 2933 to receive testimony from legal experts, environmental interest groups, and agency officials. Holland & Knight attorney Larry Liebesman[1] testified on one of the panels and assisted in drafting several amendments which were subsequently adopted by the Committee. Reforming the ESA has long been a top priority for House Resources Committee Chairman Richard Pombo (R-CA). While it is unlikely that H.R. 2933 will be enacted this year, the recent hearing and markup on H.R. 2933 could signal a larger attempt to revise the ESA during the 109th Congress which begins in January 2005.


1. Over the past 15 years, Mr. Liebesman has been heavily involved in issues under the ESA, including Critical Habitat Designation. He recently co-authored the “Endangered Species Deskbook” with Rafe Petersen from Holland & Knight, published by the Environmental Law Institute.

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