Landowners Split on Species Act Burden

Some Adjust, but Others Back Bill To Alter System

By Juliet Eilperin

Washington Post Staff Writer
Tuesday, October 18, 2005; Page A03

BASTROP, Tex. -- Late last month the House passed legislation rewriting the Endangered Species Act, arguing that the 32-year-old law was ineffective and prevented American landowners from making use of their property. But the experience of Texas rancher Bob Long tells a somewhat different story: Many owners have learned to live with the law, even as other farmers and developers say it robs them of a livelihood.

A decade ago, federal authorities told Long and other landowners living roughly 30 miles southeast of Austin that the law required them to help protect the endangered Houston toad, a small amphibian whose mating call resembles a tinkling bell.

The Houston toad is among the threatened species for which the Interior Department has provided conservation grants to private landowners. (Texas Parks And Wildlife Department)

Long faced a choice: Resist or cooperate. He chose to cooperate.

Long -- a prominent local Republican and preacher who distrusts government and refers to President Bush in casual conversation as "my president" -- has spent the past four years improving toad habitat on his ranch, putting fences around ponds where they breed and altering his cattle's grazing patterns. Under a "safe harbor" agreement he signed last year, Long is legally responsible to protect only the number of toads that were first found on his property, even if the population rebounds. Several neighbors have been watching Long's case, and at least one, rancher Jim Small, is following his example and also taking steps to protect the toads.

"I'm doing fine now, at this moment," Long said last month as he surveyed cows roaming his 890-acre property. "You don't need to do a whole lot to help the toad."

Washington politicians such as Rep. Richard W. Pombo (R-Calif.), who chairs the House Resources Committee, see it differently. Pombo recently convinced his colleagues to approve, by a margin of 229 to 193 with 36 Democrats voting aye, a bill making it easier for landowners like Long to develop their land when endangered species are present, and requiring compensation if the government forbade them to do so.

"If we are truly going to put the focus on recovery, if we are truly going to bring these species back from the brink and do the responsible thing, private property owners have to be part of the solution," Pombo said on the floor just before the vote. "We protect private property owners. That is what leads to recovery."

The debate on how best to help landowners is central to the future of the Endangered Species Act, which remains one of the nation's most high-profile -- and most controversial -- environmental laws. Its supporters say the law needs just minor fixes; critics such as Pombo believe it needs a major overhaul.

"There are some real success stories that are not being told," said Rep. Tom Udall (D-N.M.), a House Resources Committee member who called Pombo's bill "a radical departure" from current law.

The House bill, which enjoys Bush administration support but faces a tough fight in the Senate, would no longer require that federal officials identify critical habitat at the time they declare a species threatened or endangered. Instead it would establish "recovery teams," made up of landowners, environmentalists and government officials, to identify "special value" lands after a species makes the list.

Pombo says this new system will be just as protective as the old one and will take into account factors like breeding and migration patterns. But opponents such as John Kostyak, senior counsel for the National Wildlife Federation, note that the team's plans would be "non-regulatory" and therefore not as binding as existing habitat designations.

Kostyak and others are also worried about other provisions. One would give the Fish and Wildlife Service just 180 days to decide whether to block a development on sensitive habitat, and another would instruct federal officials to examine one project's impact at a time, rather than evaluating the combined impact of other developments in the same area.

"No single project sends a species to extinction," Kostyak said. "The only way to determine if a species is in trouble is to look at that project in the context of all other projects."

Developers such as David Head, who has fought a costly, decade-long legal battle to build high-rise condominiums on Alabama's Gulf Coast, feel besieged by the current law. In 1996, Head started trying to build a 753-condo unit and commercial complex called the Beach Club on the Fort Morgan Peninsula, home to the endangered Alabama beach mouse. He received a federal permit a year later, but the Sierra Club challenged it in court, saying the Fish and Wildlife Service had done an inadequate biological assessment.

Head settled the case after spending $800,000 in legal fees and paying $1 million to set aside habitat for the mouse. But when he tried in 2002 to build on an adjoining tract of land, the Sierra Club again challenged his federal permit, saying the government had yet to do a sufficient environmental impact assessment. The court ruled once more in the environmentalists' favor, and the second project has stalled while Fish and Wildlife completes its work.

"We're sitting dead in the water," Head said, adding that he set aside 58 acres of his property, valued at $40 million, for conservation in order to satisfy his opponents and has spent $8.5 million on legal and permitting costs. Environmentalists "want to use the environmental laws as a way to control zoning, and the law wasn't set up for that. They simply don't want multi-family condominiums."

But the Endangered Species Act has not ruined Head's business entirely: He completed the Beach Club resort, and it now advertises on the Web about its European spa treatments.

"He can develop his property. He just has to do it in compliance with the law," said Sierra Club lawyer Eric Huber, who added that protected habitat helped to shelter area residents during recent hurricanes. "When you protect the mouse and mouse's habitat, you are also protecting the dunes. That protects the people from the storms."

But Duane Desiderio, staff vice president for legal affairs at the National Association of Home Builders, said the law has imposed an unfair burden on developers and supports Pombo's bill. Plans to conserve habitat for animals such as the red-legged frog in California, he said, take years to complete and tie up projects.

"It's not quite as simple as 'I have a endangered species on my land, so I can't do anything with my project, it can't go forward,' " Desiderio said. "It has cost lots of time, lots of effort and lots of trouble."

Phil Clapp, president of the advocacy group National Environmental Trust, noted that since 1983 the federal government has denied only six of the 768 "incidental take permit" petitions submitted by private property owners in order to develop land harboring imperiled species.

"It's a giveaway to big real estate developers," Clapp said.

It remains unclear whether Pombo's bill will make it through the Senate, where GOP Sen. Lincoln D. Chafee (R.I.) is drafting his own bill in consultation with Sen. Hillary Rodham Clinton (D-N.Y.). Chaffee said he wants to compensate private property owners as well but questions whether the government has the money Pombo's plan would require. The Congressional Budget Office has estimated the House bill would cost roughly $20 million a year; the administration issued a statement saying it "could result in a significant budgetary impact."

In the meantime, landowners across the country are taking advantage of state, federal and private money to help pay for improvements to habitat for vulnerable plants and animals. Since Bush took office, the government has spent $1.3 billion on cooperative conservation agreements with private owners, many of which benefit endangered species, and just last month Interior Secretary Gale A. Norton announced a new $70 million grant for private conservation and land acquisition efforts aimed at endangered species.

In Long's case, the advocacy group Environmental Defense and state authorities spent more than $74,000 to conduct studies and improve his property on the toads' behalf, while Long has paid just $3,000.

"Achieving success with this habitat restoration work on Bob's ranch will do more than help the Houston toad," said David Wolfe, a senior scientist with Environmental Defense who has worked with Long. "News travels quickly in rural Texas, and if things go well with the Long ranch, we'll have more and more opportunities to prove the effectiveness of incentive-based conservation."