By Robert Uram

On September 22, 2005, the House Resources Committee passed by a 26-12 margin H.R. 3824, the Threatened Endangered Species Recovery Act of 2005 (“TESRA”). TESRA represents the most significant effort to modify the Endangered Species Act (“ESA”) in over a decade. TESRA is currently scheduled for debate and possible amendment before the full House on September 28 or 29, 2005.

According to the sponsor of the bill, Richard Pombo (R Tracy), the ESA has failed to achieve its purpose of recovering endangered species to healthy and sustainable populations, and the unintended consequences of the law have caused conflict with landowners and local communities. The purpose of TESRA is to update and modernize ESA to strengthen its results for species recovery by turning conflict into cooperation. According to the sponsors, TESRA will update and improve ESA by:

  • Providing for the use of the best available scientific data in all decisions.
  • Replacing the critical habitat program with a more integrated recovery planning process that (1) includes identification of specific areas that are special value to the conservation of the species, (2) gives priority in recovery efforts to those areas, and (3) provides for active implementation of recovery plans through implementation agreements between the Secretary and other federal agencies and increasing the role of the states in ESA.
  • Improving the Section 7 consultation process by authorizing the development of alternative conservation procedures that are consistent with existing consultation provisions.
  • Providing more certainty to the jeopardy standard by providing that jeopardy exists where “the action was reasonably expected to significantly impede, directly or indirectly, the conservation in the long-term of the species in the wild.”
  • Ensuring that permit and license applicants fully participate in the consultation process.
  • Clarifying that the terms and conditions to avoid incidental take are to be roughly proportional to the impact of the identified incidental take.
  • Providing new incentives for voluntary conservation efforts, including species recovery agreements, species conservation contract agreements, authorization for technical assistance and establishment of conservation grants.
  • Codifying the no-surprises/assurance policy for persons developing habitat conservation plans and ensuring that habitat conservation plans issued under Section 10 of ESA include objective measurable goals to be achieved for the species, monitoring procedures and adaptive management provisions to respond reasonably foreseeable changed circumstances.

Each of these provisions addresses issues that have been subject to considerable review by the courts regarding authority under ESA to accomplish those objectives.

TESRA would also eliminate the provisions in the ESA requiring the Department of the Interior to designate critical habitat. The designation of critical habitat has been extremely controversial and has resulted in extensive litigation both to force the Department to designate critical habitat and to challenge those designations once made. A third round of litigation is pending. In both Republican and Democratic administrations, the Department’s position on critical habitat has consistently been that it is a time consuming and expensive process which does not benefit endangered species.

The ultimate prospects for passage of amendments to ESA are uncertain. Although TESRA passed the House Resources Committee by a substantial margin, a number of moderate Democrats have raised concerns about the timing of the bill. The legislation is also generally viewed as favoring the interests of the regulated community, and various environmental groups, such as the Defenders of Wildlife, the Sierra Club, and the Center for Biological Diversity, have expressed their strong opposition to TESRA as passed by the Committee.

The Senate is also considering possible reforms to ESA but a bill has not yet been introduced in the Senate. It is unclear whether and when the Senate will take up the House bill.

For more information please contact Robert Uram. Robert J. Uram is a partner in the Real Estate, Land Use and Environmental Practice Group in the firm’s San Francisco office.