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Bush Officials Cool to Amending Legislation by Staff Capital Press - March 29, 2002

WASHINGTON -- At a House Resources Committee hearing last week on bills to amend the Endangered Species Act, Bush officials said federal fish and wildlife agencies already employ outside peer review and information and consider data submitted by landowners.

"Although we support the general concepts advanced by these bills, we also have concerns with the structural and budgetary impacts," Assistant Secretary of Interior Craig Manson said.

The administration is working on various fronts to improve scientific standards and use of outside experts, such as state fish and game agencies. "The department has existing authority to implement improvements that will greatly enhance the science we use," Manson said.

One bill is sponsored by Rep. Greg Walden, R-Ore. When Walden asked what would preclude a future administration from taking a different policy, Manson replied, "Well, frankly, that's why there's elections."

"That's my point," Walden said. "With the additional time needed to comply with these new requirements and the increased workload, it is likely that the Department of Interior would not be able to meet the statutory deadlines in many cases, opening the door to additional litigation," he said.

Despite requiring additional work and time by agencies, neither bill changes deadlines in the ESA, such as one year to determine a petition to list.

Manson said the department was also concerned the considerable new review process would hamper USFSW' ability to provide required consultations for landowners and other agencies in a timely manner. For example, Walden's bill would force the public comment period for a proposed listing to a minimum of 120 days, making it difficult to meet the one-year deadline for a final rulemaking.

Rebecca Lent, deputy assistant administrator of commerce for fisheries, said NMFS holds similar views of the two bills. The other measure is sponsored by Rep. Richard Pombo, R-Calif.

"We are already working with the U.S. Fish and Wildlife Service to identify areas where we can improve federal implementation of the ESA administratively," she said. "Our policies and practices already reflect some of the language in Rep. Walden's bill." Peer review is required for listings and recovery plans, but the bill would add additional process, time and cost, she said.

Important Point

University of Washington associate professor James J. Anderson said the issue of how to bring external peer review into the Endangered Species Act was important. "It's not really a part of the process," said Anderson, who has studied the Columbia/Snake river hydropower system's influence on salmon for 20 years.

"Because critical ESA actions and decisions are not peer reviewed, agency scientists are inadvertently susceptible to acting as if their decisions are protected by the law," he said.

Besides the NAS study of the Klamath Basin crisis, Anderson said he believed other cases stemmed from that problem. He cited the September 2001 ruling by a U.S. District Court to delist Oregon coastal coho. NMFS issued a related agreement this month to rescind critical habitat designations for 19 West Coast salmon.

Although not required to provide peer review in developing recovery plans for species, agencies are beginning to do so, Anderson said. In the late 1990s for Columbia/Snake salmon, NMFS set up a science review panel, which in turn oversees nine technical recovery teams.

Manson argued the bills would take away agencies' flexibility to apply appropriate scientific and peer review depending on the magnitude or specific circumstances of a case. Also, the provision regarding jeopardy opinions in Pombo's bill could be counterproductive, he said. It "would invite persons not associated with a particular consultation process" to launch a review of the information it developed, and could benefit environmental groups while delaying decisions for landowners, developers and other applicants for take or habitat modification permits that the bills aim to help, Manson said.

"In particular, it would allow individuals and organizations who wanted stronger or more restrictive, reasonable and prudent alternatives attached to the opinion -- not just an unhappy applicant -- to trigger the review process," he said.

Members objected to an apparent overreliance on mathematical models, as opposed to field data. But administration officials said the basis for evaluations is usually a combination of various types of scientific data and that commercial, empirical or field-tested data may not necessarily be the best available, as required by the ESA.

In a 1994 Federal Register notice, the two agencies responsible for endangered species published policies and guidance for information standards and peer review. For example, NMFS can extend its rulemaking deadline for six months and appoint a special independent peer review panel to resolve any unacceptable level of scientific certainty. Also, the public can review reports and provide comments on listings, critical habitat designations and recovery plans.

But administration officials acknowledged the guidance may not have been consistently followed and said they would work to inform scientists about it.