Congress is attempting to change key portions of the Endangered Species Act through two legislative riders:

1) A proposed rider reportedly being developed by Sen. Conrad Burns (R-MT) would create a huge loophole in the Endangered Species Act by threatening imperiled wildlife with pesticide poisoning.

• This rider would exempt all pesticide decisions from the entire Endangered Species Act, not just the consultation requirements. This means that a pesticide known to kill endangered species could be approved without any regard for the Endangered Species Act’s protections.
• The rider would allow pesticide use to go forward without any of the normal checks and balances provided by the Endangered Species Act to protect wildlife. It would take away the ability under the Act to limit pesticide use even when necessary to prevent extinction of treasured animals like pelicans, falcons, and sea turtles.
• Supporters of the rider claim that the pesticides loophole would only last until new compliance regulations are fully implemented. But there are no deadlines to implement those regulations, and it could be decades (or never) before they are put in place for specific pesticides.

2) At the urging of California developers, certain lawmakers have proposed another appropriations rider that would weaken the Endangered Species Act in two key respects: it would weaken our safety net for wildlife so that recovery of endangered and threatened species would be much more difficult, and it would codify an outdated and discredited regulation precluding action to rescue species heading toward extinction.

The Appropriations Rider Would Weaken Our Nation’s Safety Net for Wildlife

• Section 7 is our nation’s most important “safety net” for wildlife at risk of extinction. By calling for consultation concerning the impacts of federal activities on endangered species and barring activities that “jeopardize” species or “adversely modify” critical habitat, it has enabled our country to rescue species such as the whooping crane, Florida panther, and Pacific salmon from almost certain extinction.
• This rider seeks to allow mining, logging and other activities in endangered species habitat on federal lands to go forward without any of the normal checks and balances, so long as the developers could somehow claim that these activities are consistent with a Habitat Conservation Plan (HCP). Our nation’s long-term investment in the conservation of bald eagles, grizzly bears and pronghorn antelopes would be squandered, all for the benefit of industries who do not want to bother going through the normal Endangered Species Act reviews.
• There is no justification for giving developers a free pass from Section 7, especially where this exemption has never been subjected to any debate. The key principle in Section 7 – that federal agencies must avoid undermining species recovery – must be upheld if we are to achieve the Endangered Species Act’s ultimate goal of recovery and delisting.

This Rider Would Codify an Outdated and Discredited Regulation

• The proposed rider would also codify the so-called No Surprises regulation – which essentially prevents wildlife agencies from taking steps to rescue species on lands covered by incidental take permits – without codifying any of the recent reforms that have been undertaken to address problems with this regulation.

Appropriation Rider proponents falsely claim that the rider would do nothing more than codify existing law.

• Under existing regulations, federal agencies must revoke an incidental take permit if its management strategies are proven failures and the permitted activities are jeopardizing the species with extinction. Under the outdated No Surprises regulation to be codified by the rider, federal agencies would have no such duty to rescue the species. Thus, if logging authorized by an incidental take permit is causing a salmon and steelhead fishery to collapse, this discredited No Surprises regulation would prevent the government from taking action to save the species.
• It is now the policy of the federal government to require HCPs to have monitoring and adaptive management provisions so that problems with incidental take permits and corresponding HCPs can be identified and necessary adjustments can be made. Such provisions are missing from the rider.
• As a result of a federal court ruling, the Bush administration is currently rewriting the No Surprises regulation. Rather than awaiting the outcome of the rulemaking and getting the benefit of the extensive public input that has been provided, the rider would ignore the public and blindly codify the discredited rule. Nothing has happened that would preclude the Bush administration from issuing a new rule giving developers certainty in HCPs. No court has ever said that providing certainty to developers is illegal.

These Issues Are Far Too Important and Complex to be Decided Through Stealth Riders

The Endangered Species Act has been one of the nation’s bedrock environmental laws since 1973 when Congress gave its nearly unanimous, bipartisan support to providing a safety net to protect rare species and the special places they call home.

Riders are wrong. They take the public out of public policy. They shield controversial, damaging proposals from debate and examination. In this case, they would weaken the fundamental underpinnings of the Endangered Species Act: recovery, habitat protection and good science. Congress should reject this stealth effort to weaken the Endangered Species Act.