For all of you wonderful legal eagles and activists, Spirit of the Sage Council is RINGING THE ALARM BELL

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You are all doing such great work and I do understand the difficulty of stopping what you're doing in order to address another issue. However, I must.

A bill was introduced in the House (H.R. 1422) and Senate (S.700) a couple of months ago, under the misnomer of "Endangered Species Recovery Act of 2007."  The bills are slowly gaining co-sponsors from both sides, including Larry Craig.

There are some relatively good things in the bill regarding restoration of habitat on private lands in exchange for tax credits. Sage Council doesn't have any real problem with tax credits. However, the BIG PROBLEM is Section 8 of the bill (see below)

"`(8) REQUEST FOR AUTHORIZATION OF INCIDENTAL TAKINGS- The Secretary shall request the appropriate Secretary to consider whether to authorize under the Endangered Species Act of 1973 takings by an eligible taxpayer of a qualified species to which an agreement described in subsection (c) relates  if the takings are incidental to--

`(A) the restoration, enhancement, or management of the habitat pursuant to the habitat management plan under the agreement, or

`(B) the use of the property to which the agreement pertains at any time after the expiration of the easement or the specified period described in subsection (c)(4)(A), but only if such use will leave the qualified species at least as well off on the property as it was before the agreement was made."

As you can read for yourself, this bill would turn recovery actions into only maintence. A private or federal landowner (bill includes Military) could at some point – after receiving tax credits for entering into an agreement – reduce the number of species in their planning area back down to the baseline number that they began with.

I hope you will agree that this is not true recovery and that this bill most be killed ASAP.

I asked Eric Glitzenstein to give me his interpretation of the bill. The following is his commentary on the Section 8 "Incidental Taking".

"In my view, section 8 is the only really problematic part of the bill, in part because it is not even clear what it means.   It says that the Secretary of the Treasury "shall request the appropriate Secretary to consider whether to authorize under the [ESA] takings by an eligible taxpayer" under two specified circumstances.  One basically involves activities "incidental" to carrying out the "habitat management plan" for which the tax credit is provided and seems unobjectionable, particularly since such activities could almost surely qualify for an enhancement permit under section 10(a)(1) of the ESA as presently written.  The other circumstance – set forth in proposed section 8(B) applies to takings "incidental to the use of the property to which the agreement pertains at any time after the expiration of the easement or the specified period [the agreement is in effect] . . . but only if such use will leave the qualified species at least as well off on the property as it was before the agreement was made."

This provision is, at the least, confusing.  It appears to place a burden on the Secretary of the Treasury to ask the Secretary of the Interior (or Commerce) to "consider whether to authorize" an incidental taking in these circumstances, but imposes no obligation on the Secretary of the Interior (or Commerce) to actually do anything in response.  Arguably, the FWS's only responsibility when getting such a "request" would be to process it in accordance with the agency's existing "safe harbor" regulations. 

On the other hand, while I don't think its quite accurate to say that this "codifies" Safe Harbors – again, since it does not even say what the FWS must do with a "request" from the Secretary of the Treasury – it certainly could be read as lending, for the first time, a legislative imprimatur to the Safe Harbors concept, including the most controversial element of that concept, under which a landowner can take species until the habitat returns to a "baseline" condition.  I see no reason why this provision should be in this legislation, since it has no discernible relationship to the tax credit for recovery concept and, moreover, as a process and legislative matter I believe there should be Congressional hearings and objective evaluations of the safe harbor agreements already in effect before Congress takes any step that could be viewed as ratifying the FWS's current approach to such agreements.  Moreover, as a policy matter, it is not clear to me why someone should be permitted to get a substantial tax benefit for helping to recover species if the species can ultimately be left no better off than before (even assuming that that is indeed the case; in the absence of careful monitoring and oversight, it will be difficult to insure that species are not in fact left in worse condition).   

In sum, I do not see why section 8(B) should be in this bill and there seem to be good policy and legal reasons for its removal."

So, it's not little ol' me, that sees a real problem with this bill.

Unfortunately, Environmental Defense, National Wildlife Federation and Defenders of Wildlife have all given their public support for the bill!  In addition, these groups have been able to get the Endangered Species Coalition (ESC) to support it and ask the public to do so!  Yikes!!!

I'm asking that each of you do something to help us stop this bill from receiving any additional co-sponsors. Also, if you are a member or associated with any of the D.C. groups that are supporting, please contact their President and Legislative staff to voice your concern and displeasure with Sect.8 of the bill.

This has to become an individual and grassroots uprising. Your participation is needed.

If you use www.thomas.gov  reference H.R. 1422, as the S.700 is not complete.

Thank you!

Leeona Klippstein, Executive Director

Spirit of the Sage Council

(626) 676-4116   (910) 947-5091