Mr. Chairman, I have an amendment in the nature of a substitute which I offer to the pending amendment being offered by the gentleman from California, Mr. Cardoza. I ask that it be considered as read.

Mr. Chairman, I would first like to express my appreciation to you and to Mr. Cardoza for a willingness to seek to fashion a mutually acceptable compromise on this issue.

We came close, but no cigar.

Some of you may have heard that our discussions broke down over one word - - practicable. That is largely true.

H.R. 2933 and the Cardoza substitute direct the Secretary to designate critical habitat to the maximum extent practicable.

We could not agree to this standard.

What is practicable to me might not be practicable to the Secretary of the Interior on a bad hair day.

More importantly, it would likely be impracticable for the Secretary to designate critical habitat if she had the slim budget the Fish and Wildlife Service’s Endangered Species program has had for years. It is woefully inadequate.

The Endangered Species Act defines critical habitat as a specific area essential to the conservation of a species, such as food sources and spaces for birds to nest and fish to spawn. Conservation means whatever it takes to recover the species.

Once critical habitat is designated, Federal agencies are to ensure that activities they undertake, approve or fund do not result in the adverse modification of habitat. The Endangered Species Act requires the Secretary to designate critical habitat at the time a species is listed as endangered or threatened. Both Congressman Cardoza and I agree that it makes more sense for the Secretary to wait until more information becomes available to promote species recovery before determining critical habitat.

But our paths diverge from here.

Under my substitute, the Secretary would have three years from the time a species is listed to designate critical habitat and issue a final recovery plan.

In contrast, the Cardoza substitute would require critical habitat designation within one year after final approval of a recovery plan, or three years after a species is listed, whichever comes first. There is no deadline in the Cardoza bill for the issuance of final recovery plans.

The Rahall substitute would legislate a schedule to address the 451 listed species without critical habitat and the 1,021 listed species without recovery plans. All species would have recovery plans and critical habitat within five years, if the Secretary determines this is appropriate. The Cardoza substitute does not address the backlog.

The Cardoza substitute would significantly alter how the Secretary defines critical habitat. Instead of having to use the best scientific data available, the Cardoza substitute would require that the Secretary base her critical habitat determination on field data exclusively.

We value models when predicting the arrival of hurricanes and eruption of volcanoes.

We support the Federal Reserve’s use of models to predict the response of the economy to monetary policies.

We understand why the Environmental Protection Agency develops models to assess risks to human health from air pollution.

At Yucca Mountain, the models indicated that the canisters will leak, and gave the Nevada delegation reason to oppose the nuclear waste repository.

Yet the Cardoza substitute would strip scientists of a tool they use to predict the risk of extinction. In contrast, the Rahall substitute would retain the Secretary’s obligation in the ESA to use the best scientific data available.

There is no scientific justification for giving greater weight to field data over modeling results.

Moreover, it is unrealistic to think that the Fish and Wildlife Service will have the budget and staff to gather field data for every listed species. In my State, we cannot even get the Fish and Wildlife Service to fill the empty seats in the Elkins field office so that developers can get timely approvals for their habitat conservation plans.

The Cardoza substitute would weaken the current standard in the ESA which directs the Secretary to designate areas essential for the recovery of species, including areas occupied and unoccupied by the species today. My substitute would eliminate the confusion caused by references in the statute to occupied and unoccupied by defining critical habitat as those areas essential for the conservation of the species.

For occupied areas, the Cardoza substitute would restrict designation to those areas needed to avoid jeopardizing the continued existence of the species. For unoccupied areas, the Cardoza substitute would limit designation to those areas essential for the survival of the species In other words, the Secretary could only designate occupied areas to keep the species from going extinct but could do nothing to promote species recovery.

At its core the Rahall substitute is designed to give the Secretary the tools needed to promote species recovery. In this regard, my substitute would allow the Secretary authority to exclude an area from critical habitat, unless failure to designate would preclude conservation of the species. This is a much higher standard than the requirement in the Cardoza substitute that critical habitat is to avoid jeopardy or be essential to the survival of the species.

Biologists have told the Committee that whenever there is a 90 percent loss of habitat in an area, 50 percent of the species will die. Without habitat, we know that species cannot recover, let alone survive.

As Thomas Jefferson wrote, "If one link in nature’s chain might be lost, another and another might be lost, till this whole system of things should vanish by piecemeal."

It is incumbent on us that we keep the system from raveling apart. Let us acknowledge the wisdom in Ecclesiastes: "Man’s fate is like that of the animals; the same fate awaits them both. As one dies, so does the other. All have the same breath."

I urge my colleagues to support my amendment.