	Side-by-Side Comparison of the Endangered Species Act (H.R. 3824), Miller/Boehlert Amendment to H.R. 3824, and S. 2110

a. Conservation Banks Under S. 2110

Under S. 2110 , a conservation bank is defined as an area of land,water, or other habitat (not necessarily contiguous) that is managed in perpetuity orfor an "appropriate period" under an enforceable legal instrument and for the purposeof conserving and recovering habitat, or an endangered, threatened, or candidatespecies, or a species of special concern (p. 31). Given the importance and benefits of habitat continuity for speciessurvival, some might argue that banks consisting of fragmented portions would haveless value than banks with contiguous habitats. The bill does not identify who will make the determination of anappropriate period or what criteria will be used. Conservation banks may be established by any private landowner who appliesand demonstrates that the affected area is managed under an enforceable legalinstrument and contributes to the conservation of a listed species, a candidate species,or a species of special concern (pp. There may be certain minimalcontents that all such instruments or banking agreements should contain to ensurethat protection of species and habitat will be effective and consistent from site to site. However, no criteria for holders are stated. Conditions for amending and nullifying the agreement are given (pp. TheSecretary shall consider the use of banks for implementing recovery plans and mustadopt regulations on managing banks that balance the biological conditions of thetarget species and habitat with "economic free market principles" to ensure value tolandowners through a tradeable credit program (p. 36). The regulations are to relate to 11 subjects, including conservation andrecovery goals, activities that may be carried out in any conservation bank, measuresthat ensure the viability of conservation banks, "the demonstration of an adequatelegal control of property proposed to be included in the conservation bank" (p. 37),criteria for determining credits and an accounting system for them, and theapplicability of and compliance with Â§7 and Â§10 of ESA. The regulations are to include provisions "relating to" how the consultationrequirements of Â§7 of the ESA and the incidental take provisions apply in the contextof conservation banks. Biological data would determine how many credits a bank can sell (p. 38),and the Secretary is to establish a standard process by which credits could betransferred. It is not clear in what circumstances states,local governments, or tribes would be defendants. The amount of tax credit gained depends on the length of the agreement: 1) if it is forat least 99 years, the credit equals the reduction in the land's fair market value due tothe recovery action or agreement plus the property owner's actual costs; 2) if it is forat least 30 years but less than 99 years, the credit equals 75% of the above amounts;3) if it is for at least 10 years but less than 30 years, the credit equals 75% of theactual costs (pp. This appears to require that the taxpayer reduce all deductions and othercredits by the amount of the credit allowed, regardless of whether they are based onthe same expenses used for this credit.
The Endangered Species Act (ESA) protects species that are determined to be eitherendangered or threatened according to assessments of their risk of extinction. The ESA has not beenreauthorized since September 30, 1992, and efforts to do so have been controversial and complex. Some observers assert that the current ESA is a failure because few species have recovered, and thatit unduly and unevenly restricts the use of private lands. Others assert that since the act's passage,few species have become extinct, many have improved, and that restrictions to preserve species donot place a greater burden on landowners than many other federal, state, and local laws.
This report provides a side-by-side analysis of two bills and a proposed amendment thatwould amend the ESA. This analysis compares H.R. 3824 , the Threatened andEndangered Species Recovery Act of 2005, as passed by the House; proposed House Amendment588 to H.R. 3824 (Miller/Boehlert Amendment); and S. 2110 , theCollaboration for the Recovery of Endangered Species Act.
Proponents of each proposal indicate that it is designed to make the ESA more effective byredefining the relationship between private and public property uses and species protection,implementing new incentives for species conservation, and removing what some see as undue landuse restrictions. Thus, all three proposals contain provisions meant to encourage greater voluntaryconservation of species by states and private landowners, a concept that has been supported by manyobservers. Further, all three proposals would modify or eliminate certain procedural or otherelements of the current ESA that some have viewed as significant protections and prohibitions,including eliminating or changing the role of "critical habitat" (CH) (which would eliminate oneaspect of the current consultation process); making the listing of all threatened and endangeredspecies more difficult or less likely; expanding Â§10 permits allowing incidental take (which couldincur a greater need for agency oversight and enforcement); and expanding state rather than federalimplementation of ESA programs (which might make oversight more difficult). Proponents of thesechanges assert that tighter listing standards would enable a better focus on species with the most direneeds, and that other measures would achieve recovery of more species. Critics argue that proposedchanges create gaps in the ESA safety net of protections and prohibitions.
It is difficult to assess whether, on balance, the proposals would be likely to achieve greaterprotection and recovery of species, or to what extent the controversies over land use constraintswould diminish. However, replacing some of the protections of the current ESA with newincentives, rather than adding the new incentives to the current protections, arguably makes adequatefunding of the new programs more critical to determining the outcome of the ESA.
This report will be updated as events warrant.