Chapter II — Marine Mammal Protection Act and Related Legislation 



As discussed in Chapter IV, bills to amend the 

 Act's tuna-dolphin provisions were introduced in both 

 Houses of Congress. The only other bill introduced 

 in 1995 to amend the Marine Mammal Protection Act 

 was H.R. 74. That bill, introduced by Representative 

 Porter Goss, would authorize states to reject permits 

 allowing the take of marine mammals from protected 

 state waters. 



Endangered Species Act 



The Endangered Species Act was last reauthorized 

 in 1988 for a five-year period. Despite efforts over 

 the past four years, Congress has yet to pass reauthor- 

 izing legislation. At the heart of the reauthorization 

 debate is the interplay between the protection afforded 

 listed species and economic interests, including 

 protection of private property rights. 



No fewer than 16 bills to amend the Endangered 

 Species Act were introduced in Congress during 1995. 

 Some bills were directed at specific aspects of the 

 Act. For example, H.R. 571, S. 191, and S. 503 

 would establish a moratorium on new species listings 

 until the Act is reauthorized. Other bills would 

 provide compensation to landowners for losses result- 

 ing from regulatory actions under the Act, amend the 

 consultation requirements applicable to Federal 

 actions, require a review and relisting of all listed 

 species, require a review of the Act's impacts on 

 hunting, fishing, and fish and wildlife management, 

 and establish mechanisms to improve the flow of 

 information between Federal and local governments. 



Other bills contained comprehensive amendments 

 and reauthorizing language. The first such bill, S. 

 768, was introduced by Senator Slade Gorton on 9 

 May. The Gorton bill would revise the process for 

 listing species by establishing formal peer review 

 procedures for all proposals to list species or desig- 

 nate critical habitat and by requiring consideration of 

 captive-bred populations when making listing determi- 

 nations. Also, the implications of listing would be 

 changed by deferring application of the Act's protec- 

 tion pending completion of a conservation plan for a 

 species. The section 7 consultation process would be 

 modified to allow Federal actions to proceed despite 



issuance of a "jeopardy" biological opinion, if reason- 

 able and prudent alternatives would be inconsistent 

 with the agency's primary mission, and to require 

 preparation of risk assessment and cost/benefit analy- 

 ses. Other key features of the Gorton bill would 

 redefine "harm" to exclude habitat modification that 

 does not directly kill or injure an identifiable member 

 of an endangered species and add a policy statement 

 to ensure reasonable use of private property and avoid 

 any significant diminishment of property values. 



One provision of the Gorton bill of particular 

 concern to the Commission would provide a broad 

 exemption allowing the incidental take of listed marine 

 species other than fish where the take results from 

 otherwise lawful activities and occurs in the territorial 

 sea or exclusive economic zone of the United States. 



Representatives Don Young and Richard Pombo 

 introduced H.R. 2275 on 7 September. This bill, 

 which draws on many of the elements of the Gorton 

 bill, is the only Endangered Species Act bill to be 

 ordered out of committee during 1995. 



Currently, the purposes of the Act include ecosys- 

 tem conservation, conservation of listed species, and 

 taking appropriate steps to achieve the purposes of 

 international agreements related to endangered and 

 threatened species. These would be revised under 

 H.R. 2275, such that a primary purpose of the Act 

 would be to provide a feasible and practical means of 

 conserving listed species consistent with protecting the 

 rights of private property owners and ensuring eco- 

 nomic stability. Also, the specific goal to conserve 

 ecosystems would no longer be recognized. 



In keeping with the revised statement of purposes, 

 the Young-Pombo bill would prohibit any Federal 

 action under the Endangered Species Act that dimin- 

 ishes the value of any portion of privately owned 

 property by 20 percent or more unless full compensa- 

 tion is offered. If the diminution of value exceeds 50 

 percent, the Federal agency, at the owner's discretion, 

 would be required to buy that portion of the property 

 at fair market value. Any such compensation would 

 be paid from the agency's annual appropriations. 

 However, if the action arises from a requirement 

 imposed by another agency (e.g., under a biological 

 opinion issued by the Fish and Wildlife Service or the 



