Provisions in FAA bill could strip endangered species protections

Two provisions lodged inside an annual House bill on the Federal Aviation Administration (FAA) could strip away endangered species protections. 

The House is expected to vote on the FAA Reauthorization Act this week, and if taken up as is, the bill would include two policies that would limit how Endangered Species Act (ESA) protections extend to airports and a national Federal Emergency Management Agency (FEMA) program.

The first provision is being steered by Democratic Rep. Peter DeFazio (Ore.). It stipulates that private parties rebuilding property with the help of FEMA’s National Flood Insurance Program (NFIP) would no longer have to adhere to species and habitat protections as determined under the ESA.

Specifically, the proposal declares that actions taken under the National Flood Insurance Act and others do not “create a federal nexus,” which mandates ESA protections on properties. 

The provision, which has nothing to do with the FAA, is personal to DeFazio. It is the third time the Democrat has introduced the provision into House legislation, first in the in the FEMA Reauthorization Act of 2017 and then in the Department of Homeland Security reauthorization bill that passed the House last summer. The provision has since stalled in the Senate.

The addition is a response to an Oregon legal settlement resulting from a 2009 case where FEMA was sued for failing to ensure that the flood insurance program compiled with the ESA. The settlement mandated the agency comply with what the National Marine Fisheries Services (NMFS) said to better avoid jeopardizing species and habitat. FEMA came to a similar settlement in Florida in 2011.

However, DeFazio and other Oregon lawmakers argue that the regulations are too stringent and impact economic growth. Since much of Oregon is built on floodplains with a number of communities reliant on FEMA’s insurance program to exist, they say the ESA protections, meant to protect salmon, steelhead and orca whale habitat, are a lofty burden on Oregonians. {mosads}

“It would destroy our land use planning process and promote urban sprawl under the guise of trying to prevent building in floodplains and my state has zoned every acre so it would be an extraordinary mess, to put it mildly,” DeFazio told The Hill.

DeFazio said the policy is narrowly tailored to his state and that ESA protections under FEMA would still remain.

But environmentalists say that’s not true. They argue that the provision could strip protections for a host of species.

“It’s a sneaky way to attempt to exempt FEMA from Endangered Species Act compliance,” said Bruce Stein, chief scientist at the National Wildlife Foundation. “The courts have found that there is a federal nexus — and they have found that FEMA’s actions in providing flood insurance in endangered species habitat has an effect on the survival of species.”

The second provision in the bill would bestow the Secretary of Transportation with the authority to override aspects of the ESA on airport land in the name of security.

The provision directs the Secretary of Transportation to make sure that designations of critical habitat under ESA don’t extend “on or near airport property” if it could impact airplane operations. It also says that the protections should not extend to airport lands that have become attractive to endangered species due to the fact that they are buffer zones.

Scott Elmore, vice president of communications at the Airports Council International, an airport lobby, said wildlife management goes hand in hand with airline safety.

“As you know, the safety and security of the traveling public is an airport’s top priority. Wildlife management is part of that equation. The provision essentially recognizes that wildlife — even endangered wildlife — and aircraft don’t mix,” Elmore said.

“Accordingly, the provisions explicitly recognize the preeminence of safety and preclude the designation of new habitat areas on airport property.”

An aide for Rep. Bill Shuster (R-Pa.), chairman of the House Transportation and Infrastructure Committee, said that the amendment was taking into account events like the 2009 US Airways flight that made an emergency landing on the Hudson River after colliding with a flock of birds.

But environmentalists say that logic is flawed, and that the Department of Transportation alone shouldn’t have the authority to determine whether or not ESA protections apply on airport land.

Brett Hartl, director of government affairs for the Center for Biological Diversity, said that the rule opens the floodgates “if every department and every other federal agency decides that they also need special privileges when it’s only supposed to be a listing based on science.”

“They have managed successfully for years,” said Hartl. “It’s just another way to whittle away the Endangered Species Act.”

Stein says the provision on strike hazards is “overly broad” and could include exempting protections to species like the Karner blue butterfly, the range of which stretches across the Northeast to the Upper Midwest and prefers buffer land near airports because it’s quiet.

“This Karner blue butterfly does not represent a strike hazard for aircraft,” said Stein.

Rep. Sheila Jackson Lee (D-Texas), a member on the House committee that oversees Homeland Security, said that she was deeply concerned by the provisions in the bill, namely the section regarding FEMA, and hopes they will be pulled from the final version.

“I’d be very concerned. I am a strong supporter of the Endangered Species Act. I don’t think we need to go sideways and around to be able to undermine the act, and I wonder if FEMA really needs or has asked for that latitude,” Jackson Lee told The Hill.

She said she also takes issue with the legislation being connected to FEMA’s flood insurance program.

“I for one, obviously living in hurricane territory, having just experienced and suffered through Hurricane Harvey, hold a priority to the restoration of people who are the victims of a devastating natural disaster and we need to make sure that they are made whole,” Jackson Lee said.

“But to use FEMA’s authority during times of trouble, to loosen and lessen the requirements to protect endangered species, I’ll be voting ‘no’ but most importantly will be looking to see if that amendment needs to be in that bill.”