Vermont legislation raises spectre of spotted owl controversy

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MONTPELIER >> A bill that would let the Agency of Natural Resources set aside habitat for threatened and endangered species has raised worries that its expansive reach could invite abuse.

The agency can already impose restrictions on land use to benefit species that are at risk in Vermont, but that power is limited to protecting the species themselves. The new legislation, H.552, would apply the same kinds of protections to habitats on which those species depend — or once depended, even if they don't now.

Both public and private land would be affected, potentially restricting human activity where critical habitat is found.

Supporters say the legislation would add tools essential to species recovery, but within reasonable limits established by the administrative rulemaking process.

Others involved with the bill say they fear it lacks limitations.

"Generally, what the language included was extremely broad and far-reaching, and gives authority to designate anything, anywhere," said Jonathan Wood, a forester and former natural resources secretary. "They say that's not the intention, but that's what it says."

Wood said he supports species preservation and doesn't object to the bill's intention. But he said its aim could be a tricky one to craft into a good law.

"I just think this is something that should be done carefully, the Vermont way," he said.

Wood participated in a process the Department of Fish and Wildlife spearheaded over the summer to revise and refine the text of a similar bill introduced in the last legislative session.

Wood told legislators Wednesday the bill is unneeded. Extending protection to species' habitat, he said, would engender in Vermont the same "divisive and damaging land use controversy that has been destructive to natural resource-based economies in the western United States for decades."

He offered as examples the spotted owl and timber wolf, both of which have provoked harsh land use fights in Western states over decades. Habitat protection by the federal government has done little to assist in these species' recovery but has harmed communities, he said.

The bill would bring to species covered under Vermont law many of the same protections afforded to those under federal law on threatened and endangered species, said Jim Shallow, managing director of Audubon Vermont. Shallow was among those who participated in revising the bill since the last legislative session.

The state law exists to preserve or recover species in Vermont that don't meet federal threatened and endangered species definitions, Shallow said.

The common tern is one good example, he said. Though the bird remains fairly populous in other parts of the country, its numbers have declined dramatically within Vermont.

Under current Vermont law, species listed as threatened or endangered don't trigger similar protections for habitat on which they depend, Shallow said. For federally listed species, authority exists to designate their habitat as protected as well, he said.

In the case of the common tern, recovery efforts within the state depended on conservation of specific pieces of suitable land, Shallow said. The same should be expected for other species, he said.

"If you want to protect and restore a species, you really have to protect their habitat," he said.

Shallow said he hasn't seen any evidence that Vermonters or legislators will oppose the bill's intent. Most Vermonters, he said, understand the need to conserve the wild plants and animals in the state.

Fish and Wildlife Commissioner Louis Porter expressed a similar sentiment but said a successful bill will need to get its details right. His department has shepherded the bill through one legislative session and off-session work already, and Porter said he expects the effort to pay off.

The bill contains several modifications to existing threatened and endangered species law, along with the new provisions aimed at protecting habitat.

For instance, the bill would let state authorities include climate change among the threats the ANR secretary must consider when evaluating whether to protect a species or its habitat.

The bill also allows for increased criminal sanctions as a means of enforcing protections, including up to a $5,000 fine and five years' imprisonment. Criminal charges must carry at least $2,000 in restitution, but may include far greater amounts to compensate the state for harm to its flora and fauna.

Porter said he's not particular about the details of the bill.

"I don't care how we do it, so long as we accomplish the goal, so I think we can come out with a good piece of legislation that people can get behind," he said.

Wood said a goal as sweeping as what the bill contemplates should earn a cautious approach from the legislators writing it. He fears it has not.

"It seems like this has kind of got a fast-track flavor to it," Wood said in an interview. "The Legislature seems to me like, 'Let's get this thing through,' which can be a problem for thoughtful legislation."

Mike Polhamus writes about energy and the environment for VTDigger. Mike can be reached at mpolhamus@vtdigger.org. Follow him on Twitter @mike_vtd.


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