Testimony of Penelope Dalton, Assistant Administrator for Fisheries before House Fisheries Conservation, Wildlife and Oceans Subcommittee, on Implementation of the Endangered Species Act, May 26, 1999

TESTIMONY OF
PENELOPE DALTON
ASSISTANT ADMINISTRATOR FOR FISHERIES
NATIONAL MARINE FISHERIES SERVICE
NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION
U.S. DEPARTMENT OF COMMERCE

ON IMPLEMENTATION OF THE ENDANGERED SPECIES ACT

BEFORE THE
COMMITTEE ON RESOURCES
U.S. HOUSE OF REPRESENTATIVES

MAY 26, 1999

Mr. Chairman and members of the Committee, I am pleased to be here today on behalf of the National Marine Fisheries Service (NMFS). NMFS is a partner with the U.S. Fish and Wildlife Service in administering the Endangered Species Act and works with other Federal agencies, states, counties, Tribes, and private landowners to carry out the requirements of the Act.

I welcome the opportunity to discuss with you today the requirements of both section 7 and section 10 of the ESA, and how these requirements relate to private landowners. I will describe the requirements to mitigate and minimize the impact of incidental taking that is likely to result from the activity for which a section 10 incidental take permit has been requested. Also, I will discuss the requirements in incidental take statements associated with section 7 biological opinions to minimize the take of listed species.

Legal Basis for the Requirements

Section 9 of the ESA prohibits takings of endangered and threatened fish and wildlife by any person that is subject to the jurisdiction of the United States. However, there are exceptions to that prohibition in both section 7 and section 10 of the Act. For example, section 7 provides an exception for Federal agencies or their applicants, including private landowners, who carry out actions that incidentally take listed fish and wildlife. Associated with the provision for incidental take is a requirement to minimize the impact of that take. Section 10 provides an exception for non-Federal landowners if the taking is incidental to an otherwise lawful activity. Associated with this exception is the requirement to minimize and mitigate the incidental take to the maximum extent practicable. Of course, this requirement should be reasonable, prudent, and based on the best available scientific information.

Section 10 Incidental Take Permits Issued by NMFS

Attached is a summary of all section 10 incidental take permits currently being monitored or negotiated by NMFS. We have issued only one major permit and that was to Pacific Lumber Company, Scotia Pacific Company, and Salmon Creek Corporation (PALCO) this year in California. However, we are a party to four Implementing Agreements associated with section 10 permits issued by the Fish and Wildlife Service in the Pacific Northwest. Most permits or agreements concern management of large tracts of timber in the Pacific Northwest and Northern California. In the coming years, we expect our focus to shift to issuing permits that cover water related activities such as hydropower, irrigation and water supply.

None of the permits or agreements that we have issued, or that we are negotiating, require mitigation payments or mandatory set asides of property. Also, NMFS has rarely used off-site mitigation to date, but we believe it is appropriate to use off-site mitigation where habitat losses are unavoidable, such as to compensate for the mortality of juvenile salmon associated with the operation of specific hydro-electric dams.
The PALCO habitat conservation plan, which is being implemented through a section 10 incidental take permit, consists of interrelated elements to minimize, mitigate, and monitor the effects of timber harvesting activities on aquatic species. The PALCO permit demonstrates the flexibility of the ESA as well as the flexibility that has become the hallmark of this Administration's efforts to provide incentives to private landowners. For example, the prescriptive measures for any covered activity can be modified based on the results of watershed analysis, new scientific studies, and monitoring, as long as the plan continues to meet the objective of maintaining or achieving the habitat conditions that we have found to be necessary for threatened or endangered aquatic species.

A lot has been said about "watershed analysis," which is required for all covered lands in the PALCO HCP. It is a process that analyzes the conservation strategies currently included in the plan and which are now being implemented on an interim basis. After the analysis is completed, NMFS, the U.S. Fish and Wildlife Service and the California Department of Fish and Game will establish site-specific prescriptions that will need to be implemented and may be different than the interim strategies now in place. However, the level of protection, after watershed analysis or other adaptive management strategies, must not impair the plan's ability to maintain or achieve the necessary habitat conditions. Pacific Lumber may propose changes at any time. NMFS may approve changes if we find that the proposed changes will not impair the plan's ability to maintain or achieve, over time, the habitat conditions necessary for the species covered in the permit.

Although the PALCO permit and other timber-related permits under negotiation require management of riparian buffers, we do not consider this a permanent set aside of private land. At the end of the permit period, typically 50 to 100 years, or even sooner if the species recovers, these areas would not be off limits to timber activities. Also, through the use of adaptive management strategies, a landowner can demonstrate that the necessary mitigation has been achieved and, as a result, there may be fewer restrictions on the activities covered in the permit.

Section 7 Biological Opinions and Incidental Take Statements

To date, NMFS has not required payments into any kind of fund as a term and condition to fulfill the reasonable and prudent measures in an incidental take statement that is attached to a biological opinion. NMFS works with Federal agencies and applicants to minimize the impacts of taking listed species incidental to projects authorized, funded or permitted by the agencies.

In biological opinions with incidental take statements, the requirements to minimize a take of a threatened or endangered species may range from restoring habitat to conducting an activity at a time of the year when it will have the least impact on the species. For example, time-of-year restrictions are used for such activities as fishing, dredging, and general construction.

Summary

We believe the most important point to take from this hearing today is that, in exchange for an agreement from a private landowner to carry out certain measures to minimize or mitigate the effects of landowner actions on threatened or endangered species, the landowner is receiving an exception to the ESA, which is exactly how the ESA is supposed to work. In addition, with a section 10 incidental take permit, the landowner is receiving assurances that the government will not come back for the lifetime of that permit (which can be up to 100 years) and ask for more land, water or money that was not provided for in the permit or its Implementing Agreement. This assurance isthe result of the Administration's "no surprises" policy which the Services recently implemented.

That concludes my testimony, Mr. Chairman. I would be happy to respond to any questions members of the Committee may have.