<DOC>
[107 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:78073.wais]
S. Hrg. 107-322
LISTING AND DELISTING PROCESSES UNDER THE ENDANGERED SPECIES ACT
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON FISHERIES, WILDLIFE,
AND WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED SEVENTH CONGRESS
FIRST SESSION
ON
THE REGULATIONS AND PROCEDURES OF THE U.S. FISH AND WILDLIFE SERVICE
CONCERNING THE LISTING AND DELISTING OF SPECIES UNDER THE ENDANGERED
SPECIES ACT
----------
MAY 9, 2001
----------
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred seventh congress
first session
BOB SMITH, New Hampshire, Chairman
HARRY REID, Nevada, Ranking Democratic Member
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio BARBARA BOXER, California
MICHAEL D. CRAPO, Idaho RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island THOMAS R. CARPER, Delaware
ARLEN SPECTER, Pennsylvania HILLARY RODHAM CLINTON, New York
BEN NIGHTHORSE CAMPBELL, Colorado JON S. CORZINE, New Jersey
Dave Conover, Republican Staff Director
Eric Washburn, Democratic Staff Director
------
Subcommittee on Fisheries, Wildlife, and Water
MICHAEL D. CRAPO, Idaho, Chairman
CHRISTOPHER S. BOND, Missouri BOB GRAHAM, Florida
JOHN W. WARNER, Virginia MAX BAUCUS, Montana
LINCOLN CHAFEE, Rhode Island RON WYDEN, Oregon
BEN NIGHTHOUSE CAMPBELL, Colorado HILLARY RODHAM CLINTON, New York
JON S. CORZINE, New Jersey
(ii)
C O N T E N T S
----------
Page
MAY 9, 2001
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 52
Clinton, Hon. Hillery Rodham, U.S. Senator from the State of New
York........................................................... 7
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey.. 6
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
Graham, Hon. Bob, U.S. Senator from the State of Florida......... 10
Reid, Hon. Harry, U.S. Senator from the State of Nevada.......... 51
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire.... 50
WITNESSES
Brosnan, Deborah M., president and founder, Sustainable
Ecosystems Institute........................................... 23
Prepared statement........................................... 64
Article, Can Peer Review Help Resolve Natural Resource
Conflicts?................................................. 68
Echeverria, John D., director, Environmental Policy Project,
Georgetown University Law School, Washington, DC............... 32
Prepared statement........................................... 79
Frazer, Gary, Assistant Director for Endangered Species, U.S.
Fish and Wildlife Service, Department of the Interior.......... 11
Prepared statement........................................... 53
Ginzburg, Lev, professor, Department of Ecology and Evolution,
State University of New York at Stony Brook and president,
Applied Biomathematics, Setauket, NY........................... 27
Prepared statement........................................... 78
Grader, Zeke, executive director, Pacific Coast Federation of
Fishermen's Associations, San Francisco, CA.................... 39
Prepared statement........................................... 122
Articles:
Why Fishermen Need the Endangered Species Act............ 134
A Fishermen's Agenda for the Endangered Species Act...... 135
Knowles, Don, Director, Office of Protected Resources, National
Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce......................... 13
Prepared statement........................................... 61
Responses to additional questions from Senator Baucus........ 62
Moss, Ralph, L., director, Government Affairs, Seaboard
Corporation, Washington, DC, on behalf of Atlantic Salmon of
Maine.......................................................... 38
Prepared statement........................................... 93
Moyer, Steven N., vice president of Conservation Programs, Trout
Unlimited, Arlington, VA....................................... 35
Prepared statement........................................... 89
Quarles, Steven P., counsel, QuadState County of Government
Coalition and American Forest and Paper Association,
Washington, DC................................................. 34
Prepared statement........................................... 83
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming....... 3
Prepared statement........................................... 4
Wilcove, David S., scientist, Wildlife Program, Environmental
Defense, Washington, DC........................................ 25
Prepared statement........................................... 76
ADDITIONAL MATERIAL
Articles:
Can Peer Review Help Resolve Natural Resource Conflicts?,
Science and Technology..................................... 68
Fisherman's Agenda for the Endangered Species Act,
Fisherman's News........................................... 135
The Petition Process, U.S. Fish and Wildlife Service......... 74
Why Fishermen Need the Endangered Species Act, Fisherman's
News....................................................... 134
Comments of the State of Maine In Opposition to Proposed
Endangered Status for a Distinct Population Segment (DPS) of
Atlantic Salmon in the Gulf of Maine..........................154-641
Letters:
Atlantic Salmon of Maine..................................... 96
Governor of Maine Angus S. King, Jr...................107, 143, 151
Report, Activities and Achievements Under the Atlantic Salmon
Conservation Plan.............................................. 113
Statements:
American Farm Bureau Federation.............................. 139
Atlantic Salmon, Senator Susan Collins....................... 118
Table, Delisted Species Report as of May 7, 2001................. 72
LISTING AND DELISTING PROCESSES UNDER THE ENDANGERED SPECIES ACT
----------
WEDNESDAY, MAY 9, 2001
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:32 a.m. in
room 628, Senate Dirksen Building, Hon. Michael D. Crapo
(chairman of the subcommittee) presiding.
Present: Senators Crapo, Corzine, Clinton, and Graham.
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
The hearing will come to order.
Good morning, everybody. The Subcommittee on Fisheries,
Wildlife, and Water will focus today's hearing on the listing
and delisting processes under the Endangered Species Act.
Let me begin by apologizing. It is our understanding that
in about 5 minutes or so there is going to be a vote called on
the floor. Rather than not start the hearing and go handle that
vote, we thought that we would at least start the hearing and
have opening statements by the Senators, so that we get that
much done. We will probably, then, be interrupted by a vote,
but I will assure you that we will run to the vote and return
as quickly as we can, so that the break there will be as short
as possible. It is my understanding that there is only vote, so
it should not be much of an interruption.
Since the authorization for the Endangered Species Act
expired in 1992, there have been many--and I would hate to
hazard a guess how many--but a lot of hearings and a lot of
legislation
introduced aimed at both reauthorizing and reforming the
Endangered Species Act. In the course of those hearings, dozens
of witnesses from the various interests have offered
impassioned explanations about the importance of strong
Endangered Species Act reforms and the need for
reauthorization. From my perspective, both are true. I am
extremely concerned about the plight of the Columbia River
Basin salmon and steelhead stocks. So I have proposed a $688
million funding package to recover these fish last week.
Extinction of a species is not an acceptable outcome, but
neither are policies that cause economic hardship or burden
private landowners unfairly. The fact, frankly, that we have
recovered just 9 or 10 species since the ESA was passed is not
a testament to its success. From the records I have seen, just
nine species have been recovered, and three of those species
were from one Pacific Island, Palau. Three of the nine species
have been recovered on just one island. If you look at the
continental United States, that means only six species during
the history of the Act have been recovered. When you take into
account the hundreds of millions of dollars that the United
States spends each year in threatened and endangered species
protection, something is clearly wrong with this picture.
While I have said that a significant amount of oversight
has been conducted on the Endangered Species Act, there are a
few areas that have not received adequate attention and are in
need of more thorough examination. Listing and delisting are
two issues that need to be addressed if we are to resolve some
of the shortcomings of the Act. It is my hope that by
conducting oversight that examines some of the problematic
components of the Act, we can craft solutions to each of these
which will increase our chances of success in reforming and
reauthorizing the Endangered Species Act.
The quantity and quality of science is an issue that comes
up again and again. I have been chairman of this subcommittee
now for a little more than 2 years, and in that short time I
can't think of an issue or a hearing in which the science was
not called into question. There has to be a better way of
getting better science and more consensus about the science to
inform us in the policymaking process.
In addition to the Administration witnesses, there are a
number of scientists testifying before the subcommittee today,
and I look forward to having a productive discussion with all
the witnesses on how to improve the science and, in turn,
policy decisions with respect to conserving species.
I have other serious concerns about the listing and
delisting process, but I am more interested in listening and
learning from our witnesses who are here with us today. I hope
that the witnesses have come to offer fresh ideas about how to
specifically resolve issues in the context of listing and
delisting. More rhetoric on the Endangered Species Act is not
going to help bring resolution to what is potentially our
Nation's most contentious environmental law.
Before moving along, I would like to note that we elected
not to address the issue of critical habitat in this hearing,
even though it is a part of the listing process. It is a
significant issue and one that, frankly, could use up the
entire hearing. We have focused significant attention on
critical habitat in the past, most notably in the 106th
Congress, when this committee reported out Senate bill 1100,
which would modify the timing of critical habitat designations.
The subcommittee will evaluate the need for critical habitat a
bit further down the road.
Once again, I would like to thank everybody for coming. I
think we are going to have a very interesting and productive
hearing today.
[The prepared statement of Senator Crapo follows:]
Statement of Hon. Michael D. Crapo, U.S. Senator from the State of
Idaho
Good morning. The Subcommittee on Fisheries, Wildlife, and
Water will come to order. In today's hearing we will be
examining the listing and delisting processes under the
Endangered Species Act.
Since the authorization for the Endangered Species Act
expired in 1992, there have been many--I would hate to hazard a
guess with respect to how many--but a lot of hearings held and
a lot of legislation introduced aimed at both reauthorizing and
reforming the ESA. In the course of those hearings, dozens of
witnesses from the various interests offered impassioned
explanations about the importance of a strong Endangered
Species Act and the need to reform it. From my perspective,
both are true. I am extremely concerned about the plight of
Columbia River Basin salmon and steelhead stocks--so concerned
that I proposed a $688 million funding package to recover these
fish last week.
Extinction of species is not an acceptable outcome, but
neither are policies that cause economic hardship or burden
private landowners unfairly. The fact that we have recovered
and delisted just nine U.S. species since the ESA was passed is
not a testament to its success. Just nine species have been
recovered--and three of those species were recovered on the
Pacific Island of Palaualone. When you take into account the
hundreds of millions of dollars the United States spends each
year in threatened and endangered species protections,
something is clearly wrong with this picture.
While I have said that a significant amount of oversight
has been conducted on the Endangered Species Act, there are a
few areas that have not received adequate attention and are in
need of more thorough examination. Listing and delisting are
two issues that need to be addressed if we are to resolve some
of the shortcomings in the Act. It is my hope that by
conducting oversight that examines some of the problematic
components of the Act, we can craft solutions to each of these,
which will increase our chances of success in reforming and
reauthorizing the Endangered Species Act.
The quantity and quality of science is an issue that comes
up again and again. I've been chairman of this subcommittee for
a little more than 2 years, and, in that short time, I can not
think of an issue or a hearing in which the science was not
called into question. There must be a better way of getting
better science to inform the policymaking process. In addition
to the Administration witnesses, there are a number of
scientists testifying before the subcommittee today, and I look
forward to having a productive discussion on how to improve
science, and in turn, policy decisions with respect to
conserving species.
I have other serious concerns about the listing and
delisting process, but I am more interested in listening and
learning from our witnesses who are with us today. I hope that
the witness have come to offer fresh ideas about how
specifically to resolve issues in the context of listing and
delisting. More rhetoric on the Endangered Species Act is not
going to help bring resolution to what is potentially our
Nation's most contentious environmental law.
Before moving along, I would like to note that we elected
not to address the issue of critical habitat in this hearing
even though it is part of the listing process. It is a
significant issue and one that could have consumed the entire
hearing. We have focused significant attention on critical
habitat in the past, most notably in the 106th Congress when
this committee reported out S. 1100, which would modify the
timing of critical habitat designations. The subcommittee will
evaluate the need for critical habitat oversight a bit further
down the road.
Senator Crapo. At this point I would like to turn the time
over to Senator Thomas from Wyoming for an opening statement.
Senator.
OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
STATE OF WYOMING
Senator Thomas. Thank you very much, Mr. Chairman. I am no
longer on this committee, but I appreciate the opportunity. I
have some fairly strong feelings about endangered species, have
my prejudices reasonably well arranged, and so I wanted to
share some of that with you.
I think it is an example of good intentions gone astray,
basically. We need to have more effective public input, more
effective landowners' input, and more effective input from the
States that are affected. Obviously, when you have 1,245, or
whatever it is, species listed and less than 20 really have
been recovered, maybe you've got a problem of some kind. I
think we need to take a look at it.
We have had firsthand experience in Wyoming a number of
times that talks about the background. Preble's jumping mouse,
for example, listed in Wyoming, and it turns out that there was
no historical data there or current knowledge that it did not
support the short-grass semi-arid plains. It basically turned
out to be someone had done the windshield checking to do that
thing and really had to back away from it because it wasn't
done properly; couldn't even really identify the species that
was there.
The State was not notified. I had a visit with Secretary
Babbitt shortly before he left, and he had some ideas about how
people are including more in the endangered species and many
times could do something other than list them. I don't know
that that plan was ever put into place.
We have petitions now for prairie dogs. I have lived there
all my life. There are prairie dogs everywhere practically. It
is really interesting that that would even be considered.
I think the problem is we have a kind of a ``postage
stamp'' petition for nominating, and most anyone may nominate
with very little background. We also don't have any priorities
that have been set in terms of what is more important than
another. Therefore, we just deal with whatever comes up.
I think there needs to be some peer review. Certainly, I
don't question the idea of requiring protection of endangered
species. I am for that, but I think we have to do it in a
different way that makes it more important. The recovery goals
really need to be what we talk about.
I have a bill, as a matter of fact, that says we ought to
have the recovery plan along with the listing, along with the
nomination, so that we know what we are going to do. Probably
the most obvious one of those is the grizzly bear. Grizzly
bears have been on the list forever. I can remember being in
Yellowstone Park with the Superintendent 6 or 8 years ago when
they said, yes, we have clearly exceeded the numbers. But we
are still talking about habitat, and you can talk about habitat
forever, and, apparently, we're going to. So there does need to
be something that we do there. Of course, the bottom line is
the game and fish in the State ends up spending the money to
manage the bears, given rules by the U.S. Fish and Wildlife
Service, because they are not delisted to go back into the
State authority.
There's just an awful lot of things that need to be talked
about and need to be changed. As I said, there are 1,200-and-
some listed, and just very, very few--we are not really
emphasizing, in my judgment, enough the recovery plan. That is
really where we ought to at least be as interested in the
recovery as we are in listing. Apparently, that is not the
case.
So, Mr. Chairman, I think it is very important that we have
some changes, and I am delighted that you are holding hearings.
I hope we can make some progress this year. Thank you for the
opportunity.
[The prepared statement of Senator Thomas follows:]
Statement of Hon. Craig Thomas, U.S. Senator from the State of Wyoming
Thank you, Mr. Chairman, for holding today's hearing on
this important topic. In Wyoming, we have seen firsthand the
need to revise the listing and delisting processes of the
Endangered Species Act.
Listing should be a purely scientific decision. Listing
should be based on credible data that has been peer-reviewed.
Unfortunately, none of this is true regarding the current
administration of the ESA. To date, 1,243 species have been
listed in the United States under the Endangered Species Act.
Twenty to twenty-five have been delisted. Clearly, the system
is broken.
Not long ago, the Prebles Meadow Jumping Mouse was listed
in the State of Wyoming, yet the listing process for this mouse
demonstrates how the system has gone haywire devoid of good
science.
One of the more significant shortcomings of the Preble's
Rule relates to confusion about claims regarding the ``known
range'' as opposed to the alleged ``historical range'' of the
mouse. Historical data and current knowledge do not support the
high, short-grass, semi-arid plains of southeastern Wyoming as
part of the mouse's historical habitat range. The U.S. Fish and
Wildlife Service has even admitted to uncertainties regarding
taxonomic distinctions and ranges. Further, the State was not
properly notified causing counties, commissioners, and
landowners all to be caught off guard. Such poor practices do
not foster the types of partnerships that are required if
meaningful species conservation is to occur. Clearly, changes
are desperately needed to the Endangered Species Act.
Not far behind the mouse in Wyoming, was the black-tailed
prairie dog. Petitions to list the prairie dog were filed with
the U.S. Fish and Wildlife Service. I've lived in Wyoming most
of my life, and I've logged a lot of miles on the roads and
highways in my State over the years. I can tell you from
experience, there is no shortage of prairie dogs in Wyoming.
Any farmer or rancher will concur with that opinion.
This petition, and countless other actions throughout the
country, make it painfully clear that some folks are intent on
completely eliminating activity on public lands, no matter what
the cost to individuals or local communities that rely on the
land for economic survival.
I believe we should take action to require the Secretary of
the Interior to use scientific or commercial data that is
empirical, field tested and peer-reviewed. Right now, it's a
``postage stamp'' petition: any person who wants to start a
listing process may petition a species with little or no
scientific support. I have introduced legislation, S. 347 to
prevent this absurd practice by establishing minimum
requirements for a listing petition that includes an analyses
of the status of the species, its range, population trends and
threats. The petition must also be peer reviewed. In order to
list a species, the Secretary needs to determine if sufficient
biological information exists in the petition to support a
recovery plan. Under my proposal, States are made active
participants in the process and the general public is provided
a more substantial role.
Unfortunately, I have found that with several listings in
the State of Wyoming, the Department of the Interior was unable
to tell me what measures were required to achieve species
recovery. The Agency could not tell me what acts or omissions
we could expect to face as a consequence of listing. This is
troubling since the Agency is supposed to be fully apprised of
the status of the species. Conversely, if the Agency cannot
clearly describe how to reverse threatening acts to a species
so that we can achieve recovery, how can we be sure that the
species is, in fact, threatened?
This ambiguity has caused much undue frustration to the
people of Wyoming. If the Secretary believes that certain
farming or ranching practices, or the diversion of a certain
amount of water, or a private citizen's development of one's
own property, is the cause for a listing, then the Secretary
should identify those activities that have to be curtailed or
changed. If the Secretary does not have enough information to
indicate what activities should be restricted, then why list a
species? Why open producers and others to the burden of over-
zealous enforcement and even litigation without being able to
achieve the goal of recovering the species?
Mr. Chairman, we must ultimately seek to design a system to
support and improve the quality of information used to support
a listing. If the Secretary knows enough to list a species, we
should also know enough about what will be required for
recovery. That should be the case under current law,
unfortunately it is not the case today.
Just as the beginning of the process needs changes, we need
to revise the end of the process--the delisting procedure.
Recovery and delisting are quite simply, the goals of the
Endangered Species Act.
Yet, currently, it is virtually impossible to delist a
species. There is no certainty in the process and the States--
the folks who have all the responsibility for managing the
species once it is off the list--are not true partners in that
process. Once the recovery plan is met, the species should be
delisted.
Wyoming's experience with the grizzly bear pinpoints some
of the problems with the current delisting process. The
Interagency Grizzly Bear Committee set criteria for recovery
and in the Yellowstone ecosystem, those targets have been met,
but the bear has still not been removed from the list. We've
been battling the U.S. Fish and Wildlife Service for years over
this one to no avail, despite tremendous effort and financial
resources to meet recovery objectives. Even with rebounded
populations, we keep funneling money down a black hole.
Mr. Chairman, it is clear that something needs to be done.
My constituents are angry and upset about the current situation
and the trickling effects of countless listings. Real lives are
being impacted.
It is time for some real changes. The changes I've
suggested will have a significant affect on the quality of
science, public participation, State involvement, speed in
recovery, and finally the delisting of a species.
Species that truly need protection will be protected, but
let's not lose sight of the real goal--recovery and delisting.
Thank you.
Senator Crapo. Thank you, Senator. That was the vote that
was just called, but I think, Senator Corzine, that we have
time for you to make an opening statement before we break and
run to the vote.
OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE
STATE OF NEW JERSEY
Senator Corzine. Thank you, Mr. Chairman. I have a complete
statement that I would ask for unanimous to put in the record.
Senator Crapo. Without objection.
Senator Corzine. Thank you. This is obviously a very, very
important environmental law issue for us all to consider, the
Endangered Species Act. It is complicated for a newcomer, and I
am working my way through trying to be fully informed.
I am concerned, the people of New Jersey are concerned,
about extinction rates. There are issues here that truly need
to be addressed, and I appreciate the hearing or background
note. But, maybe as important as anything, I am concerned, as I
am on a whole series of issues, to make sure that we have the
right kind of funding so that we address this issue properly,
not in simplistic and underfunded formulas. I am very, very
concerned that we are taking a step back in protecting our
environment and endangered species. It is a very key issue,
particularly on our coastline in our fisheries. So it is one of
those things that I look forward to being an active participant
in. Thank you very much for having the hearing.
[The prepared statement of Senator Corzine follows:]
Statement of Hon. Jon S. Corzine, U.S. Senator from the State of
New Jersey
Thank you, Mr. Chairman. I want to thank you for holding
this hearing on one of our most important environmental laws,
the Endangered Species Act.
Mr. Chairman, extinction is occurring at alarming rates
worldwide. The World Conservation Union estimates that current
global extinction rates are between 1,000 and 10,000 times
higher than the normal background extinction rate. And
extinction rates are increasing rather than decreasing.
Here in the United States, we are doing better than many
places, but we still have a pressing problem. More than 1,200
species are listed as threatened or endangered under the ESA,
more than 200 species are awaiting listing decisions, and some
scientific experts believe that as many as 3,000 U.S. species
may require protection under the ESA.
These are daunting statistics. For me, they put into focus
the reasons why we need to continue to work to protect our
natural heritage. From an ecological standpoint, there is still
much we do not know about how our planet works and what is
important to keeping it healthy. Aldo Leopold, in his seminal
environmental work, A Sand County Almanac, observed that ``the
first rule of an intelligent tinkerer is to keep all of the
pieces.'' Mr. Chairman, we are losing pieces here and abroad,
and we do not understand the consequences.
From an economic standpoint, I observe that less than
scientists have studied less than 1 percent of the world's
species extensively. The potential of these unstudied species
to provide medicines, food, and other benefits to humankind is
vast, unknown and untapped.
Finally, I believe we owe it to our grandchildren and their
grandchildren to hand them down a world rich in the biological
diversity that we have inherited. A planet poorer in wildlife
is a planet diminished, and we owe it to our heirs to preserve
what we can.
So, for all these reasons, Mr. Chairman, I strongly support
the goals of the Endangered Species Act and want to look for
ways to strengthen it and make it more effective.
Today's hearing will focus on the listing and delisting
processes under the Act, and I want to make several comments
about these processes. First, some will suggest that the
listing process is not based on sound science. I disagree. If
you look at the history of the listing process, less than 1
percent of species that have been listed or proposed for
listing have been withdrawn because they their listing was
backed by incomplete data. That is an extremely low error rate,
and does not suggest a systematic problem with the role of
science in the listing process. I think that one reason for
this is that peer-review is built into the listing process,
which ensures that independent scientists review the
information that the Government relies on.
Second, I have heard the suggestion that the listing
process is secretive. That the data behind the listings are not
available. This is simply not the case. The administrative
record for a listing includes all relevant data, how the data
supports listing, and the comments of the peer reviewers. All
of this information is available to anyone who wants to see it.
Finally, I want to address ESA funding. Simply put, ESA has
suffered from chronic underfunding. The listing program is no
exception. Unfortunately, the President's budget does not
remedy this problem.
Rather than limiting the ability of citizens to participate
in the ESA process, as the budget proposes, we should provide
the U.S. Fish and Wildlife Service and National Marine
Fisheries Service with the resources they need to do the job
right.
With that, I conclude my remarks, and look forward to the
testimony of our witnesses.
Senator Crapo. Thank you very much, Senator. Senator
Clinton, they have just called a vote, but we figured we would
try to finish the opening statements before we recess and run
to the vote.
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Clinton. Well, I thank you very much, and I thank
you for holding this hearing on such a critical issue. This is
one of the many critical and pressing issues that this
committee is discussing, everything from global warming to how
we deal with our energy needs while protecting our environment.
The issue of protecting threatened and endangered species is
one that I put right up there with all of these other very
important matters.
If there is nothing else that people on opposing sides of
the ESA debate agree upon, the one thing that we do seem to
agree upon is that all decisions under the Endangered Species
Act should be based on sound science, the very best available
science that we have. I think every one of us understands that
many environmental decisions are complicated. Whether it's
setting standards for drinking water or deciding what to do
about PCB contamination in waterways, like the Hudson River,
all of these decisions should be insofar as possible taken out
of politics and put into the realm of science.
I guess, Mr. Chairman, what concerns me is that the Bush
Administration budget cuts ESA science funding along with
funding for recovery plans and habitat conservation plans and
candidate conservation plans--all things that we know are
critical to achieving success under the Act. In the budget, the
Administration also asks for a rider. I think it's a little
unusual to have a rider in the initial budget that is proposed
by the Administration, but, nonetheless, there is one, to
prohibit citizens from petitioning the U.S. Fish and Wildlife
Service to list species as threatened or endangered or from
designating critical habitat.
It is always preferable--I think, again, every one of us
would agree that it is preferable that we do not have to resort
to the courts to implement our environmental statutes. But our
environmental statutes contain citizens' rights provisions for
a reason, and I think these provisions need to be respected and
not skirted.
It is my understanding, further, that in responding to
these citizen petitions, the U.S. Fish and Wildlife Service can
decide to list a species or not to list it, or it can put it on
a candidate list and assign a low priority for listing, based
upon listing guidance that has been in place since 1983. So, in
this regard, I think we need to make very clear that citizens
are not determining the listing priority of species. These
decisions are still being based on the best available science,
and they are ultimately the responsibility of the U.S. Fish and
Wildlife Service.
I think rather than attaching riders to the budget, we
should be addressing these issues as the chairman is having us
do today, in the authorizing committee. Rather than saying we
cannot deal with the backlog, which I understand is a serious
issue and I have absolute sympathy for the positions that both
Secretary Babbitt and Secretary Norton have found themselves
in. I mean, it is a huge undertaking and it uses up a lot of
resources, and it is a very challenging task that they face.
I would instead propose that we try to come up with the
necessary resources to address the listing backlog to remove
the uncertainty. We have landowners and developers who are
really in a very disadvantageous position because they can't
get an answer. Putting a rider in the budget and saying, well,
we're going to postpone this, when they know there are
citizens' groups out there that are going to say that, as soon
as we are able to, we're going to come in and ask for listing,
doesn't help us clear up the uncertainty.
It is my understanding that the Service estimates it would
take roughly $80 to $120 million to clear up the backlog. I
think we could develop a 5-year plan that would be certainly
doable within our budget to get this work done, which would be
keeping faith with the Act, keeping faith with the citizens who
are concerned about these issues, keeping faith with good,
sound science, and keeping faith with the needs of our
landowners, our developers, and others who have very serious
concerns about this.
So, while we might disagree about some of the topics that
are to be discussed today, the context of ESA, I think we could
all reach agreement that the ESA needs to be administered
effectively and funded appropriately, so that we can deal with
the backlog, deal with the uncertainty, put to rest some of the
issues that are legitimate concerns of people throughout our
country, but, particularly, in the region where the chairman
comes from.
So, again, Mr. Chairman, I have found in my short term on
this committee that, despite very great geographic differences
and perspectives, acting in a collegial, open-minded manner can
possibly lead to some solutions. I very much appreciate your
holding this hearing and look forward to the results of it.
Thank you very much.
[The prepared statement of Senator Clinton follows:]
Statement of Hon. Hillary Rodham Clinton, U.S. Senator from the State
of New York
I would like to thank the chairman for holding this hearing on such
a critical issue.
As with other topics we have been discussing in this committee,
such as global warming, the issue of protecting threatened and
endangered species is one that is absolutely critical to our planet's
future. One that, if allowed to go without adequate attention and
resources, could have irreparable consequences.
If there is nothing else that people on opposing sides of the ESA
debate agree upon, the one thing that they do agree upon is that
listing decisions--as all decisions under the Endangered Species Act--
should be based on sound science, the best available science that we
have.
Many environmental decisions are complicated ones. And I have
always said, whether it is setting standards for drinking water, or
deciding what to do about PCB contamination in the Hudson River, that
these decisions should be based on the best available science.
Yet the Bush Administration's budget cuts ESA science funding,
along with funding for recovery plans, habitat conservation plans and
candidate conservation plans--all the things we know are critical to
achieving success under the Act.
And in its budget, the Administration also asks for a rider to
prohibit citizens from petitioning the U.S. Fish and Wildlife Service
to list species as threatened or endangered, or from designating
critical habitat.
It is always preferable that we not have to resort to the courts to
implement our environmental statutes. But our environmental statutes
contain citizens rights provisions for a reason, and I think those
provisions need to be respected, not skirted.
It is my understanding that in responding to these citizen
petitions, the U.S. Fish and Wildlife Service can decide to list a
species, not to list it, or can put it on a candidate list and assign
it a low priority for listing based upon listing guidance that has been
in place since 1983. In this regard, citizens are not determining the
listing priority of species. Those decisions are still based on the
best available science, and ultimately made by the Service.
Rather than attaching riders to the budget, we should be addressing
these issues in the authorizing committee, as we are doing today.
And rather than saying we can't deal with the backlog, we should
focus on providing the necessary resources to address the listing
backlog. It is my understanding that the Service estimates that it
would take roughly $80-120 million to clear up the backlog. We could
develop a 5-year plan to get this work done.
While we all might disagree about some of the topics to be
discussed here today, we should all be able to reach agreement that the
Endangered Species Act cannot achieve its goal of restoring threatened
and endangered species if we starve it of funding.
I would like to thank the chairman and ranking member again for
holding this hearing today, and I look forward to hearing the testimony
from today's witnesses.
Senator Crapo. Thank you very much, Senator. I think that
your comments highlight one of the critical problems we face.
The backlog in the listing process is significant. We do need
to find the resources to deal with it. In fact, the backlog is
not only there. There's a backlog in the recovery plan arena.
There's a backlog in implementation.
You may or may not be aware, because of the issues in the
Pacific Northwest on salmon, I just proposed last week that we
double the amount of resources we are putting into the salmon
recovery in the region up to--I think I proposed something in
the neighborhood of $688 million just for that one species in
terms of our efforts to try to recover it. So there's no
disagreement on my part about the fact that we need to find a
way to get resources to these issues.
Just to kind of highlight for the attendants here, before
we recess and run to the vote, I have some interesting
statistics on just the litigation that is involved with the
listing process. Just consider this information for a minute.
As of March 1 of this year, 79 cases have been resolved
through the entry of court orders or settlement agreements--and
this is on listing litigation. As of the same date, the Service
is still involved in 75 active section 4 lawsuits covering 400
species, including 17 lawsuits on petition findings for 41
species, 9 lawsuits covering 11 species regarding final
determination, 36 lawsuits covering over 354 species regarding
critical habitat, and 13 lawsuits covering 11 species regarding
merit challenges. In addition, the Service has had 86 notices
of intent to sue over 640 species relating to listing
activities, including 34 NLI's regarding critical habitat
determinations for 303 species.
Those statistics indicate the enormous task that we face
just in the litigation that is surrounding the listing process.
If this committee can find ways to build consensus toward
helping us get a path forward, both in terms of getting the
resources and the reforms necessary to help us move forward in
protecting species, I think we can do a tremendous service for
the environment and for the people of the Nation. I think that
there is an opportunity for us to find that common ground.
If there are no further comments at this point, we will
recess at this point. As I have advised everybody, there has
been a vote called and we're getting toward the end of the
timing for us to get to the vote. We'll rush down there and try
to return as quickly as possible. Hopefully, it won't take
long.
At this point the committee is recessed.
[Recess.]
Senator Crapo. The hearing will come to order.
We've been joined by our ranking member, Senator Graham.
Senator, if you would like to make any opening statement,
you're welcome to do so at this point.
OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE
STATE OF FLORIDA
Senator Graham. Thank you, Mr. Chairman. I have an opening
statement which I would like to submit for the record.
I want to commend you for holding this hearing. One of the
centerpieces of the Endangered Species Act has been the ability
of citizens to nominate species for consideration. I recognize
that that has resulted in a significant backlog of court-
administered cases. This hearing today I hope will give us some
sense of what the range of options is to deal with that issue,
and I appreciate your affording us that opportunity to do so.
[The prepared statement of Senator Graham follows:]
Statement of Hon. Bob Graham, U.S. Senator from the State of Florida
Mr. Chairman, the Endangered Species Act was historic when
it was passed by a nearly unanimous Congress over 25 years ago.
The Act remains important in our efforts to balance human
activities with the needs of imperiled wildlife. While this law
is certainly not without its share of controversy, I have
witnessed success stories such as the recovery of the American
alligator, a keystone species in the Everglades and vital to
the overall health of that ecosystem.
The State of Florida is home to some 111 threatened or
endangered species. We can boast, rather unfortunately, that
this number is third only to the States of Hawaii and
California. Included in this list is the Florida Manatee, which
I consider a poster child for the importance of the Endangered
Species Act.
One of the strengths of the Endangered Species Act is that
it allows citizens the opportunity to petition the U.S. Fish
and Wildlife Service to list species that they have reason to
believe are critically important. Citizens may also pursue
legal recourse if they think that the U.S. Fish and Wildlife
Service has not acted to protect these species.
I appreciate the fact that the U.S. Fish and Wildlife
Service faces a severe listing and delisting backlog. An
estimated $80-$120 million is needed to eliminate this backlog.
However, I do not think that effectively cutting citizens out
the process by limiting the ability of the U.S. Fish and
Wildlife Service to respond to court orders is the most
appropriate way to address this problem.
Most of our environmental laws include a process for
citizen enforcement and oversight. Such opportunities for
citizen involvement are necessary to compensate for times when
administrative agencies are unable to fully implement the law.
I hope that today's hearing will present us with some ideas
for solutions to eliminate the current backlog and address
citizen and scientific concerns in a prudent manner.
I will submit my questions for the record.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Senator.
Without anything further then, let's invite our first panel
to come forward. Our first panel consists of Mr. Gary Frazer,
who is the Assistant Director for Endangered Species at the
U.S. Fish and Wildlife Service of the U.S. Department of the
Interior. Please come forward, Mr. Frazer, and also, Mr. Don
Knowles, the Director of the Office of Protected Resources for
the National Marine Fisheries Service.
I would like to advise our witnesses, as well as all the
witnesses on the future panels, that we would like to ask you
to do your best to keep your testimony to 5 minutes, as you
have been requested to do, so that we have time for questions
and answers from the Members of the Senate.
You probably know how the lights work, but I'll re-explain
it for everybody. The green light goes on during the beginning
of your testimony. When you have 1 minute left, the yellow
light comes on, and then when the time has expired, the red
light comes on. When the time's expired, we ask you to try to
summarize where you are. What we have found is that nobody--at
least very few people--are ever able to get said in 5 minutes
what they have to say, but please be assured that you'll have
an opportunity to expand on your thoughts and to complete your
statement during responses to questions and answers.
Without anything further then, Mr. Frazer.
STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ENDANGERED
SPECIES, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE
INTERIOR
Mr. Frazer. Mr. Chairman, thank you for this opportunity to
discuss how the U.S. Fish and Wildlife Service carries out its
duties relating to listing and delisting species under the
Endangered Species Act.
Our procedures, some prescribed by statute and others by
agency regulations or policies, are all focused upon ensuring
that our decisions are objective, based on good science, and
made in the open with peer review and public participation
throughout. The U.S. Fish and Wildlife Service is committed to
making the Endangered Species Act work in the eyes of the
public, the Congress, and the courts, so that we can accomplish
its purpose of conserving threatened and endangered species and
protecting the ecosystems upon which they depend. This is a
challenging task involving precious and irreplaceable natural
resources, a complex statute, and many stakeholders with deeply
held and often conflicting interests.
To meet this challenge, we work hard to base our decisions
on the best available science, seek independent peer review of
our decisions, to provide for public participation throughout
our decision process, and to ensure that our decision process
is understandable and open to scrutiny.
The Endangered Species Act requires listing determinations
to be made solely on the basis of the best available scientific
and commercial data. This careful evaluation of scientific
evidence, including the involvement of independent peer
reviewers and our colleagues in State fish and wildlife
agencies, is fundamental to assessing species for listing and
delisting under the Act.
To this end, the Service has issued a number of joint
policies with the National Marine Fisheries Service which guide
our listing and delisting efforts. Our policy on information
standards provides direction to our biologists and managers on
the use of scientific information in our decision process. Our
policy for peer review ensures that independent peer review is
built into our listing recovery and delisting activities. Our
policy on the role of State agencies recognizes the unique
capability of State fish and wildlife agencies to assist in
implementing all aspects of the Act.
Listing under the Endangered Species Act becomes necessary
when a species declines to the point where it is at danger of
extinction throughout all or a significant portion of its
range, or is likely to become endangered in the foreseeable
future. The Secretary is required to list the species if, after
reviewing the species' status using the best scientific and
commercial data available, it is found that the species is
endangered or threatened because of any one or a combination of
the five listing factors laid out in the Act.
We have two ways to identify species in need of listing.
The first is a candidate assessment process which is initiated
by the Service. The second is a petition process which is
available to the public. Through the candidate assessment
process, the Service works with species experts, State natural
heritage programs, and others to identify species that may be
at risk and potentially in need of protection under the Act.
The petition process allows any interested person to petition
the Service to add or remove a species from the Federal list.
If the petition is found to provide substantial information, we
initiate a status review and issue an additional finding within
12 months as to whether listing may be warranted.
The Service issues proposed rules to list species when we
have sufficient information to show that listing is warranted.
If the issuance of a proposed listing rule is precluded by work
on other higher priority listing actions, we add the species to
our candidate list to be prioritized for a future listing
proposal. We publish this list of candidate species annually
and solicit information from species experts and the public to
stay current on the status of the species that are on the
candidate list.
At the other end of the process is delisting which marks
the successful end point of the recovery process. The goal of
the recovery process is to restore listed species to a point
where they are secure, self-sustaining components of their
ecosystems and do not require the protections of the Endangered
Species Act, and thus, could be delisted.
Throughout the process the Service uses the best available
science and input from the affected public to guide our actions
toward successful recovery of listed species. Our listing and
delisting actions are informal rulemakings published and
proposed in final form in the Federal Register. Once a proposal
is published, the Service must allow for a public comment
period on the proposal; provide actual notice of the proposed
regulation to appropriate State, tribal, and local government
agencies; publish a summary of the proposal in a newspaper of
general circulation in areas where the species occurs, and hold
a public hearing, if requested. Since public participation is
so important to effective conservation efforts, the Service
will often hold multiple public hearings and extend the comment
period beyond the minimum required by law and regulation.
Species are usually listed as a result of factors that
cause their decline over many years, often decades or even
centuries. As a result, recovery of listed species requires
time and effort, but we have had real success. Recently, the
Service removed peregrine falcon and the Aleutian Canada goose
from the list of species protected under the Endangered Species
Act, and the bald eagle, our Nation's symbol, is on the verge
of complete recovery. We expect to downlist or delist at least
six species next fiscal year, and many of the species that are
on the list have had their declines arrested and the population
stabilized or improving since the time they were added to the
endangered species list, which is a real measure of the
effectiveness of our recovery efforts.
In closing, I would like to emphasize the importance the
Service places upon having a science-based, open-decision
process in which the affected public can participate fully. Our
listing and delisting decisions are sometimes difficult and
contentious, and not all parties will agree with our final
decisions. But it is critical that the public and the Congress
view our work as an honest and objective effort to reach a
decision required of us by the Act. Our success in implementing
the Endangered Species Act is tied to that trust.
Mr. Chairman, this concludes my prepared statement. Thank
you for your strong interest in the Endangered Species Act and
how it is implemented, and for the opportunity to present
testimony. I would be happy to respond to any questions you or
the other members of the committee may have.
Senator Crapo. Thank you, Mr. Frazer.
Mr. Knowles.
STATEMENT OF DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED
RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC
AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE
Mr. Knowles. Thank you, Mr. Chairman. I appreciate the
opportunity today to testify on the process we at the National
Marine Fisheries Service use to list and delist species under
the Endangered Species Act. My name is Don Knowles. I am the
Director of the Office of Protected Resources at National
Marine Fisheries Service, an agency of the National Oceanic and
Atmospheric Administration.
NOAA Fisheries is committed to making the implementation of
the Endangered Species Act effective and to increase public
support for its goals. We are also committed to working closely
with the U.S. Fish and Wildlife Service to make sure our
approach is consistent and to working with States, tribes,
local governments, and others as partners. We are committed to
basing our procedures and decisions on good science and making
our decisions, any of them, with peer review and public
participation throughout the process. We recognize it's a
difficult challenge. We thank the committee for its support
over the years.
Our listing and delisting regulations are jointly published
with the U.S. Fish and Wildlife Service, so I won't duplicate a
description of that process at this point. Let me just briefly
summarize for you an overview of NMFS's Protected Species
Program.
We currently have 55 species listed under the Endangered
Species Act, much smaller than the U.S. Fish and Wildlife
Service. Of our species, 26 are salmon and steelhead in
California in the Pacific Northwest; Alaska contains no listed
salmon species. Of those 26 ESUs that are listed, 21 of them
have been listed since 1997. So, in effect, we have created an
entirely new regulatory structure and process just in the last
6 years in the Pacific Northwest.
We have a little over 550 people working on endangered
species and marine mammal issues. Over half of those, well over
half of those, are full-time scientist. We have a very strong
world-class science program in support of our listing program.
To be sure, NMFS's implementation of the ESA has been
contentious and the subject of a significant amount of
litigation. We have six cases pending now on listing issues. We
have lost some cases and, hopefully, learned some valuable
lessons in the Northwest to address the issue of whether NMFS's
decisions are based on the best science. We spent a significant
amount of effort in the mid-1990's collecting information from
the Pacific Salmon Biological Technical Committee and
interested parties, and established a Biological Review Team.
While these efforts haven't eliminated the lawsuits, they have
helped NMFS gather the best available science.
For all of the species under our jurisdiction, NMFS
continues to look for new ways to ensure that it uses the best
available science in the decisionmaking process.
I think I will stop there, Mr. Chairman. I've got a
statement that, if you would be interested in including it in
the record, I will thank you for the opportunity to testify and
look forward to answering any questions you might have.
Senator Crapo. Thank you very much, Mr. Knowles.
Mr. Frazer, I will begin my questions with you. I noted in
your testimony that you referenced the U.S. Fish and Wildlife
Service's language in the President's fiscal year 2002 budget
request that is intended to comply with the current orders and
settlement agreements with respect to critical habitat
designations, as well as, to address the backlog of listing
actions. Since I know that this question will come up--in fact,
Senator Clinton has already raised the issue in her opening
statement--in the context of the listing program, would you
explain in a little more detail why the Administration has
requested this language and how they are approaching the budget
this year?
Mr. Frazer. I would be happy to. For a number of years, the
Service's workload in our listing program, all aspects of our
listing program--processing petitions, adding species to the
list, critical habitat--for a number of years, that workload
has exceeded the resources we have available to carry out our
program. As a result, we had a backlog accumulate. Many of
these actions have mandatory deadlines laid out in the statute,
and there is opportunity for us to be sued to comply with those
deadlines, and we have been sued.
The result is that in this fiscal year, virtually our
entire listing budget is dedicated toward complying with court-
ordered actions, most of which are for designation of critical
habitat for species that are already listed. Our goal in
proposing this language in the President's budget is to be able
to have the assistance of Congress to return to a more balanced
listing program that addresses biological priorities.
The language would essentially do two things. It would say
that, of the money that Congress appropriates for us to
administer our listing program, that we are to use that to
comply first with existing court orders, but then any that's
left over would be spent on those listing actions--processing
petitions, adding species to the list--that are driven by
biological priorities. We would use a biological priority
process for determining how to spend the remainder.
With this as our marching orders from Congress, we hope to
be able to return to the kind of balanced listing program which
I think the public expects, and that would have the greatest
benefit for the species that are at risk and need protection
under the Act.
Senator Crapo. Now if I understand what you just said, what
you're saying is that court orders are basically dragging the
utilization of the budget rather than biological or science-
based decisionmaking?
Mr. Frazer. This year, in fiscal year 2001, the number of
actions that are required by court order or court-sanctioned
settlement agreement are such that we are using virtually every
dollar that we have available in our appropriation to comply
with those court orders and settlement agreements. So we have
no money left over for discretionary actions--to be able to
respond to a citizen petition or to be able to deal with any
other sort of listing action.
Senator Crapo. As has been indicated in some of the
statements by the Senators already today, it would be helpful
to have additional financial resources to meet all these needs,
but given the budget situation that you deal with--well, first
of all, let me ask you: Is the proposed budget for this year an
increase or a decrease from previous years?
Mr. Frazer. It's an increase of $2 million, about a 31
percent increase from the previous fiscal year.
Senator Crapo. A 31 percent increase? So there is an
increase in the dollars available but, even with that increase,
you are still seeing the court orders essentially consume the
flexibility with which you can use those dollars?
Mr. Frazer. We have court orders and settlement agreements
that are going to require us to do a substantial amount of work
next year. With an increase, we hope to have some funds
available that we will be able to apply to other parts of our
listing program--to be able to respond to citizen petitions, to
add species to the list. But the litigation is there. We have a
large backlog. The potential remains for us to have additional
lawsuits filed and court orders issued that will eat into that
discretion as well. So this language was structured such that
it would reflect the intent of Congress that we would certainly
be complying with existing court orders, but for the remainder,
biological priorities as opposed to lawsuits would drive the
use of those dollars.
Senator Crapo. Isn't this approach to how to manage the
budget something that was started under the previous
Administration?
Mr. Frazer. We have had for a number of years a cap, a
listing cap, that essentially is just language in the
appropriations bill that says that the money that Congress
appropriates to us for carrying out our listing program is the
sum total that we can use to carry out those duties under
section 4 of the Act. That's to prevent court orders from
imposing obligations on us that are in excess of the dollars,
the amount, that Congress appropriates for us to run our
program. The cap language is to ensure that court orders for
listing actions don't eat into other parts of the Endangered
Species Act Program or other parts of the U.S. Fish and
Wildlife Service's resource management account.
Senator Crapo. It seems to me--and tell me if I'm right
about this--but it seems to me that, to the extent that your
utilization of these funds is driven by court orders and not by
the biological, scientific evaluation that the Agency would
like to apply to it, that creates an increased risk of further
litigation because the Agency is not able to utilize the best
science, but is instead being driven by judicial
decisionmaking.
Mr. Frazer. The deadlines that are imposed, understandably,
courts would like us to undertake and complete these actions
soon. In many cases we are well past the deadline. So there's
an interest in having us complete these actions as soon as
possible. But the deadlines do create real tension between
making the best decision, using the best available information,
and having a careful process that has everyone affected
involved in the decision process, and facing a potential
contempt hearing if we don't meet the deadline. So a number of
our actions have been very difficult and we have had to do less
outreach and had less time to consider the decisions before we
went to final. As a result, we have a number of people that
have criticized the outcome, and we have a number of merits
lawsuits on some of our most recent critical habitat
determinations.
Senator Crapo. All right. Mr. Knowles, do you have any
disagreement--or I wouldn't say ``disagreement.'' Would you
like to add any comment on this issue before I----
Mr. Knowles. No, I don't think we have--we're not in the
same situation as the U.S. Fish and Wildlife Service.
Senator Crapo. All right. With regard to the question of
litigation, I would like to toss this question out to both of
you. Before I do, I want to go over the statistics that I read
earlier just to set the stage again.
According to the information I have--and this is from the
U.S. Fish and Wildlife Service, so I hope that you will agree
with the numbers here, Mr. Frazer--as of March 2001, 79 cases
have been resolved through the entry of court orders or
settlement agreement but, as of the same date, the Service is
involved in 75 active section 4 lawsuits covering 400 species,
including 17 lawsuits on petition findings for 41 species, 9
lawsuits covering 11 species regarding final determinations, 36
lawsuits covering over 354 species regarding critical habitat,
and 13 lawsuits covering 11 species regarding merit challenges.
In addition, the Service has 86 notices of intent to sue which
involve another 640 species relating to listing activities, 34
of which are critical habitat determination issues for 303
species.
To me, that incredibly large amount of litigation says that
something is broken. In other words, we are not getting to put
the resources to the issue of species recovery the way we would
like to because we are spending a tremendous amount of time in
court. I assume that a large part of the budget goes for legal
actions rather than environmental recovery actions.
The question I have is: What is it that is causing all of
this litigation? What is the reason that we have this
voluminous amount of litigation surrounding the listing
process? I know that's a tough question, but really it's a
question that has to be asked.
Mr. Frazer. I'll give you my views. I think that it
reflects the strong interest, and in many cases the impassioned
interest, in the Endangered Species Act, in conserving fish and
wildlife and plants that are at risk of extinction. We have a
very vibrant economy, a lot of growth, and there are tensions
between that kind of economic development and conservation of
our plants and fish and wildlife. We have tools that address
that, but they're not 100 percent effective and there's clearly
a need for extending the protection of the ESA to species that
we have not been able to satisfy because of the limited
resources we have had to carry out our program.
The deadlines that are under the Act and the interest in
ensuring that the Act is carried out where it's needed I think,
has been the primary driver in the volume of litigation that is
associated with our listing program. It does require a good bit
of work of the people employed in our listing arena. Litigation
support takes up an unfortunately large part of our time.
Senator Crapo. How many lawyers have you got on staff?
Mr. Frazer. Actually, our legal counsel is through our
Solicitor's Office, and then the Department of Justice provides
us with very capable legal support as well.
Senator Crapo. Is that legal support included in your
budget numbers or would that be in their budget numbers?
Mr. Frazer. No, it's in their budget numbers. The only part
in our budget, our listing budget, is the litigation support
that we do: drafting declarations, doing document searches, and
preparing records, those sorts of things.
Senator Crapo. All right, let's move on to the peer review
issue. Mr. Frazer, in your testimony you provided some reasons
why peer review is not easy to obtain. As you know, sound
science I think is critical to this listing process. Actually,
if we could resolve some of the science issues, maybe we would
reduce the litigation. I think that paying for peer review
would resolve at least one obstacle. Am I correct in that?
Mr. Frazer. It may. It's a function of whether covering the
cost is a primary impediment or whether it is a matter of
priorities and what other kind of rewards there might be for
independent peer reviewers to get engaged.
Senator Crapo. What would you recommend for us to remove
some of the obstacles or disincentives for the peer reviewers
to make this their high priorities?
Mr. Frazer. Well, I don't think improving our capability to
get peer review requires statutory change. There certainly are
things that we can do. We can work with organizations that
represent the scientific community. We can work with academic
institutions, State agencies, Federal agencies to emphasize the
importance of their involvement in our listing program
activities and to understand what sorts of reward systems they
need in order for them to be able to step up, and then work to
address those.
We've got a pilot program underway already. One of the
other witnesses this morning is going to, I think, discuss that
in some fashion.
The other thing, though, is to have the volume of
litigation associated with our listing program removed, so that
when a peer reviewer does get engaged, they don't have to have
the level of concern about whether this is going to be a long-
term commitment involving them be drug in for depositions or
called to be an expert witness, or whatever.
Senator Crapo. So the litigation is actually impacting the
peer review process, it sounds like?
Mr. Frazer. It is. In some cases, we know that it is.
Senator Crapo. Mr. Knowles, Mr. Frazer has indicated he
doesn't think that there are legislative necessarily needed to
improve the peer review process. Do you have any opinion on
whether there are legislative changes that are needed? I guess
I would also ask you to suggest what changes, if any, you think
might be helpful in that context.
Mr. Knowles. I don't think legislative changes are needed.
I do think that some of the testimony you are going to hear
later today talks about the differences between peer review in
a pure academic sense, the way it works, and peer review in a
management sense like this, and I think there are some
suggestions there that you could consider.
We have sort of taken a slightly different tack, I think,
not necessarily for peer review for our listing packages, but
peer review for other decisions. We have actually funded a
group through the University of Miami called the Center for
Independent Experts. We are essentially funding the University
of Miami to select for us a series of peer reviewers to cover a
number of actions throughout the year. We can schedule them in
advance. We can get peer reviewers to agree to review, I think,
and going through a university is easier than directly at this
time.
So I think when we solicit the peer reviewers in the
Pacific Northwest, I'm told that typically we get responses,
positive responses, from a half to two-thirds of the people
that we approach. So I do think it's hurting us. I don't think
it's hurting us in the same way that it is hurting U.S. Fish
and Wildlife Service.
Senator Crapo. Thank you. Mr. Knowles, let me ask another
question to you. One of the criticisms of the listing process
is the lack of scientific transparency. Without established
criteria and thresholds, it seems to me that it is very
difficult to arrive at objective decisions so we end up using
the best data available, which often has significant gaps in it
and is not considered to be reliable, which I think probably
then leads to litigation.
Would you support some type of objective criteria for
listing and delisting?
Mr. Knowles. By objective, you mean quantitative? I think
in the National Marine Fisheries Service, because we have such
a large number of people working in pure sciences, I think we
have more quantitative data for our species than I expected. I
have been at NMFS for a little over 18 months now. I think for
Northwest salmon in the Columbia Basin, because of its long
interaction with the hydropower system, we have quite a lot of
data. For most of our listed species, I think we have a lot of
quantitative data. I don't think it is the same level of
problem.
Senator Crapo. Well, thank you. I know because of our delay
we are running late. So I will cut my questions short. I did
want to say to you, Mr. Knowles, that, as you know, I am very
interested in the salmon issue in the Pacific Northwest and
look forward to working with you to solve our problems, not
only at the listing levels, but with the recovery levels, and
hope that we will be able to make some significant success
there.
Mr. Knowles. I appreciate that, Mr. Chairman.
Senator Crapo. Senator Graham, do you have any questions?
Senator Graham. Yes, and if you have already asked this
question, if you would just shut me up----
Senator Crapo. Well, we'll see if they answer it the same
way.
[Laughter.]
Senator Graham. One of the things that I suspect led to
this hearing was the issue of the large volume of court-managed
endangered species cases and a proposal that there be a hiatus
in citizens' nomination of endangered species until that
backlog has been reduced. Could you comment as to what would be
the effect of that and your opinion as to what would be--and
your suggestion as to what would be--other ways to deal with
the same issue of the backlog of cases?
Mr. Frazer. I did address this a little bit ago, but I
would be happy to reiterate. We do have a significant backlog
in listing actions that has accumulated over a number of years.
The workload has been greater than the resources we have to
carry out all our duties under the Act.
Senator Graham. Could you give us a sense of what would
have been the cost to have fully and expeditiously maintained
your responsibility and what was your actual budget against
that?
Mr. Frazer. I would be happy to try to make that kind of
estimate and get that to you.
The landscape has changed rapidly. We had a listing
moratorium several years ago that affected our workflow. So it
hasn't been a steady playing field.
In addition, the focus, whether it was to add species to
the list or to deal with critical habitat designations, has
changed as well. But I can try to give you some sense.
Senator Graham. Mr. Knowles, could I ask the same question,
and maybe you could provide us with something in writing on
that issue, too?
Mr. Knowles. I would be glad to.
[The information referred to follows:]
NMFS is not in the same situation as FWS for several reasons. We
have been able to list species and designate critical habitat (most of
the time) within or close to the time limits proscribed by the Act. See
species list below which includes critical habitat designations. Also,
our budget requests target the needs of specific groups of species
(e.g., Pacific salmon, sea turtles, marine mammals) and not specific
ESA programs such as listing, critical habitat and section 7
consultations. This gives NMFS the flexibility to use our allocated
funds for a variety of ESA programs, and wherever the need is greatest
at the time.
NMFS ESA Species List.--June 2001
Listed/Proposed
----------------------------------------------------------------------------------------------------------------
Cites Critical
Common Name Population Name ESA Status Classification Scientific Name Habitat
----------------------------------------------------------------------------------------------------------------
Fish
Salmon, Atlantic............ Gulf of Maine Endangered..... .............. Salmo salar.... ...............
DPS.
Salmon, chinook............. Upper Threatened..... .............. Oncorhynchus Designated
Willamette tshawytscha.
River.
Snake River Threatened..... .............. Oncorhynchus Designated
Fall-run. tshawytscha.
California Threatened..... .............. Oncorhynchus Designated
Coastal. tshawytscha.
Central Vally Threatened..... .............. Oncorhynchus Designated
Spring-run. tshawytscha.
Lower Columbia Threatened..... .............. Oncorhynchus Designated
River. tshawytscha.
Upper Columbia Endangered..... .............. Oncorhynchus Designated
River Spring- tshawytscha.
run.
Snake River Threatened..... .............. Oncorhynchus Designated
Spring/Summer- tshawytscha.
run.
Sacramento Endangered..... .............. Oncorhynchus Designated
River Winter- tshawytscha.
run.
Puget Sound.... Threatened..... .............. Oncorhynchus Designated
tshawytscha.
Salmon, chum................ Hood Canal Threatened..... .............. Oncorhynchus Designated
Summer-run. keta.
Columbia River. Threatened..... .............. Oncorhynchus Designated
keta.
Salmon, coho................ Central Threatened..... .............. Oncorhynchus Designated
California kisutch.
Coast.
Southern Oregon/ Threatened..... .............. Oncorhynchus Designated
Northern kisutch.
California
Coast.
Oregon Coast... Threatened..... .............. Oncorhynchus Designated
kisutch.
Salmon, sockeye............. Snake River.... Endangered..... .............. Oncorhynchus Designated
nerka.
Ozette Lake.... Threatened..... .............. Oncorhynchus Designated
nerka.
Sawfish, smalltooth......... US-DPS......... Proposed .............. Pristis ...............
Endangered. pectinata.
Sturgeon, Gulf.............. Range-wide..... Threatened..... II Acipenser ...............
oxyrinchus
desotoi.
Sturgeon, shortnose......... Range-wide..... Endangered..... I Acipenser ...............
brevirostrum.
Totoaba..................... Gulf of Endangered..... I Cynoscion ...............
California. macdonaldi.
Trout, steelhead............ Upper Threatened..... .............. Oncorhynchus Designated
Willamette mykiss.
River.
Snake River Threatened..... .............. Oncorhynchus Designated
Basin. mykiss.
Trout, steelhead............ Southern Endangered..... .............. Oncorhynchus Designated
California. mykiss.
Middle Columbia Threatened..... .............. Oncorhynchus Designated
River. mykiss.
Upper Columbia Endangered..... .............. Oncorhynchus Designated
River. mykiss.
California Threatened..... .............. Oncorhynchus Designated
Central Valley. mykiss.
Northern Threatened..... .............. Oncorhynchus ...............
California. mykiss.
Lower Columbia Threatened..... .............. Oncorhynchus Designated
River. mykiss.
South-Central Threatened..... .............. Oncorhynchus Designated
California mykiss.
Coast.
Central Threatened..... .............. Oncorhynchus Designated
California mykiss.
Coast.
Mammal
Dolphin, Chinese River...... Yangtze River- Endangered..... I Lipotes ...............
China. vexillifer.
Dolphin, Indus River........ Indus River- Endangered..... I Platanista ...............
Pakistan. minor.
Porpoise, harbor, Gulf of Gulf of Endangered..... I Phocoena sinus. ...............
California. California.
Sea Lion, Steller........... East of 144 Threatened..... .............. Eumetopias Designated
Long (Eastern jubatus.
U.S.).
West of 144 Endangered..... .............. Eumetopias Designated
Long (Western jubatus.
U.S.).
Seal, Caribbean monk........ Range-wide..... Endangered..... I Monachus ...............
tropicalis.
Seal, Guadalupe fur......... Mexico-Southern Threatened..... I Arctocephalus ...............
California. townsendi.
Seal, Hawaiian monk......... Hawaiian Endangered..... I Monachus Designated
Islands. schauinslandi.
Seal Mediterranean monk..... Mediterranean Endangered..... I Monachus ...............
Sea. monachus.
Seal, ringed................ Lake Saimaa- Endangered..... .............. Phoca hispida ...............
Finland. saimensis.
Whale, blue................. Range-wide..... Endangered..... I Balaenoptera ...............
musculus.
Whale, bowhead.............. Range-wide..... Endangered..... I Balaena ...............
mysticetus.
Whale, finback.............. Range-wide..... Endangered..... I Balaenoptera ...............
physalus.
Whale, gray................. Western North Endangered..... I Eschrichtius ...............
Pacific robustus.
(Korean).
Whale, humpback............. Range-wide..... Endangered..... I Megaptera ...............
novaeangliae.
Whale, right, northern...... Range-wide..... Endangered..... I Eubalaena Designated
glacialis.
Whale, right, southern...... Range-wide..... Endangered..... I Eubalaena ...............
australis.
Whale, sei.................. Range-wide..... Endangered..... I Balaenoptera ...............
borealis.
Whale, sperm................ Range-wide..... Endangered..... I Physeter ...............
macrocephalus
(catodon).
Mollusk
Abalone, white.............. California..... Endangered..... .............. Haliotis ...............
sorenseni.
Reptile
Turtle, green sea........... Florida Endangered..... I Chelonia mydas. ...............
Breeding
Populations.
Mexican Endangered..... I Chelonia mydas. ...............
Breeding
Population.
Range-wide..... Threatened..... I Chelonia mydas. Designated
Turtle, hawksbill sea....... Range-wide..... Endangered..... I Eretmochelys Designated
imbricata.
Turtle, Kemp's ridley sea... Range-wide..... Endangered..... I Lepidochelys ...............
kempii.
Turtle, leatherback sea..... Range-wide..... Endangered..... I Dermochelys Designated
coriacea.
Turtle, loggerhead sea...... Range-wide..... Threatened..... I Caretta caretta ...............
Turtle, olive ridley sea.... Range-wide..... Threatened..... I Lepidochelys ...............
olivacea.
Mexican Endangered..... I Lepidochelys ...............
Breeding olivacea.
Population.
Seagrass
Seagrass, Johnson's......... Southeast Threatened..... .............. Halophila Designated
Florida. johnsonii.
----------------------------------------------------------------------------------------------------------------
Mr. Frazer. We did, though, ask for a significant increase
in our listing program for this fiscal year, about a 31 percent
increase. It's not going to be sufficient to be able to remove
the entire backlog, not close, but it is a significant increase
to our listing program capability. Hopefully, it will give us
the ability for next fiscal year to be able to have some amount
of funding that we would have discretion to apply to those
listing actions of the highest biological priority, whether it
is processing a petition from citizens to list or to actually
prepare a proposed listing rule.
This fiscal year, we find ourselves in the uncomfortable
position of having essentially every dollar that has been
appropriated committed to a listing action, most of which are
for designation of critical habitat for a species already
listed. These are actions that are required by court order or
under a settlement agreement. So we have no dollars available
to process a citizen petition or add a species to the list, or
to otherwise be able to carry out the other parts of our
listing program.
The listing cap language that we requested was to have
Congress recognize the backlog, the fact that the appropriation
was not going to be enough to remove the backlog entirely, and
to give us direction on how to spend the money that Congress
provides: first, to comply with existing court orders and then
to apply the remainder to listing actions that are biologically
prioritized as opposed to having our priorities set by
whichever court renders a decision on an order first.
Senator Graham. Thank you. I do have just one other quick
question I wanted to throw out to both of you, and that is: I
noted that last week the U.S. Fish and Wildlife Service made a
finding that there was a listing of a distinct population
segment, or a DPS, of the western sage grouse that was
warranted. I appreciate, Mr. Frazer, your explanation of use of
distinct population segments in listing, but, as you probably
know, a lot of debate circles around the use of distinct
population segments in endangered species listing actions.
Listing of distinct population segments certainly comes across
as something that is highly subjective--to the point that, in
fact, in 1979 this committee directed the Services to use this
technique sparingly, which I think is the exact word that was
used.
I would like each of you to respond to whether you believe
that your respective agencies are following that guidance from
the committee, that they are using distinct population segments
sparingly.
Mr. Frazer. I think that we are, in that we interpreted the
intent of Congress to the best of our ability and issued a
joint policy with NMFS that was designed specifically to
provide direction to our field people and managers about how
you make a determination of whether an entity is a distinct
population segment and appropriate for listing under the Act.
Since the DPS policy was issued, the U.S. Fish and Wildlife
Service has listed about 14 DPS's, which is about 3 percent of
the species that were listed during that period. Of these 14,
at least 4 of them were listed as a DPS so that we could
exclude populations that had been established through
artificial means or outside of their historic range, or they
involved intergrades with other more abundant populations, so
that they didn't require the protection of the Act. So our use
there of DPS's was to actually ensure that the protections
provided under the Act were focused upon those parts of the
species' range that were at risk.
I think that the application the Service has made of the
DPS policy has been with full knowledge of the direction of
Congress to use it sparingly.
Senator Graham. Mr. Knowles.
Mr. Knowles. I would also agree that we have used this
discretion sparingly. We have long been aware of the need for a
careful interpretation. In 1990, we received a petition to list
five stocks of Pacific salmon and had to come up with a
rigorous way of how to apply the DPS policy to Pacific salmon.
We published an interim policy, and over the 2 years between
1990 and 1992, we did a fair amount of public interaction,
convened workshops, published scientific papers, etc., and put
out a final policy on the use of evolutionarily significant
units in November 1991 applying the definition.
Then, in collaboration with the U.S. Fish and Wildlife
Service, in 1994, we started and worked for 2 years on a final
DPS policy. We do have 26 of our 55 or so listed species listed
as distinct population units, or ESUs, because of the Pacific
salmon. Except for Atlantic salmon, we don't have any other
species listed as a DPS, although I think we have one in the
pipeline.
Frankly, as the science evolves, and we are increasingly
aware of the biological basis for distinguishing populations,
we find ourselves confronted with the issue more significantly
now than in the past. For example, recent advances in our
understanding of the genetic structure of sea turtles indicate
that there are genetically unique populations that may require
different recovery strategies.
Senator Crapo. Well, thank you. Because of time, we are
going to have to move on, but I would like to thank this panel
for coming before us today and excuse you. We appreciate your
testimony and appearance.
Our second panel--and please come forward--is Dr. Deborah
Brosnan, who is the president of Sustainable Ecosystems
Institute in Portland, OR; Dr. David Wilcove, who is a
scientist with the Wildlife Program for the Environmental
Defense in Washington, DC, and Dr. Lev Ginzburg, a professor at
the Department of Ecology and Evolution at the State University
of New York at Stony Brook.
We appreciate your being here. I would like to remind you
of the need to watch the lights here on the clock, so that we
can have an opportunity to discuss matters in our dialog with
you.
With that, why don't we proceed with you, Dr. Brosnan.
STATEMENT OF DEBORAH BROSNAN, PRESIDENT, SUSTAINABLE ECOSYSTEMS
INSTITUTE, PORTLAND, OR
Dr. Brosnan. Thank you. Good morning. I am Deborah Brosnan,
president and founder of Sustainable Ecosystems Institute. The
Institute is a public-benefit, nonprofit organization that
provides impartial, scientific support for conservation. We're
nonpartisan and we seek science-based, cooperative solutions
that benefit both the environment and the human communities
that depend on it. Currently, over 300 scientists work with the
Institute to provide support to the Government, to the private
sector, and to citizen groups.
Now in recent years, there's been extensive comment and
critique of management under the Endangered Species Act. There
are calls for wider and more effective use of independent and
certainly impartial scientific analysis. Of course, U.S. Fish
and Wildlife Service and National Marine Fisheries Service have
committed to the use of scientific excellence and, indeed, they
employ many fine scientists.
However, they would probably be the first to acknowledge
the need for more resources and for better integration of their
efforts with the Nation's other scientific resources. This is a
point of view shared across the political spectrum.
Central to the idea of improving ESA science is the concept
of peer review. Peer review is a scientific equivalent of
quality control. It's our profession's established method of
ensuring that analyses are carried out properly, so the best
data are used, and that the conclusions drawn are appropriate.
It's already the policy of NMFS and U.S. Fish and Wildlife
Service that important decisions such as listing actions are
subject to external peer review. However, the widespread calls
for increased peer review, as outlined in my accompanying
table, testify to the general feeling that a more systematic
and open process is desirable.
At least 63 diverse groups are all calling for peer review,
and the detailed information in the table is revealing.
Essentially, each group wants impartial review of actions
affecting their primary concerns. So, for instance, resource
users tend to call for review of listing actions while
environmental groups favor review of habitat conservation plans
and recovery plans.
The groups are, however, united in their common belief that
an independent review would lead to better decisions and more
effective management and conservation. Scientific peer review
can, indeed, be of great use, and there's nothing to fear from
the process. However, it is important to have a well-thought-
out and a systematic process. Bad peer review is worse than no
peer review.
In the past few months SEI has begun a pilot process to
assess the U.S. Fish and Wildlife Service with peer review.
This is a pro bono effort by our scientists, and it supports
the Service's existing policies and processes. It's early days
in this experiment, but we can provide some information on
success rates.
Now in the accompanying graphic that is up here, I want to
show you first that the Service has diligently been seeking
independent peer review--this is the blue columns on the left--
often without recourse to SEI's help. Their success rate has
varied. Sometimes they have been successful, but other times
they failed to get the cooperation of independent scientists.
For instance, on critical habitat are the Arkansas Shriner,
the desert bighorn, and the California gnatcatcher, all
affecting huge areas of habitat, not one single scientific
review was received from any of the 17 scientists approached by
the Service. Yet, the Service had to, and did, make a decision.
The Institute usually has higher success rates for our
program with the Service and for other reviewers. Typically, we
have obtained a 96 percent success rate, response rate. I
believe our success can be explained by several factors.
As practicing scientists, we speak the same language as
scientists and can explain the needs and the uses of science.
We have an infrastructure that insulates scientists from
political issues and pressures, and we also reward scientists
both professionally and financially.
Peer review, however, is not a panacea. As I have
previously outlined in an article in the National Academy
Journal, simple extension of the academic model of peer review
to applied management decisions won't work. Peer review itself
needs to be re-examined and carefully designed in order for it
to be effective.
For instance, peer review in public decisionmaking cannot
be anonymous as it is in academia. Decisions have to be made
even when the science is incomplete or we are going to face
paralysis or analysis, and clear roads must be defined for the
scientists as well as for the decisionmakers.
The lessons we have learned so far have been useful.
Working within existing policies of the regulatory agencies,
peer review can, indeed, contribute to effective management.
Academic models of review and existing infrastructures,
however, are insufficient for the task. With U.S. Fish and
Wildlife Service and our other partners in academia, we have
begun to build process that includes the necessary structures,
and improvements are definitely possible.
Resources will be needed. We have, for instance, estimated
that a national peer review program would cost $3 to $5
million. Of course, we're estimating as a nonprofit, which
means we cost less than a Federal agency.
Peer review is a serious and professional undertaking. An
ad hoc or poorly thought-out approach will lead to frustration.
However, if properly implemented, peer review can contribute
much to ESA and to other natural resource decisions.
Thank you for your time and the opportunity to address the
committee.
Senator Crapo. Thank you very much, Dr. Brosnan.
Dr. Wilcove.
STATEMENT OF DAVID WILCOVE, SENIOR ECOLOGIST, WILDLIFE PROGRAM,
ENVIRONMENTAL DEFENSE, WASHINGTON, DC
Dr. Wilcove. Thank you very much. I'm David Wilcove with
Environmental Defense.
I think there are really two essential questions that we
have to face pertaining to the listing process. The regulated
community understandably wonders, are all of these species on
the endangered list really in trouble? Do they really belong
there? And conservationists wonder, well, how many really rare
species are there that haven't made it onto the endangered
list? Fortunately, we have empirical data with which to examine
both questions, and the answers are, yes, the species on the
endangered list really do belong there, based on the best
available information and, yes, there are lots and lots of rare
species that deserve to be on the list but haven't made it
there yet.
Because the statutory guidance as to what constitutes an
endangered or a threatened species is pretty vague, I think it
is worth examining the Service's track record. In 1993, we
published a study in the journal Conservation Biology in which
we looked at the population sizes of plants and animals that
were added to the endangered species list between the years
1985 and 1991. What we found was that the median population
size for an animal going onto the list was less than a thousand
individuals, which means that half of the animals that we add
to the list are rarer than giant pandas are today. The median
population size for plants going onto the list was fewer than
120 individuals. In short, we found that in essentially all of
the cases we examined the empirical evidence in support of an
endangered or threatened status was strong.
More recently, scientists at the National Center for
Ecological Analysis and Synthesis have repeated our work using
more recent data from 1996 to 2000, and they find that the
situation hasn't changed. What we're adding to the list are
species whose numbers have reached a critically low point.
Of course, sometimes after you list a species, you go out
and you discover additional populations, but we could only find
5 out of 1,200 cases where enough new populations have been
discovered to warrant taking the animal or plant off the list
because it was clearly an erroneous decision. We're dealing
with a low error rate here.
On that second question, as to whether there are lots of
species that haven't made it on the endangered list but deserve
to be there, we are actually fortunate that there is a new
source of information out. I call your attention to the book,
Precious Heritage: the Status of Biodiversity in the United
States, which was produced by the Nature Conservancy and the
Association for Biodiversity Information. It really represents,
I think, the most complete and up-to-date assessment of the
status of American wildlife.
The Nature Conservancy and the Association for Biodiversity
Information classified the plants and animals of the United
States with respect to their rarity based on the numbers of
known individuals and the numbers of populations of these
species. It brings together data from all 50 States and the
natural heritage programs.
The Nature Conservancy and the Association for Biodiversity
Information have identified well over 3,000 plants and animals
in the United States that by any reasonable scientific standard
should be on the endangered species list, and, in fact, that is
more than double the current total for the list. So I don't
think there is any doubt that we have a large number of
imperiled species that are out there that haven't made it onto
the list. The question is: What can Congress do about this?
I would suggest that, although the number of erroneous
listings is quite small, Congress could reduce that even
further by providing additional funds for biological
inventories and for monitoring, because, after all, better
information will produce more accurate listings.
On the matter of the backlog of deserving but unlisted
species, let me make this suggestion. I think we can
conservatively assume a backlog of about 2,000 species. At the
current rate at which we're adding them to the endangered
species list, it is going to take over 30 years to clear up
that backlog. But we might set a goal of erasing the backlog
within about a decade, and to do that I suggest Congress would
want to approximately triple the amount of money that it
provides for listing activities to about $20 million in the
next fiscal year. I would suggest that the penalty for not
doing that might well be the extinction of some of these plants
and animals.
Thank you.
Senator Crapo. Thank you very much, Dr. Wilcove.
Dr. Ginzburg.
STATEMENT OF LEV GINZBURG, PROFESSOR, DEPARTMENT OF ECOLOGY AND
EVOLUTION, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, AND
PRESIDENT, APPLIED BIOMATHEMATICS, SETAUKET, NY
Dr. Ginzburg. Thank you, Senator Crapo. My testimony
relates to consistency and transparency of the listing rules. I
am sort of representing the science of ecological risk analysis
here and the ideas of quantitative thresholds and clarity in
the rules.
Certainly, the determination of endangerment status is the
critical for the objectives of the Endangered Species Act. Yet,
the protocol that used currently by U.S. Fish and Wildlife
Service has been commonly criticized for being arbitrary
because of lack of clarity in the law.
Risk-based criteria have been used in other environmental
areas. There is a famous 10 to the -6 in human health, one in a
million, if you're not familiar with that, and there is a
famous 10 to the -5, I think, in the chances for meltdown for
nuclear reactors per reactor per year. Those 10 to -6 and 10 to
-5 didn't come easy, but they come through guidelines. This was
not legislation. This was guidelines issued by the Nuclear
Regulatory Commission and corresponding executive parts of the
Government.
I think similar action can be attempted here. I'm not sure
that it is necessary to change the whole Endangered Species
Act. It may be sufficient to clarify it by appealing to
scientifically based quantitative thresholds.
The example that I want to bring is a positive example of
the so-called IUCN criteria. IUCN used to stand for
International Union for Conservation of Nature. Now it is
called World Conservation Union. It is based in Switzerland. It
is an international organization of conservation biologists.
The rules that they develop are in practice in about 20
countries, some as laws, some as guidelines, throughout Europe,
Asia, Australia, New Zealand. It's widely used rules.
The World Conservation Union is an independent
organization, but what they say is respected around the world.
They have been publishing some Red Data Books from the 1960's,
close to 40 years. The criteria that are in place right now,
well, they are slightly different from what we have--we have
two categories; they have three--are based on 12 quantitative
estimates. I don't have time to explain all of them, but the
most important one is be a risk factor. For instance, a 10
percent risk of extinction in 100 years is the threshold of the
minimal listing. So below 10 percent risk in 100 years is a
safe level. Ten percent and above, indicates a vulnerable,
threatened, endangered species.
The numbers didn't just come from nowhere. There were
tremendous negotiations by biologists around the world. The
logic of the rule is pretty involved. Two out of three things
should be correct, and if this is right or that is right, then
you move to the next line.
But the important thing about these rules: They are very
transparent; they are clear; they are consistent; they're
accepted by the world. Of course, we are still measuring in
inches and pounds. We don't necessarily do what the world does
in the United States, but it might be good to look at what has
been done.
These rules are doing quite well. They are extremely
efficient from the point of view of the efficiency of listing
process, I think about 10 times more efficient, I would say.
They have analyzed and reviewed, not necessarily listed,
analyzed 18,000 species in 5 years, and they continue to do
that and regularly publish updates like this. A crude estimate
of wildlife efficiency of what we do per year for the last
year, 10 times would be a good estimate. The reason, of course,
is the clarity of the rules that allows it to be used
efficiently.
So I would suggest that we take a good look at these rules
and try to evolve our system so it is more clear along this
line, not necessarily adopting them literally, but generally
moving along that line. If we do that, we would improve the
listing system, make it more efficient, clear, transparent,
and, hopefully, cut down those lawsuits that you mentioned,
because I think the rules should be such that any individual or
organization which wants to know whether this species has to be
listed or not one way or the other has to come out with the
same answer, using the same information.
Senator Crapo. Well, thank you, Dr. Ginzburg.
Let me begin the questioning with you, Dr. Brosnan. As you
indicated in your testimony, there are some disincentives for
effective peer review in the system that we now use. You have
covered this in some of your written and your oral testimony
already, but I would like to ask you to just kind of summarize
for me, how do we remove some of these disincentives, so that
scientists are more willing to engage in peer review? How do we
motivate scientists to provide those reviews?
Dr. Brosnan. I think the first thing is to understand the
scientific or the academic culture. There are few rewards for
scientists who engage in public service. In fact, there are
major disincentives. It doesn't count toward tenure or
promotion. It is viewed as time taken away from publishing or
doing basic research.
What we have found is that you need to provide rewards that
are appropriate to the profession. In our case we found that,
for instance, a letter from the member of the National Academy
of Sciences or a senior scientist in that scientist field that
goes in the file can be very effective and can be an incentive.
Second, a financial reward is an incentive for two reasons.
First, it speaks to the seriousness of the effort and, second,
it recognizes the professionalism of the scientist and the
professional duty that they are performing.
A third issue that we found important is to provide an
insulation or a buffer. Many scientists don't want to be
dragged into a process that goes on for years where they are
taken into court, set up against dueling scientists, and where
their credibility as a scientist becomes questioned by one side
or another. If you can provide a buffer that insulates a
scientist from that process, that is very effective.
From the point of view of peer review, it is also important
to in one sense dissuade the scientist and find they become a
manager. As scientists, we're used to making decisions and
making statements that we expect the world to follow. It is
important to keep a clear distinction between scientific input
and a management decision.
Senator Crapo. Thank you very much. Who should provide and
administer the peer review system?
Dr. Brosnan. I think you have to recognize what you want
from the peer review system. From what I can see, you need
three main things. You want scientific excellence. You want
scientific credibility and impartiality, and you want practical
use from peer review. Peer review is not going to be used just
for an academic publication. It is going to be used to make a
natural resource decision that has huge impacts on society.
Finally, you want buy-in from the stakeholders into the
peer review process. Some of the models that have been
proposed, S. bill 1180, I think, suggests that the National
Academy of Sciences should run peer review. I don't think that
is a very good idea for two reasons. One, the Academy tends to
deal in broader issues and have a much longer timeframe in
producing its reports. Second, many of them are not familiar
with the practicality side of natural resources. The academic
model, again, lacks the practicality and also the reward
structure, and it is a very different system.
I think what we need is a new infrastructure. We need a
National Center for Peer Review that allows a scientist both to
be independent, credible, and buffered.
Senator Crapo. Thank you very much.
Dr. Wilcove, first of all, I have a note here that says
that you are an affiliate professor with the University of
Idaho; is that right?
Dr. Wilcove. That is correct, Senator.
Senator Crapo. Your stature has just increased. I'm glad to
know that.
[Laughter.]
As we have been discussing with Dr. Brosnan the question of
peer review, would you comment on the issues she has raised? Do
you agree with those? Or do you feel that we can address it in
a different way?
Dr. Wilcove. I am certainly not opposed to peer review. I
think it is a good idea. Unfortunately, a lot of people in my
field of ecology steer clear of doing anything that's terribly
useful or practical like peer review. I think Dr. Brosnan has
outlined some of the reasons why that is the case.
My suggestion would be to keep the administration of a peer
review system within the Services because I think they can do
it better and more efficiently than some outside entity which
is not tied into the movement of the various listing proposals
and the like.
Having said that, I have to emphasize again that the track
record of the Services from a scientific perspective isn't bad.
We're not dealing with agencies that are making a lot of errors
in terms of putting undeserving plants and animals on the list.
So I have to say that it would not be my top priority to
address. Frankly, I'm more concerned about the lag time or the
delay in getting species that are in trouble onto the list.
Senator Crapo. Let me ask you a question in that context.
You heard me earlier, I assume, discuss the volume of
litigation that the Service is now dealing with. I assume from
you're testifying that your position would be that that
litigation is a result primarily of the fact that the Agency or
the Service is not getting to the issues quickly enough, but
let me ask you in your own words to tell me, why do you think
we have so much litigation over the listing?
Dr. Wilcove. Well, I think it fundamentally stems from the
fact that this is a big country with an awful lot of wildlife
resources that has had a booming economy for a long, long time.
That means we have a large number of plants and animals that
are at some risk of disappearing. These are problems that have
built up literally over the course of a couple of centuries,
and we have been running the Endangered Species Act since 1973
and listing species at what we think is a rapid rate, but, in
reality, it is not relative to the need out there. So there
isn't going to be an easy way to get out of that.
I am certainly sympathetic to the Service's dilemma now and
I would very much like to see more of these rare and often
ignored species get on the list. My thought would be, let's try
to address this by giving them significantly more resources to
do that sort of work than we have previously given them. Even
the increase that the Services received in the current fiscal
year is still small relative to the need that is out there.
Senator Crapo. Thank you. Let me ask you just one other
quick question. I don't know if you have read it, but you heard
Dr. Ginzburg's testimony about the potential to objectify the
process and make it more scientifically evaluatable. Would you
support objective criteria for listing and delisting?
Dr. Wilcove. Two thoughts on that: First, I actually
compared the track record of the Service against the criteria
that Dr. Ginzburg talked about. Indeed, the species that they
are putting on, by and large, fall within the categories of
endangerment that the World Conservation Union outlines. So if
we had objective criteria in place, we probably would not be
throwing out very many, if any, of the species that are
currently on the list.
Having said that, I think those criteria are thoughtful and
very useful, and I would not be opposed to raising with the
Services the possibility of incorporating them in their listing
decisions.
Senator Crapo. Thank you.
Dr. Ginzburg, I found your testimony to be very
interesting. I am wondering, would you support that the same
criteria be used for delisting as would be used for listing?
Dr. Ginzburg. Certainly. I think that they are clear and
quantitative, unless something comes off.
Senator Crapo. I think that the method that you suggest for
determining a level of risk would be useful, although I remain
concerned about the question of whether we have sufficient data
or adequate science. It is a question that is often thrown up
to us. How can the objective method that you talked about
actually work when, as so often happens, we have major gaps in
the data?
Mr. Ginzburg. Well, it is better to have clear uncertainty
in quantitative data than an unclear, poetic statement of the
Act. I guess in the recent Presidential election, we all heard
about the fuzzy math--remember--that both candidates used? It
actually is an area of mathematics for about 30 years called
fuzzy arithmetic.
Senator Crapo. Oh, is that right?
[Laughter.]
Dr. Ginzburg. Yes, it exists for 30 years. While we have
been working on this, an application of this, through the
listing, I am applying this algebra sort of of uncertain
numbers. What it is concerned with is how to do judgments and
mathematical operations with unclear values. They are still
values. They are more than words----
Senator Crapo. Trying to objectify something that isn't
really subject----
Mr. Ginzburg [continuing]. But the values have
uncertainties associated with that. So fuzzy math is not just a
joke in the election. It is also a serious branch of
mathematics.
Senator Crapo. It's actually called fuzzy math, huh?
Dr. Ginzburg. Yes, it is called fuzzy mathematics and it
was invented in the United States about 30 years ago.
Senator Crapo. Well, that is very interesting. It is a good
thing you didn't bring that up during the elections.
[Laughter.]
Dr. Ginzburg. Yes, I mean, I don't have time to explain
what it is, but it is pretty easy. In about 10 minutes I could
explain, but I don't have that.
Senator Crapo. Well, it just still seems to me that any
method that we use is going to be difficult to fill confident
in if we have major gaps in the data. But you're telling me
that----
Dr. Ginzburg. There is a way, and, also, the IUCN ruled
specifically under their five categories of questions: How many
individuals are left? How many populations are left? Whether
the decline is more than so much percent over the next 30
years, and so on. There are various questions, but they
recognize the data may not be sufficient to answer all of them.
So they allow the decision to be made on part of them. So if
you only know about the abundance or only about the decline or
only about the geographic spread, the listing still takes
place.
In fact, as you have more information, you could sort of
read it back and see which of the five criteria pushed you into
that category because the others may say classified is OK and
that one may be vulnerable, things like that. But the absence
of information does not prevent listing or delisting. That is
how IUCN rules have been applied consistently for many years.
Senator Crapo. OK, well, that makes sense although it still
seems to me--and maybe it is just a problem that we will have--
as long as we don't have the absolute data, whether we try to
objectify the decision or subjectify the decision, we still
live with it.
All right. Well, again, we're running short on time. I wish
we go further, but I would like to thank this panel for both
your written and your oral testimony and for your input into
our decisionmaking. Thank you very much.
I would like to call up our third and final panel: Mr. John
Echeverria, who is the director of the Environmental Policy
Project at Georgetown University Law Center; Mr. Steven
Quarles, counsel for the QuadState County Government Coalition
and American Forest and Paper Association; Mr. Steve Moyer, the
vice president of Conservation Programs at Trout Unlimited; Mr.
Ralph Moss, director of Government Affairs at Seaboard
Corporation, and Mr. Zeke Grader, executive director of the
Pacific Coast Federation of Fishermen's Associations.
Gentleman, we appreciate your being with us and we will
proceed in the order that I read your names, which will be from
your right across the table. Again, I would like to remind you
as well to try to remember to watch the lights here, so that we
can have an opportunity for discussion.
Mr. Echeverria.
STATEMENT OF JOHN ECHEVERRIA, DIRECTOR, ENVIRONMENTAL POLICY
PROJECT, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC
Mr. Echeverria. Thank you, Mr. Chairman. My name is John
Echeverria, and I'm the director of the Environmental Policy
Project at Georgetown University Law Center in Washington, DC,
where I am also an adjunct professor. I appreciate the
opportunity to be here.
My written testimony addresses a number of issues, and I
would be happy to discuss those. But I thought in my brief oral
testimony I would focus on the issue of citizen suits.
The Administration's recent budget submission to Congress
includes a proposal that would prevent citizens from continuing
to go to Federal court to enforce deadlines in section 4 of the
ESA for the listing of threatened and endangered species and
for the designation of critical habitat. In my view this
proposal is unwise for two reasons. First, it would destroy one
of Congress' most valuable tools for ensuring that Federal
agencies comply with the ESA as Congress intended. Second, it
fails to address the most obvious solution to the growing
volume of ESA lawsuits being filed against the agencies.
As an attorney, I acknowledge that lawyers and lawsuits are
at best a necessary evil. In an ideal world there would be
little or none of either one of them. Unfortunately, this is
not an ideal world, and I think we all recognize that lawyers
and lawsuits are necessary for a variety of purposes, including
the vindication of public and private rights. And I'm sure,
whatever else Mr. Quarles has to say, that he will agree with
me on that.
The legislative history of the ESA makes clear that
Congress included a specific provision authorizing citizen
suits for a very sensible reason. As the committee is aware,
Congress has the opportunity to act on major legislation such
as the ESA on a relatively infrequent basis. Therefore, an
obvious concern for Congress has been what steps the agencies
will take or will not take to implement the law during the long
periods when Congress is focusing on other issues.
Unfortunately, experience has shown that coalitions of
regulated businesses tend to exert enormous influence by
lobbying the agencies to delay implementation of the law or to
adopt strained interpretations of the law that will lessen
their regulatory burdens. These efforts are countered to a
limited degree at least by environmental advocates who attempt
to speak on behalf of the broad public interest protected by
the law. Unfortunately, concentrated wealth and power
frequently prevail over the broad public interest in this
process. Academics talk about this phenomenon using fancy terms
like the collective action problem and agency capture. Most
citizens simply understand that money talks.
Citizen suits provide Congress a solution to this problem.
By empowering individual groups and citizens to directly
enforce the law as Congress has written it, Congress creates an
important check on the agencies' ability to subvert Congress'
will. The goal is not, as some have suggested, to set up the
courts as the arbiters of environmental disputes or to assign
citizen groups around the country some special policymaking
responsibility. Instead, the goal is simply to use our
established judicial procedures to see that Congress' will is
carried out. In many cases the mere threat of successful
litigation can prevent an agency from flouting the will of
Congress and avoid the need for actual litigation.
Mr. Chairman, you asked the question, why is there so much
litigation? The obvious answer is the enormous backlog of
species listings and habitat designations that need to be
carried out according to the standards and schedules that
Congress included in the Endangered Species Act.
There has been a lot of criticism of litigation as a
serious problem. But it seems to me that describing ESA
litigation as a problem is a little bit like blaming the canary
in the coal mine for chirping a little two loudly. The volume
of litigation in this country over the ESA is, in my judgment,
less a problem than a symptom of a problem.
I also want to observe that with respect to the
Administration's proposal it is fair to observe that we have
already been there and done that, so to speak. Prior to 1982,
the Endangered Species Act did not have the kinds of specific
enforceable deadlines that it has today. Under the earlier
regime the agencies got very little done. As the legislative
history of the 1982 amendments to the ESA reflects, Congress
included enforceable deadlines in order to move the agencies
along.
Finally, I would simply observe that, if the
Administration's objective is to avoid unnecessary litigation
rather than to gut the ESA, a ready solution is at hand:
increased appropriations to address the backlog of ESA listings
and habitat designations.
I understand that the U.S. Fish and Wildlife Service has
estimated that a relatively modest $120 million over a period
of years would eliminate the backlog and thereby eliminate the
basis for many of the suits being filed. As compared to
eviscerating the citizens' suit provision, increased funding
levels will allow Congress to reduce the volume of litigation
against the agencies while simultaneously preserving an
important tool to prevent agencies from ignoring congressional
mandates.
Thank you, and I will be happy to respond to any questions.
Senator Crapo. Thank you very much. And it is
``Echeverria''?
Mr. Echeverria. Echeverria.
Senator Crapo. I'll get it right. I'm sorry.
Mr. Quarles.
STATEMENT OF STEVEN P. QUARLES, COUNSEL, QUADSTATE COUNTY OF
GOVERNMENT COALITION AND AMERICAN FOREST AND PAPER ASSOCIATION,
WASHINGTON, DC
Mr. Quarles. Thank you. It's a pleasure to be here. I am
representing the American Forest and Paper Association and the
QuadState County Government Coalition, a coalition of six
counties in four States that share portions of the Mojave and
the Colorado Deserts.
Certainly the issue on which this subcommittee has chosen
to hold a hearing is absolutely timely. Over the 3 decades
since enactment of the Endangered Species Act, we have had many
disputes over individual determinations of species' listings,
but now for the first time, I think, we are beginning to see
real contention over the basic process of listing, including
the underlying science and law. That certainly has been
heightened first by the announced moratorium of the Clinton
Administration on consideration of new listings other than
those required by court order, and then by the legislative
language that is contained in the Bush budget proposal.
What I would like to talk about in my short time is the
overbroad definition of species eligible for listing. I am
going to emphasize the authority to list distinct population
segments of vertebrates; efforts by Congress and this committee
to restrict the use of that authority; how the authority has
been expanded by the U.S. Fish and Wildlife Service and
National Marine Fisheries Service well beyond the expectations
of Congress, and, in particular, this committee; and the
infiltration of that concept into other Endangered Species Act
decisionmaking and listing. I also probably will not have time,
but do have suggestions for at least a couple of ways of
addressing these problems.
The Endangered Species Act, as has been noted, has really
an unusual definition of species. It's not only true biological
species, but recognized subspecies and distinct population
segments of vertebrates. This is not the first definition of
species in the ESA. In 1973, when the ESA was first enacted,
the definition was very liberal. It included populations in
common spatial arrangement. By 1978, Congress had had second
thoughts about that very loose and liberal definition of
populations of sub-subspecies category and passed what is now
the definition of species that includes distinct population
segment.
But that whole definition of sub-subspecies still met with
criticism, including withering criticism from the General
Accounting Office in their well-known ``squirrels in the park''
analogy in which they said in testimony before this committee,
``The squirrels in a specific city park could be listed as
endangered even though an abundance of squirrels lived in other
parks in the same city and elsewhere.''
This committee in 1979, in considering the 1979 amendments,
decided to retain that definition even though the GAO had asked
that the sub-subspecies category be deleted, but did issue a
stern admonition to the Services, one you mentioned earlier,
``The committee is aware of the great potential for abuse of
this authority and expects Fish and Wildlife Service to use the
ability to list populations sparingly and only when the
biological evidence indicates such action is warranted.''
I would argue the Services have used the authority
unsparingly. The two policies that they put out in 1991 and
1996 have been criticized by environmental lawyers, including
Dan Rohlf, as rife with discretion. The policies do nothing to
limit and arguably substantially expand the authority to list
distinct population segments--and, indeed, are expanding such
listings rapidly.
In the last 5 years the Services have listed 38 distinct
population segments, five times the number they listed in the
previous 5 years. There are 35 distinct population segments in
the rulemaking pipeline.
How have the Services been able to expand this authority?
Well, first, there is no scientific agreement on the distinct
population segment. The Services stated in the preamble to
their policies: ``Available scientific information provides
little specific enlightenment in interpreting the phrase
`distinct population segment.' The term is not commonly used in
scientific discourse.'' The National Research Council admitted,
even as it proposed a distinct population segment concept of
its own, that such a concept was more a matter ``of judgment''
as much science. And Congress is complicit. Congress has chosen
not to define distinct population segment, and the legislative
history provides no real guidance.
Examples of abuse are many. We have seen the designation of
distinct population segments in the lower 48 States without any
discussion of reproductive isolation, biological distinctness,
or problems of abundance outside of the United States.
We have also seen one other misuse--significant misuse--of
the distinct population segment concept, and that is
designating distinct population segments, or all but
designating distinct population segments, after the listing is
completed. The Services list a species, subspecies, or a large
population, but then engaged in decisionmaking under provisions
throughout the rest of the Endangered Species Act on smaller
populations that never more considered in rulemaking, never
were the subject of notice and comment and public
participation. They divide what was a species or a subspecies
or a large population segment into smaller recovery units in
the recovery plan each of which is subject to a separate
recovery goal, thereby extending the time in which the species
remains on the books as a threatened species or an endangered
species, and they also divide them into smaller populations
when undertaking section 7 consultations thereby making it
easier to find jeopardy--both clearly problems for landowners
and private property interests.
I do have some suggestions for change which I would be
happy to share with the committee at the appropriate time.
Senator Crapo. Thank you, Mr. Quarles.
Mr. Moyer.
STATEMENT OF STEVEN N. MOYER, VICE PRESIDENT OF CONSERVATION
PROGRAMS, TROUT UNLIMITED, ARLINGTON, VA
Mr. Moyer. Thank you, Mr. Chairman, Mr. Crapo. I really
appreciate the opportunity to be here today to represent Trout
Unlimited. Trout Unlimited is a national fisheries conservation
group dedicated to protection and restoration of the Nation's
trout and salmon species and the watersheds on which they
depend. We have 130,000 members in about 500 chapters across
the country, and our members generally are trout and salmon
anglers who contribute a lot of their time and money back into
protecting and restoring a resource that they love.
Because of declining populations of native trout and salmon
across the country, especially in the West, our members
increasingly rely on the provisions of the Endangered Species
Act to protect trout and salmon. So TU supports the Endangered
Species Act and considers it to be one of the most important
laws that we have for protecting and restoring trout and salmon
populations.
I just wanted to begin by expressing my thanks to you, Mr.
Crapo, for supporting the Snake River salmon appropriations
package that you did. I think that is a bold step and very
constructive, and fitting with your longstanding interest in
that issue.
Senator Crapo. Thank you.
Mr. Moyer. Now let me get straight to summarizing my
summary by making the following statements.
TU believes that the listing and delisting processes as
written in law are fundamentally sound. Implementation of the
processes by the agencies is slowed unacceptably because of the
huge listing backlogs and insufficient funding, most
importantly. Implementation of the listing process clearly
needs to be improved, but in our view the solution to the
problem is not to weaken the process legislatively or
administratively, but rather it is for the Bush Administration
to propose and Congress to appropriate additional funding for
listing decisions.
On the question of science, in our experience, applying
sound science to listing and delisting decisions is not a
substantial problem. We think the Services generally work very
hard at getting the science right and giving people adequate
chance to comment upon it.
Just on the current proposal that is before us that has
been discussed, we don't support the current Bush
Administration proposal to, among other things, restrict
citizen lawsuit enforcement of the listing deadlines. And,
again, what we think is the right thing to do is to, instead,
appropriate a significant increase for listing.
Finally, one thing that I really wanted to raise, because I
don't think it has been raised before, is that there are a
number of good opportunities for the subcommittee and the
committee that the committees can avail themselves of to really
get at the root problem that we are talking about today, which
is the substantial declines in species populations across the
country. That is to support conservation initiatives other than
in the Endangered Species Act which could actually reduce the
need to list species in the first place.
Three examples that I talked about in my testimony were the
CRA, the Conservation Reinvestment Act, the Fishable Waters
Act, and front and center are the conservation programs under
the farm bill. These are three pending issues that the
committee will be looking at that could really get at the root
problem.
A couple of other points I would like to elaborate and
emphasize, and first is declining populations, especially of
fish and wildlife. Populations of species that are vital to
sport and commercial fisheries are reaching threatened and
endangered status, and there are now 33 species of trout and
salmon that are listed. These range all the way from the rivers
of Maine, where Atlantic salmon are listed, to bulltrout of the
intermountain West, to the Pacific salmon of the Northwest and
California.
The ESA listing and delisting processes are fundamentally
sound, we think, as I mentioned before. Congress wisely stated
that the decisions to list or delist species should be based
solely on the best available science. In our experience, the
Services generally have used this authority appropriately. We
have had disagreements with the agencies over their
interpretation of the science, but in the main they have done a
respectable job.
Similarly, ESA's mandate to protect distinct population
segments is a wise, essential conservation tool, especially for
species such as trout and salmon, which consist of an array of
populations like fibers in a tapestry that give resilience and
strength to species. These populations provide the genetic
fitness that species need to survive the vagaries of weather,
environment, and human-contrived obstacles that threaten them.
Conservationists would generally like to see National
Marine Fisheries Service, for example, segment out the distinct
populations even further, because biologically it probably
would be a helpful thing to do in some cases. But, while we
don't always agree, again, we will continue to debate these
issues. We respect that the agencies have a difficult job to do
in making these decisions and they are trying hard to do them
well.
I just wanted to end by making two more points. One is that
listing of trout and salmon has benefited all the species that
have been listed. There's some thought that, because there have
been so few delistings, that the species perhaps haven't
benefited by listing. In fact, in our experience, all the
species that have been listed have gained some benefit.
Two I will mention in particular are the greenback
cutthroat trout in Colorado, the State fish of Colorado, and
the Apache trout in Arizona. Both species, once on death's
doorstep, have now been restored to the point where very
limited, very restrictive catch-and-release fisheries can occur
which provide great economic benefit to communities and
individuals in those States. So there's two examples where the
Endangered Species Act lifting has really helped, but we think
it has helped across the board.
Finally, I just wanted to mention again the opportunity
that the subcommittee and the committee have before them in
other areas besides the Endangered Species Act. The bills that
I mentioned before I think are three good examples where the
committee could take very helpful action that would get at the
root cause of the listing problem, which is that there's a
whole lot of species that need to be listed.
So thanks very much for the opportunity to testify today.
Senator Crapo. Thank you very much, Mr. Moyer.
Mr. Moss.
STATEMENT OF RALPH L. MOSS, DIRECTOR, GOVERNMENT AFFAIRS,
SEABOARD CORPORATION, WASHINGTON, DC, ON BEHALF OF ATLANTIC
SALMON OF MAINE
Mr. Moss. Mr. Chairman, my name is Ralph L. Moss, and I'm
testifying on behalf of Atlantic Salmon of Maine, which is the
largest salmon aquaculture company in North America. Seaboard
Corporation is a major stockholder in Atlantic Salmon of Maine,
and I have been involved with this issue for the last 7 years.
I appreciate the opportunity to testify before you this morning
concerning our firsthand experience with the recent joint
decision of the U.S. Fish and Wildlife Service and the National
Marine Fisheries Service to list the Maine Atlantic salmon as
endangered under the ESA.
In our particular case, we believe that this Act is being
implemented in an arbitrary and heavy-handed manner that is
both inconsistent with congressional intent and
counterproductive for the restoration of the species. We would
like to be clear that our company is a strong partner in the
State of Maine Atlantic Salmon Conservation Plan and supports
salmon restoration in Maine rivers. But, like Maine's Governor,
Angus King, and the members of our congressional delegation,
our company opposes the Services' decision to list these fish
as an endangered species. The listing is fundamentally wrong
for scientific, legal, and policy reasons.
Maine salmon runs are restoration fish, the product of more
than 120 years of hatchery stocking of non-indigenous salmon
into these rivers and do not qualify as a distinct population
segment for ESA listing. The Maine listing represents a
dangerous backslide by the Services into an inflexible
interpretation of the ESA that fails to honor the State
conservation plans and creates an unsustainable burden on
Federal wildlife programs.
It is widely recognized that the Federal Government alone
cannot recover endangered or threatened species. The States,
with their traditional authority over wildlife management and
land use planning, are ideally positioned to fashion
conservation plans that are custom-tailored to the resource,
its habitat, and local conditions. This is especially true in
Maine. Virtually all salmon habitat is in private
landownership, and only the voluntary cooperation of landowners
will enable salmon habitat upgrades.
In Maine's case, the Services initially recognized the
value of the State's conservation plan. This plan was developed
by a task force which included Federal fishery scientists. The
Maine plan provides 5-year action plan to recover the species
with specific priority actions for each of the rivers. The plan
gives top priorities to the projects that directly benefit the
resource and provides creative solutions for the agricultural,
forestry, and aquaculture areas to minimize stock impacts and
disruption of the Downeast businesses.
In December 1997, the Services celebrated the Maine plan as
a national model that would open a new chapter in conservation
history. The Services determined that a threatened ESA listing
of the runs was not warranted because the State plan offered
sufficient protections, but less than 2 years later, apparently
in response to pressure from a lawsuit filed by environmental
groups, the Services abruptly reversed course and decided to
list Maine Atlantic salmon as endangered. The Services failed
to provide a credible rationale for the listing or to
demonstrate any truly changed circumstances in the status of
the Maine run.
The State of Maine put $2 million into their plan. Our
company alone put $200,000, at the State's request, into this
plan. This was for an innovative adult restoration stocking
program, raising wild fish from the river for later release,
and natural spawning. Although highly successful to date, the
adult stocking program's future is uncertain now with the
listing.
By rushing into the listing, the Services effectively
derailed the State plan. There is no appetite now for dealing
with the Services on the part of the industry. Given their
failure to be guided by the best available science and the poor
track record on pragmatic solutions, the Services turned a deaf
ear to the ESA mandate that the best scientific evidence be
used to make listing determinations and failed to heed
congressional cautions to use their power to list distinct
population segments sparingly.
We heard the Services' representatives repeat many times in
the Maine listing hearings that, although the genetic evidence
was incomplete and that the genetic heritage of the Maine
salmon was not clear, the precautionary principle required that
the salmon be listed, given the low population levels. The
agencies' growing reliance upon the precautionary principle in
ESA represents a fundamental conflict with statutory authority
and congressional intent on ESA listings.
I could go on, and I will be allowed during the questions.
I hope to be able to make some suggestions, but I would like to
conclude by saying that we, as an industry, have vowed to work
with the State. We hope that this decision can be reversed, and
we are prepared to work with you and your committee on this
issue.
Senator Crapo. Thank you very much, Mr. Moss.
Mr. Grader.
STATEMENT OF ZEKE GRADER, EXECUTIVE DIRECTOR, PACIFIC COAST
FEDERATION OF FISHERMEN'S ASSOCIATIONS, SAN FRANCISCO, CA
Mr. Grader. Thank you, Mr. Chairman. I appreciate this
opportunity to discuss with you today the issues of listing and
delisting of species under the Endangered Species Act. Our
organization has had considerable experience working with the
Endangered Species Act since at least 1986. My organization, as
the name might imply, represents working men and women in the
West Coast commercial fishing fleet. These people depend on
fish, the productivity of the oceans and our rivers, for their
livelihoods and they're food producers.
You have copies of our written comments, which are fairly
extensive. Rather than summarize or repeat those, what I would
like to do, rather, Mr. Chairman, is talk about one specific
instance, one particular species, and give an example of what I
think works and doesn't work with the listing and delisting
process. That species I would like to talk about is the
Sacramento winter run chinook salmon.
This, as you may know, was the first Pacific salmon listed
under the Endangered Species Act, and it actually goes back to
the efforts in 1986. This species, I should add, numbered about
120,000 spawners in 1969. This was a unique species along the
Pacific Coast that spawned in the summertime, even during hot
weather. It was a run that Livingston Stone wrote admiringly
about when he first came to the West Coast on behalf of the
Fish Commissioner in 1870. He was looking at problems with
Pacific salmon.
Like I said, in 1969 there were 120,000 winter-run chinook
spawners. By 1986 that number had declined to some 2,000 fish.
The warning was sounded by the American Fisheries Society,
which is the professional organization of fishery scientists in
this Nation. That year AFS petitioned for listing of winter-run
salmon under the ESA. They cited the various reasons for the
causes of the declines--everything from warm water releases
from a major Bureau of Reclamation reservoir at Shasta Lake,
diversions from an irrigation diversion dam or irrigation
projects on the Upper River that were entraining and putting
fish into the fields, juvenile fish; a diversion dam downstream
that was causing problems--creating habitat for predators, as
well as problems further downstream in the Delta--the
Sacramento-San Joaquin Delta, from two major pumping
operations, State and Federal, as well as pollution from a
Superfund site originating at an old mining operation.
Shortly after the petition was filed and a lawsuit was
threatened, the agencies took upon themselves, the State and
Federal agencies, to come together with a 10-point plan for the
recovery of these fish. They looked at some of the issues that
the American Fisheries Society had laid out.
But what they came up with was basically what we call the
10-point handshake. None of it was enforceable except for the
restrictions on fishing in the river by the recreational
fishermen. Ironically enough, that--the fishing--was not listed
by the American Fisheries Society as one of the problems that
had led to the decline of the fish.
By 1989 the run had declined to 400 fish. The fishery
agencies still had not acted. Finally, the California Fish and
Game Commission decided to act and did list the run under the
State's endangered species act, more or less embarrassing the
Federal agency the National Marine Fisheries Service to finally
take action.
By 1991 the run was down to 191 fish and was quickly on the
way to extinction. At that point my organization called
together the State and Federal agencies that were responsible.
It is ironic that a group of fishermen has to pull the agencies
together, but that's, indeed, what happened, and said, we've
got to do something. We embarked on a captive brood stock
program, among other things, and started demanding enforcement
of actions designed to address the declines.
Shortly after that, and under some threats from lawsuits
from private groups such as our own, the American Fisheries
Society and some of the recreational fishing groups, the Agency
did take some action against some upstream water diverters. A
$100 million plan was put in place to finally correct a
temperature control at the Shasta Dam, and fish passage at the
Red Bluff diversion dam was taken care of by lifting the gates
during critical passage periods. Moreover, the State and
Federal pumps in the Delta were curtailed during the critical
migration periods.
What happened, then, is that the Agency did finally act
hesitantly when the run was almost near extinction, and we have
seen progress over the last few years. The Act, the ESA, does,
in fact, work to restore fish. I think the winter run are a
classic example. We are up to between an estimated 3,000 to
10,000 fish now. We are on our way to recovery.
But the concern with all of this is that we have to do
something about getting the agencies to act in a timely
fashion, not waiting until we're on the brink of extinction
before we go to list these fish. Obviously, more funding is
needed in the listing process. But, probably more important, we
need funding in the delisting area to make sure that we can put
in place those type of corrections for addressing habitat and
other problems that caused the decline in the first place, so
that we can then promptly and quickly get the runs back and
recovered and then have them delisted. So funds are needed,
yes, for listing, but we also need to be looking, too, as well
as appropriations, to get on with delisting these species. That
is going to take money, Mr. Chairman. Thank you.
Senator Crapo. Thank you very much, Mr. Grader.
Let me go with my questions. First to you, Mr. Quarles, I
wanted to follow up with the comment that you made when you
were talking about distinct population segments. Either in your
written testimony or your oral testimony--I can't remember
which--there was something that caught my attention about the
fact that the Services are apparently listing recovery units
that are even smaller than distinct population segments; is
that right?
Mr. Quarles. What they're doing, which we find very
disturbing, is they will list a species, a subspecies, or a
distinct population segment, and then in implementing the rest
of the Act, they will adhere to the category or the level that
was listed.
Senator Crapo. Right.
Mr. Quarles. For instance, with red-cockaded woodpeckers,
they listed a very large--now I can't remember whether it was a
species or subspecies--but a bird that is found throughout the
Southeast. Instead, when they do jeopardy determinations under
the consultation process, they basically, without rulemaking,
simply establish a small population of the wookpecker and
determine whether the Agency action--timber harvesting or
whatever--is jeopardizing that population, rather than
jeopardizing the species which was actually listed.
The same thing happens in recovery plans. We're seeing more
and more often that the Services will list a population like
the grizzly bear or the Mojave population of the desert
tortoise, and then in recovery plans, without any rulemaking,
basically, relist as recovery units or distinct population
segments a whole number of smaller populations. We believe that
is clearly contrary to the Act.
Senator Crapo. In your testimony you said you had some
recommendations for how to solve the problem. What would those
be?
Mr. Quarles. Well, basically, it would be to enact into law
what this committee said in its committee report in 1979. My
view is that the way the Endangered Species Act now reads there
is suggestion that all three categories, if found, must be
listed--species, subspecies, and distinct population segments--
if they're at risk in a portion of their range. My view would
be to make listings of species and subspecies mandatory, but to
make listings of sub-subspecies or distinct population segments
discretionary, and to put into statutory form your command that
that be done sparingly, perhaps putting a burden of proof on
the Agency that it must have legally reviewable biological
reasons for designating a distinct population segment.
Second, the law should be amended to make it clear that,
once a species is listed as a species, subspecies, or distinct
population segment, it must be treated in that form in
decisions made under the rest of the Act--where the term
``species'' is used in consultation, in recovery, and in
delisting.
Finally, I would, since no one else has, support the
proposed legislative provision in the Bush budget. I believe it
is far more sophisticated than the seldom mentioned November
policy of Secretary Babbitt, which was to put a moratorium on
all listings that were not ordered by a court. I believe that
the Bush proposal provides an opportunity for as many listings
as would have occurred under the Babbitt moratorium, but with
the sophisticated, scientific expertise of the Agency
prioritizing those that ought to be listed in a timely manner.
Finally, I would disagree that the Bush proposal removes
citizen suit rights. All it does is eliminate the statutory
listing and deadline under which many citizen suits are
brought, but it does not stop a citizen to bring a suit, saying
the failure to list is arbitrary--that the species is so
endangered that the Agency just is acting in an arbitrary
manner under the APA. There clearly is still an opportunity for
citizens' suits. So I disagree that it denies citizens' suit
ability.
Senator Crapo. Well, let me talk with the panel in whole
about that issue of litigation. Mr. Echeverria, you indicated
that--and I think Mr. Moyer and Mr. Grader all have indicated
concern with the Administration's proposal for the moratorium,
which actually was begun in the previous Administration, and I
think in both situations was a response to the type of
circumstance that we heard in the testimony from the first
panel in terms of the concern about the resources that are
being diverted into litigation.
It seems to me that we have a mounting issue here. I
understand the point that is made with regard to the fact that
we can increase resources, so that we can deal with the
increased need for listing, but let me ask a question, and
maybe, Mr. Echeverria, you can answer this. The litigation that
I have described here in this hearing relates only to the
listing and delisting process. Do we have similar amounts of
litigation in other parts of the statute that the agencies face
as they seek to administer the Endangered Species Act?
Mr. Echeverria. I want to respond as well to some of the
points Mr. Quarles has made but let me first respond directly
to your question. I think the majority of the litigation now
being pursued under the Endangered Species Act is relatively
straightforward litigation dealing with the failure of the
agencies to comply with nondiscretionary duties to list or to
designate critical habitat. In my prepared testimony I compare
a lot of the litigation that is being filed, in terms of its
complexity, to determining whether or not somebody has violated
a 2-hour parking limitation. These are not adventurous, novel
pieces of litigation being filed. They are essentially
enforcement actions directing the Agency to comply with the
deadlines that Congress has very carefully and very
specifically set forth in the statute.
I want to take issue with Mr. Quarles' point that the
proposed rider does not undermine citizen suits. What the
proposed rider does do is it makes a current obligation of the
agencies nonexistent, and, therefore, there's no legal duty.
Obviously, no one can sue to enforce a nonexistent duty. So
although it may in theory leave the citizen suit provision in
effect, the proposal rider eliminates the legal duty that the
agencies now have that provides the basis for citizen suits.
On the question of resource diversion, I would question the
extent to which resources are being diverted. I wonder, for
example, if either the U.S. Fish and Wildlife Service or the
NMFS contends that any of the species that have been listed in
response to citizen suits are not deserving of listings based
on the underlying science. And, similarly, with respect to
critical habitat designations, whether they feel that any of
the critical habitat designations they've made in response to
litigation aren't fully warranted by the science.
I think the fact of the matter is that there is an enormous
backlog of work, a lot of scientifically justified work to be
done in terms of listing species and designating critical
habitat. The litigation that has gone forward has only gone a
small way in forcing the agencies to do the work that needs to
be done and that is scientifically justified.
Senator Crapo. Do you think that litigation is the most
efficient way to make this happen? I guess the question I am
asking is, we have this same debate in the health care arena
right now as to whether we should try to find some way to
reduce the amount of litigation over health care. We have the
same debate in the Superfund debate, the same issues here in
the Endangered Species Act. In each of those areas we see
tremendous amounts of dollars, of Federal appropriations as
well dollars from other areas, whether it be State and local
government or the private sector, being, I'm going to use the
word, diverted but being put into litigation efforts which at
first blush at least seem to be an incredible amount of
resources being put into courtroom actions when they could be
put into recovery actions or into some type of environmental
restoration.
So my question is, without challenging the notion that we
should have the right as citizens to enforce the Act, isn't
there a way that we could somehow improve it so that we have a
reduction in the amount of resources that we are committing to
litigation? I don't limit that just to Mr. Echeverria, but
anybody.
Mr. Echeverria. Well, I will just comment briefly. I think
the agencies are being put in a very narrow box. On the one
hand, they are being told to list endangered species and to
designate critical habitat, and those obligations are
enforceable through citizens' suits. On the other hand, they're
not being given the resources to do the work. It seems to me
that those two factors together are producing this boomlet in
litigation.
If the agencies had the resources to do the job, even if
they didn't have $100 million over the next several years, if
they had a significant increase in resources, that would allow
them to work down the backlog and it would eliminate a lot of
these lawsuits.
Also, if the agencies had enough resources, simply the
threat of litigation, the possibility of litigation, would be
enough to make the agencies aware of their legal obligations,
encourage them to comply with their legal obligations, and
avoid the need for the filing of lawsuits in the first place.
Senator Crapo. Anyone else want to respond on that?
Mr. Grader?
Mr. Grader. Yes, Mr. Chairman. I think there are ways of
dealing with the litigation, but I don't think they're
necessarily very popular. That would be, first of all, some
appropriations so that we can deal with these species before
they get to the critical point where they qualify for listing,
and that is doing a better job of protecting some of these
habitats.
The Pacific salmon crisis didn't happen overnight. We had
warnings back in 1971, when the California Citizens' Advisory
Committee on Salmon and Steelhead Trout came out with a
document called ``An Environmental Tragedy,'' outlining clearly
what was going to happen, and people blew it off. If we would
have acted then, many of these stocks would not have been
listed.
We know back in the 1980's, when we put together the
programs for restoring Columbia River salmon stocks, what was
going to happen and we chose to ignore the warning signs.
Second, when we get to a situation where species clearly
are threatened or in danger of being extinct, the agencies
simply have not acted quick enough. I mean, there's been
criticism here today of the Bush Administration. Well, I can
tell you under the Clinton Administration we were highly
disturbed when it appeared that, particularly in the Pacific
Northwest, they seemed to want to protect the Endangered
Species Act by protecting it from itself; that is, not
enforcing it until it was nearly too late for the species. The
listing actions by the Agency were often only after it was
brought by litigation. None of us want to be in court. We want
to get these species recovered. For my members, we want to
bring them back to productivity so we can sustain our
livelihoods.
Senator Crapo. Mr. Moss?
Mr. Moss. Yes, and I would, again, go back to the State of
Maine plan. The State of Maine has known for a long time of the
problem with the Atlantic salmon. The State very sensibly came
up with a plan that again had the input of the Federal
Government, the U.S. Fish and Wildlife Service, the National
Marine Fisheries, and the industry. We have worked spending
hundreds of thousands of dollars trying to avoid a listing,
trying to create restoration programs. In fact, Governor King
was in consultation with the Federal agencies at the same time
that Secretary Babbitt was issuing the listing. There was
duplicity and the Federal Government was not straightforward
with us in their dealings.
We had committed ourselves as an industry, with the State
of Maine, to restore the Atlantic salmon, to preserve the
Atlantic salmon. Then our feet were kicked out from under us by
the Department of the Interior in the listing. It makes no
sense. If you're trying to exert a good-faith effort and you
have your feet kicked out from under you by the same agency
that you're supposedly working with, there's a duplicity that
should not be allowed to stand.
Senator Crapo. Mr. Moyer and then Mr. Quarles.
Mr. Moyer. Chairman Crapo, just one observation that I
would have on your question is that I think there is an
opportunity for the Administration and probably this committee
to deal with conservationists who are bringing these suits and
with others in the regulated industry and make a proposal which
would be: If specified amounts of increased funding were to
occur over a time period, 5 or 10 years, to get at the backlog,
then perhaps there would be more understanding among the
conservationists about going to court to getting issues
resolved.
I think the time is right, and perhaps this situation is
tailormade for such a long-term plan that would have increased
funding that would conservationists bringing the suit some
assurance that the backlog would be cleared over a reasonable
amount of time. So that's just one idea that I had that I think
might have some merit.
Senator Crapo. Mr. Quarles?
Mr. Quarles. Yes, two points I wish to make: First of all,
I think this is one place where, with a huge caveat, the
regulated community is probably in agreement with the
environmental community, and that is the lack of resources for
the agencies. They are being starved.
The one thing that we would say, however, is that if more
funding is to be given to listing, there must be a comparable
amount of funding given to those actions that are important to
landowners and the regulated community. Just as deadlines for
listing are being missed consistently by the Services, so are
deadlines for consultation on agency permits needed by
landowners to develop their land and on Fish and Wildlife
Service manual deadlines for processing habitat conservation
plans and issuing incidental take permits.
So the simple matter is it only compounds the problem for
landowners if, in fact, the money is placed on listing more
species, and at the same time the Services continue to be
starved in those programs or procedures that provide landowner
relief. I think that's important.
Then one other comment I might make. This is my clients;
I've never checked it with them. I think there is possibility
of compromise even on the issue of the Bush proposal long term.
I think it's needed short term to get the Agency back on its
feet.
But one possibility is we now have arbitrary deadlines for
listing in the Endangered Species Act, and they're the same
arbitrary deadlines for both threatened and endangered species.
It seems to me that the Act could be written so that at the
time a petition is determined as prudent or at the time the
Agency begins the listing process on its own behalf, that the
scientists themselves set a deadline for that process based
upon the degree of risk and the data gaps that may exist. Once
that deadline is set by the scientists in the Agency with the
best science, then that deadline becomes enforceable by citizen
suit if the Agency fail to meet it. But it will allow the
Services to set deadlines based upon the true degree of risk to
the particular species involved.
Senator Crapo. Well, thank you. In the remaining time that
we have, I would like to kind of get into a broad question.
Really this question is raised in my mind by all of your
testimony, probably most significantly Mr. Moyer's point that
there are conservation initiatives in other areas than the
Endangered Species Act in which we can make a lot of progress.
Mr. Grader has talked about the difficulty in the California
situation of getting the action necessary from the Federal
agencies under the statute. Mr. Moss has talked about the fact
that the action under the statute derailed very positive
efforts that were being undertaken in Maine. Mr. Moyer talked
about the need to reinfuse resources into CRA or to the
Fishable Waters Act or the conservation title of the farm bill.
By the way, I am very glad that you referenced that, Mr.
Moyer, because I believe that a lot of the things that we are
doing in those areas are at least hopefully going to make a big
difference. In fact, as things would have it, I end up being
the chairman of the Subcommittee on the Agriculture Committee
that is working on the conservation title. So maybe we can find
some ways to make progress.
But here's my question, and it's kind of a broad one which
I would just like to get some discussion on: It seems to me
that from the testimony that we have heard from the second
panel, there are literally thousands of species out there that,
at least according to some on that panel, should be listed. I
don't know what the ultimate number is that should be listed,
but if we assume that the problem here is that we don't have
enough resources to list all the species that are waiting to be
listed, we have to assume that there will be a significant
number of listed species if we were to proceed along the lines
that have been suggested by some.
Each time a species is listed, then under the Act we need
to proceed and recover the species and take the steps necessary
under the Act. As I indicated earlier, in just the set of
species that we're dealing with salmon and steelhead in the
Pacific Northwest, it appears that we are looking at the need
for--well, the recent proposal I made was somewhere just under
$700 million a year for some undetermined amount of years, but
a large number of years, just in that group of species. I don't
know whether that group is unique in terms of the amount of
money that it will take to recover, but I hope that it is and
that we aren't looking at those kinds of numbers across the
board for all of these various numbers of species.
But my point is we're talking today only about the listing
process and the fact that we need to put more money into the
process of getting species listed. Then we're going to have to
take the next steps and put more money into getting the species
that are listed recovered and delisted. It seems to me that we
are talking about a need, a financial need, there that I don't
think anybody could put a handle on right now, but it is
probably going to exceed what any Administration, Republican or
Democrat, can meet in terms of the budget numbers that we are
looking at, which raises the question to me:
What do we do with scarce resources? Do we continue--is the
Endangered Species Act the beginning or the end or the middle,
or whatever, of species protection? Do we look at CRA, the
Fishable Waters Act, and the conservation title in the farm
bill, the Clean Water Act, or any number of other environmental
statutes and put our dollars into those acts or to those
efforts, so that we can try to avoid or at least improve the
opportunity for action under the Endangered Species Act? Is the
Endangered Species Act the Act that is supposed to kick in when
these other efforts have failed and the species is threatened
or endangered? Or is the Endangered Species Act to be sort of
the mothership of all environmental actions, which is where all
of our resources go in the first instance, and we then fund
these other areas after we have funded the Endangered Species
Act requirements?
It is a difficult question that I am asking, I think, but I
would like to have your input on just, what is the purpose of
the Endangered Species Act and where should we put our
resources? Anybody want to take a shot at that?
Mr. Moyer. I'll do that because I think your health care
analogy was a good one. The Endangered Species Act has largely
been the emergency room triage. I think the point behind the
thrust of my testimony was that much more needs to be done on
the preventative care side. That's clearly got to be the
cheapest and best way to conserve species, to keep them healthy
when they're healthy and keep them out of the emergency room.
So that's why I think there is a real need for Congress and
for the committee to look at ways that they can do that. I
don't have a grand vision of how that would be in 10 or 20
years, but I just see the next year or two and I think there's
some really good opportunities that I mentioned that you could
grasp to really focus on preventative care rather than
emergency room care.
Senator Crapo. I would like to work with you on some of
those opportunities.
Mr. Moss.
Mr. Moss. I would like to join that statement and again
refer to what the State of Maine was attempting to do, which
was derailed. We now have a situation in which our industry is
no longer trustful of the Federal Government.
I would like to make a statement. We as business people are
not anti-environmental; we say this in Maine all the time.
People approach us, ``How can you do this? You're destroying
the species. You're destroying the habitat.'' Well, we are not,
and we try to explain to them that it is not in our best
interest in any way to destroy. We are conservationists. We are
employing people, producing a sound product. That is why we
joined with the State of Maine, with the scientists they
brought in, the independent scientists, with the State
agencies, and with the Federal agencies to create a State
conservation plan for the Atlantic salmon.
I would say that the Endangered Species Act has to be
reviewed so that there aren't these kinds of abuses; so that
they can't come in and derail a plan that was making progress.
Now they've derailed it, and that progress is effectively
stopped. There is not enough Federal money appropriated to take
up from the point that the State's plan was derailed. There
must be a review of this act and the abuses of the Act.
Mr. Grader. Let me just add, Senator, however, we had just
the opposite occurrence in California where it took the ESA to
put recovery back on track, because, frankly--and this is a
problem we're seeing--it is not just money. I once had a
colleague, Molly Thomas, and I think she stated the problem
very well. She said, ``Fish don't swim in money.'' Fixing the
salmon problem and some of these other species problems is
going to take more than money. It's going to take a change of
will. It's going to take some changes on the parts of agencies.
Right now part of our problem, I think, frankly, in
California and the Pacific Northwest is not necessarily a
dearth of money for salmon restoration; it is just the
intransigence of some agencies not wanting to act. We have a
joke in California that our biggest river is denial, and
denial, in fact, is what often is happening. Because agencies
just simply won't change until they are forced them to act.
It's very expensive getting them to that point where they
finally relent, if they ever do.
We have talked about the need for science. Well, part of
the problem is we're not adhering to science. We have
biological opinions, for example, in the Columbia River where
the agencies have chosen to ignore their own scientists.
Everybody is screaming for peer review. I would just like to
see the first step is that the agencies begin listening to
their science before we hear from others screaming that we need
to have peer review and better science. We can start by having
better science with the agencies listening to their scientists.
I think that would certainly speed things up and could bring
about recovery in a much less expensive way.
Senator Crapo. Thank you.
Mr. Echeverria.
Mr. Echeverria. I have a couple of brief thoughts. First of
all, I want to say that is a very thoughtful question and
you've nominated yourself for a trip down the hill to
Georgetown University Law Center to explain to our students the
complexities of the Endangered Species Act.
[Laughter.]
I think you identify an important question about costs
because we have been focusing today on administrative costs and
the simple agency expenditures required to identify critical
habitat and list endangered species. Those costs are not
insignificant, but they are insignificant in comparison with
the full public and private costs of carrying out species
conservation, once we have identified the habitat that needs to
be protected and the species that are endangered.
The the rubber hits the road, so to speak, when it comes to
private land and the costs entailed in achieving species
conservation on private land. This inevitably raises the whole
property rights question, the takings question, and whether or
not the burdens of carrying out species conservation can fairly
and reasonably be imposed on private landowners or whether,
instead, those are legitimately public costs and the Federal
taxpayer has to pay for those costs through CARA, the Fish and
Wildlife Foundation, or what some people have described as a
New Marshall Plan for Species Conservation, something that
could be very expensive.
Just a couple of thoughts on this: One key point to
emphasize is that wildlife is a public property resource. Under
the laws of each of the 50 States, wild animals, whether they
are threatened or not, are public property that the State owns
on behalf of all the citizens of the State. The courts have
broadly held in a variety of different contexts that
restricting private actions on private lands in order to
protect a public property resource doesn't result in a
constitutional taking under the Fifth Amendment. Thus, keeping
in mind the fact that private real property rights are at
stake, there's also a public property right involved here which
is also important.
The second observation I want to make is that public
payment programs, while useful in some circumstances, have a
potential for abuse. I want to cite one example. There's a
piece of proposed legislation moving through Congress dealing
with a 1,500-acre property in Utah which is proposed to be
included in a tortoise conservation area. This is a property
that the owner bought apparently with full knowledge of the
endangered species problems for, according to a recent press
account, $1.1 million. The Fish and Wildlife Service has been
trying to acquire this property. The owner acquired the
property 11 years ago, and undoubtedly has spent some
additional money since then. But he recently rejected a
proposal from the Department of the Interior to purchase the
property for some $28 million, claiming that he should be
entitled to more than that. It seems to me that this case is
symptomatic of a potential problem, which is that those
confronting endangered species problems may demand too much of
the Federal taxpayer. Federal financial assistance programs for
wildlife conservation could lead to some of the kinds of abuses
we've seen in other major Federal funding programs.
My ultimate conclusion is that the Federal taxpayer can't
buy our way out of this problem. There is a place for financial
incentives and financial assistance, but over the long term
what we need is a change in values and a change in investment
expectations. We need to put in place a flexible regulatory
process that over the long term directs investors to invest in
activities that don't present endangered species problems and
discourages investment in projects that create more endangered
species problems. Clearly, we need over the long term to
reorient the economy in a way that reduces ESA conflicts and to
avoid public policies that exacerbate those kinds of conflicts.
Those are somewhat general comments in response to a
general question, but I appreciate the opportunity to comment
on your very thoughtful question.
Senator Crapo. Thank you.
Mr. Quarles?
Mr. Quarles. Yes. Unfortunately, I don't have an answer,
but I do have a concern. First of all, I heard it said that
fish don't swim in money. Many landowners who have salmon
habitat think that fish swim in their money. That's one of the
problems.
Agencies like the Services that are desperate to husband
the resources that they have have a real temptation--and one
that I fully understand--having served in the Department of the
Interior--to try to transfer as much of the responsibility as
possible to the regulated party; let the regulated party spend
the money rather than the Government. That is one thing that
concerns me deeply.
I will give you only one minor example, which,
unfortunately, if Gary Frazer is still sitting behind me, he's
heard me talk about too many times before, which is my concern
about designating critical habitat--and I know we're not
talking about that in general--but the regulation requires the
agencies to designate critical habitat by map boundaries.
That's a very expensive process.
What we are seeing more and more is that the Service will
draw very large map boundaries, name constituent elements that
are important to the critical habitat, and then require the
individual landowners to hire the biologists to determine
whether or not their land has the constituent elements that
would be critical habitat. So even though the Services are
still mapping, they're leaving the real responsibility of
determining what is and is not critical habitat to the
landowner in some of their more recent listings rather than to
the Agency itself.
I fear there is the danger of transferring significant
responsibility, monetary responsibility, to the landowner as a
way of husbanding taxpayer dollars. I think that would be
inappropriate.
Senator Crapo. Well, thank you. Obviously, this is an
extremely complex issue, and we're just talking about sort of
the initiation part of it now with regard to the listing
process.
We have run out of time for the hearing. So I won't be able
to ask any more questions. I should remind you that the record
will remain open for 2 weeks. And all of the witnesses may
receive questions from some of the Senators who were not here.
You are also welcome to supplement what you have provided to us
during that 2 weeks, if you feel that there is additional
information that you would like to provide or things that you
didn't get a chance to say or further thoughts that you have
had. I can assure you that the material you provide is going to
be carefully reviewed.
Senator Crapo. I think all of the witnesses today have
provided helpful information. This is obviously an issue on
which it is going to be difficult to find consensus, but it is
one on which I believe we have identified a number of areas in
which we can make improvements and a number of areas in which
our effort will potentially yield some significant results.
So, again, I thank you for your participation in this
hearing and encourage you to continue to work with this
committee as we seek ways to reform the Act and reform the
administration of the Act, and to ultimately achieve our
objective of recovering and strengthening species and improving
our environment in this country.
With that, the hearing is adjourned. Thank you very much.
[Whereupon, at 12:14 p.m., the subcommittee was adjourned,
to reconvene at the call of the Chair.]
[Additional statements submitted for the record follow:]
Statement of Hon. Bob Smith, U.S. Senator from the State of
New Hampshire
Good morning and thank you Mr. Chairman. I am delighted to be here
and discuss this very import issue.
The Endangered Species Act (ESA) was enacted in 1973 as an attempt
to protect species with diminishing populations. The ESA makes it
illegal to take or harm any listed species. It also prohibits any
Federal action that will jeopardize the future of any listed species or
critical habitat, and requires the development of recovery plans for
listed species. The main idea behind ESA was to list a species and then
recover that species so it could be delisted.
Unfortunately, it hasn't worked out that way. To date, 1243 species
have been listed, yet only 9 have been delisted via recovery. Nineteen
species have been delisted for other reasons, including extinction.
While there are a few success stories, clearly the ESA has not worked
as it was intended. The fact that only 9 listed species have been
sufficiently recovered to be delisted should be cause for concern.
There have been attempts to address the flaws in the Act--the most
recent serious attempt was by Senator Kempthorne in the 105th
Congress--legislation that I cosponsored. That bill placed a strong
emphasis on science--and I believe that to be critical.
ESA can be an emotional issue--and it is precisely for that reason
that we must ensure that decisions are made based on science. Science
that is peer-reviewed, defensible and non-partisan.
There have also been numerous concerns about the role of the
private property owners and how ESA impacts them. Senator Kempthorne's
bill would have expanded the participation of the public and provide
new incentives for private property owners to preserve species. In
short--it set out a more cooperative approach for dealing with species
preservation--getting away from a top-down regulatory regime.
Needless to say, I strongly support this type of approach. My goal
is an approach that will preserve species in the most effective manner
possible and I believe that means working with, not against land
owners. Make no mistake--I am a staunch defender of private property
owners. I am also a firm believer that our true conservationists are
those who live off of the land--who take being stewards of the land
very seriously. In fact, the great majority of species are on private
lands. We should recognize and embrace this fact by providing them
incentives to help ensure that these species, both listed and delisted,
are protected and private property rights preserved.
It is worth noting that, along with Senator Crapo, Senator Reid and
others, I will soon be introducing a Comprehensive Conservation funding
bill--this is not an ESA fix, but a separate bill that will, among
other things, establish a new competitive matching grant fund that will
allow private landowners and family farms to receive assistance to
protect endangered and threatened species on their land. It is my hope
my Conservation bill will help private landowners do what they really
want to do--but it is not a fix for ESA.
I look forward to working with the subcommittee chairman, Senator
Crapo, as well as Senator Graham and Senator Reid to address the ESA--
possibly moving rifle shot reforms.
Mr. Chairman--thank you again for your efforts on this issue.
__________
Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
The timing of this subcommittee hearing on the listing and
delisting of species under the ESA couldn't be better. Why? Because the
Administration's budget recently made two very strong statements about
these ESA programs. Two completely wrongheaded statements. First, take
science. I've read the testimony that will be presented here today. No
one disputes that listing decisions--indeed all decisions under the ESA
should be based upon the best science possible.
The Administration itself repeats the ``sound science'' mantra in
its testimony, and throughout its budget request for ESA programs
generally.
Sound science, to me, means good science, and we know that good
science isn't cheap. But this Administration's budget cuts ESA science
funding, along with funding for recovery plans, habitat conservation
plans and candidate conservation plans--all the things we know are
critical to achieving success under the Act.
Instead, the budget is a sop--it cuts these programs and tells our
threatened and endangered species to look to the Land and Water
Conservation Fund stateside grants for the funding to stay alive.
In my State of Nevada that will mean that desert tortoises,
Lahontan cutthroat trout and Armagosa toads will compete with pools,
ballparks and recreation centers for funding.
One example of this sop hits close to home. This budget cuts a
program I helped start called the Nevada Biodiversity Initiative. We
started it in 1993, but as a result of its tremendous success, it
became part of the President's budget 5 years ago.
The Initiative has helped provide the scientific understanding of
imperiled species throughout the West, and has helped direct
conservation and recovery efforts in a scientifically effective way.
The Administration zeroes out the Initiative in its budget. It cuts the
science that is the foundation for every ESA-related activity in
Nevada.
The second wrongheaded statement the Administration makes in its
budget is to ask for a rider to prohibit citizens from petitioning the
FWS to list species as threatened or endangered, or from designating
critical habitat.
The Administration argues that the rider is necessary because
compliance with citizen generated court orders will consume the entire
budget for listings and critical habitat.
The Service argues that this litigation forces it to protect
species under the Act based upon citizen and court priorities rather
than according to its own priorities.
That argument simply doesn't hold up. The overwhelming majority of
litigation over listings arises when the FWS fails to meet a statutory
deadline to respond to a citizen petition to list. In responding to
that petition, the FWS can decide to list a species, not to list it, or
can put it on a candidate list and assign it a low priority for listing
based upon listing guidance that's been in place since 1983. Is there a
lot of litigation over the priority the FWS assigns to citizen-
petitioned listings? Are citizens going in and reordering the
priorities the FWS sets?
No. The suits force the Service to meet deadlines. Citizens, at
least in this context, are not determining the listing priority of
species. Do citizen suits often prompt important listings that might
not happen because of political opposition?
Yes. Salmon, spotted owls, and--in Nevada--the desert tortoise,
were all listed as a result of citizen suits. What's the answer to the
backlog?
What about increasing the funding for the listing program? The
Service estimates that it would take roughly $80-120 million to clear
up the backlog. We could develop a 5-year plan to get this work done,
rather than shutting the courthouse door to our citizens.
While we all might disagree about some of the topics to be
discussed here today, we should all be able to reach agreement that the
ESA can't achieve its goal of restoring threatened and endangered
species if we starve it of funding.
__________
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you Mr. Chairman for holding this important and timely
hearing on the listing and delisting procedures of the Endangered
Species Act. I would like to thank our distinguished panel of guests
for appearing today to testify.
I believe strongly in preserving this country's unique biodiversity
and I believe strongly in the mission of the ESA.
However, I have always been willing to explore ways to make the Act
more effective in protecting and recovering endangered and threatened
species, and more sensitive to the legitimate concerns of States and
private landowners. I've worked hard on ESA reform in past Congresses,
working with my colleagues on this committee to craft a bipartisan ESA
re-authorization bill in the 105th Congress.
Our bill made significant improvements to the Act, improvements
that we felt made the Act a more effective tool in the identification
and recovery of endangered or threatened species. It's a shame that the
bill did not pass. It wasn't perfect, but I believe it would have made
a real difference, not only to overall species recovery efforts, but to
the States and local communities that often find themselves at odds
with the mandates of the ESA. The bill contained provisions that
addressed some of the concerns that will be raised today about the
listing process, such as independent peer review of listing and
delisting decisions and more transparency in the listing process.
And yet, after all that time and effort, here we stand today,
trying to figure out what's gone wrong with the listing process, a
process that I've heard called both ``broke and broken.'' Some say that
the Fish and Wildlife Service is paralyzed, that it has too much work,
not enough money, and is buried under citizen lawsuits. Only the most
desperate cases get any protection. This in turn makes it more time
consuming and expensive to help species recover, which in turn makes
the Act seem that much more of a burden on private citizens.
I find this incredibly frustrating. We've had opportunities to make
the ESA more efficient, effective, and more sensitive to private
landowners and States, and we haven't capitalized on them. We continue
to chronically underfund the entire Endangered Species Program, leading
to the current crisis in the listing program that we're discussing
today--species that warrant protection that aren't getting it, and
their conditions are deteriorating, and listed species aren't being
recovered to the point where they may be delisted.
I believe the current outcry over excessive court involvement in
the listing process is a symptom of a far larger problem--an agency
that is underfunded and overworked and that just can't get the job
done. But, let me be clear, I don't think the answer is to yank the
people's ability of to petition the Service to list a species, or to
designate critical habitat. The last thing we want is less public
participation in the Federal decisionmaking process. Federal Agencies
face substantial political pressures, from all sides, especially in an
area as controversial as the implementation of the ESA. Although some
may view the process as having been abused by certain groups, and in
some instances that may be true, the petition process is an important
vehicle for local government and citizens to be heard in the larger
national debate over endangered species. And, the shoe could easily
land on the other foot--what if a citizen's group wants to oppose a
proposed listing?
After all, this is not a new issue for any of us. As you should
recall, we worked to improve State involvement in the process, to
improve incentives for landowners to conserve species on private lands,
to encourage better science at all stages of species recovery, from
listing to delisting. For a variety of reasons, we just didn't deliver.
Clearly we've learned that gutting the Act is not the answer, nor
is it something I support, or that I believe a majority of my
colleagues support. But we should also have learned that continuing to
underfund the Agency is not an appropriate or useful response, either.
To simply padlock the Agency's toolbox, does little to address the
daily list of chores we call upon the Agency to accomplish. A lot of
Federal and State agencies depend upon the U.S. Fish and Wildlife
Service, and the National Marine Fisheries Service, to do its job, to
do it well, and to do it in a timely fashion.
So, let me paint you a picture. Highway projects fund nearly 14,000
good-paying jobs for Montanans. In Montana the Fish and Wildlife
Service is stretched thin. When a city, county or the State wants to
widen a road, install a culvert, rebuild a bridge, before you can show
up with the flagger or the concrete mixer or the heavy equipment, the
project is often effectively tabled before it's begun for lack of
enough agency support to complete routine biological opinions and
assessments. Every Congress, I work hard to get money for Montana
highway projects, which does Montanans little good when they have to
wait months or even years for an ESA consultation process to be
completed. The same can be said of time-sensitive salvage timber sales
in Montana's National Forests, and other projects that support the
livelihoods of people in my State.
The ESA was never, never supposed to trump good and necessary
projects that can and should move forward. I know that this hearing is
not about ESA consultations or other functions of the Fish and Wildlife
Service under the ESA, but they are a good analogy to the problems the
Service is facing under its listing program. The U.S. Fish and Wildlife
Service's budget has not increased significantly since a 1990
Department of the Interior Inspector General's Report stated: It is
obvious that the Service's mission cannot be fully accomplished at
present funding levels.
I believe a lack funding has severely compromised the effectiveness
of the Service in carrying out its duties under the ESA, resulting in
project delays and frustration at the local, State and Federal level.
No one's interests are served in this situation, not the local, county,
State, or Federal Government's, not the private citizen's, not the
public's, and not endangered species. It's easy to accuse a Federal
agency of dragging its feet. But, it's far more challenging to fund the
Agency at an appropriate level, to give it the resources it needs to do
properly the job we ask of it.
I realize that the preservation of endangered and threatened
species entails considerable financial burdens that should not fall
solely on the U.S. taxpayer, and that we need to search constantly for
new and innovative ways to preserve species and their habitats as our
population continues to expand and our economy to grow. We owe it to
our children and grandchildren, and all those who come after them. But
again, increased funding would give the Fish and Wildlife Service more
flexibility to be creative, to work with landowners, local communities
and States to set priorities and to protect species and their habitats
before they sit on the brink of extinction. Before the Federal
Government has step in and contemplate a listing.
We owe it to the citizens of this country to follow-through on the
duties we in Congress have imposed on the U.S. Fish and Wildlife
Service and the National Marine Fisheries Service.
Again, I look forward to the testimony of the witnesses on this
important issue and I thank them for their time.
__________
Statement of Gary Frazer, Assistant Director for Endangered Species,
U.S. Fish and Wildlife Service, Department of the Interior
Mr. Chairman, I appreciate this opportunity to discuss how the U.S.
Fish and Wildlife Service carries out its duties related to listing and
delisting species under the Endangered Species Act (ESA or Act). Our
procedures, some prescribed by statute and others by agency regulations
or policies, are all focused upon ensuring that our decisions are
objective, based on good science, and made in the open with peer review
and public participation throughout.
The Fish and Wildlife Service (Service or FWS) is committed to
making the Endangered Species Act work in the eyes of the public, the
Congress, and the courts so as to accomplish its purpose of conserving
threatened and endangered species and protecting the ecosystems upon
which they depend. This is a challenging task, involving precious and
irreplaceable natural resources, a complex statute, and many
stakeholders with deeply held and often conflicting interests.
In this environment, the following principles provide the
foundation for the Administration of our listing and delisting
activities--ensure that our decisions are based on the best available
science, seek independent peer review of our decisions, provide for
public participation throughout our decision process, and ensure that
our decision process is understandable and transparent.
science, peer review, and public participation in the listing and
delisting process
The Endangered Species Act requires listing determinations to be
made solely on the basis of the best scientific and commercial data
available. The careful evaluation of scientific evidence is fundamental
to the assessment of species for listing or delisting under the ESA.
The Service strives to make the most of scientific advances that
improve our ability to understand nature and its processes. Our joint
Fish and Wildlife Service/National Marine Fisheries Service (NMFS)
``Policy on Information Standards Under the Endangered Species Act'',
published in the Federal Register on July 1, 1994 (59 FR 34271),
provides criteria, establishes procedures, and provides guidance to our
field biologists and managers regarding the use of scientific
information in our decision process.
This ``Policy on Information Standards'' requires our biologists
and managers to ensure that the information we use is reliable,
credible, and represents the best data available; to impartially
evaluate information that disputes existing positions or decisions of
the Service; to document their evaluation of the available scientific
and commercial data; to use primary and original sources of information
as the basis for recommendations, where consistent with the Act and our
obligation to use the best information available; and to conduct
management-level reviews of the documents developed by staff biologists
to verify and assure the quality of the science used in the decision
process.
The ESA, the Administrative Procedures Act, and the regulations
governing our listing and delisting activities ensure that States,
tribes, other agencies, and the public have ample opportunity to
participate in our listing and delisting actions. These established
processes ensure that the public can participate fully in listing and
delisting decisions. In addition, the requirement that the Service
maintain and make available the administrative record in support of its
decisionmaking assists in making the decision process open and
transparent.
To further ensure that sound science underlies our decisions, the
Service and NMFS established a joint ``Policy for Peer Review in
Endangered Species Act Activities'', published in the Federal Register
on July 1, 1994 (59 FR 34270). This policy works to ensure that
independent peer review is incorporated throughout our listing and
recovery programs in a manner that complements, but does not circumvent
or supercede, other established public participation processes.
In recognition of the unique capability of State fish and wildlife
agencies to assist in implementing all aspects of the ESA, the Service
and NMFS developed a joint ``Policy Regarding the Role of State
Agencies in Endangered Species Act Activities'', published in the
Federal Register on July 1, 1994 (59 FR 34275). This policy recognizes
that States possess broad trustee authorities over fish, wildlife, and
plants and their habitats within their borders, as well as scientific
data and valuable expertise on the status and distribution of such
wildlife. The policy requires the Services to solicit State agency
expertise and participation in the following activities, among others:
determining which species should be included on the list of candidate
species, conducting population status inventories and geographical
distribution surveys, responding to listing petitions, preparing
proposed and final listing and delisting rules, and designing and
implementing recovery efforts.
The Executive Order 13175 of November 6, 2000, on government-to-
government relations with Native American tribal governments also
requires us to consult with the tribes on matters that affect them.
Consistent with this and our Federal trust responsibility, we consult
to the extent possible with Indian Tribes having tribal trust
resources, tribally-owned fee lands, or tribal rights that might be
affected by ESA activities.
the listing process
Listing under the Endangered Species Act becomes necessary when a
species declines to the point where it is in danger of extinction
throughout all or a significant portion of its range (an ``endangered
species'') or it is likely to become endangered in the foreseeable
future (a ``threatened species''). The Secretary is required to list or
reclassify a species if, after reviewing the species' status using the
best scientific and commercial data available, it is found that the
species is endangered or threatened because of any one or a combination
of the following factors:
<bullet> the present or threatened destruction, modification, or
curtailment of its habitat or range;
<bullet> overutilization for commercial, recreational, scientific,
or educational purposes;
<bullet> disease or predation;
<bullet> the inadequacy of existing regulatory mechanisms; and
<bullet> other natural or manmade factors affecting its continued
existence.
There are two processes to identify species in need of listing. The
first is the candidate assessment process, which is initiated by the
Service. The second is a petition process, which is available to the
public.
Part of the Service's Candidate Conservation program is the
candidate assessment process, through which the Service searches for
species of fish, wildlife and plants that may be at risk and in need of
protection under the Act. In identifying candidate species, we rely on
our own biological surveys, including status surveys conducted for the
purpose of candidate assessment, information from State Natural
Heritage Programs, other Federal and State agencies, knowledgeable
scientists, and public and private natural resources organizations.
Each year, the Service publishes in the Federal Register the
Candidate Notice of Review (CNOR). The CNOR identifies the species that
we believe are candidates for listing under the Endangered Species Act.
The CNOR lists those species previously identified as candidates,
species for which petitions have resulted in ``warranted but
precluded'' findings, as discussed below, during the prior year, and
other species that appear to warrant listing under the ESA. When we
identify a species as a candidate for listing, we have sufficient
scientific information available to support a proposed rule to evaluate
whether the species should be added to the list of threatened and
endangered species. However, preparation of the proposed rule is
precluded by higher-priority listing actions. We publish the CNOR, make
individual candidate assessment forms available to the public, and
solicit additional information about the status of candidate species,
the threats they face, and conservation actions that are being
implemented that may benefit the species. We accept information from
the public about candidate species at any time. We use the public's
comments in the preparation of listing rules for the highest priority
candidates, and in revisions to subsequent CNORs. In addition,
publication of the list of candidate species provides important
information about potential listings that can be used by planners and
developers.
The CNOR also serves to explain to the public our long-standing
science-based priority system for adding species to the list, which was
published in the Federal Register on September 1, 1983 (48 FR 43098-
43105). Each candidate species is assigned a listing priority number
(LPN), based on the immediacy and magnitude of the threats faced by the
species and on its taxonomic distinctiveness. The candidate assessment
forms, which are available to the public upon request, document our
reasons for assigning a particular LPN to each candidate species. We
use the LPN to prioritize listing actions. Species with lower LPNs are
given a higher priority for action.
The second process for identifying species that may warrant listing
is the petition process. Section 4 of the Act allows any interested
person to petition the Secretary of the Interior either to add a
species to, or remove a species from, the lists of threatened and
endangered species. The Services ensure consistent and rigorous
analysis of petitions by following the interagency ``Petition
Management Guidance'' issued in July 1996.
Upon receipt of a petition, the Service must respond, within 90
days when practicable, with a finding as to whether the petition
provides substantial scientific or commercial information indicating
that the petitioned action may be warranted. If the Service determines
that the petition did not provide such substantial information, the 90-
day finding concludes the petition review process. However, if the
Service determines that the petition does provide substantial
information, the Service initiates a status review and issues an
additional finding within 12 months of the receipt of the petition.
There are three possible outcomes of the ``12-month finding'' (1)
listing is not warranted, and no further action is taken; (2) listing
is warranted, and a listing proposal is promptly prepared; or (3)
listing is warranted, but immediate action is precluded by higher
priority actions. A ``warranted but precluded'' finding is made on the
basis of the species' listing priority number and the listing workload.
In such cases, preparation of a listing proposal is delayed until
higher priority actions are completed.
We issue a proposed rule to list species when we have sufficient
information to show that listing is warranted (as result of either
process). If the issuance of the proposed rule is precluded by work on
other higher priority listing actions, we add the species to our
candidate list to be prioritized for a future listing proposal.
Our listing and delisting actions are informal rulemakings,
published in proposed and final rule form in the Federal Register, and
leading to revisions to Title 50, Part 17 of the Code of Federal
Regulations. Once a proposal is published, the Service must allow for a
public comment period on the proposal; provide actual notice of the
proposed regulation to appropriate State, tribal, and local government
agencies; publish a summary of the proposal in a newspaper of general
circulation in areas where the species occurs; and hold a public
hearing, if requested. See 16 U.S.C. Sec. 1533(b)(5). The Service's
implementing regulations require that the public comment period on a
listing proposal be at least 60 days long. See 50 C.F.R.
Sec. 424.16(c)(2). Since public participation is so important to
effective conservation efforts, the Service will often hold multiple
public hearings and extend the comment period beyond the minimum
required by the law and regulation.
We always solicit independent peer review of our listing proposals,
and incorporate comments and recommendations that we receive. We have
found such peer review to be a valuable element of the decision
process. However, it is sometimes difficult to obtain the participation
of experts in this process. Experts in academia and other agencies have
other demands for their time and attention, and incentives to
contribute their expertise to our listing efforts are not always
apparent. We have also found that species experts may be reluctant to
become involved when they view the listing action as likely to lead to
subsequent litigation. The potential demands upon their time and
reputations associated with depositions, cross examination, and other
legal proceedings create a genuine disincentive for some experts. We
are continuing, however, to explore ways to increase participation in
and improve the effectiveness of the independent peer review process.
The Service reviews petitions, adds species to the list,
reclassifies species from threatened to endangered, and designates
critical habitat using funds appropriated specifically to our Listing
program for these purposes. (Delisting and reclassification from
endangered to threatened are part of the recovery process and are
funded through the Recovery program.) The workload associated with
these listing activities has for several years exceeded the resources
available to the Service for listing, and a substantial backlog of
listing actions has accumulated. To manage this backlog within
appropriated resources, the Service, since fiscal year 1996, has
employed a Listing Priority Guidance system to assign relative
priorities to the listing actions to be carried out under section 4 of
the Act. The objective of the Listing Priority Guidance is to focus
available resources on those listing actions that have the greatest
biological benefit to species in need of protection under the Act.
Unfortunately, most courts have not afforded deference to this
priority system, and have instead concluded that they have no
discretion but to order us to act as soon as possible on whatever
backlogged action comes before them. As a result, court ordered actions
have consumed essentially all of the listing budget this fiscal year.
The Service does not have any remaining resources or staff to place new
species on the list of threatened and endangered species or to respond
to citizen petitions to list new species. In short, the Service does
not currently have a balanced and effective listing program.
The President is continuing efforts begun by the last
Administration to break this gridlock and get back to the important
business of protecting imperiled species. We are asking Congress,
through the fiscal year 2002 budget request, to help us address our
backlog in two ways. We are seeking increased funding for our listing
program so that we can begin to reduce the backlog of listing actions,
and we are asking Congress to concur that these funds should be spent
pursuant to current court orders or settlement agreements and on those
listing actions that provide the greatest benefit for species at risk
of extinction. This proposal would not change any of the underlying
substantive requirements of the Act, but would allow the Service to use
its resources to protect the species that are in greatest need of
listing. The Service hopes to engage the public and interested groups
in the development of a revised listing priority system and to put the
resulting priority system out for public review and comment.
We recognize that this proposal has resulted in considerable
controversy. While the problem is real and needs to be addressed, we
would welcome the opportunity to work with this committee and other
interested members to craft a solution that meets with wide approval.
distinct population segments
In carrying out our listing duties under the ESA, the Service has
proposed and finalized rules to list a number of ``distinct population
segments'' (DPS's) of species. Mr. Chairman, I would like to take this
opportunity to explain how the Service decides whether to list a
species as a ``distinct population segment''.
The ESA's definition of ``species'' includes ``any subspecies of
fish or wildlife or plants, and any distinct population segment of any
species of vertebrate fish or wildlife which interbreeds when mature.''
16 U.S.C. Sec. 1532(16); 50 C.F.R. Sec. 424.10(k). This definition
allows for listing at levels below taxonomically recognized species or
subspecies. Accordingly, a DPS of vertebrate fish or wildlife may be
listed as a ``species'' under the ESA.
The Service and the National Marine Fisheries Service (NMFS) have
long recognized the importance of interpreting the term ``distinct
population segment'' in a clear and consistent fashion. We
collaboratively developed a policy to clarify our interpretation of
DPS's for the purposes of listing, delisting, and reclassifying species
under the ESA, and published that draft policy in December 1994 (59 FR
65885). The intent of the policy was to provide a well conceived
analytical framework for considering whether to list, delist, or
reclassify distinct populations segments of vertebrate species. The
policy was also developed to ensure that DPS listing activities are
carried out consistently throughout both agencies.
As is the case with the rulemaking process for listing species, we
strive to develop our policies in a transparent process that solicits
and incorporates public input and responds to public concerns. We
solicited public review and comment on the draft DPS policy. After
receiving, analyzing, and responding to public comments, the Service
and NMFS published the final joint DPS policy on February 7, 1996 (61
FR 4722).
In the policy, we noted that listing a DPS would serve to protect
and conserve species and the ecosystems upon which they depend before
large-scale decline occurs that would necessitate listing a species or
subspecies throughout its entire range. This may allow protection and
recovery of declining organisms in a more timely and less costly
manner, and on a smaller scale than the more costly and extensive
efforts that might be needed to recover an entire species or
subspecies. The Services' ability to address local issues (without the
need to list, recover, and consult range-wide) will result in a more
effective program.
Under the DPS Policy, the listing of a DPS involves a three-stage,
sequential process. First, the Service decides whether the population
is ``discrete.'' Second, it determines whether it is ``significant.''
If a population is both ``discrete'' and ``significant,'' it
constitutes a DPS. Third, the Service applies the listing criteria, 16
U.S.C. Sec. 1533(a)(1), outlined earlier in this statement, to
determine whether to list the DPS as endangered or threatened.
A population segment may be considered discrete if it is either (1)
markedly separated from other populations of the same taxon as a
consequence of physical, physiological, ecological, or behavioral
factors, and/or (2) delimited by international governmental boundaries
across which differences in control of exploitation, management of
habitat, conservation status, or regulatory mechanisms exist that are
significant in light of section 4(a)(1)(D) of the ESA.
If a population segment is determined to be discrete under one, or
both, of these conditions, its biological and ecological significance
will then be considered in light of Congressional guidance (see Senate
Report 151, 96th Congress, 1st Session) that the authority to list
DPS's be used ``sparingly'' while encouraging the conservation of
genetic diversity. In making this ``significance'' determination, the
Services consider the available scientific evidence of the DPS's
importance to the taxon to which it belongs. This consideration may
include, but is not limited to, the following: (1) persistence of the
discrete population segment in an ecological setting unusual or unique
for the taxon; (2) evidence that loss of the discrete population
segment would result in a significant gap in the range of a taxon; (3)
evidence that the discrete population segment represents the only
surviving natural occurrence of a taxon that may be more abundant
elsewhere as an introduced population outside its historic range; or
(4) evidence that the discrete population segment differs markedly from
other populations of the species in its genetic characteristics.
The Policy's guidelines permit the use of agency discretion in
evaluating discreteness and significance. Indeed, the Policy provides
that:
``[b]ecause precise circumstances are likely to vary
considerably from case to case, it is not possible to describe
prospectively all the class of information that might bear on
the biological and ecological importance of a discrete
population segment.'' Id.
In responding to public comment on the draft version of the Policy
published in the Federal Register, we stated ``that the use of
international boundaries as a measure of discreteness may introduce an
artificial and nonbiological element to the recognition of DPS's,'' and
that such determination ``is sometimes undertaken as a matter of policy
rather than science.'' The policy further noted that ``it appears to be
reasonable for national legislation, which has its principal effects on
a national scale, to recognize units delimited by international
boundaries when these coincide with differences in the management,
status, or exploitation of a species.''
Moreover, the policy recognizes that the ``[r]ecognition of
international boundaries in this way is also consistent with practice
under the Convention on International Trade in Endangered Species of
Wild Fauna and Flora [CITES], which is implemented in the United States
by the Act.'' Under CITES, species protection may vary from country to
country (e.g., prohibiting commercial trade for a species from one
country, but not from another) depending on their management of the
species. When appropriate, the ESA listings for species included in
CITES can be specific to a country in order to reflect those management
differences and support effective implementation of CITES (e.g., for
the salt water crocodile).
the recovery process
Recovery of threatened and endangered species is the process by
which the decline of an endangered or threatened species is arrested or
reversed, and the threats to its survival are neutralized, so that
long-term survival in nature can be ensured. The goal of the recovery
process is to restore listed species to a point where they are secure,
self-sustaining components of their ecosystems which do not require the
protections of the ESA, and can be delisted.
For almost all species, a recovery plan is essential as a road map
for the recovery process. A recovery outline, the first step in
recovery planning, guides the development of a recovery plan that
identifies Federal, State, tribal, and private actions needed to
achieve recovery. The Service's policy is to complete a recovery
outline within 60 days of listing a species. A recovery outline
identifies the major and most imminent threats to a species, and the
actions and partners needed to immediately begin reducing these threats
while a recovery plan is being developed.
The ESA states that recovery plans shall be developed for the
conservation and survival of threatened and endangered species unless
such a plan will not promote the conservation of the species. There are
very few exceptions to the need for a recovery plan, and most of these
exceptions are for species that occur under very localized
circumstances where other plans, such as a forest management plan,
already contain the actions needed to recover the listed species.
Therefore, it is the case for most species that immediately upon
listing the Service also begins the recovery planning process. A first
step in the process is to identify the participants of a recovery team
that will work to craft the recovery plan for a listed species. To
guide our actions during the recovery process, the Service uses our May
1990 ``Policy and Guidelines for Planning and Coordinating Recovery of
Endangered and Threatened Species'' and the following 1994 joint FWS/
NMFS policies:
<bullet> Policy for Peer Review of ESA Activities--incorporates
independent peer review into recovery actions, including the writing of
recovery plans;
<bullet> Policy on Information Standards--directs that the best
available scientific and commercial information be used when
determining what actions are needed to recover species; and
<bullet> Policy on Recovery Plan Participation and Implementation
(published in the Federal Register on July 1, 1994 (59 FR 34272)--
directs the Service to solicit the participation of State, tribal, and
Federal agencies, academic institutions, private individuals, and
economic interests when determining the recovery actions needed to
recover species.
The latter policy directed the Service to diversify the areas of
expertise represented on a recovery team, develop multiple species
plans when possible, minimize the social and economic impacts of
implementing recovery actions, and involve representatives of affected
groups and provide stakeholders the opportunity to participate in
recovery plan development.
Because the Service bases our recovery decisions on sound science,
we seek to involve experts in these decisions and include them on
recovery teams. Therefore, when we initiate the recovery planning
process for a listed species, we endeavor to identify experts on the
species and its habitat, as well as the most knowledgeable individuals
on land use and land management within the range of the species.
The Service must balance the need to have as many participants as
possible on a recovery team, with the need to ensure that the size of
the team does not compromise its efficiency. We often work primarily as
the facilitator on recovery teams, providing guidance for experts on
the team from other Federal agencies, State agencies, tribes, or the
private sector.
In addition, the Service often uses one or more ``recovery
implementation teams'' during the recovery planning process to allow
for broader public participation. Participation on these teams is
usually possible for any concerned individual that wishes to volunteer.
As a recovery plan is drafted, the proposed, necessary recovery actions
identified by the recovery team are presented to the implementation
teams for their review. The implementation teams, which are often
composed of members of the public and agencies whose interests may be
affected by the recovery needs, provide valuable reviews of the
feasibility of the proposed actions. The proposed actions may be
modified based on the reviews and comments of the implementation teams.
It is the Service's intent to complete draft recovery plans for
species within 1\1/2\ years from the time of listing. Once complete,
draft recovery plans are available for public review and comment. A
notice of availability is published and comments are solicited. Today,
it is not unusual for the Service to receive hundreds, sometimes
thousands, of comments on a single plan. These comments come from a
wide range of interests: from advocates for the environment to private
citizens who are worried about what effects the recovery of the species
may have on their livelihoods.
The Service uses the recovery team to consider each comment on a
recovery plan, and, where needed, incorporate the comments into the
final recovery plan. A record of how comments on a recovery plan are
considered is kept and made available for public review. When a final
recovery plan has been completed and approved by the Service's
appropriate Regional Director, it is made available to all interested
parties. A Notice of Availability is published in the Federal Register
and the Service ensures that all of the recognized concerned public is
aware of the completion of the plan. In addition, notices are often
placed in newspapers throughout the range of the species.
A recovery plan must address the threats to the species, describe
the actions needed to recover the species, provide an implementation
schedule of when the actions will be completed, identify the parties
who will have primary responsibility for undertaking the actions, and
assess the estimated costs of implementing the recovery plan. In
addition, a recovery plan identifies the criteria that will be used to
determine when a species may be sufficiently recovered to be downlisted
from endangered to threatened, or delisted and removed from the list of
species protected by the ESA.
The Service is increasing its use of multi-species recovery plans.
At least 20 multi-species plans have been finalized since 1998.
Addressing the recovery of multiple listed species in a single, multi-
species, ecosystem-based approach is efficient in addressing common
habitat needs and shared threats. This approach is often more cost
effective and efficient than addressing species through single-species
recovery plans.
Recovery plans must be dynamic documents. New information is
constantly becoming available. As new information is recognized that
may affect a species' recovery, the recovery team for the species may
be reconvened to assess the information and determine if the plan needs
to be revised. At the very minimum, the Service reviews plans every 5
years to determine if changes are needed. If significant changes to a
plan are needed, then, following the process already outlined, a new
draft plan is prepared, participation and comment is invited from all
interested parties, and a new final recovery plan may result.
The Service is proud that, as of the beginning of this year, 88
percent of the species for which a recovery plan is required and due
have approved recovery plans. Recovery plans are not prepared for some
listed species, particularly international species not found in North
America.
Recovery implementation is the undertaking of the actions needed to
accomplish recovery plan tasks in a systematic manner. Implementation
involves strategic planning and requires the tracking of results to
determine if recovery actions are working and whether a recovery plan's
objectives are being met. Recovery actions are prioritized. Priority 1
actions are those that must be taken to prevent extinction or to
prevent the species from irreversible decline. Priority 2 actions are
the actions that are needed to prevent a significant decline in a
species' population or habitat, or would prevent some other significant
negative impact. Finally, priority 3 actions are those actions that
must be take to provide for a full recovery of a species.
In most cases, successful species recovery is too large a task for
any one agency or interest group. Implementation must involve all
affected parties, consider social and economic impacts, and must be
scientifically sound. The Service must engage the multiple stakeholders
throughout the recovery implementation process, and encourage them to
effectively sustain, conserve and ultimately recover endangered and
threatened species so that they may be delisted.
An example of stakeholder involvement in the recovery process is
the multi-species recovery effort in the Southwestern United States
involving the cactus ferruginous pygmy-owl and the threatened and
endangered big river fish in the Lower Colorado River. The threats
faced by these species include an increasing loss of both arid and
aquatic natural habitat due to rapid population growth in southern
Arizona, Nevada and California. The loss of habitat necessitates
working with diverse and broad groups of stakeholders during recovery
implementation to balance species conservation, economic viability, and
``people protection''. In the Southwest, the efforts of recovery
implementation teams include participation by water, power, and
wildlife agencies and municipalities, ranchers, and cultural and
historical entities, all acting for the common good. Such interaction
leads to enlightened understanding about how improved land and water
quality and habitat cohesiveness assists species recovery while
providing healthy habitats for everyone.
It usually takes many years, often decades, for a species to
decline to the point where it needs the protection of the ESA.
Likewise, recovery of a species is also a process that usually requires
significant time to accomplish. Instances where habitat loss and
degradation constitute the main threats to a species usually makes it
more difficult to recover the species. Often the participants in the
recovery planning and implementation for a species will change as time
passes. The constant is the Service's direction of the recovery
implementation process, ensuring that the best scientific and
commercial information is used, that all willing participants are
provided the opportunity to comment and participate, and that the
progress toward recovery is monitored and, when necessary, changed
through adaptive management.
the delisting process
The same scientific rigor and full public participation is used in
delisting species as was used in the listing of species. The Service
regularly assesses the criteria listed in the recovery plan that are
used to define when a species has sufficiently recovered to be
reclassified as either a threatened species (recovered from being
endangered) or as a fully recovered species and removed from the list
of species protected by the ESA.
Likewise, the most recent scientific and commercial data, after
being subjected to peer review, are used to assess the current status
of the species. Often, the factors used to determine whether a species
has recovered include the species' population size, recruitment,
stability of habitat in terms of habitat quality and quantity, the
degree to which habitat areas are connected to one another, and the
control or elimination of the threats that led to the need to list the
species.
The ability to list distinct population segments may also play an
important role in the recovery of listed vertebrate species. Many
species were listed before the ESA was amended in 1978 to allow the
listing of distinct population segments. Therefore, the Service may
consider that a portion of a listed species has recovered sufficiently
to warrant downlisting or delisting. Of course, this population, and
the populations of the species that may not have reached the recovery
goals, must conform to the same criteria of substantiality and
distinction that are used to list distinct population segments. If this
is the case, then the Service may be able to use a distinct population
segment to delist or downlist a portion of the species. This will
provide regulatory relief for the public within the range of the
recovered distinct population segment. As always, the Service uses the
best scientific and commercial data, along with the opinions of experts
and the public, when making these decisions.
As already mentioned during the previous review of the listing
process, the public has the opportunity to petition the Service to
delist a species at any time. Likewise, as already discussed, the
petition will trigger a process where the petition is first reviewed
for presenting substantial information, and, if it passes that test,
within 12 months the action requested in the petition will be assessed,
using the best peer reviewed scientific and commercial data and the
opinions of experts. If it is judged that the petitioned action is
warranted, the Service will move to propose delisting the species.
Outside of the petition process, as recovery of a species becomes
more imminent, the recovery team is requested to assess the evidence
that the species may have reached the goals identified for its
recovery. Again, only the best peer reviewed scientific and commercial
data are used, along with the opinions of experts on the species, its
habitat, and land management practices. If the status of the species
has improved sufficiently, then a proposal to downlist or delist the
species will be prepared.
As is the case for the process of listing a species, a proposal to
reclassify a species is published in the Federal Register and announced
in selected newspapers throughout the range of the species. The Service
schedules public meetings during the comment period for a
reclassification so that all of the concerned public will have the
opportunity to provide comments on the proposed action. All comments
are carefully considered and a record, available to the public, is kept
on the decisions made with respect to the comments.
If, after this process, it is determined that a species has
recovered sufficiently to merit reclassification, then a final decision
is made and published. A decision to reclassify a species from
threatened to endangered likely requires a new recovery plan be
developed, and the process already described will once again be
initiated. A determination that a species has fully recovered will
result in the species being removed from the list of species protected
by the ESA.
As acknowledged earlier, species are usually listed as a result of
factors that caused their decline over many years, often decades or
even centuries. As a result, recovery of listed species requires time
and resources. It is the goal of the Service to recover species as
quickly as possible. Since 1998, the Service has specifically targeted
$1 million each year to listed species that are nearing recovery. This
funding provides the extra resources needed to either downlist or
delist the species and ensures that they get this focused attention.
We have had success. Recently the Service was successful in taking
the peregrine falcon off of the list of species protected by the ESA.
The falcon was primarily threatened by pesticides and habitat loss, and
the efforts of many agencies and individuals, over more than 30 years,
were needed to recover the falcon. Likewise, just this year the
Aleutian Canada goose was delisted. The goose was one of the first
species to be protected under the ESA. Through cooperation with State
governments and partnerships with private landowners, the threats posed
by introduced foxes and habitat losses were reduced and recovery of the
goose was accomplished.
Likewise, the bald eagle, our Nation's symbol, is on the verge of
complete recovery. Once the Service has resolved how the delisting of
the bald eagle will be addressed in our implementation of other
wildlife laws, such as the Bald and Golden Eagle Protection Act, the
Service will be able to proceed with this historic event. In all, as a
result of recovery activities, the Service plans to delist or downlist
four more species in fiscal year 2001 and at least six species in
fiscal year 2002.
conclusion
In closing, I would like to emphasize the importance the Service
places upon having a science based, open decision process in which the
affected public can participate fully. Our listing and delisting
decisions are sometimes difficult and contentious, and not all parties
will agree with our final decision. But it is critical that the public
and the Congress view our work as honest and objective efforts to reach
a decision required of us by the Act. Our success in implementing the
Endangered Species Act is tied to that trust.
Mr. Chairman, this concludes my prepared testimony. Thank you for
your interest in the Endangered Species Act and the way it is
implemented, and for the opportunity to testify. I would be pleased to
respond to any questions you and other members of the committee might
have.
__________
Statement of Don Knowles, Director, Office of Protected Resources,
National Marine Fisheries Service, National Oceanic and Atmospheric
Administration, Department of Commerce
Mr. Chairman, my name is Don Knowles and I am Director of the
Office of Protected Resources in the National Marine Fisheries Service
(NMFS), an agency of the National Oceanic and Atmospheric
Administration. Thank you for the opportunity to testify on the process
we use to list and delist species under the Endangered Species Act
(ESA).
The ESA provides for the recovery of threatened and endangered
species and the conservation of their ecosystems. Terms such as
conservation, species, threatened, endangered, and critical habitat are
defined in the Act. Section 4 elaborates on listing, delisting,
critical habitat and recovery. This section states that listing
determinations are to be made solely on the basis of the best
scientific and commercial data available after conducting a review of
the status of the species and after taking into account those
conservation efforts, if any, being made by any locality, State,
foreign Nation or tribal government. In the 1988 amendments to the Act,
the word ``solely'' was added to the above criteria to expedite the
listing process and to prevent non-biological considerations, such as
economic impacts, from affecting listing determinations. The Act also
requires recovery plans that include specific management actions that
will achieve the plan's goal. Plans must include measurable criteria,
which, when met, will result in removing the species from the list.
Implementing regulations for listing, delisting, or designation of
critical habitat were developed jointly with the U.S. Fish and Wildlife
Service (FWS). The process for listing usually begins when we receive a
petition to list a species. In some cases, when we have information
indicating that a species may warrant listing, NMFS will begin the
process without a petition. The next step is to evaluate the status of
the species, that is, to conduct a status review. Based on the status
of the species and after taking into account efforts made by others,
NMFS will determine whether it is warranted to propose to list a
species. Within 1 year of the proposal, NMFS will make a final
determination on whether listing is warranted. In addition to
implementing regulations, we have issued joint policies that elaborate
on the listing and delisting process. For example, in 1994 NMFS and FWS
issued a policy to clarify the role of peer review in ESA activities
and a policy to provide criteria, establish procedures, and provide
guidance to ensure that decisions made by the Services under the ESA
meet the law's requirements. NMFS has also issued guidance on listing
and recovery priorities as well as guidance on developing recovery
plans. We plan to update the recovery plan guidance this year.
overview of nmfs' protected species program
NMFS is currently responsible for 55 species listed under the ESA,
including marine mammals, sea turtles, plants, salmon and other fish.
Of these, 26 are salmon and steelhead in California and the Pacific
Northwest (Alaska currently contains no listed salmon species). Only
one NMFS species, the California gray whale, has recovered to the point
where it could be delisted. However, several other species have
stabilized and we consider this a successful result of the ESA.
To be sure, NMFS' listing decisions have been the subject of
litigation, especially with regard to West Coast salmon and steelhead.
NMFS has lost some cases and learned valuable lessons. To address the
issue of whether NMFS' decisions were based on the best available
science, NMFS collected information from the Pacific Salmon Biological
Technical Committees and interested parties in Washington, Oregon,
Idaho and California. NMFS also established a Biological Review Team
(BRT) to review available information. While these efforts have not
eliminated lawsuits, they have helped NMFS gather the best available
science. For all the species under NMFS' jurisdiction, NMFS continues
to look for new ways to ensure that it uses the best available science
in its decisionmaking.
Mr. Chairman, thank you for this opportunity to testify. I look
forward to answering any questions.
______
Responses by Don Knowles to Additional Questions from Senator Baucus
Question 1. Mr. Knowles, you are involved with these issues every
day; please be honest, what do you see as the main problems with the
ESA listing and delisting process? And please, be specific.
Response. The National Marine Fisheries Service (NMFS) is not in
the same situation as the U.S. Fish and Wildlife Service concerning
listing and delisting species. We are responsible for fewer species.
Therefore, we have been able to list species and designate critical
habitat close to the time limits proscribed by the Endangered Species
Act. However, we do see a number of issues that affect the listing/
delisting process. For example, by the time most species are listed,
they have reached a point where their recovery is extremely difficult.
If we strengthen our partnerships with States, tribes and private
landowners so that we are working together to conserve species, we will
lessen our dependence on the ESA as the primary source, and often the
last resort, for species protection. Also, the timing is off for
designating critical habitat at the time of listing. It would be more
appropriate to designate critical habitat in conjunction with
developing a recovery plan. We need to add more credibility to our
listing, delisting and critical habitat decisions by making them more
transparent. This would involve expanding opportunities for public
participation and diversifying the make-up of recovery teams.
Question 2. What do you need to be able to do your job under the
Endangered Species Act? A pot of money? Do you think you have adequate
resources? I know that this hearing is confined to the listing and
delisting process, but please answer my question in the context of your
larger duties under the ESA. Why is it, for instance, that salvage
timber sales in Montana just can't go forward? Because there aren't
enough biologists on the ground to do consultations under section 7?
Response. We are able to do the highest priority items with current
funding. Our budget requests target the needs of specific groups of
species (e.g. Pacific salmon, sea turtles, marine mammals) and not
specific ESA programs such as listing, critical habitats and section 7
consultations. This gives NMFS the flexibility to use our allocated
funds for a variety of ESA programs, and wherever the need is greatest
at the time. As for section 7 consultations on salvage timber sales in
Montana, NMFS is not involved in habitat-related issues in Montana.
Question 3. Do you think that a lot of complaints and concerns
about your agency's implementation of the ESA, such as in the listing
process, is a symptom of a much larger problem--a lack of adequate
funding? What else is contributing to your problems here?
Response. The larger issue is not the implementation of the ESA
itself, but how it brings to light the ever-increasing demand for
resources, especially habitat. Preventing the extinction of wildlife
and plants becomes more and more difficult as their habitat is lost due
to population growth and development. Yes, we need adequate resources
to recover species, but we also need time to make the changes necessary
to conserve the species as well as time for the changes to be
effective. Often, the Federal agencies cannot say with authority
exactly what measures need to be carried out to recover a species.
Landowners and State and local governments are left with uncertainty
about how their future may be affected by efforts to recover species.
Therefore, the agencies responsible for implementing the ESA must be
able to develop quickly the scientific information necessary to know
what actions are needed to conserve species and there should be
incentives that will increase public support to carry out these
activities.
Question 4. Do you honestly believe that the citizen petition
process is the real problem here? Do you honestly believe that getting
rid of the provision will improve the ability of the Service to list or
delist species. That it will improve the ability of the Service to do
its job?
Response. As we responded in question 1, NMFS has been able to list
species and designate critical habitat within or close to the time
limits proscribed by the Endangered Species Act. So, we do not consider
the provision in the ESA that allows citizens to petition NMFS to list,
delist, or designate critical habitat a problem.
Question 5. Should a listing decision be left solely to the
Services?
Response. The listing decision, which in the end should be made
solely by the Services, is reviewed by many sources prior to that
decision. For example, in response to a petition for NMFS to list
several populations of West Coast steelhead, NMFS assessed the best
available data by including information from the Pacific Biological
Technical Committees and interested parties in Washington, Oregon,
Idaho and California. The committees included scientists from Federal,
State and local resource agencies, Indian tribes, industries,
universities, professional societies and public interest groups with
technical expertise. NMFS then established a Biological Review Team
(BRT) composed of NMFS scientists and managers as well as scientists
from other Federal agencies to conduct a coastwide status review for
west coast steelhead. Based on the result of the BRT report and after
considering other information and existing conservation measures, NMFS
identified which of the steelhead populations should be proposed for
listing and those that did not warrant listing.
Question 6. What do you think that expanded peer review would add
to the listing and delisting process?
Response. It is a published policy of the Services to incorporate
independent peer review in listing and recovery activities, during the
public comment period. For listing, we solicit the expert opinions of
those appropriate and independent specialists regarding pertinent
scientific or commercial data and assumptions relating to the taxonomy,
population models and supportive biological and ecological information
for species under consideration for listing. We summarize in the final
document the opinions of all independent peer reviewers and include all
reports, opinions and other data in the administrative record of the
final decision. We also solicit peer review to obtain all available
information from appropriate local, State and Federal agencies, tribal
governments, academic and scientific groups and any other party who may
possess information during the development of draft recovery plans.
Where appropriate, we have scientific data related to implementation of
recovery peer reviewed, and we include these opinions in the final
recovery plan. However, I believe the real issue concerning the use of
peer review is to increase the credibility of ESA decisionmaking.
Therefore, we continue our commitment to obtaining and using the best
scientific information available for our ESA decisions, having this
information peer reviewed, and ensuring that the public has access to
the results of the peer review.
Statement of Deborah M. Brosnan, President and Founder, Sustainable
Ecosystems Institute
Good morning. I am Deborah Brosnan, president and founder of the
Sustainable Ecosystems Institute (SEI). The institute is a public-
benefit non-profit organization, that provides impartial scientific
support for conservation. We are rigorously non-partisan, and seek
science-based, cooperative solutions that benefit both the environment
and the human communities that depend on it. Currently over 300
scientists work with the institute to provide support to government,
the private sector and citizen groups. Our work ranges from fundamental
research to mediation, and the integration of science with policy.
Since our inception in 1992, the institute has worked to strengthen
scientific principles and methods integral to the application of the
Endangered Species Act. The ESA remains a key piece of the Nation's
environmental laws. In common with many other scientists, we support
legislation that protects the biodiversity that, ultimately, supports
us.
In recent years, there has been extensive comment and critique of
management under ESA. These critiques come from every side of the
debate, but contain some themes that are common to all points of view.
All parties, for instance, agree that the role of science needs to be
enhanced. There are many calls for a wider and more effective use of
independent and impartial scientific analysis. Of course, the Fish and
Wildlife and National Marine Fishery Services (USFWS and NMFS) have
committed to the use of scientific excellence, and indeed employ many
fine scientists. However they would probably be the first to
acknowledge the need for more resources, and better integration of
their efforts with the Nation's other scientific resources. This is a
point of view shared across the political spectrum.
Central to the idea of improving ESA science is the concept of peer
review. Peer review is the scientific equivalent of quality control--it
is our profession's method of ensuring that analyses are carried out
appropriately, that the best data are used, and that the conclusions
drawn are appropriate. Peer review is a normal scientific process, for
which there are long-established protocols, and which is widely applied
to decisions about scientific publication and funding. However more
practical applications, for instance to management of resources, are
less frequent. The Magnusson Act is an example of an explicit
application of peer review to an important conservation issue.
It is already the policy of NMFS and UWFWS that important
decisions, such as listing actions, are subject to external peer
review. However the widespread calls for increased use of peer review,
as outlined in my accompanying table, testify to the general feeling
that a more systematic and open process is desirable. At least 63
organizations, groups or individuals have separately called for
inclusion of peer review into ESA revisions. The information in the
table is revealing: resource user groups call for review of listing
actions, while environmental organizations call for review of Habitat
Conservation Plans and Recovery Plans. Essentially, each group wants to
have impartial review of actions affecting their particular concerns.
They are united in their common belief that an independent review would
lead to better decisions and more effective management.
Perhaps these different groups all believe that their views on
resource management would prevail following peer review. If so, they
are mistaken. Science is value neutral. It can sometimes appear to
favor one political point of view, sometimes another, though in fact it
favors none. Scientific peer review can however be of great use in
ensuring that good science is appropriately incorporated into
management actions, in making decisions transparent, in ensuring that a
fair and reasonable process is followed, and in making better decisions
for natural resources. If the different groups want to see that
conservation decisions are based on the best science, then peer review
can indeed help. There is nothing to fear about the idea of peer
review; however I will also argue that it is important to have a well
thought-out, and systematic process.
In the past few months, SEI has begun a pilot process to assist the
Fish and Wildlife Service with peer review. This is a pro-bono effort
by our scientists, and supports the Service's existing policies and
processes. Regional offices have been encouraged by the Service's
Director to use SEI's assistance in finding and enlisting outside
reviews. We have organized the National Network for Conservation
Science, consisting of 300 volunteers, who provide help to the Service.
Network participants are faculty at major universities and other
experts, including 6 members of the National Academy of Sciences.
It is early days in this experiment, but we can provide some
information on success rates. In the accompanying graphic I show that
the Service has diligently sought out peer reviewers on their recent
regulatory actions--often without recourse to SEI help. Sometimes they
have been successful in obtaining reviews, as in the case of listing of
the Alabama Sturgeon and other issues. Sometimes, however, the Service
has sought reviews, but has not been successful in getting cooperation
from the independent scientists. For instance, on Critical Habitat of
the Arkansas Shiner, the Desert Bighorn and the California Gnatcatcher,
all affecting large areas of habitat, no review was received from any
of the 17 scientists approached by the Service. SEI usually has higher
success rates in our program for the Service and other reviews.
Typically we obtain 96 percent response rates.
I believe the elevated response rates are explained by several
factors. First, we have provided an infrastructure that allows the
effective engagement of interested scientists, and ensures that such
scientists are willing and able to respond, within the limited
timeframes of agency actions. Second, as practicing scientists, we
``speak the same language'' as the reviewers, and can explain our needs
effectively. There is a substantial difference between the cultures of
academia and regulatory agencies, so that the needs of one are not
apparent to the other. Third, we provide rewards to reviewers, either
financial or professional, that encourages their response. Fourth, we
act as a buffer to protect the integrity of the scientist and science.
We look forward to further development of this review program with the
Service, and believe that innovative, cooperative programs could meet
many of the goals of all interested parties.
Peer review is not however a panacea. As I have previously outlined
in an article for the National Academy (attached) simple extension of
the academic model of peer review to applied management decisions can
lead to significant problems. Peer review itself needs to be reexamined
and carefully designed in order for it to be effective. Some examples:
peer review in public decisionmaking cannot be anonymous as in
academia; the standard of proof criterion is different in the different
contexts; decisions have to be made even when science is incomplete, or
we will face `paralysis by analysis'. Because the science is used in a
non-academic and management arena, it is important to maintain the
integrity of the science and scientists. Scientists should not be asked
to become managers or to defend a manager's preferred option.
The lessons we have learned so far have been useful. Working within
existing policies of the regulatory agencies, peer review can indeed
contribute to effective management. Academic models of review, and
existing infrastructures are however insufficient to the task. With the
USFWS and our other partners we have begun a process to build the
necessary structures--improvements are definitely possible, and
resources will be needed. We estimate that a national program to
provide peer review would cost between $3 to $5 million annually (of
course as a non-profit we cost a lot less than a Federal agency would.)
Peer review is a serious and professional undertaking. An ad hoc or
poorly thought-out approach will lead to frustration. However, if
properly implemented, peer review can contribute much to the ESA and
other natural resources decisions.
______
Sustainable Ecosystems Institute
Examples of Calls for Peer Review Under the Endangered Species Act
----------------------------------------------------------------------------------------------------------------
Where is Peer Review Desired?
------------------------------------------------
Organization General How to Implement Who Pays For
Peer Listing HCP Other Peer Review? It?
Review
----------------------------------------------------------------------------------------------------------------
Ecological Society of X No X ................ ................ ...............
American Ad Hoc Committee on
Endangered Species.
9 Current and Past Presidents ....... .......... ....... Recovery Plans.. ................ ...............
of Ecological Societies.
Society of American.......... ....... X ....... ................ ................ ...............
Society for Integrative and X .......... X ................ Independent Federal
Comparative Biology. Scientist Panel. Government
Wildlife Society............. ....... X ....... Recovery Plans.. ................ ...............
Senator Ashcroft............. ....... X ....... ................ ................ ...............
Senator Lieberman............ ....... X ....... Recovery Plans.. ................ ...............
Congressman Steve Largent.... X X ....... ................ ................ ...............
National Governor's X .......... ....... ................ ................ ...............
Association.
Western Governor's X .......... ....... ................ Independent Task force to
Association. experts chosen funding
by USFWS and
the States.
Southern Governor's X X ....... ................ ................ ...............
Association.
Governor Marc Racicot (MT)... ....... X ....... ................ Scientific Government task
review and cost/ force finds a
benefit way to fund
analysis. the process
State of Washington.......... X .......... X ................ Independent ...............
Scientific
Review Board
appointed by
the Governor.
Association of California ....... X ....... ................ Scientific Federal
Water Agencies. review and cost/ Government
benefit
analysis.
NW Power Planning Council.... X .......... ....... ................ Independent Council
Scientific
Review Team
appointed by
NWPPC (Chair)
and NMFS
(Regional
Director).
National Association of ....... X X ................ Independent National Land
Conservation Districts. review from and
industry and Conservation
university Fund. Listing
scientists on petitioners if
critical frivolous
habitat. petition
American Public Power X .......... ....... ................ ................ ...............
Association.
Audubon, Greenpeace, National X .......... X ................ ndependent Imply Federal
Wildlife Federation, Scientific Government
Environmental Information Review.
Center (in joint
communication).
California Native Plant ....... X X ................ Science Advisory Imply
Society. Panel. Government
Defenders of Wildlife........ X .......... X ................ Call for ...............
scientific and
community
review.
Environmental Protection ....... .......... X ................ ................ ...............
Information Center.
Forests Forever.............. ....... Opposed ....... ................ ................ ...............
National Wildlife Federation. ....... .......... X ................ ................ ...............
New Jersey Audubon........... ....... .......... X ................ ................ Applicant
NW Ecosystem Alliance........ ....... .......... X ................ Critical Habitat ...............
Natural Resource Defense ....... .......... X ................ Independent Imply
Council. Oversight Government
Committee.
SW Center for Biological X .......... ....... ................ National Academy Federal taxes,
Diversity. of Science permit fees,
Nominations. damages from
E.S.A.
lawsuits
Pacific Coast Federation of X .......... ....... ................ Opposed to stake- ...............
Fishermen's Associations. holder
representation.
American Farm Bureau X X X ................ ................ ...............
Federation.
Farm Bureau.................. X .......... ....... ................ ................ ...............
Fairy Shrimp Study Group ....... X ....... ................ ................ ...............
(California businesses and
farmers).
American Angus Association... ....... X ....... ................ National Academy ...............
of Sciences.
Cattlemen's Association...... ....... X ....... ................ ................ ...............
Cattlemen on the Hill........ ....... X ....... Critical Habitat Blind panel, ...............
including
natural
resource user
groups, states,
and land grant
colleges.
American Sheep Industry ....... X ....... ................ ................ Local
Association. Government
National Association of Wheat ....... X ....... ................ ................ ...............
Growers.
California Women for ....... X ....... ................ Independent ...............
Agriculture. review.
American Water Works X .......... ....... ................ ................ ...............
Association.
American Society of Civil X .......... ....... ................ ................ ...............
Engineers.
American Road and X .......... ....... ................ ................ ...............
Transportation Builders
Association.
Inland Rivers, Ports, ....... X ....... ................ Panel of ...............
Terminals, Inc. BOD. scientific
review.
King County Navigation Bar... ....... .......... X ................ Independent ...............
Recovery.
Building Owners and Managers ....... X X ................ Scientists and ...............
Association. affected
community.
International Council of X .......... ....... ................ ................ ...............
Shopping Centers.
Utah Association of Realtors. X .......... ....... ................ ................ ...............
American Forest and Paper X .......... ....... ................ Independent ...............
Association. review cost
benefit
analysis.
Pulp and Paperworkers ....... X ....... Recovery........ ................ ...............
Resource Council.
Boise Cascade Corporation.... ....... X ....... ................ Scientific, Federal
economic and Government
social review.
NW Forest Resource Council... X .......... X ................ Double-blind Federal
peer review. Government
Want affected
party
representation.
Club 20...................... X .......... ....... ................ Independent cost/ Imply Federal
benefit Government
analysis.
Family Business First........ ....... X ....... ................ ................ ...............
Family Business Fund......... ....... X ....... ................ ................ ...............
National Grange of the Order X X ....... ................ ................ ...............
of Patrons of Husbandry.
Multiple Grange, Forestry, X .......... ....... ................ Public Input.... ...............
Industry Associations.
National Endangered Species X X X ................ National Academy Federal and
Act Coalition. of Sciences State
nominates Government
scientists.
James McClure to NESARC...... X X X Habitat Peer scientists Federal
Designations. and affected Government
parties.
National Wilderness Institute ....... X ....... ................ ................ Imply Federal
Government
Cattle ranchers and X .......... ....... ................ Scientific and ...............
environmental coalition in public input.
New Mexico.
People for the USA!.......... ....... .......... ....... Data............ ................ ...............
L.A. Times................... X .......... ....... ................ ................ ...............
National Jewish Community X X ....... ................ Scientific Federal
Relations Advisory Council. review. Government
Church of the Brethren....... ....... Opposed ....... ................ ................ ...............
California Environmental X .......... ....... ................ Permanent Government
Dialogue. program with
standing
committees.
Meridian Institute Workshop.. X X X ................ Societies and Services HCP
services with applicants
data base of
experts.
----------------------------------------------------------------------------------------------------------------
______
[From Issues in Science and Technology, Volume XVI, Number 3, 2000]
Perspectives
Can Peer Review Help Resolve Natural Resource Conflicts?
(By Deborah M. Brosnan)
Congress, businesses, environmental organizations, and religious
groups are all calling for peer review systems to resolve conflicts
over the protection of this Nation's natural resources. A recent
opinion poll found that 88 percent of Americans support the use of peer
review in the application of the Endangered Species Act (ESA). The
rising interest in peer review is the result of widespread unhappiness
with natural resource policies, including ESA listing decisions and the
establishment of ESA-sanctioned Habitat Conservation Plans (HCPs). The
many interest groups believe that scientific peer review will support
their particular viewpoints. The obvious problem is that they can't all
be right.
A more important problem is that peer review as traditionally
applied to examine scientific research is inadequate for supporting
decisions about managing species, lands, and other natural resources.
It does not take into account the complex political, social, and
economic factors that must be factored into natural resource decisions.
Peer review can provide a basis for improving natural resource
decisions, for reconsidering past decisions, and for settling
disagreements. But to function effectively, the review system needs to
be much different from the one used widely in academia today. In the
meantime, traditional peer review is being applied on an ad hoc basis
to important endangered species and habitat conservation issues,
leading to contentious outcomes. In the rush to implement a popular
policy, we are setting a precedent that is only institutionalizing our
confusion.
everyone wants it
It is heartening that all sides want independent peer review; it
seems that everyone acknowledges that better decisionmaking is needed.
A survey by the Sustainable Ecosystems Institute found that at least 60
farming, ranching, logging, industrial, ecological, wildlife,
religious, and Governors organizations are calling for scientific
review in the application of the ESA. This includes reviews of HCPs,
which are agreements between government agencies and private landowners
that govern the degree to which those owners can develop, log, or farm
land where endangered species live.
Why are so many diverse groups eager to embrace peer review? There
is widespread distrust of the regulatory agencies involved in ESA and
dissatisfaction with their administration of the Act. Many groups
believe that agencies are making the wrong decisions. Disagreements
among interested parties often end up in litigation, where judges, not
scientists, make rulings on scientific merit. Most decisions to list
species in the West, including those involving the northern spotted
owl, marbled murrelet, and bull trout, have been made after lawsuits.
Similarly, one approved HCP--the Fort Morgan Paradise Joint Venture
project in Alabama, which would have affected the endangered Alabama
beach mouse--was successfully challenged in court on the basis of
inadequate science.
Many organizations see science as a way of reducing litigation.
After all, judges are not scientists or land managers and are apt to
make the wrong technical decision. Court actions are costly. Any means
of reducing vulnerability to lawsuits is roundly favored.
There are striking differences in opinion as to where peer review
is needed. Simply put, each group favors review of actions that it
finds unpalatable. Development groups want fewer species listings and
therefore demand review of listing decisions. Some professional and
environmental societies oppose peer review of listings because they
will unnecessarily delay much-needed conservation measures.
Environmental groups are concerned about habitat loss under HCPs and
want them independently reviewed.
Regardless of their perspective, most groups want less litigation,
less agency control, and greater objectivity. Many also see peer review
as a tool for overturning wrong decisions. Regulatory agencies want to
reduce vulnerability to litigation and develop greater public support.
Agency staff, frequently doing a difficult task with inadequate
resources, would prefer to have a strong system to rely on. It is
always better to have a chance to do it right than to do it over.
the lure of hasty implementation
The move to implement some form of peer review is already under
way. For example, the Magnuson Stevens Fisheries Conservation and
Management Act calls for peer review in arbitrating disagreements over
fisheries harvest levels. The U.S. Forest Service now calls for science
consistency checks to review decisions about forest management.
Unfortunately, the rush to implement random forms of peer review has
created many ad hoc and ill-conceived methodologies.
Enthusiasm for peer review is so high that it is now central to
efforts to reform ESA. In 1997, the Senate introduced the Endangered
Species Recovery Act, which would have required peer review and
designated the National Academy of Sciences (NAS) to oversee the review
process. But few academy members or the scientists who serve on NAS
committees have made their careers in applied science or have worked in
an area in which legal and regulatory decisions are paramount. The bill
was shot down, but the Governors of the western States have asked the
Senate to reintroduce similar legislation in 2000. Whether or not
legislation is taken up, it is clear that Congress wants better science
behind natural resource decisions and sees peer review as the way to
achieve it.
Most legislative and agency measures calling for peer review,
however, do not describe how it should be structured, other than to say
that it should be carried out by independent scientists. Yet an ill-
conceived review process will just compound the problems. Furthermore,
there is a tacit assumption that the pure academic model will be used.
Although it is appealing to think that this system would work as well
for management and policy decisions as it does for pure research
findings, it won't. Traditional peer review cannot be applied as some
kind of quality control in a political arena. Indeed, some attempts to
use peer review in this way have backfired.
what can go wrong
Development of the management plan for the Tongass National Forest,
covering 17 million acres in Alaska, illustrates several problems in
applying academic peer review to natural resource management. To make a
more science-based decision regarding the management and protection of
old-growth forests and associated wildlife species, the Forest Service
set up an internal scientific review team that worked with forest
managers on the plans. Because of Federal laws governing the use of
nonagency biologists, the Service sent drafts to external reviewers,
most of whom were academics. In reviewing the plan and the methodology,
the Service concluded that science had been effectively incorporated
and that managers and scientists had worked well together. Indeed,
Service officials have portrayed the plan as a watershed event,
bringing the Service's research and management arms together.
The conclusion of the external review committee was different. It
independently issued a statement that was critical of the management
proposed in the plan, concluding that, in certain aspects, none of the
proposed actions in the plan reflected the reviewers' comments. The
committee insisted that ``the Service must consider other alternatives
that respond more directly to the consistent advice it has received
from the scientific community before adopting a plan for the Tongass.''
The reviewers noted that there were specific management actions that
should be carried out immediately to protect critical habitat but that
were not part of the plan. These included eliminating road building in
certain types of forest and adjusting the ratio of high-quality and
low-quality trees that would be cut in order to protect old-growth
forests.
The Tongass experience holds several lessons. First, internal and
independent reviewers reached opposite conclusions; decisionmakers were
left to determine which set of opinions to follow. Whatever the choice,
a record of dissent has been established that increases vulnerability
to legal challenge and political interference. Second, the independent
scientists felt ignored, which again increases the vulnerability of the
decisions. Third, the independent scientists made clear management
recommendations, believing that science alone should drive management
decisions; most managers will disagree with this point of view. Thus,
peer review in the Tongass case raised new problems. Confusion of roles
and objectives was a major cause of these difficulties.
A different set of issues has arisen with the use of peer review in
establishing two HCPs--one involving grasslands and butterflies in the
San Bruno Mountains south of San Francisco, the other involving Pacific
Lumber and old-growth forests near Redwood National Park. In both
cases, scientific review panels were used from an early stage to guide
interpretation of the science. The panels were advisory and
scrupulously avoided management recommendations, sometimes to the
frustration of decisionmakers. The panels avoided setting levels of
acceptable risk and tended to use conservative scientific standards.
Another example comes from the State of Oregon Northwest Forest
HCP, now being negotiated to cover 200,000 acres of second-growth
forest that is home to spotted owls, murrelets, and salmon. The Oregon
Department of Forestry sought reviews of their already-developed plan
from 23 independent scientists representing a range of interest groups
and expertise. Not surprisingly, diametrically opposed opinions were
expressed on several issues. It will now be difficult to apply these
reviews without further arbitration.
Hints of more endemic problems come from the Fish and Wildlife
Service's use of peer review for listing decisions. Typically, a few
reviewers are selected from a group of scientists who are ``involved''
in the issue. But the Service now reports that at best only one in six
scientists contacted even replies to the request that they be a
reviewer. If they do volunteer, they are often late with their
responses or don't respond at all. Two problems are becoming clear:
There is no professional or monetary benefit from being a reviewer, and
many scientists are wary of becoming caught up in politicized review
processes, which can become drawn out and expose them to attacks by
interest groups.
Certain actions can determine the effectiveness of a peer review
process: how it is structured, who runs it, who the reviewers are, and
how they are instructed and rewarded. Lack of attention to details and
blanket application of an academic model has already led to problems
and will continue to do so.
clearing the minefield
Peer review has always been a closed system, confined to the
scientific community, in which the recommendations of usually anonymous
reviewers determine the fate of research proposals or manuscripts. When
scientific review is used outside this arena, problems arise because
scientists, policymakers, managers, advocacy groups, and the public
lack a common culture and language. Few scientists are trained or
experienced in how policymakers or managers understand or use science.
Scientists may be tempted to comment on management decisions and indeed
are often encouraged to do so. However, they are rarely qualified to
make such pronouncements. Natural resource managers must make decisions
based on many factors, of which science is just one. Inserting academic
peer review into a management context creates a minefield that leads to
everything from misunderstanding to disaster.
More appropriate applications of peer review can be designed once
the major differences between academic and management science are
understood. They involve:
Final decisions.--Scientists are trained to be critical and cautious
and to make only statements that are well supported. Managers
must make decisions with whatever information is available.
Scientists usually send incomplete work back for further study;
managers typically cannot. Managers must also weigh legal
concerns, public interest, economics, and other factors that
may have little basis in hard data.
Best available science.--Managers are instructed to use the best
available science. Scientists may regard such data as
incomplete or inadequate. Reviewers' statements that the
evidence in hand does not meet normal scientific standards will
be irrelevant to a decisionmaker who lacks alternatives and
must by law make a decision.
Competing ideas.--In pure science, two competing theories may be
equally supported by data, and both may produce publishable
work. Management needs to know which is best to apply to the
issue in question.
Reviewers as advocates.--In academia, it is assumed that a reviewer is
impartial and sets aside any personal biases. In management
situations, it is assumed that reviews solicited from
environmental advocates or development interests will reflect
those points of view.
Speed.--Academic reviews are completed at a leisurely pace. This is not
acceptable in management situations.
Anonymity and retaliation.--Academic reviews are typically anonymous to
encourage frankness and discourage professional retaliation.
Reviews in management situations usually must be open to
promote dialog. Some scientists will be reluctant to make
strong statements if they are subject to public scrutiny.
Qualified versus independent.--Often the scientists best qualified to
be reviewers of a natural resource issue are already involved
in it. Many HCP applicants, for example, do not want
``inexperienced'' reviewers from the professional societies.
They prefer ``experienced'' scientists who understand the
rationale and techniques of an HCP. This sets up a tension
between demonstrable independence and depth of understanding.
Language.--Managers and decisionmakers may not be familiar with the
language of science. Statistical issues are particularly likely
to cause confusion.
Reward structure.--In academic science, reviews are performed free of
charge for the common good and to add to scientific discourse.
Hence they are typically given a low priority. In management
situations, this will not work. Rewards--financial and
otherwise--are necessary for timeliness and simply to encourage
reviewers' interest in the first place.
a new model
The troublesome experiences in recent cases such as the Tongass and
appreciation of the different roles of academic and management science
reviewers point the way to more effective integration of peer review
into resource management decisions. The following principles provide a
starting point:
<bullet> The goals of peer review in each case must be clearly
stated.
<bullet> Clear roles for reviewers must be spelled out.
<bullet> Impartiality must be maintained to establish credibility.
<bullet> A balance must be sought between independence and
expertise of reviewers.
<bullet> Training of reviewers may be necessary.
<bullet> A reward structure must be specified.
<bullet> Early involvement of scientists will give better results
than will post-hoc evaluations.
Three other lessons are evident. First, because academic scientists
are rarely familiar with management, the individual or organization
coordinating the review needs to be experienced in both fields. The
traditional sources of these ``science managers''--academic
institutions, professional societies, or regulatory agencies--either
lack the necessary experience or are not seen as independent. We need a
new system for administering peer review.
Second, a mediator or interpreter who clarifies roles and
eliminates misunderstandings can be highly effective. Scientists may
need pressing on some points and at other times may need to be
dissuaded from trying to be managers. Conversely, managers who lack
advanced training in disciplines such as statistics may need help in
interpreting scientific statements on issues such as risk. The
interpreter can also be a gatekeeper for scientific integrity, ensuring
that reviewers do not become advocates, either voluntarily or under
pressure.
Third, a panel structure gives more consistently useful results.
This is probably the result of panelists discussing issues among
themselves. Although panels can produce conflicting opinions, they
appear more likely to give unequivocal results than would a set of
individual reviews.
There is enthusiasm for science and peer review among most parties
involved with ESA and general natural resource management. But there is
little consensus on how to make the process succeed.
Nationally, we lack the necessary infrastructure for implementing
peer review as a useful tool. In each case, environmentalists,
developers, and any other regulated parties should be asked to design
the appropriate system, because they will then accept its results. This
means that advice on forming such groups and oversight of their
progress would be needed. Peer review cannot be guided by managers
alone nor by scientists alone. We need independent technical groups
that have the necessary diverse skills but are seen as impartial.
Whichever route is taken, a better approach to peer review must be
created. The rush to impose the old academic model must stop before it
creates even more problems. By taking the time to properly devise
review systems, we can ensure that the scientific voice is effective,
understood, and utilized.
______
Threatened and Endangered Species System (TESS)
Delisted Species Report as of 5/7/01
----------------------------------------------------------------------------------------------------------------
Date
Date Species First Listed Delisted Species Name Reason Delisted
----------------------------------------------------------------------------------------------------------------
03/11/67................................. 06/04/87 Alligator, American Recovered
(Alligator
mississippiensis.
02/17/84................................. 02/06/96 Bidens, cuneate (Bidens Taxonomic revision
cuneata).
04/28/76................................. 08/31/84 Butterfly, Bahama Act amendment
swallowtail (Heraclides
andraemon bonhotei).
10/26/79................................. 06/24/99 Cactus, Lloyd's hedgehog Taxonomic revision
(Echinocereus lloydii).
11/07/79................................. 09/22/93 Cactus, spineless hedgehod Not a listable entity
(Echinocereus
triglochidiatus inermis).
03/11/67................................. 09/02/83 Cisco, longjaw (Coregonus Extinct
alpenae).
06/02/70................................. 09/12/85 Dove, Palau ground Recovered
(Gallicolumba canifrons).
03/11/67................................. 07/25/78 Duck, Mexican (U.S.A. only) Taxonomic revision
(Anas ``diazi'').
06/02/70................................. 08/25/99 Falcon, American peregrine Recovered
(Falco peregrinus anatum).
06/02/70................................. 10/05/94 Falcon, Arctic peregrine Recovered
(Falco peregrinus
tundrius).
06/02/70................................. 09/12/85 Flycatcher, Palau fantail Recovered
(Rhipidura lepida).
04/30/80................................. 12/04/87 Gambusia, Amistad (Gambusia Extinct
amistadensis).
04/29/86................................. 06/18/93 Globeberry, Tumamoc New information discovered
(Tumamoca macdougalii).
03/11/67................................. 03/20/01 Goose, Aleutian Canada Recovered
(Branta canadensis
leucopareia).
10/11/79................................. 11/27/89 Hedgehog cactus, purple- Taxonomic revision
spined (Echinocereus
engelmannii purpureus).
12/30/74................................. 03/09/95 Kangaroo, eastern gray Recovered
(Macropus giganteus).
12/30/74................................. 03/09/95 Kangaroo, red (Macropus Recovered
rufus).
12/30/74................................. 03/09/95 Kangaroo, western gray Recovered
(Macropus fuliginosus).
04/26/78................................. 09/14/89 Milk-vetch, Rydberg New information discovered
(Astragalus perianus).
06/02/70................................. 09/12/85 Owl, Palau (Pyroglaux Recovered
podargina).
06/14/76................................. 01/09/84 Pearlymussel, Sampson's Extinct
(Epioblasma sampsoni).
06/02/70................................. 02/04/85 Pelican, brown (U.S. Recovered
Atlantic Coast, FL, AL)
(Pelecanus occidentalis).
07/13/82................................. 09/22/93 Pennyroyal, Mckittrick New information discovered
(Hedeoma apiculatum).
03/11/67................................. 09/02/83 Pike, blue (Stizostedion Extinct
vitreum glaucum).
10/13/70................................. 01/15/82 Pupfish, Tecopa (Cypinodon Extinct
nevadenis calidae).
09/26/86................................. 02/28/009 Shrew, Dismal Swamp New information discovered
southeastern (Sorex
longirostris fisheri).
03/11/67................................. 12/12/90 Sparrow, dusky seaside Extinct
(Ammodramus maritimus
nigrescens).
06/04/73................................. 10/12/83 Sparrow, Santa Barbara song Extinct
(Melospiza melodia
graminea).
11/11/77................................. 11/22/83 Treefrog, pine barrens (FL New information discovered
pop.) (Hyla andersonii).
09/13/96................................. 04/26/00 Trout, coastal cutthroat Taxonomic revision
(Umpqua R.) (Oncorhynchus
clarki clarki).
06/14/76................................. 02/29/84 Turtle, Indian flap-shelled Erroneous data
(Lissemys punctata
punctata).
06/02/70................................. 06/16/94 Whale, gray (except where Recovered
listed) (Eschrichtius
robustus).
----------------------------------------------------------------------------------------------------------------
[GRAPHIC] [TIFF OMITTED] 78073.001
[GRAPHIC] [TIFF OMITTED] 78073.002
Statement of David S. Wilcove, Senior Ecologist, Environmental Defense
Two simple questions underlie much of the controversy pertaining to
the listing of plants and animals as threatened or endangered under the
Endangered Species Act. Developers, loggers, miners, business leaders,
and other members of the regulated community wonder whether all of the
species currently on the endangered species list are truly in danger of
disappearing. Because the Endangered Species Act can pose significant
economic costs to these people, they are understandably concerned that
only species truly at risk of extinction be afforded such protection.
Conservationists, on the other hand, worry that many rare plants and
animals are not making it onto the endangered species list and are
therefore being denied the protection they desperately need. Neglect
becomes a prelude to extinction.
The best available scientific information indicates that the answer
to the first question--are lots of undeserving species somehow finding
their way onto the endangered species list?--is a resounding ``no.''
And new data demonstrate that the answer to the second question--are
lots of gravely imperiled species somehow failing to receive protection
under the Endangered Species Act?--is an equally resounding ``yes.''
Below, I review these studies and their implications for administration
of the Endangered Species Act.
In 1993, Margaret McMillan, Keith Winston, and I published a paper
in the peer-reviewed journal Conservation Biology in which we examined
the population sizes of U.S. species proposed for listing or added to
the endangered species list from 1985-1991 (inclusive).\1\ Nearly 500
plants and animals were either proposed for listing or added to the
list during that 7-year period. We discovered that the median
population size of a vertebrate animal (mammal, bird, reptile,
amphibian, or fish) at time of listing was 1,075 individuals. The
median population size of an invertebrate animal at time of listing was
fewer than 1,000 individuals, while for plants, it was fewer than 120
individuals. (In fact, 39 plant species were listed when 10 or fewer
individuals were known to exist.) These low numbers of individuals were
clustered in a small number of populations: For animals, the median
number of populations at time of listing was fewer than 3; for plants,
it was 4. By any scientific standard, such low numbers make these
species highly vulnerable to extinction.\2\ One way to highlight this
point is to note that half the animals added to our endangered species
list are rarer even than the giant panda.
---------------------------------------------------------------------------
\1\ Wilcove, D.S., M. McMillan, and K.C. Winston. 1993. What
exactly is an endangered species? An analysis of the U.S. endangered
species list: 1985-1991. Conservation Biology 7: 87-93.
\2\ IUCN/World Conservation Union. 1994. IUCN red list categories.
Prepared by the IUCN Species Survival Commission, 30 November.
---------------------------------------------------------------------------
More recently, Dr. Sandy Andelman of the National Center for
Ecological Analysis and Synthesis at the University of California--
Santa Barbara has updated our study, using listing data from 1996-2000.
She, too, found that the population sizes of plants and animals added
to the endangered species list during this period were extremely low,
meaning these species were highly vulnerable to extinction and worthy
of Federal protection.\3\ For vertebrate animals, in fact, the
population sizes of those species added from 1996-2000 were even lower
than the population sizes of species added from 1985-1991.
---------------------------------------------------------------------------
\3\ S. Andelman, pers. comm., May 4, 2001.
---------------------------------------------------------------------------
Thus, the scientific studies done to date--as opposed to the
rhetoric often heard from opponents of the Endangered Species Act--
strongly support the idea that the species finding their way onto the
endangered species list fully fit the statutory definitions of
``endangered'' and ``threatened'' species.
Of course, it can be argued that the numbers I have cited are only
as good as the data upon which they are based. If the U.S. Fish and
Wildlife Service relies upon incomplete or inaccurate data when it
decides to list a species, then it could end up listing a species that,
upon further investigation, turns out to be fairly common. Supporters
of this hypothesis are quick to point out that previously unknown
populations of rare plants and animals are sometimes discovered after a
species has been listed. The reason is simple: By putting a regulatory
spotlight on a particular rare species, the Endangered Species Act
forces developers, Federal agencies, and others to search more
diligently for it.
The fact that additional populations are discovered is not, by
itself, evidence of a problem with the listing process. Most ecologists
would predict that, with more searching, more populations would be
found. A problem arises only when the number of new populations is so
great as to make one question whether the species ever belonged on the
endangered species list. Thus, it is worth noting that of the more than
1,200 plants and animals that have been placed on the endangered
species list since 1973, only 5 have been removed from the list because
they turned out to be far commoner than originally believed.\4\ This
amounts to less than one-half of 1 percent of the total list.
Approximately 7 additional species have been removed from the list
because additional studies revealed that they were not valid taxonomic
entities (i.e., they turned out not to be distinct species, subspecies,
or populations as required by the law).
---------------------------------------------------------------------------
\4\ These are Tumamoc globeberry, Rydberg milk-vetch, McKittrick
pennyroyal, pine barrens tree frog (Florida population), and Dismal
Swamp southeastern shrew. See: D. Wilcove and M. McMillan. 1994. An
analysis of erroneous listing proposals and decisions under the
Endangered Species Act. Environmental Defense, Washington, DC; http://
ecos.fws.gov/webpage/webpage--delisted.html. These numbers are current
as of May 4, 2001.
---------------------------------------------------------------------------
In summary, the available evidence clearly indicates that virtually
all of the U.S. plants and animals added to the endangered species list
represent valid taxonomic entities at genuine risk of extinction.
To answer the second key question--Are there significant numbers of
imperiled species in the United States that have not been added to the
Federal endangered species list? We are fortunate to have available a
new book produced by The Nature Conservancy (TNC) and the Association
for Biodiversity Information (ABI).\5\ Precious Heritage: The Status of
Biodiversity in the United States is a compilation and analysis of data
gathered by the natural heritage programs now established in all 50
States, plus TNC and ABI. It provides what is unquestionably the most
up-to-date and complete picture of the status of American wildlife.
---------------------------------------------------------------------------
\5\ Stein, B.A., L.S. Kutner, and J.S. Adams. 2000. Precious
heritage: The status of biodiversity in the United States. Oxford
University Press, Oxford, UK.
---------------------------------------------------------------------------
TNC and ABI rank plant and animal species on a scale from 1-5.
Species classified as G1 (the ``G'' indicating that the rank in
question pertains to the entire or ``global'' range of the species) are
considered ``critically imperiled.'' Such species typically occur in 5
or fewer places or have a total population of 1,000 or fewer
individuals. A G2 species occurs in 6 to 20 places or has 1,000 to
3,000 individuals left. It is considered ``imperiled.'' A G3 species is
classified as ``vulnerable.'' It typically occurs in 21 to 100 places
or has 3,000 to 10,000 individuals remaining. Species ranked G4 or G5
are in no immediate danger.\6\ Note that all of these ranks are based
on numbers of individuals and populations; they do not take into
consideration the degree or immediacy of the threats facing these
species.
---------------------------------------------------------------------------
\6\ Stein et al. (2000), Table 4.2, p. 97.
---------------------------------------------------------------------------
The authors of Precious Heritage have identified no fewer than
1,385 U.S. plants and animals with a rank of G1 (critically imperiled).
An additional 1,737 species are classified as G2 (imperiled), while
3,338 are classified as G3 (vulnerable).\7\ By any reasonable measure,
all of the species ranked G1 or G2 would qualify for listing as
endangered or threatened under the Endangered Species Act; these two
categories alone contain well over 3,000 species--more than double the
current endangered species list. And in all likelihood, a significant
fraction of the species classified as G3 (vulnerable) would pass muster
for listing, too. Thus, there are a great many rare plants and animals
that are at risk of extinction but are not yet protected under the
Endangered Species Act. Given what we now know about the endangered
species list, what steps can be taken to reduce the risk of erroneous
listings and to increase the proportion of deserving species covered by
the Endangered Species Act? Although the risk of an erroneous listing
is small, Congress can reduce it even further by providing additional
funds for biological inventories and taxonomic research.
---------------------------------------------------------------------------
\7\ Stein et al. (2000), Table 4.4, p. 104.
---------------------------------------------------------------------------
To reduce the backlog of deserving species awaiting protection,
Congress must greatly increase funds to the U.S. Fish and Wildlife
Service and National Marine Fisheries Service for listing activities.
From 1991-2000, the U.S. Fish and Wildlife Service added an average of
63 U.S. species per year to the list. At that rate, assuming a backlog
of about 2,000 imperiled, unlisted species, it would take the Service
nearly 32 years to catch up. By that time, many of these rare plants
and animals may be gone. A reasonable goal would be to erase this
backlog within a decade. Doing so would require a tripling of the
annual appropriation to the Service for listing and related activities,
to approximately $20 million in fiscal year 2002.
Finally, we must not forget that simply placing a rare plant or
animal on the endangered species list does not guarantee its survival,
much less its recovery. If, as the data indicate, most species are
added to the list only when their populations have reached critically
low levels, then we must find ways to increase those populations. Doing
so usually entails restoring or enhancing their habitats. For species
that depend upon private lands, the key to restoring their habitats is
to enlist the cooperation of the landowners. Incentive-based
approaches, such as the U.S. Fish and Wildlife Service's safe harbor
program or its Endangered Species Landowner Incentive Program, have
proved to be very successful in making landowners active participants
in recovery efforts. More support for programs such as these will go a
long way toward saving our imperiled wildlife while removing much of
the controversy associated with the Endangered Species Act.
__________
Statement of Lev Ginzburg, State University of New York at Stony Brook
and Applied Biomathematics
Determination of endangerment status is one of the most critical
steps for reaching the objectives of the Endangered Species Act; it is
crucial for implementing effective conservation strategies and for
apportioning limited financial and human resources for species
conservation. Yet, the protocol used by the U.S. Fish and Wildlife
Service for listing species under the Endangered Species Act has been
criticized as being arbitrary, because the system lacks explicit
guidelines by which these decisions are made.
A risk classification system utilizing explicit guidelines and
quantitative data would promote consistency in listing decisions and
expedite the listing process. One such system has received wide
acceptance from the international community and has been hailed by the
National Research Council as the ``most important scientific effort to
date to reach consensus on standard criteria for assigning taxa to
threat categories in a uniform, objective manner.'' This system was
developed by the World Conservation Union (IUCN, formerly known as the
International Union for the Conservation of Nature). IUCN is the
principal international organization involved with categorizing species
by extinction risk. Since the 1960's, it has been producing Red Data
Books and Red Lists, which are among the most important tools for
monitoring biodiversity at a global level.
Under the system used by the U.S. Fish and Wildlife Service, a
species qualifies for listing if its populations meet one of five
qualitative criteria, such as present or expected future loss of
habitat, overharvesting, disease or predation. Species that qualify for
listing are then ranked based on magnitude of threat, immediacy of
threat, and taxonomic distinctiveness. There are no threshold values
for deciding the magnitude or immediacy of threat. The final decision
to list a species as either endangered or threatened is based on the
level of perceived extinction risk. An endangered species is defined as
being ``in danger of extinction throughout all or in a significant part
of its range'' and a threatened species is ``likely to become
endangered throughout all or a significant part of its range''.
The IUCN listing process is carried out by its specialist groups,
each concerned with a particular taxonomic group. Species satisfying
one of five criteria, based on thresholds of ecological variables such
as population size, population growth trend, geographic distribution,
and extinction probability, are classified into one of IUCN's three
threatened categories of Critically endangered, Endangered, and
Vulnerable. Species not meeting these criteria are given the status
Least Concern. Threshold ranges of quantitative variables within each
of five criteria separate each category of endangerment. In all, 12
quantitative variables are examined for each species under this system.
If not all relevant data are available, as is often the case; a species
may still be evaluated under this system because of the many variables
examined.
The IUCN listing process was developed under wide consultation and
is now recognized internationally by the public and scientific
community. The lists of threatened species developed by IUCN are among
the most widely used by conservationists around the world. The IUCN
criteria were designed to detect risk factors for organisms of widely
different taxonomic groups. While not all criteria may be relevant for
a particular taxon, there are criteria relevant for assessing
extinction threat of all groups (except microorganisms).
One difference between the IUCN and FWS systems is the efficiency
and speed of the listing process. The most recent IUCN Red List
includes over 18,000 species that have been assessed in the 5 years
since the new IUCN system took effect. By contrast, the number of
species listed by the FWS in the last 20 years is about one-tenth of
this number.
Resources for conservation of species are limited. It is,
therefore, imperative that decisions are made carefully to focus on
species that will benefit most from conservation actions. In addition,
many species at risk of extinction cannot afford an inefficient listing
protocol. These considerations are mentioned in the endangered Species
Act of 1973, yet the present process is both slow and subjective.
The most important difference between the IUCN and FWS systems is
their transparency. The FWS relies heavily on qualitative criteria and
expert judgment, and therefore often seen as ambiguous and subjective.
The IUCN system is based on objective criteria, and results in
efficient and scientifically defensible decisions. It makes use of
explicit guidelines for evaluating different variables that contribute
to extinction risk and uses quantitative thresholds to determine degree
of endangerment. As a result, decisions are consistent between people
and specific reasons for each listing decision are clearly defined.
For most species, data that are valuable for evaluating extinction
risk are deficient in one or more areas. It may not be possible to
gather all relevant data for some species. Data collection may be
costly or delaying action to gather all relevant data may place that
species in greater danger of extinction. The IUCN system uses multiple
criteria to accommodate this problem. Because meeting any one criterion
is sufficient for listing, it is possible to list a species in a high
threat category if sufficient data is only available for one criterion.
There is always some uncertainty involved in estimating extinction
risk in the form of measurement error, probabilistic predictions, or
semantic ambiguity. When this uncertainty is simplified for analysis,
it is difficult to prevent human biases from entering the
decisionmaking process. New methods have been developed that allow the
evaluation of species according to the criteria of IUCN while
objectively dealing with uncertainty in data. This allows efficient and
non-biased classification of species of concern. However, such methods
of dealing with uncertainty are applicable only to protocols that are
based on objective, quantitative criteria, rather than subjective
opinions.
To improve the Federal system under which threatened and endangered
species are listed, it is essential that more explicit criteria and
clear thresholds be incorporated, as in the IUCN system. There is a
large amount of similarity in the nature of the factors considered
under the USFWS and IUCN listing systems. A system similar to that of
IUCN can easily be implemented in the United States, without requiring
a change in the Endangered Species Act itself. Such a change will make
the Act more efficient, objective, and science-based in dealing with
the listing and delisting of threatened and endangered species.
__________
Statement of John D. Echeverria, Director, Environmental Policy
Project, Georgetown University Law School
My name is John D. Echeverria. I am the director of the
Environmental Policy Project and an Adjunct Professor at Georgetown
University Law Center. The mission of the Environmental Policy Project
is to conduct research and education on legal and policy issues
relating to protection of the environment and conservation of natural
resources. I appreciate the opportunity to testify today. In my
testimony I will address three issues: (1) the proposal in the
Administration's recent budget submission to Congress to effectively
bar citizens from going to court to enforce certain provisions of the
Endangered Species Act (ESA); (2) some of the likely difficulties and
counter-productive consequences of seeking to advance species
conservation goals through taxpayer-funded ``incentive'' programs; and
(3) the value of critical habitat designations in furthering the
objectives of the ESA.
congress should reject the proposed esa ``extinction rider''
The recent Administration budget submission to Congress includes a
proposal to effectively bar citizens from continuing to go to Federal
court to enforce deadlines in the ESA for the listing of threatened and
endangered species and for the designation of critical habitat.\1\ In
my view this proposal is unwise for two reasons: first, it would
undermine one of Congress' most valuable tools for ensuring that
Federal agencies comply with the ESA and other environmental laws; and,
second, it fails to address the most obvious solution to the growing
volume of lawsuits being filed against the agencies: additional funding
for the agencies so that they can perform their statutory
responsibilities in timely fashion.
---------------------------------------------------------------------------
\1\ The pertinent language, which some environmental advocates have
called an ``extinction rider,'' reads as follows: ``That
notwithstanding the specific timeframes and deadlines of section 4(a)
and (b) of the Endangered Species Act of 1973, as amended, not to
exceed $8,476,000 shall be used for implementing subsections (a), (b),
(c)(1), (c)(2)(B)(iii) and (e) of section 4 for species that are
indigenous to the United States, to be expended solely for (1)
complying with court orders or settlements in effect as of the date of
the passage of this law, and (2) undertaking such other actions as
determined by the Secretary to be consistent with the priorities
established by a listing priority system to implement these subsections
and subject to the requirements of this appropriation.''
---------------------------------------------------------------------------
Environmental groups and others do not file lawsuits under the ESA
simply because they believe it is in their self-interest to do so.
Rather, they sue because Congress itself has specifically authorized
and encouraged the filing these suits. Section 11(g) of the ESA
provides in part ``any person may commence a civil suit . . . to enjoin
any person, including the United States and any other governmental
instrumentality or agency . . . who is alleged to be in violation of
any provision of this chapter or regulation issued under the authority
thereof.'' This so-called citizen-suit provision is similar to the
citizen-suit provisions included in other major Federal environmental
laws. See, e.g., 33 U.S.C. 1365 (Clean Water Act citizen suit
provision); 42 U.S.C. 7604 (Clean Air Act citizen suit provision).
It is important to emphasize that Congress has not authorized the
filing of these suits on any of a variety of different, or potentially
novel, legal theories. Rather, section 11 simply authorizes suit for
``violations'' of the ESA and ESA implementing regulations. Most
citizen suits brought under the ESA involve entirely straightforward
application of clear law to undisputed facts. In many cases, the legal
issue presented is no more complicated than the question of whether a
motorist has committed a parking meter violation.
The reason Congress has authorized these kinds of straight-forward
lawsuits--in the Endangered Species Act and in many other laws--is
because this type of litigation--or, equally important, the threat of
such litigation--is an effective tool for ensuring that the agencies
actually carry out the law as written. Congress has the opportunity to
enact or thoroughly amend major statutes, such as the environmental
laws, on a relatively infrequent basis. Over a decade has passed, for
example, since Congress adopted major amendments to the ESA. On the
infrequent occasions when Congress enacts major legislation, it is
typically only after sustained public debate and focused congressional
attention to the issues.
The difficulty frequently starts, as Congress has discovered
through repeated, painful experiences, when the agencies begin to
implement the legislation Congress has enacted. After legislation
passes, public attention to an issue typically wanes. Coalitions of
regulated businesses affected by new legislation typically lobby the
agencies to delay its implementation or to adopt strained
interpretations of the law that will lessen their regulatory burdens.
These efforts are countered, to a limited degree at least, by
environmental advocates, who attempt to speak on behalf of the broad
public interest protected by the new law. Unfortunately, concentrated
wealth and power frequently prevails over the broad public interest in
this process. As a result, agency implementation of environmental laws
all too frequently threatens to subvert the will of Congress, almost
always in the direction of less environmental protection than Congress
intended.
Citizens suits provide a solution to this problem. By empowering
individual groups and citizens to directly enforce the law Congress has
written, Congress creates an important check on the agencies' ability
to subvert Congress' will. The goal is not to set up the courts as the
arbiters of environmental disputes or to assign citizens groups around
the country some special policymaking responsibility. Instead, the goal
is simply to enlist our established judicial procedures and willing
lawyers (motivated by a promise of attorneys fees if they bring a
successful suit) in the effort to see that Congress' will is carried
out. Ideally, the mere threat of successful litigation will prevent an
agency from flouting the will of Congress and avoid the need for actual
litigation.
The late Judge J. Skelley Wright, of the U.S. Court of Appeals for
the D.C. Circuit, spoke eloquently about the issue of enforcement of
environmental laws 30 years ago in a landmark case, Calvert Cliffs
Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d
1109 (D.C. Cir 1971). Referring to the National Environmental Policy
Act and other environmental legislation, he observed that ``recently
enacted statutes attest to the commitment of the Government to control,
at long last, the destructive engine of material `progress.' '' The
next step, he said, was to see that ``important legislative purposes,
heralded in the halls of Congress, are not lost or misdirected in the
vast halls of the Federal bureaucracy.'' The citizen suit is Congress'
most effective tool for ensuring that its objectives are not ``lost or
misdirected.'' The Administration's budget proposal, on the other hand,
would encourage legal mandates to become lost or misdirected, weakening
both the ESA and the authority of Congress.
In addition, the proposal in the Administration's budget submission
fails to address one the most obvious and immediate causes of the
growing volume of lawsuits being filed under the ESA. Environmental
groups are in a position to sue over the failure of the government to
list species and designate critical habitat because the agencies have a
backlog of work that leads them to repeatedly violate their mandatory
duties to carry out these steps under ESA. A major reason for these
failures on the part of the agencies is a longstanding shortfall in
funding to support the necessary scientific and other technical work.
Congress could achieve significant progress in limiting the volume of
lawsuits under the ESA by increasing appropriations to the agencies. As
compared to the approach of eviscerating the citizen-suit provision,
increased funding levels will allow Congress to reduce the volume of
litigation against the agencies while simultaneously preserving an
important tool to prevent agencies from ignoring congressional
mandates.
the potential unintended consequences of ``incentives''
A great deal of attention has recently focused on the proposed use
of financial payments to property owners--so-called ``incentives''--as
a complement, or possibly even as an alternative, to enforcement of the
ESA. Financial incentives may have a potentially valuable, limited role
to play in species conservation. In my view, however, the extensive use
of incentive payments would create many difficulties and would likely
be counterproductive to the goal of protecting and restoring threatened
and endangered species.
First, according to some, expansive taxpayer-funded incentive
programs can be justified on the ground that endangered species
regulations routinely result in constitutional ``takings'' mandating
the payment of compensation under the Takings Clause of the Fifth
Amendment. Congress should agree up front to arrange payments to
landowners subject to the ESA, according to this argument, to avoid the
filing of takings claims by aggrieved property owners after the fact.
In reality, however, ESA restrictions rarely if ever result in
constitutional takings. Indeed, while a number of takings claims have
been brought under the ESA, I am not aware of a single case in which it
has been definitively determined that a Federal ESA regulation has
resulted in a taking. There are several explanations. First, the ESA is
a relatively flexible law which rarely if ever produces the kind of
severe economic impact that rises to the level of a constitutional
taking. Second, wildlife has long been understood to be a public
property resource which the public has broad authority to protect from
harm or destruction. Because restrictions on an owner's actions that
threaten wildlife prevent a trespass on public property rights such
restrictions cannot logically be said to result in a taking of private
property rights.
Second, the proposal to pay financial incentives to those subject
to the ESA also raises significant questions of fairness, especially if
the incentives would be funded out of general tax revenues. The value
of land for development and for other forms of profitable exploitation
reflects in large part the value-enhancing effect of public
investments, from the public highway system to agricultural subsidies.
Because a good deal of private property value is publicly created, an
owner has no legitimate claim on the public fisc simply because he
cannot exploit a property's full economic potential. A fairness problem
also arises from the fact that a relatively small number of firms and
individuals with large land holdings are likely to benefit the most
from incentive programs. Approximately 125,000 timber or farm owners,
less than two-tenths of 1 percent of all private landowners, own 38
percent of all the private land in the United States.\2\ Timber and
farm interests that amount to less than 3 percent of all landowners own
more than 80 percent of all private land.\3\ Thus, land owner incentive
programs have a significant potential to create a significant new
subsidy program for the relatively well-to-do at the expense of the
ordinary taxpayer.
---------------------------------------------------------------------------
\2\ See Environmental Defense Fund, ``Why Takings Bills Threaten
the Property Rights and Values of Most Landowners (1995).''
\3\ Id.
---------------------------------------------------------------------------
Finally, paying financial ``incentives'' to land owners has the
potential to lead to over-investment in land the development of which
could lead to endangered species problems. The ultimate goal of public
policy should be to encourage investors to direct their attention to
projects that avoid ESA (and other problems) rather in the direction of
projects that can give rise to such problems. The ready availability of
financial assistance to investors facing ESA problems would provide
little incentive to investors to avoid investment opportunities that
carry this type of risk. Ironically, therefore, financial assistance to
landowners, while potentially useful in avoiding political conflicts in
the short-term, could lead to more numerous and more serious clashes
between development interests and ESA concerns over the long-term.
The nature of the problem can be illustrated in a number of ways.
It is widely recognized that the availability of low-cost Federal flood
insurance in flood plain areas, rather than protecting property in
areas subject to flooding, has actually increased development in flood
plains and exposed more property to the risk of flooding. In the view
of some, International Monetary Fund bailouts of debtor nations, while
useful in the short-term, have encouraged some nations to engage in too
much borrowing and fiscal irresponsibility in the long-run. So too in
the case of ESA incentives, by lowering the likely cost of investing in
areas that present serious ESA problems, the availability of incentive
payments could actually encourage investors to invest more in these
areas, tending to exacerbate rather than reduce development conflicts.
As I suggested, this is not to indicate that financial incentives
have no place in species conservation. In some cases, short of outright
public acquisition of the property, the only way to achieve effective
habitat management may to enlist the land owner as an active manager of
land on behalf of the environment. The rather special case of managing
woodpecker habitat in North Carolina, for example, provides an example
of where public payments to enlist land owner cooperation may be useful
and necessary. But in the general run of cases, where the basic issues
are whether natural habitat can be destroyed for development,
additional water withdrawn for irrigation or other purposes, or
additional trees cut for commercial purposes, taxpayer-funded payments
to landowners who face ESA problems are more problematic.
At a minimum, these concerns about the potentially perverse effects
of incentive payments warrant caution in the design of incentive
program. For example, a stronger case can be made for incentive
payments to the subset of owners who can demonstrate that the enactment
and implementation of the ESA seriously disrupted settled development
plans than to investors who now or in the future make investments in
the face of foreseeable ESA problems. Limiting incentive payments to
owners whose plans have been significantly disrupted by new legal
enactments would have the twin advantages of focusing financial
assistance on those owners likely to have the strongest equitable
claims to public financial assistance while simultaneously sending a
clear message that such assistance will not be made available to owners
who voluntarily make an investment in the face of known environmental
problems.
the value of critical habitat designations
Finally, I wish to offer a brief word in favor of critical habitat
designations and of the current legal requirement that critical habitat
be designated concurrently with the identification of a species as
threatened or endangered.
In the view of some, critical habitat designation is superfluous
because it adds little to the legal mandates to avoid ``jeopardy'' to
species under section 7 of the Act or to avoid a ``take'' of a species
under section 9. In a sense this is a fair and accurate statement
because a Federal agency likely can halt or control any activity based
on section 7 or 9 which would adversely affect critical habitat. The
critical role of habitat designation--and the reason Congress included
separate proscriptions in section 7 against jeopardizing species and
destroying critical habitat--is that it serves to constrain agency
discretion. In practice, both the terms ``jeopardy and ``take'' are
rather elastic. The agencies therefore have a fair amount of discretion
in applying these terms in particular cases. Certainly the courts are
compelled to accord substantial deference to an agency's determination
that a particular action will not jeopardize a species or produce an
illegal take. By contrast, once critical habitat is defined and drawn
on a map, the ESA's relatively clear prohibitions against actions that
would result in the ``destruction or adverse modification'' of critical
habitat presents a fairly straightforward obligation for the agencies
to follow and for the courts to apply. For the reasons discussed above,
there are compelling reasons to believe that the agencies, subject to
constant pressure from the regulated community, will fail over time to
carry out their ESA obligations as Congress intended. An enforceable
command to the agencies to promptly designate and protect critical
habitat helps ensure that Congress' ESA goals will actually be
achieved.
The concern has been expressed that the requirement to designate
critical habitat imposes an unreasonably heavy burden on the Agency at
a point in time when it has only begun to identify the threats to the
species and to devise a recovery strategy. However, the Act makes clear
that the initial designation need not be definitive. The Act directs
the Agency to rely on the ``best scientific and commercial data
available'' and explicitly indicates that an agency may ``from time-to-
time . . . revise . . . [the] designation.''
Furthermore, an agency is directed to take into consideration ``the
economic impact, and any other relevant impact, of specifying any
particular area as critical habitat.'' Thus, an agency has wide
latitude in selecting the factors to apply in designating critical
habitat. Given the significant flexibility built into the Act, it
cannot reasonably be said that the habitat designation requirement
imposes an unreasonable strait jacket.
Thank you for the opportunity to testify. I would be happy to
respond to any questions.
Statement of Steven P. Quarles on behalf of the American Forest & Paper
Association and the QuadState County Government Coalition
My name is Steven P. Quarles. I am counsel to, and appearing on
behalf of the American Forest & Paper Association (AF&PA) and the
QuadState County Government Coalition. AF&PA is the national trade
association representing the forest products industry. It has more than
130 member companies that grow, harvest, and process wood and wood
fiber and manufacture a wide variety of products including pulp, paper,
paperboard and wood products. AF&PA has more than 60 association
members that represent all facets of the forest products industry and
represent more than 10,000 companies. AF&PA's member companies, as a
condition of membership, must also commit to conduct their business in
accordance with the principles and objectives of the Sustainable
Forestry Initiative (SFI)SM program. QuadState County Government
Coalition is a coalition of six counties in the four States that share
portions of Mojave and Colorado Deserts--Mojave County in Arizona;
Imperial, Kern and San Bernardino Counties in California; Lincoln
County in Nevada; and Washington County in Utah. The Coalition's
principal concern is the effect of the listing of the Mojave population
of the desert tortoise on its member counties' economic and revenue
bases, their public works, and the businesses and properties of their
constituents.
The topic to which the subcommittee has devoted this hearing is
timely and significant. Individual determinations or ``listings'' of
species to be endangered species or threatened species (``listed
species'') under the Endangered Species Act (``ESA'') have frequently
been contentious because the stakes are high; imposed with the listings
is the full panoply of the ESA's controls over human behavior to
benefit the listed species. However, for most of the ESA's life span of
nearly three decades, the general process (and the underlying science
and law) of listing species as endangered species or threatened species
has not garnered the same degree of controversy, or at least attention,
as many of the other processes and decisions under that Act.
Controversy over and attention to the species' listing process are
now at hand, however--triggered by recent actions of both the Clinton
and Bush Administrations. On November 17, 2000, FWS Director Jamie
Clark announced that the Agency lacks sufficient funds to conduct any
species' listings, including responding to any listing petitions, in
fiscal year 2001 beyond those mandated by court order. This Clinton
listings moratorium was followed by a legislative proposal in President
Bush's budget to waive for fiscal year 2002 the ESA's statutory
deadline for species listings (and designations of critical habitat)
and to limit use of the available funding to implementing already
issued court orders and those listings (and designations) the Secretary
of the Interior in her discretion determines to be important. Both the
Clinton moratorium and the Bush budget language, if enacted, should
spawn litigation and enlist the judiciary in the intensifying species'
listing controversy.
My topic will focus on one issue: the overbroad definition of
``species'' eligible for listing under the ESA. In particular, I will
emphasize the authority to list distinct population segments of
vertebrates, efforts by Congress to determine the use of that
authority, and how that authority has been abused by the ESA-
implementing agencies (the U.S. Fish and Wildlife Service (``FWS'') and
the National Marine Fisheries Service (``NMFS'') (collectively, the
``Services)). The Services' abuse of the distinct population segment
concept has resulted in the expansion of their species' listing
authority well beyond the expectations of Congress and, in particular,
this committee, and the infiltration of the concept into other ESA
decisionmaking processes for which it was not authorized or intended. I
conclude with suggestions on ways Congress, in this time of funding
scarcity, could limit the applicability of the distinct population
segment concept for listing vertebrate species--a concept that provides
the least amount of protection for genetic heritage, a principal
purpose of the ESA.
background
The ESA only permits the Services to list an endangered species or
threatened species if it is a ``species'' unit as defined by ESA
Sec. 3(16), and only if that ``species'' unit meets the definitions of
``endangered species'' or ``threatened species'' in ESA Sec. 3(6) and
3(20) which requires a degree of risk over a ``significant portion of
[the] range'' occupied by the species unit. 16 U.S.C. Sec. Sec. 1532(6)
and (20), 1533(a)(1) (FWS shall ``determine whether any species is an
endangered species or threatened species''), (a)(2), (a)(3), (b)(1),
(b)(3)(A), and (b)(6)(A) (final ``determination as to whether a species
is an endangered species or a threatened species'').
The ESA defines the crucial term ``species'' in an unusual way. An
ESA-listable ``species'' unit includes not only a true biological
species (those individuals that can interbreed and produce viable
offspring), but also a recognized ``subspecies of fish or wildlife or
plants,'' and--in the case of a vertebrate species--``any distinct
population segment of any species of vertebrate fish or wildlife which
interbreeds when mature'' (``DPS''). 16 U.S.C. Sec. 1532(16).
The ESA listing of any ``species'' unit has adverse consequences
for private and public land uses within the range of that species. ESA
Sec. 9 and regulations prohibit the ``take'' of almost all listed
wildlife species--the ``take'' prohibition bars any economic land use
which would inadvertently harm even one member of that wildlife
species. See 16 U.S.C. Sec. 1538(a)(1); 50 C.F.R. Sec. Sec. 17.3 and
222.102; Babbitt v. Sweet Home Chapter of Communities for a Great
Oregon, 515 U.S. 687 (1995). Further, federally-assisted actions cannot
be approved until an ESA Sec. 7 consultation procedure has been
completed, and must be disapproved if the action is likely to
jeopardize the existence of the listed species unit. See 16 U.S.C.
Sec. 1536.
Each of the three branches of government has treated the authority
to list distinct population segments of vertebrates in a strikingly
different manner. If the analogy were to ships, two of the branches--
Congress and the Executive--have passed in the night sailing in
opposite directions; the third--the Judiciary--has never left port.
Since the ESA's enactment, Congress has made several efforts to reduce,
met by countervailing efforts of the Services to expand, the scope of
listings below the subspecies level. The Federal courts have rarely
been asked to pass judgment on these opposing efforts.
congressional efforts to constrain listings of distinct populations
Distinct population segments did not enjoy protection under the
ESA's predecessors. The Endangered Species Preservation Act of 1966
referred only to ``species''; ``subspecies'' were added in the
Endangered Species Conservation Act of 1969. The ESA's first attempt to
provide protection to species units below subspecies was quite liberal.
As enacted in 1973, the ESA defined ``species'' to ``include[] any
subspecies of fish or wildlife or plants and any other group of fish or
wildlife of the same species or smaller taxa in common spatial
arrangement that interbreed when mature.''
Contrary to popular belief, many of the populations of charismatic
megafauna that have been designated as endangered or threatened species
were listed under this early, quite generous ``common spatial
arrangement'' standard-less standard. These include species, such as
the grizzly bear and bald eagle, that may have been rare in the lower
48 States but are common in Canada and Alaska. The listing documents
made no attempt to demonstrate any degree of distinctness between the
lower 48 species unit and the northern species unit; instead, they
readily admitted that the two species units were not reproductively
segregated and had no genetic or other biological differences.
Moreover, the FWS made no effort to determine whether these ``species''
were suffering declines in Canada (or, for that matter, in the rest of
the United States, i.e., Alaska). Indeed, as one author noted, the FWS
engaged in the ludicrous fiction of ``defin[ing] the grizzlies' entire
range as the lower 48 States even though it was obviously well aware
that grizzlies existed in Canada and Alaska.'' (Daniel Rohlf, ``There's
Something Fishy Going On Here: A Critique of the National Marine
Fisheries Service's Definition of Species Under the Endangered Species
Act'', 24, Envtl. L. 617, 653 (1994).)
By 1978, Congress had had second thoughts about this loose ``common
spatial arrangement'' authority for species' listings. To restrict sub-
subspecies listings, Congress amended the ESA by replacing the original
definition of species with the present definition and its DPS language.
Criticism continued, however; none more withering than that of the
General Accounting Office (``GAO''). In 1979 testimony before this
committee and a report, the GAO raised concern over any loose
definition of a ``distinct population'' in what has become the well-
known squirrels-in-the-park analogy. The Agency stated that the
definition:
permitted FWS to list populations of species, regardless of
their size, location, or total numbers. Thus, squirrels in a
specific city park could be listed as endangered, even though
an abundance of squirrels lived in other parks in the same city
and elsewhere. . . . Such listings could increase the number of
potential conflicts between endangered and threatened species
and Federal, State, and private projects and programs. . . .
However, the purpose of the Endangered Species Act is to
conserve endangered and threatened species and their critical
habitats, not preserve every individual animal and plant.
Endangered Species--A Controversial Issue Needing Resolution 52, 58
(GAO Rep. CED-79-65, 1979). Although the particular quote referred to
the 1973 ``species'' definition, two lawyers and a scientist from NMFS
pointed out in a law review article that subsequent GAO statements
indicated the same concern was relevant to the revised 1978 ``species''
definition. (Karl Gleaves, Michael Kuruc, Patricia Montanio, ``The
Meaning of `Species' Under the Endangered Species Act,'' 13 Pub. Land
L. Rev. 25, 31, n.30 (1992).)
This committee took note of the GAO's criticism (even if it viewed
the problem as FWS's interpretation of the statutory definition) and
the GAO's suggestion that the authority to list DPSs be deleted from
the ESA. However, after FWS and others emphasized the importance of the
listing flexibility afforded by the DPS portion of the ``species''
definition, this committee decided to retain that definition in the
1979 ESA amendments and issue a stern admonition to the Services to use
the DPS listing authority ``sparingly'':
[T]he General Accounting Office recommended that the
subcommittee consider an amendment to the definition of species
currently contained in the Act which would prevent the FWS from
listing geographically limited populations of vertebrates as
threatened or endangered. It is the GAO's contention . . . that
FWS has interpreted the term ``species'' to include any
population of the animal, regardless of its size, location, or
total numbers. According to the GAO, this could result in the
listing of squirrels in a specific city park, even if there is
an abundance of squirrels in other parks in the same city, or
elsewhere in the country. . . . [T]he committee is aware of the
great potential for abuse of this authority and expects FWS to
use the ability to list populations sparingly and only when the
biological evidence indicates that such action is warranted.
S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6-7 (emphasis added).
the services' unrestrained use of the distinct population segment
listing authority
Contrary to the ``sparingly'' stricture of this committee, the
Services have been more unsparing in their use of the DPS listing
authority. They produced two documents purportedly defining and
confining their DPS authority--NMFS's ``Policy on Applying the
Definition of Species Under the Endangered Species Act to Pacific
Salmon,'' 56 Fed. Reg. 58612 (Nov. 20, 1991), which established the DPS
concept of ``evolutionarily significant unit'' (``ESU''), and the
Services' joint ``Policy Regarding the Recognition of Distinct
Vertebrate Population Segments Under the Endangered Species Act'', 61
Fed. Reg. 4722 (Feb. 7, 1996). Both documents quoted, and paid lip
service to, this committee's ``sparingly'' admonition. However, the
Services' actual performance in listing DPSs is clear evidence that
their DPS policies do nothing to limit and, arguably, substantially
expand the authority to list DPSs.
According to a draft manuscript prepared by the Pierce Atwood law
firm for an upcoming edition of the American Bar Association's Natural
Resources and Environment magazine, since the existing ``species''
definition was added to the ESA in 1978, 59 DPSs have been listed by
the Services, with the precise number dependant upon interpretation of
decisions that, initially, did not always clearly identify the listings
as DPSs. I suspect that there could be vigorous debate over whether 59
DPS listings in 22 years represents sparing use of the DPS listing
authority. But once the trend--a rapid increase in DPS listings in the
last several years--is examined, the nays should have it. The pace of
DPS listings was relatively constant for the first 17 years (7 in 1978-
1985; 6 in 1986-1990 (including NMFS' first listing of a West Coast
salmonid DPS); and 8 in 1991-1995). From 1996 through 2000, the
Services have listed 38 DPSs, more than quadrupling the number of
listings of the previous 5 years. This trend can be expected to
continue; about 35 DPSs are currently involved in rulemaking processes.
By contrast, despite the existence of the Services' two policies
which ostensibly were to bring rigor to the DPS listing process, the
Pierce Atwood authors could find only 13 instances over the past 22
years when either of the Services concluded that a particular
population did not qualify as a DPS (excluding instances where DPS
status was denied for delisting purposes and where a DPS existed but
was not listed for conservation reasons). The Services have concluded
that species units have qualified as DPSs more than 80 percent of the
time. These statistics suggest that the Services rarely determine that
a species unit--identified by petitioners or by themselves--does not
qualify as a DPS, notwithstanding Congress' admonition to use the DPS
listing authority ``sparingly.''
reasons for the liberal use of the distinct population segment
listing authority
How did this frequent use of the DPS listing authority happen in
the face of the Congressional caution? I can think of at least three
reasons.
1. No scientific agreement on the DPS concept. In general, common
and consistent scientific understanding and usage of any units below
the species level is absent. As one scientist put it: ``The discussion
of what makes a subunit within a species, be it a subspecies, race,
ecotype, variety, or stock is such a durable source of dispute among
systematic biologists that scientific consensus may never be
achieved.'' (Robert Taylor, ``Biological Uncertainty in the Endangered
Species Act,'' 7 Natural Resources and the Environment 6 (1993).)
This scientific uncertainty becomes more severe at the DPS level.
In the preamble to their 1996 joint DPS policy, the Services stated:
``Available scientific information provides little specific
enlightenment in interpreting the phrase `distinct population segment.'
This term is not commonly used in scientific discourse, although
`population' is an important term in a variety of contexts.'' 61 Fed.
Reg. 4722. With so little common scientific understanding of, or
agreement on, the term DPS, it is too easy for the Services to use
``the best scientific and commercial data available'', as required by
ESA Sec. 4(b) for listing decisions, to reach whatever conclusion they
may wish. 16 U.S.C. Sec. 1533(b)(1)(A). A committee of the National
Research Council, in a 1995 report commissioned by Members of Congress,
while supporting a population listing concept of its own devising
(``evolutionary unit''), admitted that even the one criterion
everyone--Congress, the 1991 NMFS policy, and the (later) 1996 joint
Services' policy--could agree on for a listable population--
``distinctness''--is as much a matter of judgment as science:
The most difficult questions generally arise at taxonomic
levels below the subspecies level. Because evolutionary units
at such levels are not discrete but exist along a continuum, it
is a policy judgment as well as a scientific judgment to
determine the significance of an evolutionary unit. . . .
[S]cience alone does not lead to a conclusion that any
objectively definable degree of distinction is more significant
than another.
National Research Council, Science and the Endangered Species Act, 56
(1995) (emphasis added).
In other words, DPS is in the eye of the beholder.
2. The DPS policies of the Services are riddled with discretion.
Certainly, an important purpose of the Services' two DPS policies was
to provide a measure of scientific rigor to the DPS decisionmaking in
the listing process. The fact is they only pretend to do so. As one
critic wrote about the more thoroughly analyzed and justified 1991 NMFS
policy:
Much like the Wizard of Oz employed smoke and mirrors to lend
him an air of might and wisdom, NMFS invokes science in an
effort to portray its definitions of distinct populations
eligible for listing as beyond question. When one looks behind
the curtain, however, it becomes apparent that NMF's ESU policy
merely trades the discretion inherent in historic approaches to
listing populations for a more technically complex but equally
discretionary scheme. The tremendous discretion inherent in
NMFS' ESU policy stems from two related sources: scientific
uncertainty and extremely imprecise definitions of the two ESU
criteria: reproductive isolation and whether a population
represents an important component in the ``evolutionary
legacy'' of a species. (Rohlf at 644.)
When the Pierce Atwood authors reviewed the broader, less fully
explained 1996 joint DPS policy, they found so much discretion that
they concluded: ``We are, in other words, back to the listing of
squirrels in the city park.''
With this amount of discretion, the eyesight of the beholder can be
quite poor, and yet suffice.
3. Neither Congress nor the courts have provided helpful guidance.
The Service's discretion in designating DPSs is unconstrained by any
useful legislative or judicial direction. Congress has chosen not to
define DPS, and the ``legislative history provides some discussion of
the concept but provides no specific guidance. It is probably safe to
conclude not only that the meaning of `distinct population' is
ambiguous, but also that Congress has not directly addressed or
resolved this precise question.'' (Gleaves at 37-38.) The preamble to
the 1991 NMFS policy concurs that ``NMFS does not believe that the
intent of Congress is clear as to the meaning of `distinct population.'
The ESA allows vertebrate populations that are `distinct' to be
considered `species,' but does not explain how distinctness should be
measured.'' 56 Fed. Reg. 58613. Few courts have addressed, and none has
provided a significant decision on, the meaning and application of the
DPS concept.
examples of misuse or abuse of the distinct population segment concept
in listing decisions
The list of methods by which the Services expand their DPS listing
authority by misuse or abuse of that authority could be lengthy. I will
mention only three:
1. Designation of DPSs by political boundaries. In the early days,
the Services listed species populations by international borders (e.g.,
grizzly), by State borders (e.g., bald eagles), and even by parishes
(American alligator). Today, the Services typically eschew State and
local boundaries for DPS listing purposes, but still adhere in their
joint 1996 policy to the notion that national boundaries are perfectly
permissible means of delineating DPSs. As I have noted, when the
national border of the lower 48 States is used, the Services typically
make no attempt to determine any reproductive isolation of, or other
distinctness for, the U.S. portion of the multinational population, nor
do they make any effort to learn the status of the portion of the
population across the border (which is often abundant) or the other
country's management regime for that population portion. All too often,
this is little more than species jingoism--a fervor to claim
citizenship for as many species as we can. Moreover, since the Services
ignore whether the species with the lower 48 DPSs are abundant in
Alaska, they appear to side with the Seward's Folly crowd that
preferred the State to remain in foreign ownership or, at a minimum,
they wish to restore a biological form of territorial status to our
49th State.
Unfortunately, Congress is complicit here. In 1973 and again in
1979, House and Senate reports expressed their intent to allow the
Services to list domestic populations of species whose principal ranges
are in another country, asserting (in the Senate report) that ``the
U.S. population of an animal should not necessarily be permitted to
become extinct simply because the animal is more abundant elsewhere in
the world.'' H.R. Rep. No. 412, 93d Cong., 1st Sess. 10 (1973); S. Rep.
No. 151, 96th Cong., 1st Sess. 7 (1979); quoted in Rohlf at 628-629.
Many scientists emphatically disagree. Unless the U.S. population
is both reproductively isolated and biologically significant, both the
National Research Council in its 1995 report and NMFS in its 1991 DPS
policy found that there were no ``sound scientific reasons'' to
delineate populations by political boundaries. NRC Report at 58; 56
Fed. Reg. 58613.
2. Designation of DPSs that are not reproductively isolated. One
would have thought that an easy call for a criterion (but admittedly
not always an easy matter of scientific proof) to determine a
``distinct population segment'' would be that the population must be
reproductively isolated. After all, the plain ESA language connotes
reproductive isolation. A population is ``distinct'' if it is separate
from other members of the same biological species. A population
develops ``distinct'' characteristics if it has a separate gene pool.
The ESA phrase ``population . . . which interbreeds when mature''
suggests a population which interbreeds among itself but not with other
populations. The NMFS lawyers and scientist in their law review article
concur that this is the plain meaning of ``distinct population'':
A common dictionary definition of ``distinct'' is
``separate'' or ``apart from.'' In addition, as a biological
term, ``population'' includes the idea of reproductive
isolation or separation. (Gleaves at 46.)
However, in their continual search for discretion, the Services
have all but discarded the necessity to find reproductive isolation.
For example, the 1991 NMFS policy states that the first criterion for
delineating a DPS is that the Pacific salmon stock ``must be
substantially reproductively isolated from other conspecific population
units'' and declares that the ``first criterion, reproductive
isolation, does not have to be absolute, but it must be strong enough
to permit evolutionarily important differences to accrue in different
population units.'' 56 Fed. Reg. 58618 (emphasis added). The Services'
joint 1996 policy weakens the reproductive isolation factor further.
The policy does demand that the DPS be ``markedly separated'' but this
can be as a result of ``physical, physiological, ecological, or
behavioral factors.'' And, once again, ``the standard adopted does not
require absolute separation of a DPS from other members of its species.
. . . The standard adopted is believed to allow entities recognized
under the Act to be identified without requiring an unreasonably rigid
test for distinctness.'' 61 Fed. Reg. 4725, 4724 (emphasis added).
As one observer put it: ``FWS has likewise waffled on the
importance of genetic make-up in distinguishing between population
segments. Predictably, the Agency cited the presence or absence of
genetic distinctiveness in instances in which it found reproductive
isolation to be important, and downplayed genetics in cases where it
had made listing decisions despite a lack of such isolation.'' (Rohlf
at 657.)
3. Designation of DPSs by disregarding the ESA's definition of
``species'' and relying instead on the ESA's definitions of
``threatened species'' and ``endangered species.'' In at least one
listing of a population, the FWS abandoned any attempt to find any
``distinct'' quality to the population segment. It could not. It
admitted the three-State population of Marbled Murrelets it wished to
list was not reproductively isolated or particularly biologically
distinct from the Canadian population. Therefore, it looked away from
the statutory definition of species and DPSs, and, instead, discovered
helpful language in the ESA's definitions of ``endangered species'' and
``threatened species.'' 16 U.S.C. Sec. 1532(6) and (20). FWS adopted an
entirely different and certainly clever approach to defining DPSs by
suggesting that the ``significant portion of its range'' language in
both the ``endangered species'' and ``threatened species'' definitions
could be made to serve as a means to delineate distinct populations
without the need to demonstrate reproductive isolation or genetic or
other differences. If this approach is followed in future listings, any
population segment of any relative size could qualify for listing and
the statutory requirement that the population be ``distinct'' will be
sapped of all meaning.
the services have inappropriately ``re-listed'' smaller species units,
often as the distinct population segments, in decisionmaking under
other sections of the esa
I would also like to bring to the committee's attention our view
that the Services are inappropriately redefining species units after
their listing into smaller species units in decisionmaking under
sections of the ESA other than the ESA Sec. 4 listing section.
The ESA is quite clear that ESA Sec. 7 compliance, ESA Sec. 4(f)
recovery plans, and species delistings decisions are to be made with
reference to the same ``species'' unit that has been listed. See 16
U.S.C. Sec. Sec. 1533(f), 1536(a)(2) and (b). Yet, in the case of the
red-cockaded woodpecker (``RCW'') and in several other instances where
the Services have listed a biological species, they are assessing ESA
Sec. 7 compliance not with reference to jeopardy to the listed
biological species as a whole, but jeopardy to smaller subgroupings,
such as an individual population of RCWs. This approach makes it far
more likely that a localized action will be found to jeopardize a
localized population and to violate ESA Sec. 7. We believe that this
approach is unlawful under the ESA, is contentious, and should be
discontinued.
There has also been unwarranted ``population creep'' into ESA
Sec. 4(f) recovery planning and species' delisting actions. In several
instances, where the FWS or NMFS has listed a larger ``species'' unit
(e.g., the Mojave population of desert tortoises or grizzly bears in
the lower 48 States), the Agency has subdivided that ``species'' unit
for delisting purposes into smaller populations. These new multiple
populations were, of course, designated without the formal rulemaking
required for the listing of the original all-encompassing population
(grizzly) or DPS (desert tortoise). The affected public was deprived of
all the procedural protections of Administrative Procedure Act
rulemaking which the ESA promised in its Sec. 4 listing provisions. 16
U.S.C. Sec. 1532(a)(1). Moreover, this division of the listed species,
subspecies, or populations into smaller populations, often renamed with
such titles as ``recovery units,'' likely extends the time for
delisting. For example, if five recovery units/mini-populations are
designated in the recovery plan and four out of the five meet recovery
plan standards for recovery, the FWS or NMFS likely could conclude that
the entire listed population should be delisted. But, under the
Services' practice, the Agency would de-list only the four recovery
units/mini-populations and leave ESA burdens in place for the remaining
recovery unit/mini-population. And, that listing could last for a very
long time because, in most instances where this practice has been
followed, at least one of the recovery units/mini-populations has
little chance of ever recovering.
The desert tortoise rendition of this practice is particularly
interesting for another reason. After listing the Mojave population of
the desert tortoise in 1990, the FWS divided that DPS into 6 smaller
DPSs termed ``evolutionarily significant units'' in the 1994 recovery
plan. FWS, Desert Tortoise (Mojave Population) Recovery Plan, June
1994, p. 19. NMFS formally adopted use of ESUs in its 1991 DPS policy
for Pacific salmon. But, FWS has never adopted, or invited public
comment on application of, such a policy for the terrestrial species
within its jurisdiction. Instead, it applied another agency's standard
for certain anadromous fish to the tortoise. This isn't ``population
creep,'' its more of a ``population scramble.''
congress should consider amending the esa so that it protects only an
imperiled biological species, or to create a presumption against
listings below the true species level, and to limit the use of species
elsewhere in the esa to the form of species actually listed
If the local government and land use interests regulated by the ESA
had been fully engaged when the ESA's broad definition of ``species''
was adopted in 1973 and then narrowed somewhat in 1978, they likely
would have preferred that the ESA simply define a ``species'' as a
recognized biological species. That definition would eliminate the
trivialization of the ESA that occurs when the Services list and create
ESA compliance burdens for a subspecies or distinct population which is
locally rare, even though the biological species as a whole is not
imperiled. It also both would address the concerns raised by the
Clinton listing moratorium and Bush budget's legislative proposal by
conserving the Services' resources and would conform with the original
legislative intent to: (1) protect the ``genetic heritage'' associated
with a species' unique gene pool, while (2) realizing that ``it is
beyond our capability to acquire all the habitat'' needed by locally
rare populations ``without at the same time dismantling our own
civilization.'' H.R. Rep. No. 93-412, at 4-5 (1973).
Indeed, in 1978, the House of Representatives voted to limit the
ESA to a biological species. The full House adopted Representative
Duncan's amendment defining ``species'' consistent with its biological
usage (a group of ``physically similar organisms capable of
interbreeding but generally incapable of producing fertile offspring
through breeding with organisms outside this group''). 124 Cong. Rec.
38154-56 (Oct. 14, 1978). Rep. Duncan stated:
The legislation before us today is entitled, and I think this
is important, ``the Endangered Species Act.'' It is not
entitled, and I think this is important, . . . ``An Endangered
Subspecies Act,'' or the ``Endangered Variation-of-a-Species
Act.'' The amendment preserves, again, the integrity of the
legislation while sufficiently tightening up the definitions so
that we do not afford protection of this legislation, to the
detriment of man, to every individual creature on the face of
the Earth that might differ in one degree or another from one
of its brothers.
124 Cong. Rec. 38154.\1\
---------------------------------------------------------------------------
\1\ Though the House passed Rep. Duncan's amendment, he was not
named to the Conference Committee. The conferees reinserted the
``species'' definition that had been reported by the House Committee.
However, given the history of ESA listings of subspecies and
distinct population segments of vertebrate species, we suspect that
removal entirely of the listing authority for either subspecies or DPSs
would be a difficult undertaking. We also, as suggested by the focus of
my testimony, find far more troublesome the sub-subspecies listing
---------------------------------------------------------------------------
authority than the subspecies listing authority.
I would therefore suggest, as a possible alternative, that the ESA
could be amended to: (1) require the Services to list a species or
subspecies if it is biologically threatened or endangered; but (2)
grant the Services the discretion to list or not list a DPS. Indeed, it
may be appropriate for Congress to state a presumption, or default
position, that DPSs should not be listed under the ESA, and to require
the Services to provide judicially reviewable reasoning if they decide
to list such variations-of-a-species. This committee suggested such a
presumption when its report on the 1979 ESA amendments stated that:
the committee is aware of the great potential for abuse of
this authority and expects FWS to use the ability to list
populations sparingly and only when the biological evidence
indicates that such action is warranted.
S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6-7.
However, the ESA as written arguably requires the listing of any
``species'' unit (be it a biological species, a subspecies, or a
distinct population segment of a vertebrate species) if that species
unit is biologically endangered or threatened over a significant
portion of its range. See 16 U.S.C. Sec. Sec. 1532(6), (16) and (20),
1533(a) and (b)(1). Congress could remove these nagging questions on
the Services' discretion to not list a DPS by amending the ESA to
clearly make listing at the population level discretionary and to
provide in the form of a statutory command its previous committee
report admonition that such listing authority be exercised only
``sparingly.''
Finally, I would urge the committee to put an end to the
inappropriate ``population creep.'' The Services should be directed to
determine ESA Sec. 7 compliance, prepare ESA Sec. 4(f) recovery plans,
and conduct ESA Sec. 4 delistings on the basis of the same ``species''
units that have been listed under ESA Sec. 4.
__________
Statement of Steven N. Moyer, Vice President of Conservation Programs,
Trout Unlimited
Mr. Chairman, members of the subcommittee, I appreciate the chance
to appear today to give you the views of Trout Unlimited (TU) on the
listing and delisting processes of the Endangered Species Act (ESA).
TU is a national fisheries conservation group dedicated to the
protection and restoration of our Nation's trout and salmon resources,
and the watersheds that sustain those resources. TU has over 130,000
members in 500 chapters in 38 States. Our members generally are trout
and salmon anglers who voluntarily contribute substantial amounts of
their personal time and resources to aquatic habitat protection and
restoration efforts. Because of the declining populations of native
trout and salmon in many areas, our members increasingly rely on
provisions of the ESA to protect trout and salmon and their habitats.
TU supports the ESA and considers the ESA to be one of the Nation's
most important laws for protecting and restoring trout and salmon
populations.
The subcommittee has asked our views on the listing and delisting
processes of the ESA. To summarize, TU believes that the listing and
delisting processes, as written in the law, are fundamentally sound.
Implementation of the processes by the U.S. Fish and Wildlife Service
(FWS) and the National Marine Fisheries Service (NMFS) is slowed
unacceptably because of huge listing backlogs and insufficient funding.
Implementation of the listing process clearly needs to be improved, but
in our view, the solution to the problem is not to weaken the process
legislatively or administratively, but rather it is for the Bush
Administration to propose, and Congress to appropriate, additional
funding for listing. In our experience, applying sound science to
listing and delisting decisions is not a substantial problem. If
anything, the Services bend over backwards to check the science and
give interested parties a thorough chance to comment on it.
We understand that there is considerable concern about the amount
of litigation over species listing and designation of critical habitat.
However, we don't support the current Bush Administration proposed
solution to, among other things, restrict citizen lawsuit enforcement
of listing deadlines. Simply restricting--or slowing down--the listing
process could jeopardize a number of species that should be listed,
such as the California golden trout, which is faced with extinction.
Finally, we must take the opportunity to urge the subcommittee to get
at the root problem of insufficient funding and support conservation
initiatives which would actually reduce the need to list species, for
example pass the Conservation and Reinvestment Act and Fishable Waters
Act, and provide more funding for conservation programs under the Farm
bill.
the esa list is getting long, and esa is getting more controversial, in
large part due to declining fish and other aquatic populations around
the nation
If the subcommittee is looking for root causes of listing problems,
consider these facts. Fish and other aquatic species are in bad shape
in many places in the United States. A recent American Fisheries
Society study found that over one third of all aquatic species are
endangered or imperiled. The Forest Service's Forest Ecosystem
Management Assessment Team (FEMAT) Report explicitly highlighted the
fact that more than 100 stocks of Pacific salmon have become extinct
since European settlement of the West, and emphasized that 314 stocks
just within the range of the spotted owl were at risk of extinction.
Populations of species that are vital to sport and commercial
fisheries are reaching threatened and endangered status. Thirty-three
salmonid species have already been listed (see attached list),
including Atlantic salmon from the rivers of Maine, the bull trout of
the intermountain west, and numerous stocks of Pacific salmon.
Increasingly, the success of the ESA will be linked to the fate of
these once-abundant sportfish species, especially the salmonids of the
western United States.
the esa listing and delisting processes are fundamentally sound as
written in law and do not need major revision
In the ESA, Congress wisely stated that the decisions to list or to
de-list species are to be based solely on the best available science.
In reality, there can be no other standard. The decision to list is,
and should be, a question of biology, not politics or economics. Once a
species is listed, there is flexibility in other parts of the Act, for
example, in Section 10, which allows the taking of endangered species
by private landowners pursuant to habitat conservation plans. Where
conflicts between species and economic activity rise to regional or
national significance, there is an exemption provision.
In our experience, the Services generally have used this authority
appropriately. We have had disagreements with the agencies over their
interpretations of science pertaining to listing, but in the main they
have done a respectable job. If anything, the thoroughness with which
the Services have conducted their scientific reviews has sometimes made
the listing process frustratingly slow. For example, it took the
Services 5 years to complete the listing of Atlantic salmon in part
because of the rigorous scrutiny they applied to salmon genetic data
and studies. During this time salmon numbers have plummeted to an
estimated 200 to 300 wild fish.
Similarly, ESA's mandate to protect distinct population segments is
a wise, essential conservation tool, especially for species such as
trout and salmon, which consist of an array of populations, like fibers
in a tapestry, that give resilience and strength to species. These
populations provide the genetic fitness that species need to survive
the vagaries of weather, environmental changes, and human-contrived
obstacles that threaten them. The individual trout and salmon
populations, which are the evolutionary legacy of species adaptation to
site-specific habitat conditions, each contain the ingredients
necessary for overall species survival. From a biodiversity and long-
term species persistence standpoint, native salmon, steelhead, and
resident trout at the population and sub-population level are
irreplaceable.
Therefore, it is entirely appropriate to review the current
endangered species list and to find 9 chinook Evolutionarily
Significant Units (ESUs) and 10 steelhead ESUs. The ESU is NMFS'
attempt to manage the ESA distinct population segment mandate in a
practical way that is biologically defensible. Conservationists would
generally like to see NMFS segment-out distinct populations within each
ESU even more so than they have done. Conservationists were critical of
NMFS' lumping of Snake River winter and spring runs into one ESU when
that determination was made in 1992, for example. But while we don't
always agree and we will continue to debate the biological and legal
merits of these issues, we respect that the agencies have a difficult
job in making these decisions and they are trying hard to do them well.
implementation of the listing process needs improvement, but the answer
is more funding and more aggressive tackling of the backlog, not
restricting citizen enforcement of deadlines
In our view, the most relevant listing issue is not inadequate or
flawed scientific basis for listing decisions, but rather inadequate
funding to get species listed that need the help that only the ESA can
provide. In its fiscal year 2002 budget justification proposal, the FWS
provides helpful detail about the bind it is in regarding court ordered
steps in the listing process, its failure to address the listing needs
of some species not in the court-ordered pipeline, and the limited
funding it has to address its needs. Unfortunately the solution offered
by the Agency and the Bush Administration is a mere $2 million funding
increase to a wholly inadequate $8 million base budget for listing, and
a plan that would among other things limit the ability of
conservationists to go to court and enforce mandated ESA deadlines to
save species.
The answer is not to limit access to courts but rather to fund the
listing program. We recommend at least a doubling of the Agency's
listing budget to not only address the court ordered backlog, but also
to allow the FWS the flexibility it rightfully seeks to start the
listing process for species that need ESA protection now.
regarding listed trout and salmon, the delisting process is not a
problem
Unfortunately, there are no listed trout and salmon that have been
restored sufficiently to trigger the ESA delisting process. This is not
to say that the ESA has failed these species. In fact, listing has
generally helped greatly, as I have detailed below. Greenback
cutthroats and Apache trout are the closest to achieving their recovery
targets, but in no way should their recovery be shortchanged. We want
conservation programs in place that will last, not short-term fixes
that may yield ephemeral results and a quick trip back on the list.
listing of trout and salmon has benefited all listed species, some much
more than others, but nonetheless all have received attention and
funding that they might not otherwise receive
The ESA has been effective for protecting and at least partially
restoring species where it has been faithfully implemented and where
political decisions have not undercut implementation, such as Apache
trout and greenback cutthroat trout. These two species have been
brought back from the brink of extinction to the point where
restrictive, well-managed sport fisheries are occurring, providing
valuable income to local and tribal economies in Colorado and Arizona.
These species are not recovered yet, but they are no longer at
critically low levels.
The State of Maine had failed to take steep declines in Atlantic
salmon populations seriously enough until a petition started the
listing process in 1994. Only after the Services proposed Atlantic
salmon for listing did the State forge a conservation plan that, while
it had some merits, did not provide what was needed for real salmon
recovery. Following the listing of salmon in 2000, the State and the
Services are working harder and better than ever before to keep wild
salmon from going extinct, and hopefully some day, returning the fish
to its rightful place as a the most sought after sportfish species in
New England.
Snake River salmon have continued to decline since their listings
in 1992, but their path to oblivion is no longer taken in relative
silence. Saving Snake salmon is now a national imperative, the stuff of
Presidential campaigns and an integral part of Pacific Northwest's
resource debates.
Even for species for which petitions have been filed but are as yet
unlisted--e.g., golden trout--the threat of listing helped get action.
TU's petition to list the golden trout has prompted California's
Department of Fish and Game to address the fact that their fish
stocking program was causing hybridization of native golden trout. It
has also encouraged the Forest Service to address the grazing program
on allotments that were harming golden trout habitat.
Finally, the 1999 emergency listing of Jarbidge River bull trout
distinct population segment was an especially positive example of a
listing that TU was directly involved in. In the Jarbidge case, Federal
agencies responded aggressively to a very specific resource problem
facing the southernmost remaining bull trout population in the
continental United States. The emergency listing process, rarely used
in the history of the ESA, was completed for this listing within a
year. This shows how quickly decisions can be made when the FWS
aggressively presses the listing process.
the esa's burgeoning list of species tells us that other government
laws and policies are failing. don't shoot the messenger! fix the other
programs!
ESA listing and protection is necessary to protect and restore many
salmonid species because other Federal, State, and local conservation
laws and policies have failed. Our assessment of the causes of the
declines that justified the listing of 34 salmonid species showed that
other Federal laws had failed to conserve the species, including the
National Forest Management Act, the Northwest Power Planning Act,
implementation of the United States/Canada Salmon Treaty, and the Clean
Water Act. State conservation laws and policies have also contributed
to declines, including stocking of nonindigenous species that has
adversely affected greenback cutthroat as well as golden, Lahontan
cutthroat, Gila, and Apache trout. If the impacts of declining fish
stocks and ESA are a problem for the Nation--and clearly they are--then
let us fix what needs to be fixed. The ESA is merely the messenger
telling us that other policies are not working. Therefore, efforts to
place blame upon the ESA are misplaced.
good proposals are before congress now that could help conserve species
and keep them off the list
TU does not believe that conservation begins and ends with the ESA.
Our members are deeply involved in conservation efforts with
communities, States and Federal agencies. There are at least three
bills before the Senate that could help to greatly improve partnerships
and funding for conserving species, namely the Conservation and
Reinvestment Act (HR 701), the Fishable Waters Act (S. 678), and the
Farm bill conservation programs which are set to be reauthorized by
2002. I urge the subcommittee to look carefully at these measures and
to support them. The swelling endangered species list tells us that
much more needs to be done proactively to protect and restore species
and their habitats. Passing legislation such as these items helps to
get at the heart of the problem.
remember aldo leopold's admonition to save all the pieces<plus-minus>
Aldo Leopold, the father of wildlife conservation, spoke eloquently
in his landmark book, A Sand County Almanac, of the importance of
species diversity and need to keep all the parts of an ecosystem to
keep it healthy. TU has embraced Leopold's philosophy and has made
conservation of native trout and salmon a high priority for our
organization. Listing species under the ESA goes to the heart of saving
all the parts and ensuring species diversity. We urge the subcommittee
to support measures that strengthen the listing process, such as
increased funding for it, and oppose measures that would legislatively
or administratively weaken it.
Threatened and Endangered Trout and Salmon Species
Atlantic salmon-Endangered-Gulf of Maine
Apache trout-Threatened-entire range
Bull trout-Threatened-lower 48 States
Chinook salmon-Endangered-Sacramento River; winter run
--LThreatened-Snake River, mainstem and subbasins; fall run,
natural pop.
--LThreatened-Snake River, mainstem and subbasins; spring/
summer run, natural pop.
--LThreatened-WA, all naturally spawned populations in river
and streams flowing into Puget Sound.
--LThreatened-Columbia River and its tributaries to
Willamette Falls, OR, natural pop.
--LThreatened-Clackamas River and Willamette River above
Willamette Falls, natural pop.
--LThreatened-various tributaries of Columbia River, natural
pop.; also some hatchery populations and their progeny.
--LThreatened-Sacramento San Joaquin River, mainstem and
tributaries, spring run, natural pop.
--LThreatened-CA, Redwood Creek south to Russian River,
mainstem and tributaries, natural pop.
Chum salmon--Threatened-Columbia River, mainstem and tributaries,
natural pop.
--LThreatened-Hood Canal and tributaries, Olympic Peninsula
rivers between Hood Canal and Dungeness Bay; summer run,
natural pop.
Coho salmon--Threatened-streams between Punta Gorda, CA and San
Lorenzo River, CA, natural pop.
--LRiver basins between Cape Blanco, OR and Punta Gorda CA,
natural pop.
Gila trout--Endangered-entire range
Greenback cutthroat trout--Threatened, entire range
Lahontan cutthroat trout--Threatened, entire range
Little Kern golden trout--Threatened, entire range
Paiute cutthroat trout--Threatened, entire range
Sockeye salmon--Endangered-Snake River
--LThreatened-Ozette Lake, WA and tributary streams, natural
pop.
Steelhead--Endangered-from Santa Maria River, CA to Malibu Creek,
CA
--LEndangered-Upper Columbia Basin, Yakima River to US/Canada
border
--LThreatened-Sacramento and San Joaquin Rivers and
tributaries
--LThreatened-Snake River Basin
--LThreatened-Russian River to Aptos Creek, CA, drainages of
San Francisco and San Pablo Bays
--LThreatened-streams and tributaries to Columbia River
--LThreatened-Pajaro River to Santa Maria River, CA
--LThreatened-Willamette River, winter run
--LThreatened-above Wind River, WA, and above Hood River, OR
to Yakima River, excluding the Snake River
--LThreatened-Redwood Creek to Gualala River, CA
__________
Statement of Ralph L. Moss, Director, Government Affairs, Seaboard
Corporation, on Behalf of Atlantic Salmon of Maine
i. introduction
Chairman Crapo and members of the committee, my name is Ralph Moss
and I appear today on behalf of Atlantic Salmon of Maine, LLC, a Maine
aquaculture company raising salmon and selling salmon food products to
U.S. consumers.
We appreciate the opportunity to testify before this committee
concerning our first-hand experience with the recent joint decision of
the U.S. Fish and Wildlife Service and the National Marine Fisheries
Service to list Maine Atlantic salmon as endangered under the ESA. Our
bitter experience reveals that this important act is subject to serious
abuse and distortion, and in Maine's case, is being implemented in an
arbitrary and heavy-handed manner that is both inconsistent with
congressional intent and counterproductive for restoration of the
species.
We would like to be clear that our company is a strong partner in
the State of Maine Atlantic Salmon Conservation Plan and supports
Salmon restoration in Maine rivers. But like Maine's Governor King and
members of our congressional delegation, our company opposes the
Services' decision to list these fish as an endangered species.
The listing is fundamentally wrong for scientific, legal and policy
reasons. Maine salmon runs are restoration fish, the product of over
more than 120 years of hatchery stocking of non-indigenous salmon into
these rivers and do not qualify as a distinct population segment for
ESA listing.
ii. failure to honor state conservation plans
The Maine listing represents a dangerous backslide by the Services
into an inflexible interpretation of the ESA that fails to honor State
conservation plans and creates an unsustainable burden on Federal
wildlife programs.
It is widely recognized that the Federal Government alone cannot
recover endangered or threatened species. The States, with their
traditional authority over wildlife management and land use planning
are ideally positioned to fashion conservation plans that are custom
tailored to the resource, its habitat, and local conditions. This is
especially true in Maine, where virtually all salmon habitat is in
private land ownership, and only the voluntary cooperation of
landowners will enable salmon habitat upgrades.
In Maine's case, the Services initially recognized the value of the
State's conservation plan. Developed by a State--appointed task force
with input from Federal fisheries scientists. The Maine plan provides a
5-year action plan to recover the species, with specific priority
actions for each of the rivers. The plan gives top priority to projects
that directly benefit the resource and provides creative solutions for
the agricultural, forestry and Aquaculture areas to minimize stock
impacts and disruption to the businesses.
In December 1997, the Services celebrated this Maine plan as a
``National Model'' that would open ``A New Chapter in Conservation
History.'' The Services determined that a threatened ESA listing of the
runs was not warranted because the State plan offered sufficient
protections. But less than 2 years later, apparently in response to
pressure from a lawsuit filed by environmental groups, the Services
abruptly reversed course, and decided to list Maine atlantic salmon as
endangered. The Service failed to provide a credible rationale for the
listing or to demonstrate any truly changed circumstances in the status
of the Maine runs.
The Services' failure to honor the State conservation plan
represents the loss of the best opportunity to recover Maine salmon
runs. The State had appropriated over $2 million in New money, had
shifted existing staff and programs to support this plan, and had
organized significant public-private partnership support. At the
State's request, our company had contributed more than $200,000 in
direct costs alone for an innovative adult restoration stocking
program, raising wild fish from the river for later release and natural
spawning. Although highly successful to date, the adult stocking
program's future is uncertain after the listing.
By rushing into the listing the Services effectively derailed a
State plan that was well on its way to achieving the goals jointly
endorsed by the State and the Services. Although support for the Maine
plan remains strong to date, it is highly unlikely that the private
business community will continue that support if the Federal listing is
not reversed. There is no appetite for dealing with the Services, given
their failure to be guided by the best available science, and their
poor track record on pragmatic solutions.
iii. failure to follow listing criteria
The Services turned a deaf ear to the ESA mandate that the best
scientific evidence be used to make listing determinations and failed
to heed congressional cautions to use their power to list ``Distinct
Population Segments'' sparingly. The Maine case illustrates a
continuing problem in ESA Administration: Congress intended that
conclusive evidence, representing the best available scientific data,
be used in listing decisions for distinct population segments. but
increasingly, the Services rely upon the ``Precautionary Principle'' to
justify listing decisions in the absence of complete data. We heard
services representatives repeat many times in the Maine listing
hearings that although the genetic evidence was incomplete, and that
the genetic heritage of the Maine salmon was not clear, the
precautionary principle required that the salmon be listed given the
low population levels. The Agency's growing reliance upon the
precautionary principle in ESA represents a fundamental conflict with
statutory authorization and congressional intent in ESA listing.
Our written testimony offers a detailed explanation of the
Services' multiple failures to follow listing criteria in the Maine
salmon case.
iv. failure to honor the needs of the resource and its habitat
The sudden and illogical reversal of the Services' position on the
need for ESA listing of Maine salmon clearly reveals that this was a
political listing that had nothing to do with the needs of the resource
or with the best science available. We believe that the Services
decided to take the path of least resistance, and list the species
rather than defend its decision in the lawsuit. Ironically one of the
documents that the Services attempted to suppress from FOIA disclosure
argued that it was better to sacrifice one State plan so that the
concept of State plans could be preserved for future use. This
abandonment of the State plan, after encouraging the State and its
citizens to implement the plan, represents a serious breach of faith by
the Services, and a complete disregard for the real needs of the salmon
restoration.
Having insisted on derailing the State plan, the Services have
taken no effective action to address the priority needs of salmon
restoration. The Services have actually cut funding for Maine River
Restoration Programs, and ignored the agreed upon priority needs for
salmon restoration reflected in the Maine plan. In the last budget
proposal, the Services proposed to spend only $1.2M in Maine on the ESA
stocks, an outright budget cut from pre-listing budgets. In contrast,
the Services proposed to spend $6.2M on the restoration stocks to the
south of Maine. The Services' own budget proposal is the most
devastating possible critique of their disorganized and ineffective
restoration programs.
Instead, the Services have chosen to follow their default course,
seeking to bulk up staff to carry out section 7 consultations. They
have lost no time in demanding new permit conditions for aquaculture
that are wholly unsupported by science, and would cause massive
disruption and losses to the Maine aquaculture industry if implemented.
Refusing to consult with the Department of Agriculture experts on
aquaculture, marking, or genetics issues, the Services have demanded
marking technology that does not exist for fish, as well as immediate
slaughter of perfectly healthy broodstock and fish being raised by the
companies on the theory that they are not genetically compatible with
Maine runs. The Services have no knowledge or understanding of our
industry, but continue to turn a deaf ear to the expert State of Maine
agencies and Federal Department of Agriculture on aquaculture issues.
In spite of the tremendous potential losses to our company, the
Services have arbitrarily repudiated their prior commitments to the
State of Maine that non-North American origin atlantic salmon could
continue to be used with effective containment. It is just this type of
arbitrary and unaccountable services action that turns ESA listings
into a nightmare for private citizens and creates strong opposition to
ESA listings.
It should be noted that the Services' demands on aquaculture in
this listing create very significant adverse precedents for agriculture
in ESA listings generally, especially where the Services are proceeding
upon the precautionary principle to justify their actions.
It is clear that the Services are attempting to scapegoat
aquaculture, which did not even exist when the Maine salmon runs
declined, in order to distract attention from the Services' failure to
address the critical needs of the resource. Ironically, the Services
have failed to fulfill the one exclusive Federal role that would
benefit salmon restoration--to work through international treaty
organizations such as the North Atlantic salmon Conservation
Organization (NASCO) to secure a moratorium on the on high seas salmon
fisheries. The National Fish and Wildlife Foundation led a similar
moratorium effort in 1993-94, resulting in a 1995 population rebound--
the only such rebound in recent history. Similarly the Services
continue to shrink from effective independent peer review of their
Maine salmon stocking programs, which are contributing to the decline
of the species. Maine salmon cannot recover until these priorities are
addressed.
conclusion
After nearly 30 years, the ESA and its administration is in need of
updating to reflect the advances in science and technology and to
preserve traditional State roles in wildlife management. We request
that Congress establish clear guidance to the Services that will
protect and support State conservation plans in the listing process.
Congress must take action to require strict adherence by the Services
to ESA listing criteria and sparing use of the DPS concept. Finally,
Congress must hold the Services accountable for post-listing decisions,
requiring the Services to demonstrate that there is a quantifiable
scientific basis for the permit condition or other Federal action, and
that every effort has been made to minimize unnecessary disruption of
private property rights and businesses.
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Statement of Zeke Grader, Pacific Coast Federation of Fishermen's
Association
Good morning, Mr. Chairman and subcommittee members, my name is
Zeke Grader. I am the executive director for the Pacific Coast
Federation of Fishermen's Associations (PCFFA), representing working
men and women in the west coast commercial fishing fleet. We are a
federation of many different fishermen's marketing associations, vessel
owners associations and fishermen's cooperatives with member
organizations as well as individual members in ports from San Diego to
Alaska.
The fishing men and women and their organizations that make-up our
federation are the economic mainstay of many coastal communities and
cities. PCFFA members represent at least half a billion dollars in
economic investments which generate tens of thousands of family wage
jobs--not only in coastal communities, but far inland as well. In other
words, hard working men and women who help put fresh, high-quality
seafood on America's table, create a job base for coastal communities,
and help support a multitude of Federal, State and local community
services through our taxes, all from the bounty of the seas.
The commercial fishing industry represents a significant economic
sector in this Nation, accounting for well over $50 billion in economic
impacts and more than 700,000 jobs. When combined with another $15
billion per year generated by the marine recreational fishery, the
whole offshore fishing industry now accounts for about $65 billion per
year to the U.S. economy.\1\ In addition to commercial fishing, the
recreational sportfishing industry also contributes a mighty share to
the U.S. economy. Fishing--whether for sport or commercially--is big
business, with a combined economic input to the national economy in
excess of $152 billion and supporting almost 2 million family wage
jobs.\2\
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\1\ Economic figures from Our Living Oceans, Report on the Status
of U.S. Living Marine Resources, 1992. NOAA Tech. Mem., NMFS-F/SPO-2.
National Marine Fisheries Service, NOAA, U.S. Dept. of Commerce,
Washington, DC. See also Analysis of the potential economic benefits
from rebuilding U.S. fisheries (1992). National Marine Fisheries
Service, NOAA.
\2\ From Fisheries, Wetlands and Jobs: The Value of Wetlands to
America's Fisheries, a report by William M. Kier Associates (March
1998) for the Campaign to Save California Wetlands, available on the
Internet at: http://www.cwn.org/docs/reports/kier/kiertitle.htm. See
also Maharj and Carpenter (1997), The 1996 Economic Impact of Sport
Fishing in the United States, by the American Sportfishing Institute,
Washington, DC.
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Most of these jobs are to one degree or another dependant upon
strong protection of the biological resources upon which they are
based. In other words, our industry would not exist--nor would $152
billion dollars in annual income and 2 million jobs in this economy
that we generate--without strong environmental protections. Our
industry is a prime example of a basic economic principle:
The fundamental source of all economic wealth is the natural
environment. In the long-run environmental protection does not
destroy jobs--it creates them and maintains them on a
sustainable basis for the future.
In other words, the biological wealth of this country is its
``natural capital.'' Like any economic capital, we can invest it wisely
and reap its benefits indefinitely, or we can allow it to dissipate and
waste it. Pushing species to the brink of extinction--and beyond--not
only wastes future economic opportunities but helps destroy those
industries we already have, such as the Pacific salmon fishing
industry. The ESA is the law of final resort that prevents us as a
society from negligently wasting our irreplaceable ``natural
capital''--and the jobs that this ``natural capital'' represents, both
in the present and in our economy's future. Ultimately all economic
wealth comes from our natural environment. In the final analysis this
is all humanity has, and all it has ever had, from which to obtain its
livelihood, and indeed its very existence.
The Endangered Species Act (ESA) dispute is not really a clash
between species vs. jobs, nor even between public trust values vs.
private property rights--fundamentally, the ESA dispute is a clash
between short-term profiteering vs. long-term and sustainable economic
development. The ESA merely establishes limits beyond which voracious
human consumption should not go. That limit is the limit of
``biological sustainability.'' This is also the basis of economic
sustainability as well. As a society, we violate nature's biological
limitations at both our biological and our economic peril.
Each species pushed into extinction is first and foremost a loss to
the very fabric of our human food chain. However it also represents a
lost future economic opportunity effecting our entire economy. The
biological diversity of our natural resources represents the foundation
upon which many industries of the present are maintained, but also upon
which industries of the future will be built and people of the future
will be fed. Wasting our ``natural capital'' dramatically impoverishes
our society by limiting our future industrial and economic growth.\3\
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\3\ The $152 billion/year fishing industry is but one example of
this principle. Fully 40 percent of the known medically valuable
pharmaceuticals, for instance, are derived from natural sources. This
represents an industrial economy also in the hundreds of billions of
dollars worldwide, as well as many millions of lives saved. Yet only
about 1 percent of all the plant species now known have been adequately
surveyed for their pharmaceutical value, and only a small fraction of
all plant species have even been cataloged categorized. Many will
likely become extinct before that can be accomplished. The booming
biotechnology industry is also another example. Their stock in trade is
genes. These genes, however, can only come from known natural sources--
even the simplest gene is millions of times too complex to synthesize
in the laboratory by any known technology. Unknown plant species may
contain genes for disease resistance worth billions to a failing crop
industry, or worth billions more for any of a number of other unknown
and as yet undiscovered industrial processes. Once extinct, however,
the potential uses of the organism will never be known. Every species
driven to extinction gives us fewer economic options.
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The commercial fishing industry has seen the Endangered Species Act
up close and in operation for many years. Our industry is a highly
regulated industry. We are, for instance, far more strictly regulated
under the Endangered Species Act (ESA) than the Northwest timber
industry, and for many more species. While the timber industry has
recently suffered through curtailments caused by one or two ESA
listings, the fishing industry has long been dealing with the impacts
of listings for chinook salmon in both the Columbia and Sacramento
Rivers, sockeye salmon in the Columbia, sea turtles in the Gulf, marine
mammal species protected under both the ESA and the Marine Mammal
Protection Act (MMPA), and various species of seabird protected under
both the ESA and the Migratory Bird Treaty Act (MBTA). On the west
coast, we have also learned to cope with ESA listings for coho and
sockeye salmon and some runs of chinook as well. The cumulative effects
of this multitude of listings is, frankly, far more restrictive than
any past restrictions caused merely by spotted owls or marbled
murrelets.
There is, in fact no industry more regulated under the ESA
presently, nor more likely to be regulated in the foreseeable future,
than the commercial fishing industry. We can therefore speak with some
authority, as a regulated industry, on how well the ESA works. Yet in
spite of short-term dislocations created by listings, we view the
protections offered by the ESA as vitally important in protecting and
preserving our industry, our jobs and our way of life for the long
term. It is species declines and the forces which cause those declines
which are the real enemy, not the ESA. The ESA is only the messenger.
It is, in fact, axiomatic that a species only qualifies for listing
under the Endangered Species Act because it faces extinction. This
point seems to have been missed by many who are calling for the
elimination or curtailment of ESA protections. The best way to prevent
listings, then, is to prevent the species' decline in the first place.
Limiting or repealing the ESA itself only throws out the primary tool
to achieve recovery, in other words shoots the messenger, but does
nothing to reverse the underlying declines. In other words, the ESA is
only the warning bell and not the problem itself. Disconnecting the
warning bell is not a viable response to an emergency in the making.
72,000 salmon jobs at risk--salmon as a case in point for how the esa
protects jobs
Salmon, once the economic mainstay of both the commercial and
recreational fishing industry in the west have been reduced by decades
of short-sighted human actions to a mere shadow of their former glory,
largely as a result of a multitude of cumulative on-shore causes. The
great salmon runs of the east coast are all but gone, more than 98
percent of those runs now extinct.\4\ Salmon in east coast restaurants
are almost always inferior Norwegian salmon raised artificially--which
exports to Norway thousands of jobs that should have belonged to
American fishermen. The virtual extinction of the east coast's once
abundant salmon runs, which once extended well down into Georgia in
colonial times, and the elimination of an entire segment of the fishing
industry in the process, is one of our greatest American tragedies. The
efforts now to bring those enormously valuable biological resources
back from the brink through their listing under the ESA, and the
modification of other industrial sectors to make that possible, is well
worth the effort.
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\4\ The last remaining wild salmon runs in the eastern coast of the
United States are in a handful of rivers New England. These have
recently been listed for protection under the ESA. There are in fact
more dams in New England than there are individual adult wild salmon
returning to your rivers--about 2,500 wild salmon still return to New
England, while there are about 3,000 medium and small dams in the same
area, many of them obsolete. However, as we have recently seen by the
example of the removal of Maine's Edwards Dam, once these dams are
removed, the fish runs can be restored. PCFFA has recently spearheaded
the removal of several dams in the California Central Valley with the
same result--provide them decent habitat and the salmon will return.
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The destruction of salmon spawning and rearing habitat has also
been ongoing and pervasive in the west for many decades--it is just a
few decades behind the east coast but going along the same path leading
to extinction. Every year fewer and fewer salmon survive the silting up
of their spawning grounds by inappropriate or poorly planned logging,
grazing and road building practices. Fewer still survive the nightmare
ride through hydropower turbines and slack-water reservoirs in the more
than 30 major Federal and State Columbia River Basin hydropower dams.
In the eight federally operated Columbia and Snake River mainstem dams
alone, each dam's turbines and hot water reservoirs combined kill up to
15 percent of the outmigrant fish making their long journey to the
sea.\5\ 3,000 miles of prime salmon spawning streams in the Sacramento
Basin have now been reduced to less than 300, and much of what remains
is biologically damaged or suffers from too little cold water during
critical spawning times.
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\5\ Both the impacts from upper watershed activities (improper
logging, overgrazing, road washouts, etc.) and the impacts from the
hydropower turbines are largely avoidable. Many of these practices are
obsolete and unnecessary, and profits in these industries will not
greatly suffer from curtailing or mitigating these problems. The
externalized damage caused by these poor management practices is, in
many cases, more of a harm to society (and to the very industry itself)
than any conceivable short-term benefits. As an industry ourselves, we
are very sympathetic to the current plight of timber works (many of
whom are also fishermen)--however, it is clear that short-sighted
logging, grazing and hydropower practices conducted without any regard
to stream protection has been disastrous for our industry and for the
economies of many coastal communities. Most of the Federal hydropower
dams were built without downstream salmon passage, and some (such as
the Grand Coulee Dam) without any upstream passage whatsoever. Salmon
are now totally extinct above Grand Coulee Dam, and this extinction was
designed into the system. The fishing industry is federally regulated
on the basis of biological sustainability (Magnuson Act). It is time
that these other industries were as well. The current dislocations in
these industries are fundamentally caused by past unrestricted overuse
of their resource which now has to be balanced out and made more
sustainable. The historical rate of timber harvesting over the last few
decades has been many times what is biologically sustainable without
doing major environmental damage to other industries. The fundamental
problem with the timber supply is that after decades of overcutting old
growth timber, the timber industry is simply out of big trees.
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The relatively few wild salmon which remain alive after all these
accumulated impacts are then subject to otherwise natural ocean
fluctuations (El Ninos) which, combined with all the upstream human-
caused assaults, can be the final blow to an already highly stressed
salmon ecosystem. Once the numbers of salmon in a stream drop below a
certain threshold, the remaining fish cannot reliably find each other
to mate. Even though many fish remain, the run has then dropped into
what is called the Aextinction vortex and numbers drop precipitously
from that point onward--only major intervention can then save them.
This is precisely what seems to be happening over much of the west
coast and has happened long since for salmon over most of the Atlantic
seaboard.
Salmon are the most sensitive to their environment in the egg stage
and as juveniles when they are still in freshwater streams just after
spawning. Some species (such as coho salmon) spend a fairly long time
in freshwater streams since they must ``overwinter'' there for up to 18
months before migrating out to sea. Even once they leave these
freshwater streams, salmon must still spend additional time in coastal
wetland estuaries and marshes in order to gradually adapt to life in
salt water. They are ``anadromous'' fish, which means they are hatched
in freshwater, then adapt to salt water, then return again to
freshwater to spawn. In the ocean they are relatively large and
relatively safe, but in inland streams they are subjected to every
environmental problem created by mankind, in addition to natural
predation and other natural impacts. Salmon evolved for drought, for El
Ninos, to avoid predators--but have not evolved to prevent themselves
from being sucked into irrigation pumps, nor from being destroyed by
hydropower turbines, nor stranded without water in unscreened
irrigation ditches. They also have not evolved to survive water
pollution, oil spills and the many other unfortunate environmental
problems created by modern civilization.
Roughly speaking, we have lost about 80 percent of the productive
capacity of salmon streams in the west coast as a direct result of
various causes of watershed destruction. According to a 1991
comprehensive scientific study by the prestigious American Fisheries
Society (AFS), at least 106 major populations of salmon and steelhead
on the West Coast are already extinct. Other studies place the number
at over 200 separate stock extinctions in the Columbia River Basin
alone. The AFS report also identified 214 additional native naturally
spawning salmonid runs at risk of extinction in the Northwest and
Northern California: 101 at high risk of extinction, 58 at moderate
risk of extinction, and another 54 of special concern.\6\ In a recent
extensive GIS mapping study of present salmon habitat occupied versus
historical habitat, based on the AFS data and updates, the data
indicated the following distributions across the landscape:
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\6\ Nehlsen, et. al., 1991. ``Pacific Salmon at the Crossroads:
Stocks at Risk from California, Oregon, Idaho, and California,''
Fisheries 16:2(4-21).
Status of Salmon Species in the Pacific Northwest and California
Current Distribution as a Percentage of Historic Habitat
----------------------------------------------------------------------------------------------------------------
Not Known
Endangered Threatened Special to be
Species Extinct [In [In [In Concern [In Declining
Percent] Percent] Percent] Percent] [In
Percent]
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Coho........................................... 55 13 20 5 7
Spring/Summer Chinook.......................... 63 8 16 7 6
Fall Chinook................................... 19 18 7 36 20
Chum salmon.................................... 37 16 14 11 22
Sockeye........................................ 59 7 3 16 15
Pink salmon.................................... 21 5 <1 <1 73
Sea-run Cutthroat.............................. 6 4 61 29 0
Winter Steelhead............................... 29 22 7 18 24
Summer Steelhead............................... 45 5 5 27 18
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According to GIS mapping, Pacific Northwest salmon are already
extinct in 38 percent of their historic range, between 50-100 percent
of these species are at risk or extinct in 56 percent of their historic
range, and in only 6 percent of their historic habitat range are fewer
than 50 percent of these salmon species at risk or extinct.\7\ The
conclusions of this study (the best and most complete science to date)
are chilling--9 out of 10 known species of Pacific salmon will be
extinct in the lower 48 States in the near future unless land use
patterns pressing those stocks toward extinction are reversed.\8\
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\7\ From GIS survey maps prepared by scientists on contract to The
Wilderness Society, and published in The Wilderness Society's report
The Living Landscape: Pacific Salmon and Federal Lands (Volume 2).
Published by the Bolle Center for Forest Ecosystem Management (October
1993). The report and data were peer reviewed.
\8\ The one exception was pink salmon, which now only occurs in the
extreme upper portion of the Puget Sound area in limited populations.
These are also (incidentally) the areas least affected by development
since much of that area is in Olympic National Park--emphasizing the
direct correlation between salmon production and intact watershed
ecosystems.
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The productive capacity of the salmon resource has always been
enormous. Even as recently as 1988, and in spite of already serious
existing depletions in the Columbia and elsewhere, the Northwest salmon
fishing industry (including both commercial and recreational
components) still supported an estimated 62,750 family wage jobs in the
Northwest and Northern California, and generated $1.25 billion in
economic personal income impacts to the region.\9\ An additional
estimated job loss from the Columbia River declines alone had already
occurred by the 1988 baseline year, amounting to another $250-$505
million in annual economic losses as well as the destruction of an
additional 13,000 to 25,000 family wage jobs. These jobs had already
been taken out of the economy as a direct result of dam-related salmon
declines in the Columbia basin prior to 1988.\10\
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\9\ See the Endnote.
\10\ From a report titled The Costs of Doing Nothing: The Economic
Burden of Salmon Declines in the Columbia River Basin. Institute for
Fisheries Resources (October, 1996), based on figures from peer
reviewed reports by the Northwest Power Planning Council. Completion of
the last main-stem Federal hydropower dams was in the late 1970's, and
none were built with adequate fish passage. That study concluded that
salmon losses in the Columbia Basin to date have amounted to the
removal from the regional economy of between 13,000 and 25,000 jobs
annually at a cost to the economy of between $250 to 505 million
dollars annually, which translates to the loss of natural capital
assets conservatively estimated as up to $13 billion.
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Hydropower and irrigation dams are probably the major leading
factor in the collapse of the salmon fishery on this coast.
Historically almost one-third of all west coast salmon were produced in
the Columbia and Snake river systems, making that river the richest
salmon production system in the world. Now, however, in the Columbia
and Snake rivers the hydropower system accounts for about 90 percent of
all human-induced salmon mortality, as opposed to only about 5 percent
for all commercial, recreational and tribal fisheries combined.
Official figures from the Northwest Power Planning Council indicate
that the Columbia River dams kill the equivalent of between 5 million
and 11 million adult salmon every year, with several million more
killed by a variety of dam related habitat loss factors in the upper
watersheds of the region.\11\ Many millions more fish are killed in the
Central Valley Project and in the Klamath Basin by loss of in-stream
flows.
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\11\ Northwest Power Planning Council publication Strategy for
Salmon, Vol. 2, page 17 and Appendices D and E.
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Another problem is wetland losses throughout the west coast.
California has already lost 91 percent of its original wetlands, Oregon
has lost 38 percent and Washington has lost another 31 percent and the
remaining percentages of original wetlands have been severely
compromised in their biological functions.\12\ These wetlands are vital
in protecting overwintering salmon, helping them survive droughts and
(for saltwater wetlands) helping them adapt to ocean conditions. A main
factor in the destruction of the coastal salmon stocks in the Northwest
has been the rampant destruction of the area's wetlands. Loss figures
for the most valuable coastal and estuarine wetlands are much greater
than the overall State loss averages.
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\12\ Facts on wetland losses by State from a report by the U.S.
Department of the Interior entitled Wetland Losses in the United States
1780's to 1980's by Thomas Dahl. California has lost a higher
percentage of its wetlands than any other State. If only coastal or
estuarine wetlands is included in these figures, each State's wetlands
losses would be much greater.
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There has been a lot of press recently about court ordered
irrigation cutbacks in the Upper Klamath Basin that have been imposed
to protect salmon and other fish from extinction, with the farmers
blaming the Endangered Species Act for problems that are clearly caused
by a drought. In fact, the Courts under the ESA have only been saying
that, especially in a drought year, natural public resources should
have enough water to survive. In short, the court said that the
irrigators cannot take all the water for themselves, drying up the rest
of the river system at the expense of everybody else.
In other words, the ESA requires the protection of the very
ecosystem which supports all of these economies, and forbids wasting
all of our natural resources (which are owned by the public in general)
simply to benefit a few farmers for a few years. It just makes no sense
to keep irrigating croplands as usual in the midst of what has become
the Klamath Irrigation Project's worst drought in its entire 90 year
history, particularly when the result will inevitably be a dried up
river, dead lakes, the final extinction of several commercially
valuable species and the total destruction of a whole downriver fishing
economy that also supports thousands of coastal jobs--all this
destruction just to keep feeding a bloated Federal irrigation project
that produces federally subsidized surplus crops for which there is now
little or no market.
The relatively large salmon harvest projected this year in Central
California is an instructive exception to these decline trends. The
primary cause of those increases has probably been water reforms in the
Central Valley, driven by the listing under the ESA several years ago
of the devastated native runs of Sacramento winter-run chinook salmon
and the delta smelt. Although some of those reforms are now embodied in
the Central Valley Project Improvement Act, the ESA listing predates
the CVPIA by several years and forced these reforms to be made. Greater
in-stream smolt survival coupled with fortunate ocean conditions have
thus given us a large harvestable run and put a lot of California
fishermen back to work while other areas along the west coast where
habitat loss and water diversions still continue are still in decline.
In fact, the salmon rebounds in recent years from the California
Central Valley is an ESA success story. ESA driven water reforms in
California were long overdue, are starting to have their effect, and
are now resulting in abundant and sustainable salmon harvests once
again off the shores of California. The ESA has thus resulted in
restoring jobs, communities and a tax base once again to schools and
public services in many coastal fishing-dependent rural ports. There is
a long way to go, but none of this could have been done had not the ESA
forced society into a better balance in the protection of our
fundamental Anatural capital, our priceless natural resources.
estimates of salmon job losses due to lack of protection of
salmon resources
California's returning salmon harvests are certainly encouraging,
and show us what better resource protection can accomplish. However,
with the one major exception off California, and a few very minor
mostly sportfishing exceptions in Washington and Oregon, most of the
entire ocean going salmon fleet was closed down or severely restricted
since 1994 because of these declines, particularly of coho salmon which
is now ESA listed. Even with some harvests returning in central
California, we estimate that coastwide we have still lost 90 percent of
our industry income from the commercial fishery as compared to the
1976-1993 averages--which translates to loss of 90 percent of the jobs
created by the commercial salmon industry as a whole. The recreational
salmon fishing industry has also suffered a similar decline of 70
percent in that same time period, with some areas (such as central
Oregon) also suffering years of nearly complete closures. While there
is some mismatch of figures (due to different averaged years) these two
figures combined will give us a pretty good estimate of total salmon
industry job losses since 1988. Doing the calculation we get job losses
as follows: 15,250 x 90 percent = 13,725 jobs lost since 1988 in the
commercial salmon fishery; 47,500 x 70 percent = 33,250 jobs lost since
1988 in the recreational salmon fishery; 46,975 jobs lost overall since
1988.
In additional, habitat losses and hydropower mortality in the
Columbia and Snake rivers have also resulted in up to 25,000 lost jobs.
Adding these lost jobs to the above figures for losses in the Columbia
River which occurred even before 1988 indicates a total west coast job
loss within the last two decades of approximately 72,000 family wage
jobs.
In other words, roughly 47,000 jobs have been lost in the west
coast Pacific salmon fishing industry (including both commercial and
recreational) just since 1988, with a total of 72,000 fishing-generated
family wage jobs lost--including losses due to the current operations
of the Columbia and Snake river hydropower system--over the past three
decades.
Overfishing is not a likely cause of these declines. Had
overfishing been a major contributing factor in salmon declines (as
some have claimed) then past harvest closures should have resulted in
substantial rebuilding of populations. However, there is no evidence
that these closures resulted in substantial population increases--
indicating that the limiting factors are in the watersheds, not in
ocean or in-river harvest levels.\13\ There are also a number of other
indications leading to the same conclusion, including: (a) the most
precipitous declines have occurred primarily in the most inshore
habitat sensitive species (coho salmon) as opposed to chinook salmon
which spend much less time in inland watersheds and whose populations
are still relatively robust; (b) precipitous declines have also
occurred in species for which there is no sport or commercial harvest
(searun cutthroat) but which originate in inland watersheds in which
there has been substantial human disturbance (primarily clearcut timber
harvesting and increased stream siltation from logging road washouts).
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\13\ Dr. Chris Frissell, who did much of the GIS mapping for The
Wilderness Society report cited above, took an independent look at
whether harvest reductions were a significant factor in population
dynamics for coho salmon. If overfishing were a significant cause of
population declines, then harvest reductions should be effective in
rebuilding depleted stocks. He concluded in his analysis as follows:
LOverfishing is often cited as a principle factor causing
decline of salmon runs. However, there are few historical or recent
records to indicate that curtailment of fishing has lead to increased
spawning abundance of coho salmon. For example, curtailment of fishing
seasons has been thought to have reduced harvest-related mortality
rates on Oregon coastal coho substantially during the past decade.
However, there has been no evidence of increased spawner escapement
during this period, suggesting that fishing curtailment is at best
merely keeping pace with rapid habitat deterioration and declining
productivity of coho populations.
(Pacific Rivers Council petition for the coastwide listing of coho
salmon, dated 10/19/93).
When seasons remain closed, the enormous economic investment
already put into the Pacific fishing fleet goes to waste. Just in the
Columbia River gillnet fleet alone an estimated $110--$129 million in
capital assets is invested.\14\ Yet the in-river gillnet fleet is only
a relative handful of small boats and its capital investment is
certainly only a very small fraction of the overall capital invested in
the entire ocean salmon fishing fleet. This figure does not even
include buyer and processor investment. Additional salmon extinctions
essentially mean the bankruptcy of whole fishing-dependent coastal
communities and the waste of a tremendous capital investment built up
over generations.\15\
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\14\ Figures from Dr. Hans Radtke, Ph.D., fisheries resource
economist.
\15\ There is also a cascading effect of these salmon declines
which impact Alaska's economy as well. Fishing is the leading industry
in Alaska, greatly exceeding timber production as a source of economic
support for its communities. Much of that fishing industry is now
threatened because of international disputes with Canada over the
collapse of the Pacific Salmon Treaty (PST). That treaty collapsed a
few years ago primarily because of salmon losses in the lower 48 States
(particularly the losses from the Columbia). Oregon and Washington
salmon tend to migrate north toward colder water. Under the PST as
presently written, Canadian-origin fish caught in Alaskan waters are
supposed to be replaced by U.S.-origin fish swimming north into
Canadian waters from the lower 48. However due to widespread salmon
declines in the lower 48 States, those replacement fish are much fewer
in number than the fish Canada is losing to the Alaskan fleet. Thus the
Canadians have demanded cutbacks in the Alaskan catch to balance out
their own losses. The Canadians are quite capable of enforcing these
cutbacks through mandatory transit fees (already imposed for a short
time last year) or even gunboat boardings on the high seas (as in the
east coast's ``Turbot War'' between Canada and the European Union just
a few years ago). To date the only thing that has driven salmon
recovery efforts in the lower 48 is the threat or reality of ESA
listings. Without a strong ESA-driven recovery of these depleted lower
48 stocks there is no hope of Alaska long avoiding another ``fish war''
with Canada with no end in sight. Were the ESA itself to disappear,
this international problem would still force shutdowns of much of the
salmon harvest in Alaska within the next few years. These shutdowns
would be required not by the laws of Congress but by the laws of
nature.
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Again these extinctions represent lost jobs, lost family income and
lost local tax revenues suffered by fishing communities as a result of
poor environmental protection of west coast salmon. These losses are
being suffered by real people, many of them third or fourth generation
fishermen, who suddenly find they cannot feed their families, pay their
home and boat mortgages or help maintain their communities. Better
protection of salmon and their habitat (through the ESA and other
strong environmental laws) will help restore these 72,000 jobs to the
region and rebuild these local economies.
why the fishing industry needs the endangered species act--$152
billion/year and 2.0 million jobs at risk
Most fish species spend only part of their lives in mid-ocean.
During their juvenile stage, most live and thrive in the nearshore
environment of streams, rivers and estuaries. Some, like salmon,
reproduce and grow far inland in fresh water streams hundreds of miles
from the ocean. However, salmon are just one example of commercially
valuable species that are also dependent on inshore or nearshore
habitat quality.
All around the country, our industry is utterly dependent on
species which themselves require healthy watersheds and estuaries for
the most critical parts of their life cycle. Nearshore waters,
including rivers, streams and coastal wetlands, are essential nursery
areas for fully 75 percent of the entire U.S. commercial fish and
shellfish landings. These sensitive ecosystems are valuable national
assets which contribute about $46 billion per year to the U.S. economy
in biological value (including natural flood control and filtration of
pollutants), as well as providing its healthiest food sources. Salmon
are only one part of this whole economic picture, and only one of many
commercially valuable species which need protection. The bottom line
protection of all these species is the Endangered Species Act.
All the Nation's $152 billion fisheries have been put at risk as a
result of the continuing destruction of fish habitat in the Nation's
rivers, estuaries and coastal ecosystems. This destruction has already
led to billions of dollars in lost revenue to the Nation every year,
lost jobs, lost food production, and lost recreational opportunities.
The collapse of the salmon fishery is only a small part of this overall
habitat loss problem.
Nor is coastal habitat loss the only problem. Our entire inland
freshwater fish resource is also in serious trouble. According to
studies by the prestigious American Fisheries Society, roughly one-
third of 790 known species of freshwater fish in the United States are
in danger of extinction or of special concern. In the case of a whole
family of nonanadromous (i.e., resident) salmonids, more than 50
percent of all known U.S. species in that family are close to
extinction. Within the largest known family of fish (the Cyprinidae),
which include 29.2 percent of all known fish species in the United
States, the number of species classifiable as endangered (7.2 percent),
threatened (9.4 percent), of special concern (10.8 percent) or already
extinct (3.3 percent) totals 30.7 percent of this entire large family
of fish species. Of the 18 States with greater than 10 imperiled fish
species, 10 are located in the South and 5 in the West. The 11 States
with the highest number of imperiled fish species are (in descending
order) Nevada (43), California (42), Tennessee (40), Alabama (30),
Oregon (25), Texas (23), Arizona (22), Virginia and North Carolina (21
each), and Georgia and New Mexico (20 each).\16\
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\16\ American Fisheries Society, ``Status of Freshwater Fishes of
the United States: Overview of an Imperiled Fauna.'' Fisheries, Vol.
19, No. 1 (January 1994).
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This country is in the midst of an ecological disaster which is
causing tremendous economic losses throughout the Nation in this and
many other resource dependent industries. The large number of the
Nation's fish and wildlife which qualify for listing under the ESA is
just the symptom of this overall ecological disaster.
The Congress and the Administration need to make a serious
commitment to the protection of those habitats and ecosystems that
determine the future productivity of fish and shellfish resources in
the United States. If this commitment is made, at least a doubling of
anadromous fish and other near shore dependent marine fish and
shellfish populations of the ``lower 48'' States can be expected. This
could produce an additional $27 billion in annual economic output
(above and beyond the current level of $152 billion) and more than
450,000 new family wage jobs.\17\
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\17\ Figures from Marine Fishery Habitat Protection--A Report to
the U.S. Congress and the Secretary of Commerce (March 1, 1994),
copublished by the Institute for Fisheries Resources, East Coast
Fisheries Foundation and PCFFA, with extensive citations. Copy
available from PCFFA upon request.
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Environmental regulations exist because after decades of neglect
and pollution, policymakers finally realized that a healthy environment
is the ultimate source of the Nation's economic wealth, its food and
the well-being of its citizens. When all other efforts to save these
valuable biological resources fail, however, the final safety net is
the Endangered Species Act (ESA). In spite of the problems the ESA has
created for individual fishermen, it is also the last hope for the
restoration of whole industries (such as salmon fishing) in many areas.
Without a strong ESA, the only available remedy for species recovery is
closing down the fishery, even though the real problems lie elsewhere
and are caused by rampant destruction of habitat.\18\
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\18\ Nowhere in the Nation is the link between inland environmental
protection and fish production more obvious than in the Gulf States,
where National Marine Fisheries Service scientists estimate that 98
percent of the Gulf commercial seafood harvest comes from inshore,
wetlands dependent fish and shellfish. Louisiana's marshes alone
produce an annual commercial fish and shellfish harvest of 1.2 billion
pounds worth $244 million in 1991. Gulf shrimp clearly head the list of
the region's wetlands dependent species. Without strong wetlands
protection this extremely valuable commercial fishing industry resource
would eventually no longer exist in those States. The shrimp industry
is learning to cope with TED's and other devices to minimize unwanted
bycatch problems. A far greater threat to that industry comes from
estuary and wetlands habitat loss. The ESA is a tool which (in the last
resort) can be used to halt and reverse these losses and protect that
industry.
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This is exactly what has happened to the salmon industry to date--
as onshore habitat declined, as fewer and fewer fish survived to even
reach the ocean, it has been the fishermen who have been cut back over
and over again, and who have almost singlehandedly paid the price of
inland environmental destruction on a massive scale. This is because
under the Magnuson Act fishery managers can only manage fishermen--they
have no legal jurisdiction over actions onshore which destroy the
biological foundations of the fishery itself.\19\ Only the ESA gives
them the authority to modify or curtail such actions.
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\19\ Only recently has this begun to change, with the >Essential
Fish Habitat' provisions of the Magnuson-Stevens Sustainable Fisheries
Act, but this authority is still only a weak consultation process that
allows fisheries management councils merely to comment on proposed
Federal actions that would destroy fisheries habitat, not to stop them.
There is no enforcement authority in these provisions.
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Thus without a strong ESA, there will never be salmon recovery in
the Northwest, and the approximately 72,000 lost salmon jobs--which the
salmon resource could still generate in this region with proper
protection of the resource--would be gone forever. In short, salmon
mean business, and it pays to protect them. Without the ESA to drive
recovery, however, you can kiss the entire Northwest salmon industry--
and many other components of the entire Nation's $152 billion/year
fishing industry--goodbye!
The fishing industry represents a significant economic contributor
to America's economy which is dependent upon a healthy environment. The
ESA is not the enemy, it is only the messenger. Listing a species is
like dialing the 911 number when you need an ambulance. It should be
used rarely, but when it is needed it is real handy to have an
emergency number to call. Often this can mean the difference between
life and death.
the ``environment vs. jobs'' issue is a false dichotomy--the esa does
not cause substantial economic disruption
There is absolutely no evidence that the ESA seriously impacts
State or regional economies, and every reason to think that it does
not. For instance, a study by the MIT Project on Environmental Politics
and Policy, which looked at the statistical relationship between the
number of species listed in each State as compared to that State's
economic performance (over the period of 1975-1990) concluded:
``The data clearly shows that the Endangered Species Act has
had no measurable economic impact on State economic
performance. Controlling for differences in State area, and
extractive industry dependence the study finds that States with
the highest numbers of listed species also enjoyed the highest
economic growth rates and the largest increases in economic
growth rates. . . . The one and a half decades of State data
examined in this paper strongly contradict the assertion that
the Endangered Species Act has had harmful effects on State
economies. Protections offered to threatened animals and plants
do not impose a measurable economic burden on development
activity at the State level. In fact the evidence points to the
converse. . . .''
The author of that study also noted that actual ESA listings are
themselves only affecting a very small number of development projects
undertaken and that, in economic context, these impacts are very small
indeed in comparison to other much more major factors:
``In fact, for every tale about a project, business, or
property owner allegedly harmed by the efforts to protect some
plant or animal species there are over one thousand stories of
virtual `non-interference.' In reviewing the record of 18,211
endangered species consultations by the Fish and Wildlife
Service/National Marine Fisheries covering the period 1987-1991
the General Accounting Office found that only 11 percent (2050)
resulted in the issuance of formal biological opinions. The
other 89 percent were handled informally--that is to say the
projects proceeded on schedule and without interference. Of the
2050 formal opinions issued a mere 181--less than 10 percent--
concluded that the proposed projects were likely to pose a
threat to an endangered plant or animal. And most of these 181
projects were completed, albeit with some modification in
design or construction. In short, more than 99 percent of the
projects reviewed under the Endangered Species Act eventually
proceeded unhindered or with marginal additional time and
economic costs. Given the political and economic screening that
occurs in listings cases it is not surprising that no
measurable negative economic effects are detectable. . . .
Furthermore local economic effects must be considered in
context. Hundreds of State and Federal policies have far more
injurious impacts on local economies than wildlife protection.
For example, the recent series of military base closings have
had economic effects hundreds of times greater than all the
listings during the 20-year life of the Endangered Species Act.
Even greater economic and social harm resulted from the ill-
conceived deregulation of the savings and loan industry during
the 1980's. The number of jobs lost to leveraged buy-outs in
the 1980's exceeds by many times the wildest estimates of jobs
lost to endangered species; and no social good was accomplished
in any of these cases.''\20\
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\20\ Stephen M. Moyer (March 1995). Endangered Species Listings and
State Economic Performance. Massachusetts Institute of Technology,
Project on Environmental Politics and Policy. Facts on actions cited
from U.S. General Accounting Office (1992) Endangered Species Act:
Types and Numbers of Implementing Actions (GAO/RECD-92-131BR).
In the case of the fishing industry, as well as many other
environment-dependent industries, judicious application of the ESA to
protect the biological resources we depend upon can add a substantial
number of jobs to the regional economy. At least 72,000 additional
salmon-generated family wage jobs can be restored to the west coast by
taking steps under the ESA to restore and recover the great salmon runs
which once made this region the envy of the world. Without the ESA to
drive recovery, however, this economic revitalization would likely
never happen.
problems with the esa and their solutions
I think all sides of the debate will admit that the Endangered
Species Act is not a perfect law. As a regulated industry ourselves, we
certainly know firsthand some of the problems that the current Act has
created, and are seeking to make the Act work better and more
efficiently. However, what should not be in question is the need for
the Act itself. The problems with the Act are not that it is too
strong, but that it is too bureaucratic and too poorly funded to
accomplish its purposes efficiently and with the least amount of
economic pain.
As a regulated industry organization which also strongly believes
in the importance of the goals of the Act, we also believe the ESA
needs improvement in a number of ways, including the following:
(1) The ESA Should Promote Species Recovery, Not Mere Maintenance
on Indefinite Life Support.--The principal flaw of the ESA is that it
establishes a goal far short of actual recovery of species. The stated
goal of the ESA is to prevent extinction and to establish plans for the
``conservation and survival'' of listed species. This minimal level of
conservation does not result, in many cases, in ultimate population
recovery. Under the current conservation standards, more and more
species are thus pushed toward, and indefinitely maintained, just short
of the line of extinction. Massive last ditch rescue efforts begun when
a species is already hovering over the abyss of extinction is a much
more expensive proposition than to simply keep the species well-
distributed in several self-reproducing and interbreeding populations
from which the species will perpetuate itself naturally and at no cost
to humans. Prevention is always cheaper than cure.
(2) There Should Be Recovery Plan Deadlines.--Recovery plans do not
exist for most listed species, even many years later. How can any
species be recovered enough to delist them without a plan? This is a
recipe for keeping species on the ESA list forever, just perpetuating
regulatory uncertainty. Regulatory uncertainty is in many instances the
cause of more economic dislocation than the species conservation
measures themselves would be once implemented.
At present there are no statutory deadlines for the adoption of
recovery plans, thus perpetuating that uncertainty. For an industry
such as ours or the timber industry or for farmers, this uncertainty
makes it very difficult to develop long range business plans or to
obtain business financing. The law should therefore require the
Secretary to prepare within 18 months of listing a final recovery plan
that incorporates the Recovery Target document and all implementation
plans, and which also contains enforceable deadlines for all action
items.
The first step toward a recovery plan is the identification of and
designation of `critical habitat.' This designation puts landowners on
clear notice as to what will likely be required of them as a
contribution toward recovery, and helps identify and ultimately to
resolve ESA disputes. Designation of critical habitat is a vital step
in the ESA recovery process that needs to be retained, as well as fully
funded.
The law should also require the Secretary to ensure to the maximum
extent practicable that the combined set of recovery implementation
plans will, when implemented, achieve recovery of the species within a
reasonable timeframe. The recovery plan should identify and prioritize
actions that would have the greatest potential for achieving recovery
of listed species.
Recovery plans should also emphasize implementing conservation
measures which provide the greatest benefit with the least economic
impact first, as well as include nonregulatory incentive-based efforts
where appropriate. Again these are all principles that, as a regulated
industry, we strongly support so long as the goal of ultimate and
timely recovery is kept central to recovery efforts.
(3) Assuring Cost Effectiveness and Minimizing Conflicts with
Private Landowners.--Most of the conflicts between private landowners
and the government with respect to species protection are more
perceived than real. Nevertheless, there is a need to minimize those
conflicts to the extent possible as well as providing for conservation
measures which achieve the recovery goal as cost effectively as
possible. Some of the measures that should be incorporated into the law
to achieve these goals include the following:
The law should direct the Secretary to emphasize the role of
Federal actions and public lands in achieving recovery. The law
should be clearer in specifying that Federal agencies have a
responsibility to use their existing programs to foster the
implementation of recovery plans to the degree they can.
If critical habitat occurs on privately-held lands, the law
should direct the Secretary to identify land for acquisition in
the recovery plan (including any land interests less than fee
title, such as conservation easements) pursuant to section 5 of
the Act, from willing sellers, and should set priorities for
acquisition. This process should be well funded and the
administrative procedures for financing these acquisitions
should be simplified. Many landowners would be more than
willing to help with recovery efforts if such financial
incentives were more readily available.
The law should also direct the recovery team and the
Secretary, in preparing the list of recovery actions, to
consider the cost effectiveness of conservation actions in
order to identify ways of reducing costs of recovery without
sacrificing species preservation or recovery goals. Landowners
should be encouraged to provide habitat protection through a
variety of incentive and financing programs, including the
following:
(a) Establish a revolving loan fund for State and local
government entities to encourage such entities to develop
regional, multi-species Habitat Conservation Plans (HCP's).
(b) Enable landowners with proposed activities consistent
with an approved regional HCP to obtain expedited approvals of
those activities.
(c) Authorize the Secretary to enter into cooperative
management agreements with private landowners, providing
financial incentives for conservation measures above and beyond
those required by the ESA. Conservation activities to be funded
under this provision would include those called for by an
approved recovery plan, but could also be more pro-active in
their approach, rather than reactive as so often the case once
a species has been listed.
The Habitat Conservation Plan (HCP) procedure is a good tool
for landowners to restore some certainty into the process as
well as to provide for long-term protection measures. However,
the current HCP process is deeply flawed and includes too
little public notice and comment. Furthermore, HCP's can be
inconsistent and even work at cross purposes with approved
recovery efforts elsewhere. HCP's are not even required, under
present law, to actually contribute toward the recovery of the
species, thus shifting the burden onto the backs of other
landowners who get their HCP later or not at all. The law
should clearly require HCP's to be both consistent with and
contribute toward species recovery as embodied in approved
recovery plans and goals.
Both HCP's and recovery plans may have to occasionally be updated
and revised in light of new scientific information or the results of
plan monitoring. Current law is vague on how to go about amending an
HCP in light of new data--including data that indicate that the HCP
itself is failing. There should be a periodic review process, either
automatically every 5 years or when triggered by new data indicating
potential for further declines. During that review process, existing
recovery plans should be kept in full force, but the Secretary should
propose modifications to the plan to conform with any new standards.
These proposed modifications should be widely published for public
comment and adopted into the recovery plan only when they will promote
equal or greater protection and faster recovery in a more cost
effective manner.
(4) Protection Should Be Aimed at Endangered Ecosystems, Not Just
Individual Species, So That the Need for Future Listings Can Be Greatly
Reduced.--A species-by-species approach does not generally work. Multi-
species plans for the protection of endangered ecosystems need to be
developed so that those species which are part of such ecosystems do
not begin the slide toward extinction to begin with. The ESA needs to
become an ``endangered ecosystem'' act as well. Protection measures
should be wholesale, not retail, in order to be cost effective.
(5) Funding for Scientific Surveys and Recovery Efforts Should Be
Greatly Improved.--Generally the listing process is a good one, and it
needs to be maintained as fundamentally a scientific decisionmaking
process, not a political or economic one. Far from being missing from
the ESA, economic factors come into play at almost every other
decisionmaking process, only the listing/delisting process supposedly
being truly free of such considerations. This makes sense: either a
species is, or is not, headed for extinction. How we get to recovery,
however, has a clear economic and social dimension, but the scientific
fact of population dynamics is an issue that can only be decided on a
scientific basis.
Nevertheless, the process would be better informed if there were
more scientific data available earlier in the process on the particular
species under consideration. This requires better funding for such
things a upfront biological surveys, species status reviews and peer
reviews. In other words, if Congress wants a better job done, it must
properly fund the ESA and allow the agencies to do a better job.
Likewise there needs to be ongoing funding not only for the
recovery plan implementation process itself, but for better scientific
monitoring so that it is possible to tell whether recovery efforts are
in fact succeeding. Adaptive Management (i.e., learning from past
mistakes) is simply not possible without adequately funded and ongoing
scientific monitoring.
(6) Alternative Dispute Resolution for Property Owners.--In our
experience, and in spite of anecdotal media portrayals otherwise, there
are really relatively few cases in which there are serious conflicts
between the needs of ESA species and the rights of landowners. However,
there are rare instances in which property owners were unfairly treated
or in which government agencies made inappropriate decisions. This is
inevitable in any large administrative process, and generally to sorts
of disputes that courts are intended to resolve.
However, there should be a speedy and cost-effective way to put
these problems to rights. Some internal dispute resolution mechanism
would be very helpful for landowners to minimize unnecessary conflicts
and resolve disputes. Some of these mechanisms already exist but are
rarely used. There is, for instance, an existing Alternative Dispute
Resolution process within the U.S. Court of Claims which allows
aggrieved landowners to present their case to a Claims Court judge
without needing a lawyer and without a lot of paperwork. This process
does not even require a trip to Washington, DC--it can be done by fax
and phone. At a minimum, the ESA process ought to formally include this
type of mechanism as a ``safety value'' to prevent problems from
escalating out of control.
(7) All Known Information about the Existence and Range of
Threatened or Endangered Species Should Be Available to the Public from
a Centralized Data Source.--The process of making a listing decision is
(or should be) purely a scientific judgment call, based on the best
scientific and commercial information available. Though landowners
frequently complain about the science, we believe the trustee agencies
generally do a good job of gathering and using the best science.
Generally we find that when landowners complain about `junk science'
what they are really saying is that the scientists either do not agree
with their own biased viewpoints, or that the landowner does not fully
understand the science behind the decision. Also, for many rare species
even the best available scientific data can be very spotty and full of
data gaps, simply because the species has not been well studied. It is
generally only after a listing, and all the extra attention (and
potential funding) that such a listing brings with it, that substantial
scientific resources are brought to bear trying to study many of these
species.
However, we do not feel that the trustee agencies generally do as
good a job of making the scientific data base used in the
decisionmaking process as fully available to the public as it should
be. In the past this was because the tools for wide dissemination of
voluminous scientific reports and species surveys was seriously
deficient and expensive. In today's increasingly digital world, there
is no excuse for this. Today, voluminous scientific documents can
readily digitally scanned and converted to CD-ROM format and reproduced
from that format for a few dollars a copy. The data bases can also be
made available for easy public consumption on the Internet. All these
techniques are being increasingly used by Federal agencies, and this
trend should be encouraged and funded. The more data is freely and
cheaply available to members of the public the more transparent the
process will become and the more trust in the process itself the public
will have, even if some disagree with the policy outcomes.
Information depositories should be created (perhaps made available
through the National Biological Service and administered through State
agencies) so that prospective purchasers of property would be able to
ascertain quickly and inexpensively whether or not ESA listed species
are known to exist on the property they are considering purchasing.
Similar State-based information services are already available in
States like California, through the local permit process. In theory, it
would be possible to have all this information in readily searchable
form with a quick computer inquiry for a very minimal fee. Some of this
is being implemented now, as for instance the Ceres information system
maintained by the State of California, or the Streamnet system run by
the State of Oregon, both of which include extensive GIS data bases
available on the Internet.
Most land use conflicts result when landowners have invested
substantial money and resources in a development project and feel that
they have no choice except to proceed in order to recoup their
investment. If a prospective landowner know before close of escrow
whether or not there might be conflicts between development plans and
fish and wildlife protection obligations, he or she could plan
accordingly, propose mitigation measures with acceptance a condition of
close of escrow, and in general take a number of proactive steps to
minimize or eliminate any potential future conflicts. The more savvy
real estate developers are doing that now. Biological impact reviews of
development plans by State fish and wildlife or local agencies is also
now routinely done in many States as part of the permit process, and
this additional data base would fit neatly into that process.
(8) Citizen Enforcement Is Crucial.--The Federal Government cannot
be, nor should it be, everywhere all the time. The role and value of
citizen enforcement of such statutes as the ESA and the Clean Water Act
are well established. We strongly object to recent attempts by the Bush
Administration to eliminate well established court avenues for
resolving ESA disputes or to make government compliance with such court
orders essentially voluntary. This is a recipe for lawless disregard by
our own government for its own laws. The end result will be far more
litigation, and not less, including against the very agencies who
become scofflaws as a result of such a policy.
(9) From Beginning to End, the Whole ESA Process Has to be Better
Funded by Congress.--The total funding for all ESA research and
recovery efforts now amounts to approximately 50 cents per U.S. citizen
per year. Given the level of problems the ESA needs to address, and
given the potential economic return on this investment, and especially
given the economic dislocation that could potentially result for more
of the `train wreck' policies of the past, Congress's current levels of
funding for species identification and recovery borders on the
ridiculous. Fifty cents per year is too little to invest in our
biological future.
In summary, I ask you to remember that fishing is America's oldest
industry as well as one of its most economically important resources.
Protecting fish means protecting jobs, protecting food production,
protecting commerce and protecting recreational opportunities. Without
a fully-funded and operational ESA, it would be commercial and sport
fishermen who will find themselves endangered. Where the fish go, so go
the billions of dollars they produce and the jobs and communities they
support. Thank you for this opportunity to testify.
Endnote
Figures taken from The Economic Imperative of Protecting Riverine
Habitat in the Pacific Northwest (Report 5, January 1992) published by
the Pacific Rivers Council, based on official Federal statistics from
the Pacific Fishery Management Council. The fishery related job
breakdown by State, according to that report, was:
------------------------------------------------------------------------
State Commercial Recreational Total
------------------------------------------------------------------------
Oregon.......................... 4,450 9,500 13,950
Washington...................... 6,800 14,250 21,050
N. California................... 4,000 19,000 23,000
Idaho........................... Negligible 4,750 4,750
Pacific Northwest Total......... 15,250 47,500 62,750
------------------------------------------------------------------------
Commercial fishery jobs are heavily concentrated in coastal areas.
Recreational fishery jobs, while a larger number, are more diverse and
are distributed more diffusely throughout inland communities.
______
[From the Fishermen's News, January 1995]
The Pacific Coast Federation of Fishermen's Associations
(By Zeke Grader, Executive Director and Glen Spain, Northwest Regional
Director)
Why Fishermen Need the Endangered Species Act
Fish are creatures of their environment. Without strong laws to
prevent water pollution and widescale habitat loss, the fish will be no
more--and where the fish go, so go the fishermen.
Most fish species spend only part of their lives in midocean.
During their juvenile stage, most live and thrive in the nearshore
environment of streams, rivers and estuaries for the most critical
parts of their life cycle. Nearshore waters, including rivers, streams
and coastal wetlands, are essential nursery areas for about 75 percent
of the entire U.S. commercial fish and shellfish landings. These
sensitive ecosystems are valuable national assets which contribute
about $46 billion per year to the U.S. economy as well as its
healthiest food source. Yet all this has been put at risk by the
continuing destruction of wetlands, watersheds and estuary habitat that
these species depend upon for their very existence.
Environmental regulations exist because policymakers finally
realized that a healthy environment is the ultimate source of all
wealth. However, there is a strong national movement afoot to roll
these protections back because, in the short-term, these protections
are inconvenient barriers to unrestricted development and short-term
profiteering. This movement may now have a majority of votes in
Congress and in many State legislatures. These forces have mobilized to
roll back and gut those very laws which protect our fisheries,
including the Clean Water Act, the Safe Drinking Water Act, and the
Endangered Species Act itself. It is time for our industry to stand up
and be counted against any effort to demolish the environmental
protections which fish--and fishermen--need to survive.
The crown jewel of all environmental protection is the Endangered
Species Act (ESA). In spite of the problems the ESA may have created
for individual fishermen, it is in many ways the last hope for
restoration of whole species such as salmon. Without a strong ESA, the
only available remedy for species' recovery is closing down the
fishery. This is exactly what has happened to the salmon industry to
date--as the productivity of onshore habitat declined, as fewer and
fewer fish survived to reach the ocean, it has been the fishermen who
have been cut back over and over again, and who have almost single-
handedly paid the price of inland environmental destruction on a
massive scale. This situation exists because under the Magnuson Act
fishery managers can only manage fishermen--they have no legal
jurisdiction whatsoever over actions onshore which destroy the
biological foundations of the fishery itself.
Thus whole watersheds can be destroyed, salmon runs battered to
extinction and rivers polluted to the point of catching fire, and yet
the National Marine Fisheries Service (NMFS) can do nothing about it--
until their ESA authority has been triggered by a listing. The ESA is
thus the key to watershed restoration and salmon protection throughout
the region. It is also the only hope for putting a stop to onshore
practices which destroy fishermen's livelihoods.
That's not to say that the ESA is a perfect law. However, its flaws
lie in the fact that it is too weak, not too strong. Under current law
there are no deadlines on recovery plans, so species can sit there on
the brink of extinction for years without any real effort to save them.
Current law also does not promise full recovery, only maintenance of
reproducing populations. Recovery efforts are bureaucratic and poorly
funded. The recovery planning process also needs to be much more open,
so we can avoid a repeat of the southern sea otter situation. These
flaws, however, are fixable and should be remedied as soon as possible.
What should not be debatable is the need for a strong law itself.
The ESA has been the legal basis for every suit filed by fishermen's
groups to protect habitat and to force water policy reforms in the
Columbia River and the Sacramento Delta. The fishing industry would be
devastated if this last barrier to extinction of the species it depends
upon were removed.
The fishing industry represents a major economic force which is
directly dependent upon a healthy environment. It is vitally important
that our voice be heard as the ESA and other environmental protection
laws we depend upon come on the chopping block in the new Congress. It
is also vitally important that we stand up as an industry for clean
water, healthy watersheds and the stringent protection of the species
upon which we depend for our livelihoods.
The ESA is not the enemy, it is only the messenger. Listing a
species is like dialing 911 when you need an ambulance. It should be
used rarely, but when it is needed it is invaluable. Often it means the
difference between life and death.
______
[From the Fishermen's News, December 1995]
The Pacific Coast Federation of Fishermen's Association
(By Glen Spain and Zeke Grader)
A Fishermen's Agenda for the Endangered Species Act
Commercial fishermen have long had an ambivalent relationship to
the Federal Endangered Species Act (ESA). On the one hand, the ESA
represents the last hope for the restoration of hundreds of depressed
Northwest and Northern California salmon runs which our industry
depends upon for its long-term survival. On the other hand, all too
often it has been the fishermen (and no one else) who have had to bear
the burden of fish protections when these same fish are being destroyed
in the millions by onshore dams, logging and water pollution.
The last two Republican Administrations were so hostile to the ESA
that they deliberately created as much political heat as possible so
the ESA would be repealed. Under the ``train wreck'' politics of those
two Administrations, we saw the ESA used as a weapon to close down
whole chunks of the Southeast Alaska fishery, supposedly to save a
handful of Columbia River fish, while doing nothing whatsoever about
the millions of fish killed by the Columbia River dams. In the Gulf
States, the ESA was used to close down shrimpers because of bycatch on
turtles, while ignoring other important problems elsewhere which were
creating turtle declines.
Yet in neither case did it have to happen that way--any realistic
strategy for actually dealing with salmon declines would have put the
Columbia River dams and reversing widespread salmon habitat destruction
as first priority for changes, not last. Any rational strategy for
dealing with the turtle bycatch issue would have produced better and
more effective TED's far sooner by seeking the active help of Gulf
fishermen, instead of deliberately creating active resistance. These
two fishing industry ``train wrecks'' were deliberately created by
hostile Administrations and Agencies for their own political gains, not
really to solve any of these problems.
The fact is that the loss of fish habitat is far more of a driving
force in fish declines (for both sport and commercial fishing) than any
other factor. The grim figures show clearly that much of this country's
aquatic resource is in deep trouble and facing biological collapse.
More than 75 percent of this Nation's entire $158 billion dollar/year
commercial and recreational fishing industry depends on species that
need unpolluted estuaries and healthy river systems for their very
survival. In some places, such as the Gulf of Mexico, the commercial
fishing industry is 98 percent dependent on coastal wetlands and in-
river habitat, yet much of that habitat is being destroyed. As a
result, far more shrimp are being lost in the Gulf due to habitat
destruction than to any number of TED's.
According to recent estimates, this Nation's commercial fisheries
already suffer losses equivalent to $27 billion/year (amounting to a
loss of 450,000 family wage jobs), as the direct result of widespread
habitat destruction in every coastal State. The inland sport fishing
industry is also in deep trouble. North America has a huge number of
native fish species, yet according to a recent survey by the
prestigious American Fisheries Society, more than 30 percent of all
this Nation's fish species are now at risk of extinction because of
inland pollution and habitat loss.
Pacific salmon resources have been particularly hard hit. About 98
percent of the once abundant wild salmon runs in the Columbia Basin
have now been destroyed, causing a total economic loss to the region of
some $500 million/year and 25,000 family wage fishing-generated jobs.
All told, about 72,000 family wage jobs have been lost to the west
coast over the last 20 years due to salmon declines. Almost all of
these losses are caused by habitat loss or hydropower dams.
Faced with a nation-wide aquatic crisis, there is little question
that ESA protection will be necessary, when all else fails, to at least
keep many of these fish species from extinction while we try to figure
out how to save them. The problem is that the ESA as currently written
does little else but keep species on emergency life support--there is
no guarantee under the ESA as currently written that any of these fish
species will actually be recovered enough to generate harvestable
surplus.
Our own view is that since we are an industry that is going to be
heavily regulated under the ESA anyway (far more heavily regulated, in
fact, than the timber industry) that it is our duty to press Congress
for an ESA that actually works! Congress is now considering major ESA
reform. This creates a golden opportunity for the fishing industry as a
whole to weigh in and get a better ESA--one which actually addresses
the most fundamental issue facing our industry, which is habitat loss.
Every Congress there are a number of bills touted as ``ESA
Reform.'' Most were written by lobbyists as wish-lists for industries
that destroy wildlife habitat and watersheds wholesale and thus caused
the very declines they now seek to wriggle out of responsibility for.
We think it is high time our own major industry, which depends utterly
on the protection of these basic public resources, weighed into this
debate for an ESA that really works to protect and recover species.
Here are PCFFA's major goals for ESA reform for this and future
Congresses:
(a) Real Recovery.--As currently written, the ESA only guarantees
protection to the point where the species is no longer at risk of
extinction, i.e., self-sustaining populations. This is a very long step
from actual ``recovery,'' defined as abundant and widely distributed
populations, such as would be needed to generate harvestable surpluses
of fish.
None of the bills introduced in the last several years provide a
better recovery goal than under present law. Some, such as those
introduced in past years by Senator Gorton, former Senator Kempthorne
(now Governor of Idaho) and Representatives Don Young and Richard Pombo
are broad retreats even from the most minimal recovery requirements.
Under those bills, the Secretary could choose (for purely political
reasons) to do nothing whatsoever to rescue salmon or any other
species, and this would be enough to meet legal requirements. This is
clearly unacceptable.
PCFFA supports efforts to make real recovery the priority of ESA
legislation. Only through real recovery can species once listed be kept
off the endangered species list in the future.
(b) Maintain Habitat Protection.--Without access to the habitat
that a species needs for food and shelter it is just as dead as if you
shot it with a gun. Under current law and recent U.S. Supreme Court
decisions, the ESA requires the protection of habitat on both public
and private lands. Without this protection the only actions prohibited
under the Act would be ``direct take'' actions--like fishing--while
actions that take the water out from under fish, pollute their streams
and destroy their food sources would be allowed and unregulated.
Past bills by Gorton, Kempthorne and Young/Pombo would have
prohibited protection of habitat on private lands, period. This is also
the case with a bill reintroduced by Congressmen Don Young and Richard
Pombo in the 106th Congress (H.R. 3160). Since most species exist only
or primarily on private lands, these bills would amount to a death
sentence for most of this Nation's fish and wildlife. Without strong
habitat protection there is hardly any point in having an ESA at all,
since it would be biologically irrelevant.
The far more moderate efforts of a bill by Congressman George
Miller (The ``Endangered Species Recovery Act'' (H.R. 960 in the 106th
Congress)) leave the current laws alone, but also increase emphasis on
payment and incentive programs to assist private landowners in
conserving species on their lands, an approach we strongly favor.
(c) Protection of Distinct Population Segments and Sub-species.--
Under the current definition of ``species'' in the Act, protection
includes both subspecies and ``distinct population segments.'' This
provision has been loudly and agressively attacked by the timber
industry because the Northern spotted owl (for instance) is considered
a subspecies of owl, and the marbled murrelets in the United States are
only a distinct U.S. population segment of a much larger range in
Canada where populations are relatively robust.
The trouble is, almost every aquatic fish stock is a distinct
population segment. Unlike owls, fish can't fly over mountains to
interbreed, and their offspring cannot disperse in all directions. Fish
are always isolated geographically from other fish (even of the same
species) in other stream systems. Timber industry lobby efforts to get
rid of the ``subspecies and distinct population segment'' language in
the Act would make it virtually impossible to protect the habitat of
individual U.S. salmon stocks ever again, at least so long as any
healthy salmon populations of the same species still existed in (say)
Siberia or Chile. This revision would simply make ESA recovery habitat
protections impossible--but you can bet your fishery would be closed
down under weak stock management under the Magnuson Act!
This revisionist definition of ``species'' has appeared in several
bills sponsored by ``property rights'' and timber industry groups.
PCFFA believes we must maintain the current legal definitions so that
we do not tradeoff our weak fish stocks against all others, wherever
they may be. We need more fish where we are, not just somewhere else.
(d) Better Scientific Basis for Decisionmaking.--There is broad
agreement that the decisionmaking process called for in the Act could
be improved with better science. All the recent bills have provided for
scientific peer review of the scientific data at various points, in
particular the recovery planning process and whenever critical habitat
is designated. However they would have done so in very different ways.
In many of the bills in the past, a proposed new standard for
basing the initial listing decision on ``peer reviewed data'' (rather
than the current law's ``best available scientific and commercial
information'' standard) was probably much too strict. Until a species
is identified as ``at risk'' there is often very little scientific
information on it at all, much less formally peer reviewed reports.
Also, in many of these mock-reform bills, peer review panels would have
specifically included representatives from industries such as timber or
hydropower, and so would not have been truly independent nor unbiased.
These peer review panels would also have been tainted by politically
based selection mechanisms in some proposals.
PCFFA supports obtaining better scientific support for ESA actions.
However, the science used must be the best available at the time, truly
independent and completely free of potential political or industry
bias.
(e) More Public Input in Tile Listing and Recovery Planning
Process.--Many of the past problems with ESA recovery planning were
caused by the almost totally closed nature of the planning process.
Plans are developed by interagency teams with little or no public input
or scrutiny. (A good example of this was the disasterous proposal by
U.S. Fish and Wildlife Service a few years ago to translocate west
coast southern sea otters as part of their recovery plan.) This closed
shop practice has fueled charges of governmental arrogance. In some
cases (such as with the first TED's in the Gulf) this also led to
requirements which perhaps sounded good on paper to scientists in
Washington, DC, but which were impossible to implement under real
conditions.
All the recent bills provided for better public input. Some,
however, would have so overburdened the process with additional
bureaucratic hurdles that it is obvious that the intent of these bills
was to disable the ESA, not make it more workable. The Young/Pombo bill
in the 104th Congress, for instance (H.R. 2275), would have required
over 5,000 separate public hearings (one in every county of the
continental United States) before the listing of the bald eagle, had it
been law at the time--at a cost of tens of millions of taxpayer
dollars, before even one dollar could be spent on actual recovery.
PCFFA supports a more open and collaborative public process for
developing plans for species recovery, but not one so overburdened with
process that it amounts to paralysis. The recovery planning process
also has to be driven by good science, not by politics and industry
foot-dragging.
(f) Getting Away from Species-by-Species Reactive Approaches and
Moving Toward Proactive Ecosystem Protection.--The ESA should be
redesigned to encourage multi-species habitat protection plans as well
as earlier measures designed to prevent the need for listing to begin
with. Experience has shown that when an entire ecosystem is fragmented
and destroyed, all the species within it will sooner or later face
extinction. By protecting the ecosystem you protect everything else.
Also, once a species has been pressed to the point where it qualifies
for listing, options are fewer and any recovery efforts undertaken will
be far more expensive than if protective actions had been taken much
earlier on.
The Clinton Administration favors multi-species ``Habitat
Conservation Plans (HCP's)'' for broad geographical areas, and there
has been considerable experimentation with this approach.
Unfortunately, there are no standards for what an HCP must include
under current law, nor are current HCPs required even to be consistent
with or contribute toward overall species recovery. Thus each HCP can
easily become a ``hole'' in the overall recovery safety net which is
locked in for 50 years or more.
PCFFA believes that at a minimum HCPs must be both consistent with
and contribute toward overall species recovery for any species they
cover. To date, only the bills by Congressman George Miller make this
important change?
(g) Recovery Planning Deadlines.--More than half of the species
currently listed under the ESA have no recovery plan. Many have gone
without one for over a decade. Unfortunately, there are currently no
deadlines for producing these plans, so the end result of many listings
is continuing economic disruption with no end in sight because there
are no recovery efforts.
Just about everyone realizes that this problem must be fixed. All
the recent bills contain deadlines on the development of recovery plans
once a species is listed, though these deadlines vary. PCFFA supports
deadlines for developing recovery plans and for listing critical
habitat. It is inexcusable to just keep the ESA patient on life support
forever without any effort toward cure or recovery.
(h) Conservation Incentives for Private Landowners.--At present
there are a number of disincentives for private landowners who may wish
to set aside wildlife or fish habitat on their lands, and too few
economic incentives. Rather than rely solely on mandatory regulation,
it is better to also bolster species protection incentives and to
develop cooperative efforts with private landowners whenever possible.
However, PCFFA does not support ``takings'' language giving
landowners the legal right to compensation for protecting what are in
essence public resources. These provisions amount to economic extortion
and would be terrible public policy. There is no reason landowners
should be paid NOT to pollute or destroy public trust assets such as
water, fish and wildlife which happen to be on their land at the time.
Private property rights are not and never have beenabsolute--landowners
have an absolute prior obligation to protect public property rights
first. However, we do support voluntary financial support programs for
landowners who wish to go above and beyond these minimum legal
requirements, or who want to do more--as many of them do!
(i) Better and More Stable Recovery Plan Funding.--The primary
reason ESA listings so often fail to lead to recovery is that the
recovery process itself is crippled by lack of funding. The entire ESA
recovery budget amounts to less than $1 per U.S. citizen per year--a
truly pitiful investment in our biological future, given the magnitude
of the problems we are trying to solve.
Better science, greater public input and speedier deadlines all
cost money to achieve. Without far better and more stable funding, it
is unlikely that the ESA will result in full recovery in most
instances.
(j) Streamlining of the Whole Process.--At present, the listing
process and recovery plan development and implementation processes are
far too lengthy and bureaucratic. Various proposals for streamlining
the process have been put forward for various reasons, but each will
have to be judged on a case-by-case basis to see whether they are
really helpful or merely obstructive. In general, PCFFA supports
efforts to truly streamline the ESA administrative process, make it
more efficient and ultimately to get more money applied directly toward
species recovery.
ESA reform will be taken up in every Congress until there are final
resolutions to these questions and concerns. The above are what PCFFA
has developed as common sense reforms which would be of benefit to the
entire $158 billion/year sport and commercial fishing industry
nationwide.
The ESA is not going to go away--nor should it! Commercial
fishermen and coastal communities need it to help restore salmon and
other marine resources throughout the Nation, particularly those
affected by onshore or nearshore habitat loss and estuary pollution,
which is the vast majority. Many other inland fish species of concern
to the sportfishing industry and inland economies are also in serious
jeopardy for similar reasons. The ESA is always the last resort after
all other efforts have failed, but it truly helps in an emergency to
prevent permanent extinction until we can restore a balance so that
fisheries are truly sustainable biologically as well as economically.
Most of these losses are not caused by fishermen, they are caused
by habitat loss. The ESA is also the only statute that brings habitat
loss on to the table as part of the recovery process. Unfortunately,
fish managers do not have the legal authority to control onshore
habitat destruction. Only once the ESA is triggered can they then act
to reverse the destruction of salmon and other fish habitat which has
been so economically devastating to our industry in recent years.
However, a number of the so-called ``ESA reform'' bills of the past
would have amounted only to ``Fishermen's Extinction Acts'' and not
true reform. False reform bills (usually promoted by habitat destroying
industries) give us nothing, they result in no recovery or habitat
protection, and their full burden would land on the backs of fishermen,
not those who caused the extinction problem to begin with. These are
``Trojan Horse'' bills serve only to exonerate those who have caused
the problem.
As always, fishermen need to be involved in creating the
legislative alternatives so that whatever ESA bill eventually comes out
of the process provides meaningful protection for our fisheries,
including ultimate recovery of the biologically fragile resources upon
which we all depend.
Note: Since this article originally appeared two Congresses have
come and gone. Accordingly, this article, originally written in
December 1995, was rewritten and updated November 1999, and will be
periodically reviewed and updated as necessary. See also ``Why
Fishermen Need the Endangered Species Act,'' in these archives.
__________
Statement of American Farm Bureau Federation
The American Farm Bureau Federation, the Nation's largest general
farm organization representing the interests of over five million
member families, submits this statement for the hearing record.
America's farmers and ranchers own and use much of the land and
waters that are inhabited by endangered and threatened species. They
feel the impacts of listing species under the Endangered Species Act
(ESA) every day.
The overriding purpose of the Endangered Species Act is the
recovery of species on the brink of extinction. This is to be
accomplished by placing them on a list of endangered or threatened
species, where they are to be protected from adverse activity until
they have achieved ``recovery'' as determined by a recovery team. The
ultimate goal of the ESA is removal from the lists.
Species that are lawfully hunted or fished in other parts of the
continent or country are listed under the ESA, while species that are
truly on the brink of extinction are waiting. Courts, not the agencies,
set the agenda for which species get listed. And once listed, species
rarely are removed from the list, even though they have met stated
recovery goals.
We have several concerns with the listing/delisting process, and
offer some suggestions as to how the ESA might be amended to return to
its original intent.
1. the act should require minimum scientific standards necessary to
support listing and other decisions affecting listed species
The most serious deficiency with the ESA listing process is that it
does not contain any minimum scientific standards to list a species.
The most celebrated case involving an endangered species remains
the snail darter. This small fish halted a multibillion dollar water
project in Tennessee. A lawsuit over this human-species conflict went
to the Supreme Court, and remains the only substantive case on the
Endangered Species Act to have been decided in that forum. Following
the decision in Tennessee Valley Authority v. Hill, Congress passed a
law exempting the Tellico Dam project from the strictures of the Act.
A few months later, several more areas were found to be inhabited
with snail darters. The species was soon thereafter downlisted from
``endangered'' to ``threatened.'' Millions of taxpayer dollars were
wasted because of incomplete scientific information.
Recently, five snails located in the Snake River in Idaho were
listed as either endangered or threatened, despite the fact that less
than 1 percent of their possible habitat had ever been surveyed. The
decision to list was made even though only approximately 300 square
feet of the entire Snake River had ever been sampled for the presence
of these species. That is not the use of sound science in the
application of the Endangered Species Act.
Endangered Species Act decisions currently are required to be made
on the basis of ``the best scientific and commercial data available.''
The ``best'' scientific data available might be as little as one
monograph on the subject by a single master's degree candidate.
With affected species occupying greater habitat areas and affecting
more basic, pre-existing human activities than ever before, there is
too much at stake to make such decisions on inadequate scientific
evidence. Before basic human patterns are disrupted, jobs are lost and
communities are stripped of economic vitality, we submit that the
Endangered Species Act decisions must be based on more sound,
scientific certainty than is currently required.
The current ``best scientific data available'' standard is really
no standard at all. It provides no incentive for agencies involved in
listing decisions to obtain accurate and up-to-date information
necessary to make an informed decision. All too often, decisions are
made on outdated, insufficient or misinformed data. Unverified
hypotheses or assumptions made by one researcher often become truth for
the next researcher who does nothing more than glance through the
earlier work.
The problem with this non-standard can be illustrated by applying
peer review principles to it. The only function of a peer review team
would be to determine whether the information used was the ``best
available,'' not whether it is sufficient to support listing the
species.
Often, the correct scientific data is easily obtainable through a
little effort. For example, in the case of the listing of the five
snails in Idaho, the Idaho Farm Bureau Federation hired an independent
biologist to check the Fish and Wildlife Service (FWS) data. With
minimum effort, he readily discovered that these snails exist in far
greater numbers and in a far greater number of places than determined
by the Government. Such information, however, was largely ignored in
the final decision.
We are troubled that private landowners are being required to prove
that government data is incorrect. Private landowners do not have the
resources that are available to the Government; and even in the face of
contradictory evidence, there is no guarantee that the Government will
accept it. We submit that precious time and resources will be saved if
the listing agency or the agency making the decision is required to do
it right in the first place.
Furthermore, requiring an affected private person to disprove the
Government's data places the ultimate burden of proof for Endangered
Species Act decisions on the private party. Instead, the burden of
proving that a species deserves to be listed or that certain management
prohibitions are appropriate should be on the Government Agency
proposing the action. The Act requires the FWS to make decisions
whether or not to list certain species, and those decisions should at
the very least be based on sound science. The Agency has greater
resources available to it, is in a better position to obtain required
data, and should be required to justify its actions.
The term ``best scientific and commercial data available'' must be
defined to incorporate minimum scientific standards and procedures
necessary to sustain a decision that a species be listed or that some
other action be taken. This amendment is necessary to ensure that
decisions affecting entire regions of the country are not being made on
outdated information or on bare assumptions that could easily be
disproved. Further, there must be some unbiased, objective review prior
to decision to ensure that the proffered data meets minimum scientific
standards.
To accomplish this, we suggest the creation of a truly independent
Scientific Advisory Panel to peer review ESA proposals to ensure that
there is sufficient scientific data to support the conclusion. We
envision the Scientific Advisory Panel to have much the same role as
the Scientific Advisory Panel within EPA, except that the panel would
have authority to veto any proposal that did not meet minimum
scientific standards.
2. the endangered species act must eliminate application to ``sub-
species'' and ``distinct populations''
One of the reasons leading to the enactment of the Endangered
Species Act was the increasing number of species that were cited as
becoming extinct each year. The Act was passed to try to reverse that
trend. The stated tradeoff for restricting land uses, stifling the
economy, causing the loss of jobs, and adding millions of dollars of
regulatory costs as the cost of doing business is to keep species from
becoming extinct.
Were the ESA limited to that goal, it would be much easier to
accept by those who are directly affected by its harsh restrictions. By
extending the law to ``subspecies'' and ``distinct populations'',
however, the Act goes far beyond what the public is being told is the
goal of the law. We submit that the definition of ``species'' should be
amended to delete protection to sub-species and distinct populations.
Taxonomic definition to the ``species'' level is sufficient to
separate different plants, animals and fish that should be protected
under the Act. Further classification into sub-species often adds
nothing to the taxonomic definition of a species. So-called sub-species
are often indistinguishable from others of the species, and there is no
practical reason for such sub-classifications to be protected
separately. Classification at the species level is what gives the
organism its identity--further sub-classifications add little or
nothing.
If protection down to the sub-species level bears little
relationship to whether a species becomes extinct, protection based on
``distinct populations'' has absolutely no relationship to the survival
of the species. As with sub-classifications of species, a particular
plant, animal or fish might be thriving as a whole, but the Act would
allow that species to be listed as ``endangered'' or ``threatened'' if
it is not thriving in one particular area of its historical range. To
permit a listing on that basis where the species is thriving elsewhere
flies in the face of everything that the Act is supposed to represent.
Furthermore, this situation siphons scarce resources from species that
really are in danger of extinction to protect distinct populations of
more glamorous species. This sort of a listing will ultimately turn
back the clock and remove people from the land and return it to the
flora and fauna that might have lived there many years ago.
The clearest and most visible example of this ``preservationist''
strategy is the status of the so-called ``gray wolf '' under the Act.
From a biological standpoint, all experts agree that the species of
``gray wolf '' is in no danger of becoming extinct or endangered. There
are approximately 60,000 of these animals in Canada with an additional
8,000 in Alaska and 2,000 more in Minnesota, Wisconsin and Michigan.
Based on the supposed goal of the Act, there is no conceivable way that
this animal would or should be listed under the Act.
Using the ``distinct population'' idea, however, the gray wolf is
listed as ``threatened'' in Minnesota and ``endangered'' in the other
47 lower-tier States. An introduction of wolves into Yellowstone Park
and environmentalists touched off one of the more bitter controversies
surrounding the Act. The Federal Government has conservatively
estimated that it has spent nearly $6.5 million on the introduction
project, which represents about one-half the total estimated cost.
Government officials state that introduction is necessary to
``recover'' the species. Yet the species is fully ``recovered'' in
large numbers in Canada and Alaska, and a healthy population lives in
northern Minnesota.
Aside from having no rational basis for inclusion in the Act, the
``distinct population'' criterion is being used in a manner that was
not intended by the Act. ``Distinct populations'' are not being used to
decide whether a proposed project should be begun in an area. As with
the wolf introduction example, or in the example of specifying
different runs of salmon as separated protectable species, these
activities affect the basic fabric of people's lives. Instead of
proposed, future activities, these actions affect the way people live
and make their livelihoods. It is this very basic difference between
intention and present reality that demands that the structure,
functions and priorities of the Act be re-thought.
So much agency time, attention and money is devoted to listing and
``recovering'' ``distinct populations'' that species truly in need of
Federal assistance are left wanting. We submit that both the
agricultural community and the truly endangered species would benefit
from a return to the central purpose of protecting those species which
are in danger of becoming extinct. We submit that the only way this can
be accomplished is if the Act focuses on plants and animals at the
species level. Protection for sub-species and ``distinct populations''
should be removed from the Act.
There are a number of ways in which the ``distinct population''
concept is being abused by the Agency.
a. Species that are so plentiful that they are even hunted or
fished in Canada or Mexico are listed in the United States. There are
an ample number of gray wolves in Canada and Alaska that they are in no
danger of becoming extinct. They are lawfully hunted. Likewise, there
are a sufficient number of grizzly bears in Canada that they are not in
danger of extinction. Canada lynx are plentiful in Canada, yet on the
threatened list in the United States.
b. Atlantic salmon and many Pacific salmon are raised in captivity
where they are fished and eaten, yet they are on the endangered species
list. Atlantic salmon raised in fish hatcheries are the same fish as
the salmon occurring in the wild. They have interbred for nearly 150
years and have been used to re-stock rivers and streams. They return to
the river of origin to spawn, just like their brothers. Yet the
hatchery-raised fish are not counted as part of the salmon population
for ESA listing purposes. The same is true for Pacific salmon, where
hatchery fish, whose only distinguishing characteristic is a hatchery
clipped fin, are actually clubbed to death to prevent excess spawning.
Both Atlantic and Pacific salmon are served in restaurants.
All of these listings have caused severe disruption to people
residing in the affected areas. These species should never have been
listed in the first place.
3. the act must differentiate and distinguish between species listed as
endangered and species listed as threatened
When Congress first enacted the ESA, it created two classifications
of listed species--those that were ``endangered'' and those that were
``threatened.'' While the Act continues these distinctions, the Act is
also being applied in such a way that there is no practical difference
between an ``endangered'' species and a ``threatened'' species.
Congress intended for FWS to adopt flexible management options for
threatened species that are not as strict as the management mandates
for endangered species.
FWS, however, has failed to carry out this intent of Congress.
Instead, the prohibitions of section 9, applicable in the Act only to
endangered species, are being applied in toto to threatened species as
well.
The Act needs to be amended to carry out the original intent of
Congress to realize the difference between an ``endangered'' listing
and a ``threatened'' listing. We suggest that sections 7 and 9 be
amended to provide a separate list of criteria for ``threatened''
species. An alternative to the amendment to section 9 would be to
require the Secretary to implement conditions of ``take'' for each
threatened species at the time of listing as part of the listing
proposal. The Act must then provide that these will be the only
conditions for ``take'' for that species.
4. listings should be based on the threat of extinction, not on the
loss of historical habitat
The ESA sets forth five criteria to assist in the consideration in
determining whether a species is endangered or threatened. They are
factors to be considered, not ends in themselves. The ultimate
determination is whether the species meets the ESA definition of
``endangered'' or ``threatened.''
One of those criteria is whether the species has been eliminated
from all or a significant portion of its historic range. While the loss
of habitat is a legitimate factor to consider in determining whether a
species should be listed, a species should not be listed solely because
it is not found everywhere it once was. Application of that principle
alone leads to often absurd results, such as the move to list the
black-tailed prairie dog as a threatened species, despite the fact that
they are plentiful, spread out across a wide range, and repopulate
quickly.
We believe the ESA should be amended to clarify that the five
listed factors are only aids for consideration, and that the ultimate
determination is whether the species is threatened with extinction or
endangered.
5. the act needs to be amended to require delisting upon attaining
recovery goals
The goal of the ESA is to delist species that have been on the
endangered and threatened species list. That means they have met
recovery goals and are considered ``recovered.''
The ESA requires the development of a recovery plan that is
developed by a recovery team, a team of scientists and interested
parties appointed to set the goals which determine when a species has
recovered. Species meeting the goals are ``recovered,'' and no longer
warrant being on the list.
This has not worked in practice, however. Species that have
attained recovery goals remain under the protection of the ESA when
they should be delisted. Grizzly bear populations in both Glacier and
Yellowstone National Parks have exceeded recovery goals since 1990, and
there has been no move to de-list. Instead of delisting, the Agency
changed the recovery goals. Still, these populations exceeded the new
recovery goals. Wolves in the Great Lakes region have also exceeded
recovery goals, there being almost twice as many wolves in Minnesota
than required for recovery under the recovery plan. Yet, in a proposed
reclassification of the gray wolf population in the United States
published last year, the Great Lakes wolves were not proposed for
delisting.
Clearly, a new process is needed.
We propose that the ESA be amended to require that upon attainment
of recovery goals, a species should be automatically delisted, and that
notice of the delisting be published in the Federal Register. A
mandatory process like this is the only method that will allow
reluctant agencies to do what they are required by the ESA to do.
We believe that these suggestions will improve the Act from the
standpoint of both species listing and reducing conflicts between a
species and affected landowners. We also believe that these suggestions
will restore credibility to the Act and help re-focus the Act to the
objectives that were originally intended.
We look forward to working with the committee on bringing about
these changes.
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<greek-d>