<DOC>
[108 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:92378.wais]
S. Hrg. 108-356
ENDANGERED SPECIES ACT: REVIEW OF THE CONSULTATION PROCESS REQUIRED BY
SECTION 7
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FISHERIES,
WILDLIFE, AND WATER
OF THE
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED EIGHTH CONGRESS
FIRST SESSION
ON
AN EXAMINATION OF THE CONSULTING PROCESS REQUIRED BY SECTION 7 OF THE
ENDANGERED SPECIES ACT
__________
JUNE 25, 2003
__________
Printed for the use of the Committee on Environment and Public Works
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
one hundred eighth congress
first session
JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio HARRY REID, Nevada
MICHAEL D. CRAPO, Idaho BOB GRAHAM, Florida
LINCOLN CHAFEE, Rhode Island JOSEPH I. LIEBERMAN, Connecticut
JOHN CORNYN, Texas BARBARA BOXER, California
LISA MURKOWSKI, Alaska RON WYDEN, Oregon
CRAIG THOMAS, Wyoming THOMAS R. CARPER, Delaware
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
Andrew Wheeler, Majority Staff Director
Ken Connolly, Minority Staff Director
------
Subcommittee on Fisheries, Wildlife, and Water
MICHAEL D. CRAPO, Idaho, Chairman
JOHN W. WARNER, Virginia BOB GRAHAM, Florida
LISA MURKOWSKI, Alaska MAX BAUCUS, Montana
CRAIG THOMAS, Wyoming RON WYDEN, Oregon
WAYNE ALLARD, Colorado HILLARY RODHAM CLINTON, New York
(ii)
C O N T E N T S
----------
Page
JUNE 25, 2003
OPENING STATEMENTS
Baucus, Hon. Max, U.S. Senator from the State of Montana......... 33
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho..... 1
Inhofe, Hon. James M.,U.S. Senator from the State of Oklahoma.... 3
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 8
WITNESSES
Chilton, Jim, Arizona Rancher, on behalf of the Public Lands
Council and the National Cattlemen's Beef Association.......... 26
Prepared statement........................................... 99
Domenici, Hon. Pete V., U.S. Senator from the State of New Mexico 3
Prepared statement........................................... 34
Glen, Alan M., Counsel, Smith, Robertson, Elliott, and Glen...... 20
Prepared statement........................................... 43
Hill, Barry, Director, Natural Resources and Environment, U.S.
General Accounting Office. Accompanied by: Trish McClure,
Deputy Director, Office of Natural Resources and Environment,
U.S. General Accounting Office................................. 10
Prepared statement........................................... 36
Horn, Patricia, Vice President and General Counsel, OGE Enogex
Inc............................................................ 24
Prepared statement........................................... 96
Kostyack, John, Senior Counsel, National Wildlife Federation..... 22
Prepared statement........................................... 92
Snape, William, Vice President and Chief Counsel, Defenders of
Wildlife....................................................... 28
Prepared statement........................................... 102
ADDITIONAL MATERIAL
Dieker, Richard, President, Yakima Basin Joint Board............. 105
ENDANGERED SPECIES ACT: REVIEW OF THE CONSULTATION PROCESS REQUIRED BY
SECTION 7
----------
WEDNESDAY, JUNE 25, 2003
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water,
Washington, DC.
The committee met, pursuant to notice, at 9:33 a.m. in room
406, Senate Dirksen Building, the Hon. Michael D. Crapo
[chairman of the subcommittee] presiding.
Present: Senators Crapo, Murkowski, and Inhofe [ex
officio].
OPENING STATEMENT OF HON. MICHAEL D. CRAPO, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Crapo. The hearing will come to order.
Good morning. Welcome. Today the Subcommittee on Fisheries,
Wildlife, and Water will examine the process of Section 7
consultation under the Endangered Species Act. Senator Domenici
has been kind enough to join us to discuss some rather serious
problems with regard to Section 7 and the Endangered Species
Act in New Mexico. Senator Domenici must chair a hearing at 10
o'clock a.m., so we are going to move quickly through our
opening statements so that Senator Domenici can get to that
hearing on time.
Section 7(a)(2) of the Endangered Species Act requires
Federal agencies to consult with either the U.S. Fish and
Wildlife Service, or the National Marine Fisheries Service to
ensure that any action authorized, funded, or carried out by
such agency is not likely to jeopardize the continued existence
of any endangered species or threatened species.
Since 1986, when the Fish and Wildlife Service and the
National Marine Fisheries Service published their joint
consultation regulations, the consultation process has
mushroomed into a lengthy and expensive procedure that is
increasingly burdening all the agencies required to participate
in it.
To begin with, the size of the program has grown beyond
what anyone ever imagined in 1986. More than 900 species have
been added to the list since then. There is another very
significant reason that consultation has become such a
burdensome and costly proposition. Much of this boils down to
two words: ``may affect.''
If a Federal action may affect a listed species, then the
consultation process is triggered. The only way a consultation
can be avoided is if the project will have no effect on the
listed species. ``May affect'' is defined as a beneficial,
benign, or adverse action.
Once it has been determined that an action may affect a
listed species, consultations are divided up into those that
are ``not likely to adversely affect,'' and ``likely to
adversely affect.'' The former result in informal consultation,
and the latter in formal consultation. In order for the
Services to make a ``not likely to adversely affect''
determination, the effects of the action must be discountable,
or insignificant, or completely beneficial.
Obviously these regulations were intended to protect the
listed species that we are attempting to recover. Despite this,
the Services are consulting on tens of thousands of actions
each year with effects that are, in fact, discountable,
insignificant, or completely beneficial.
For example, in 2001, Region 1, which is Idaho, Washington,
Oregon, California, Nevada, and the Pacific Islands of the Fish
and Wildlife Service, completed 14,004 Section 7 consultations.
Of those, only 863 were formal consultations, which means that
the other 13,141 were expected to have effects that were
discountable, insignificant, or completely beneficial.
Precisely three of those consultations resulted in jeopardy
opinions. As I said earlier, the focus and purpose of Section 7
is to ensure that Federal actions do not jeopardize the
continued existence of listed species. In Region 1, only three
Federal projects of the 14,004 were determined to be
potentially jeopardizing to the continued existence of the
species.
On the one hand, this is good news. The agencies are doing
a good job of avoiding adverse effects. The problem is that the
Services are expending colossal resources on a process that
produces a lot of paperwork for Agency staff without a lot of
positive impacts on recovery. No other agency in the Federal
Government engages in such massive red tape to ensure
compliance.
Congress has been concerned that these costs and delays
that continue to increase funding levels for consultation
staff. In a report published last year on salmon funding
expenditures, the General Accounting Office reported that in
the 5 years preceding 2002, the National Marine Fisheries
Service's Northwest Region's consultation staff had grown from
six to 120. Yet, I continue to hear problems, delays, and
costs. I do not have a perception that additional funding is
going to address these issues.
Let me close by reading from a memo sent to Forest Service
Chief Dale Bosworth, by Regional Forester, Jack Blackwell, on
April 30, 2001. He states:
``I cannot adequately convey the high levels of
frustration, anxiety, and feelings of helplessness that are
occurring both internally and externally as we attempt to
manage the national forests, and deal with ESA Section 7,
processes.
``We all care deeply about and want to conserve species.
Like the majority of the American public, we strongly support
the ESA and recognize it is probably not going to be amended
anytime soon. But something significant must change in order to
bring more effectiveness, efficiency, and common sense to the
Section 7 consultation process.
``The time is right to initiate serious multi-agency
reforms that do not require congressional action. The amount of
effort required to get projects through consultation is
increasing and appears to be the same investment in people
regardless of the project's potential impact or risk to the
listed species or its habitat.
``Once a project is more than a 'no affect' determination,
the amount of documentation and analysis seems nearly
identical. We are spending a disproportionate amount of time
and effort on projects viewed by Forest Service biologists as
low risk.
``I am gravely concerned that we continue to expand scarce
resources on a process that does not appear to provide
significant conservation or recovery benefits. I hope this will
be the first of several discussions with how we might create a
process that is less costly and laborious, and delivers
meaningful conservation benefits to species on the ground.''
With that, I will turn to our chairman of the full
committee, Senator Inhofe.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF IDAHO
Senator Inhofe. Thank you, Mr. chairman.
Let me just tell me that my prepared statement is almost
verbatim yours. I am going to be asked that it be put in the
record.
Senator Crapo. Without objection, so ordered.
[The prepared statement of Senator Inhofe follows:]
Senator Inhofe. We do have a problem here. I see that our
friend from New Mexico has his silvery minnow problem. We have
the Arkansas shiner. I probably would swap with you right now.
There are serious problems there. Pat Horn, accompanied by Paul
Renfrow, who have come up from Oklahoma, will be testifying in
the third panel. I will be back for that.
Unfortunately, we have a Senate Armed Services Committee
hearing two floors down at exactly the same time. Mr. Chairman,
after we hear from Senator Domenici, I will go to that hearing
and then come back for the third panel.
You know that there is a problem when even the Ninth
Circuit Court of Appeals in San Francisco, which is about the
most liberal court in the country, has overturned Fish and
Wildlife consultation decisions on the grounds that they had no
evidence to back them up. We will get to some of these.
Thank you, Mr. Chairman.
Senator Crapo. Thank you very much, Mr. Chairman.
Without anything further, Senator Domenici, the floor is
yours to present your testimony.
Welcome. Thank you for being with us today.
STATEMENT OF HON. PETE V. DOMENICI, A UNITED STATES SENATOR
FROM THE STATE OF NEW MEXICO
Senator Domenici. Thank you, Mr. Chairman, and Senator
Inhofe.
I think in the final analysis there are very few Americans
who would oppose a national law that said, ``Let us try to
protect endangered species.''
However, what has happened to the Endangered Species Act is
that it is being applied without any common sense.
The interpretation and the implementation of the Act have
gone greatly awry. The process has become extremely combative.
When the judicial combat occurs, it would appear that the
participants' goal is to win no matter what.
In fact, the result is rather lacking in common sense.
Clearly, if you submit this to a large cross-section of
Americans and say, ``Would you come up with this opinion to
save this species?'', you would find a minute number would
agree with it.
Look at the case concerning Albuquerque, New Mexico. The
City is up and down the Rio Grande River from just north of
Santa Fe, all the way to just where the Rio goes into El Paso,
Texas. We have a little minnow in the Rio Grande called the
silvery minnow. The Rio Grande River is not a wet river like
those in the East. As I grew up as a young man, for long
periods of time during the year, big stretches of the Rio
Grande were without water. It is actually a river that runs
with water only when you have a lot of rain. In the last 50
years, the river has run only when you are letting out enough
water to make it wet. Otherwise, it has deep sand pockets that
suck up all the water you can put in it. It is very hard to
make it run.
Nonetheless, there has been an ongoing battle that the
habitat for this minnow, as far as a certain group of
environmentalists are concerned, must run wet throughout a very
lengthy area of the river. This calls for huge amounts of
water. The only place we can get it is to start dumping our
reservoirs.
What we have now is a Tenth Circuit Court opinion that
places the needs of this small endangered fish over the needs
of the people of our State. On June 12th, by a 2-1 decision,
the Tenth Circuit ruled that the Federal Government can
completely disregard its contractual commitments to provide
much needed water to the cities, farms, Indian reservations,
and instead take that water for the needs of the fish. The
Court found that the Government can use water imported from
another basin for the silvery minnow in violation of New Mexico
State law.
Senators you know that the great Colorado River has been
part of supplying water to all different States up and down its
lengthy path, but it also supplied water to the State of New
Mexico. The second-to-last agreement made by the Senate, when
Senator Clinton Anderson was then the Senator from New Mexico,
was to take some of that water, send it across the Rocky
Mountains through a canal drilled through the mountain into
this new environment for that water, the Rio Grade River.
Obviously, since the fish existed before that water came
in, the environment of the river for the fish and its
protection was the river without that water, not the river with
that water.
Nonetheless, the closing remarks of the two judges seemed
to me to almost be the writings of some young student,
delighted with the idea that this river needed everybody and
everything working and living together for it to be a livable
river. As a consequence, it needed the water of that river to
protect the fish.
Of course, that whole thought is an error. From its
inception, that river and that fish did not have that imported
water. One of the very big mistakes made by the Court was to
say that the imported water could, and must, in fact, be used
as you put together the biological living conditions for the
preservation of the fish.
That is one of the issues that seems rather simple for a
committee like this to address. Across the land, with reverence
to rivers, to protect endangered species within a river basin,
should you give water that is brought in for another purpose
under another contract, and paid for in another way? Could you
make that imported water also a part of the water that is to be
used for the preservation of the fish?
The Court said ``yes.'' The minority judge said ``no.'' The
minority opinion is a very excellent opinion in this Senator's
way of reading things. Maybe this dissenting judge is familiar
with the Frankenstein monster. The dissenting judge equated the
Endangered Species Act as it was applied in this Circuit to the
Frankenstein monster that had gone wild, that just stomped
around and took over things wherever it could lay it feet,
taking all the contracts of the Bureau of Reclamation,
regardless of their purpose, regardless of their tenure, and
regardless of how long they existed. They said they are all
subject to saving this fish.
How did we get there? The Court interpreted the ESA, as I
said, as preempting 75 years of existing water law, existing
contracts, and the needs of the burgeoning population of
Albuquerque and the surrounding area. The silvery minnow case
began with a Section 7 consultation under ESA. The consultation
for the minnow was triggered by litigation. In 1999, a group
demanded that the Court direct the Bureau to consult with the
Fish and Wildlife Service over the Bureau of Water and River
Operations in the middle Rio Grande.
Until that time the Federal agencies had not consulted the
Bureau's operations. The middle Rio Grande, like most of the
water in the West, is completed accounted for through water
contracts, interstate compacts, and perfected water rights
under State law.
I think all of you understand that the hallmark of water
rights in the West is certainty. That is why we have water
rights law. People have to have certainty of obligation and of
ownership. That is why water basins in States like New Mexico,
believe it or not, are adjudicated. Up and down the river you
decide who owns what, effective as of what time in history. To
have any property value, it must have certainty. The whole goal
and objective of this river basin is to inject certainty, not
uncertainty, into the water rights of that basin.
In my opinion, because the Bureau had no discretion to
alter these water deliveries, a Section 7 consultation was not
appropriate and should not have been ordered. Once the Fish and
Wildlife Service produced a biological opinion in 2001, the
litigation that began over Section 7 consultation was leveraged
into a challenge to the biological opinion itself. Let me
repeat that. The litigation began over a Section 7 consultation
and was leveraged into a challenge to the biological opinion
itself.
The environmentalists argued that the Bureau failed to
consult on a full range of alleged discretionary authority,
even though the Bureau believed it had no discretion to take
contractually obligated water, or the water resulting from
inter-basin transfers. The Bureau had no discretion to do that.
Indeed, the Bureau kept maintaining that, ``Since we do not
have any discretion, why do we have to have such broad
consultation.''
The Section 7 consultation was next transformed into a
court fight over an injunction sought by environmental groups.
The case resulted in the district judge determining that the
Bureau has the discretion under the ESA to take New Mexico's
water as I have described it. The Tenth Circuit, in the divided
opinion, did what I have just said. It would behoove you and
your staff to read the opinions. They are not long. In
particular, the opinion of the dissenting judge seems to me to
be on that makes eminent sense upon which you might consult in
terms of making some rational change to the ESA.
I have been here long enough to have voted for the ESA. I
came here in 1972. At tht time, I did not know very much about
what I was voting on, but even I did, I probably would have
voted for the ESA. It is a great sounding piece of legislation.
Obviously, when you look at it, and look at the kind of people
who were then sponsoring it, you would for vote it.
Back then, you had people like Scoop Jackson proposing the
ESA and proposing other environmental laws of the days. You
usually would vote for them. That is not to say that those same
senators sitting here today would agree with the laws that they
passed. Nonetheless, they were giants who were trying to make
some sense out of what could end up being a very
environmentally confused part of our country.
Did any of us who voted for the ESA intend for it to apply
retroactively? I do not think so. Did any of us who voted for
it intend that through the courts you could achieve super
status to the point of abrogating pre-existing contracts as has
happened here? I did not.
Just remember, the water that came to the basin across
those mountains and through those tunnels was no gift. Nobody
gave that to us. That was paid for over a 40-year period of
time at 4 percent interest by the city of Albuquerque and a
number of units of governments. I missed by 1 year being the
one who signed that contract for the city. I came into the seat
that signed the contract the year after it was signed. But it
was being finished up while I was then Chairman-Mayor. It was a
huge indebtedness to bring water in. It was very clear. It was
new water for a purpose, that is, the long-term protection of
water needs of that valley. That is the valley that this court
said was subject to take for the fish under the ESA.
I am firmly convinced, as I have been in the past, that the
law should be changed. But I am equally convinced that it is
almost impossible to do that. Particularly in the West it seems
to me that we must have laws that are prospective, not
retroactive. We cannot particularly exist in a world where the
statute is allowed to undermine water contracts, interstate
compacts, water rights preferred under State law, and even
treaties which have long governed river management.
Four years after the Section 7 consultation litigation was
brought, millions of dollars have been spent. The court case
drags on. We are still in the position where we must request a
rehearing in bank in the Tenth Circuit, and if necessary, ask
the Supreme Court to consider it.
In addition to countering the potential devastating impact
of the Tenth Circuit, in particular on the imported water,
which is the future of that area, I would be held derelict if I
were not working with members of our delegation, and hopefully
with all of you, on legislation to provide a balanced approach
for that river basin, one that addresses both the needs of the
people of my State, and the needs of the silvery minnow.
I have that legislation written. It has been cleared by a
number of lawyers. I will present it to you for your perusal.
If you think it is correct, you can support us. We will attach
it to some legislation here in the Senate. It is very simple.
It merely says that the Endangered Species Act does not apply
in the river basin. We describe it to the imported water which
was brought there for other purposes.
It continues to say that a biological opinion, which has
been developed, should be implemented. Environmentalists do not
like it and to them, we say, ``That shall be implemented.''
That biological opinion says that the river might run dry. It
has to run dry because of the shortage of water, rather than to
dump all the reservoirs to save the fish. The biological
opinion is essentially the legislation that we will offer to
one of the bills here on the floor.
I thank you for listening. I wish you good luck.
I would ask that my complete testimony be included in the
record in its entirety.
Senator Crapo. Without objection, so ordered.
Thank you very much, Senator Dominici. We realize you have
a committee to be to in about 5 minutes.
The chairman wanted to make a quick statement.
Senator Inhofe. Thank you, Mr. Chairman. I have to go down
to Armed Services. I just want to respond, Senator Dominici,
that in hearing about your legislation, I really believe it
needs to go a little broader. There are other problems out
there. I will share some stories with you.
When I became chairman of this committee, I suggested
something that was considered to be totally outrageous by some
of the community out there, and that was that we base our
decisions on sound science, that we have cost benefit analysis.
Our chairman of the subcommittee, Senator Crapo, said in his
opening remarks that he thinks we need to have common sense. I
am sure they will consider that equally outrageous. We want to
address these problems. We have a chairman of this subcommittee
that is going to give the leadership necessary to make some
changes.
Thank you very much, Mr. Chairman.
Senator Crapo. Thank you.
Senator Dominici, thank you for spending your time with us
today and in testifying to us.
Senator Domenici. It was my pleasure.
Thank you, Senator Murkowski.
Senator Crapo. Senator Murkowski, would you like to make an
opening statement?
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. I appreciate that, Mr. Chairman. Thank
you.
Mr. Chairman, it was interesting to hear the good Senator
from New Mexico and his comments. I would concur with him that
as we look to Section 7 and the consultation process, I would
certainly concur that it needs work, and perhaps as much as
major surgery.
Typically when we hear those who will speak to the pros and
cons of Section 7 and the consultation process, the focus is on
experience with fresh water or terrestrial species, as Senator
Dominici has indicated. But those are not the only areas where
Section 7 comes into play.
Alaska's fishing industry has recently had a very
instructive encounter with the consultation process. I would
like to summarize that for the record. Stellar sea lions are
managed by the National Marine Fisheries Service. In 1975, the
population in Alaska of the Stellar sea lions was estimated at
more than 100,000 animals. By 1989, it had fallen to about
25,000. In 1990, Stellars were listed as threatened. In 1993,
critical habitat was designated. In 1997, the Western
population in the Aleutian Islands was declared to be
endangered.
Under the Act, the status of the sea lion population
triggered a Section 7 consultation to consider the effects of
the fisheries. Since the fisheries are also managed by the
National Marine Fisheries Service, this created the odd
situation where the Agency responsible for the fisheries was
consulting with itself over its responsibility for the marine
mammals.
From 1979 to 1998, NMFS repeated found that the fisheries
did not adversely affect the sea lions. But that was not
satisfactory to Greenpeace and other interests which then filed
a lawsuit. After the lawsuit was filed, the Agency suddenly
reversed its course and in late 1998, it issued a new
biological opinion under Section 7 which, for the first time,
found jeopardy for the Alaska pollock fishery.
The finding was based on an untested theory, popular among
the Agency's marine mammal scientists, which supposed that
fishing could cause localized depletion of pollock or disturb
the sea lion feeding pattern. Unfortunately it ignored most of
the available science including evidence that largely
exonerated fishing from blame for the sea lion decline, and
demonstrated that sea lion stocks were healthiest when fishing
activity was the heaviest.
Despite that, it became the guiding principle for the
Agency, and 5 years of court battles, to adopt reasonable and
prudent alternatives which devastated whole communities
depending on fishing, and spawning two more biological opinions
in an attempt to get the issue back on a reasonably even
scientific keel.
What makes this case notable is not the outcome, but how
badly the process itself was allowed to spin out of control,
even though the National Marine Fisheries Service was the
Agency conducting the action. Evidence that indicated fisheries
were unlikely to harm sea lions was largely ignored. In 1989,
in 1994, and yet again in 1996, research by scientists looking
for a link between the pollock fishing and the sea lion decline
had failed to yield the expected results.
Although the declines were found in some areas of heavy
fishing, there were also sharp declines in areas with little or
no fishing. Other scientists, publishing in 1991 and 1992,
questioned the supposed link more directly. A 1991 paper by two
of NMFS' top fisheries scientists actually seemed to indicate
that there is an inverse relationship between pollock and sea
lions. In fact, more recent work may even suggest that
attempting to ensure less fishing and more pollock may have
been the worst thing to do because a pollock diet is less
nutritious than one that includes fish of other species.
The failure of process in this case is that such a deeply
questionable document as the 1998 biological was accepted as
gospel. Those responsible for overseeing the work failed to
ensure that it was either justified or complete before it was
accepted. Those who attempted to provide prospective on it were
shut out of the process. Worst of all, once such an error has
been made, it may take many years and many dollars before it
can be overturned.
Mr. Chairman, natural resource managers sometimes use the
term ``precautionary principle'' to describe a better safe than
sorry approach to management. It should describe a reasonable
effort to ensure that all information is considered and
reasonable precautions are taken where there is uncertainty. It
should not be an excuse for catering to the preconceived notion
of one interest over another. The Section 7 process should be
emblematic of the precautionary principle at its best, not at
its worst.
Finally, let me note that the National Marine Fisheries
Service, since the events I have described about the Stellar
sea lions, has made a significant effort to improve its
practices and prevent such abuses. That is laudable. However,
these efforts have been voluntary. The fact is that the
potential for abuse remains inherent in the statute as it is
currently written.
Conservation of species demands sound, objective science
that examines all sides of an issue, not a subjective approach
that caters to preconceived notions. To the extent that the law
allows the latter to occur, it is at fault, and change is
needed.
Mr. Chairman, I would ask that a paper written by Dr.
Dayton L. Alberson on the Stellar sea lion and pollock
basically outlining the science behind it, be included in the
record for others to review.
Senator Crapo. Without objection, so ordered.
Senator Murkowski. I thank the chairman for bringing this
to the attention of the subcommittee, and for your work on this
very important issue.
Senator Crapo. Thank you. We appreciate your attention and
concern about this issue as well.
We will now proceed to the second panel. Mr. Barry Hill,
Director, natural Resources and Environment, U.S. General
Accounting Office. I understand, Mr. Hill, that you are
accompanied Ms. McClure.
You may proceed.
STATEMENT OF BARRY HILL, DIRECTOR, NATURAL RESOURCES AND
ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE ACCOMPANIED BY:
TRISH MC CLURE, DEPUTY DIRECTOR, OFFICE OF NATURAL RESOURCES
AND ENVIRONMENT, U.S. GENERAL ACCOUNTING OFFICE
Mr. Hill. Thank you, Mr. Chairman, and members of the
subcommittee.
Before I begin, let me explain that Trish McClure, who is
with me today, was responsible for basically leading and
managing the work that we will be presenting today in our
testimony. I will briefly summarize my prepared statement.
We are pleased to be here today to discuss the preliminary
results of our ongoing review of the consultation process
required by the Endangered Species Act. As you requested, we
focused on the processes that applied in the Pacific Northwest.
Under the Endangered Species Act, before Federal agencies
may conduct, permit, or fund activities of the areas where
threatened or endangered species may be present, the agencies
must consult with the Fish and Wildlife Service or the National
Marine Fisheries Service. The consultation is intended to
ensure that Federal agency activities will not jeopardize the
continued existence of any listed species or destroy or
adversely modify habitat designated as critical for those
species.
In the Pacific Northwest, the types of activities agencies
may need to consult on include maintaining wilderness trails in
national forests, dredging navigational channels, and operating
hydroelectric dams. The Federal agencies responsible for
consulting on such activities are called ``action agencies.''
The four action agencies included in our review were the Army
Corps of Engineers, the Bureau of Land Management, the Bureau
of Reclamation, and the Forest Service.
Action agencies must also consult on various activities for
which they issue permits, licenses, or Federal funds to non-
Federal parties. These activities include livestock raising,
timber harvesting, and mining on Federal lands, and building
structures such as piers and docks on private property.
The consultation process can be short or long, as
illustrated by the graphic that we have displayed here to my
left on the presentation board. If an action agency determines
that a proposed activity may affect a listed species, the
Agency may initiate either an informal or a formal consultation
with one or more, or both of the services. An informal
consultation, which could be as simple as a brief telephone
call, the Service and action agencies agree that the activity
is unlikely to harm the species, and that formal consultation
is not necessary.
On the other hand, if the Agency or the Service believes
that the activity may be harmful, the action agency initiates a
formal consultation by submitting a biological assessment of
the activity and its potential effects. If harm appears likely
and formal consultation is required, the Service has 135 days,
by regulation, to formally consult and document, in a
biological opinion, whether the activity could jeopardize the
species' continued existence.
It is important to keep in mind that even under normal
workload conditions, the consultation process can be difficult.
In part, this is because decisions about how species will be
protected must often be based on uncertain scientific
information and on professional judgment. It is also because
Federal agencies and the Services must strive to reach a
balance between ensuring that action agencies are able to
fulfill their missions while protecting threatened and
endangered species.
My testimony today will present the preliminary results of
two topics. First, key efforts to improve the consultation
process in the three States we reviewed, and second, key
concerns with the consultation process as identified by the
Services, other Federal agencies, and non-Federal parties.
We anticipate issuing our final report in late August, and
in that report we will be presenting additional information on
concerns about and improvements to the consultation process,
Service and Agency officials perspectives on the effectiveness
of the improvements, and information on the adequacy of agency
data bases that contain key information on individual
consultations.
Let me turn to the first issue of my testimony on efforts
to improve the consultation process. In response to concerns
that largely stem from several fish listings in the late
1990's, the Services in the Pacific Northwest have taken a
number of steps to improve the consultation process. For
example, both Services have increased their staff levels in
certain offices to help address workload backlogs. The National
Marine Fisheries Service established new offices to facilitate
consultations at remote locations.
Also, to improve efficiency, the Services have increased
their use of consultations that address multiple activities.
These consultations are often referred to as programmatics, and
minimize the need to consult on individual activities. For
example, one consultation in Western Oregon covers ten types of
routine activities in two national forests and two BLM
districts.
Another efficiency improvement, called streamlining, uses
interagency teams made up of Service and action agency
personnel that work together on multiple projects. The intent
is that by working collaboratively these teams will more
quickly reach agreement on the potential effects of a project,
and will resolve problems that arise.
Finally, the Services and the action agencies have worked
both individually and together to develop and refine guidance
and training for staff conducting consultations. Interagency
efforts include refresher training on the streamlining process,
and development of websites that provide staff with preparation
instructions for, and examples of, biological assessments and
other key consultation documents.
Despite these and other improvement efforts, officials at
the Services and action agencies, as well as non-Federal
parties, continue to have concerns about the consultation
process. A key problem that lengthens the process is that the
Services and action agencies do not have a shared understanding
of what constitutes a complete biological assessment. This
leads to repeated requests by the Services for additional
information from the action agencies until the Services are
satisfied that the assessment adequately addresses the effects
of the proposed action on the species.
If you will refer to the presentation board, you will see
in the middle of the board the dotted line that represents this
cycle of information request by the Services. You will also
notice that this cycle occurs before the official consultation
time clock begins, either 30 days for an informal consultation
or 135 days for a formal one.
By this time, however, related activities, such as
requesting and providing additional information may have been
ongoing for quite a while. Repeated requests for information
can also be caused by Service biologists being unfamiliar with
action agency programs. High turnover among Service biologists
is one factor that contributes to this problem.
In addition, the fear of litigation can also impact the
length of the process; that is, action agencies and Service
officials said they sometimes try to bulletproof biological
assessments, or make them so comprehensive that they will be
immune from legal challenge. This adds to the time and cost of
consultation.
Action agency officials also expressed concern that Service
and action agency roles are not clearly defined. Some action
agency officials told us that Service biologists sometime
recommend changes to Agency's proposed activities beyond what
action agencies think is necessary to minimize the negative
effects on species.
In response, Service officials say that the purpose of the
consultation process is to discuss the potential effects of
proposed actions early in the planning process and to explore
options that will avoid jeopardy.
Service and action agency officials also identified a lack
of sufficient resources, particularly at the Services, as a key
concern. They said that the staff level increases have not kept
pace with their growing work loads.
Among the non-Federal parties, permanent applications
express concerns about the time and expense required for the
consultation process. For example, the average permit
processing time for 19 permits issued in 2002 for building
private docks, or for similar activities on Lake Washington
near Seattle, was more than 2 years, and added about $10,000 to
applicants' costs.
Finally, environmental advocacy groups expressed concern
that the consultation process, like other land management
decisionmaking processes, is closed to them until decisions are
final. Accordingly, they feel that their only avenues for
voicing their concerns are through administrative appeals and
lawsuits.
In conclusion, Mr. Chairman, may I say that everyone
involved in this process is supportive of the goals and the
intent of the Endangered Species Act. All would agree that
consultations are a key component of this process. Continued
efforts must be made by the Services and the action agencies to
find more and better process, effectiveness, and efficiency
improvements for consultations that help achieve the proper
balance between action agencies being able to fulfill their
missions, while protecting threatened and endangered species.
Mr. Chairman, that concludes my statement. We would be
happy to answer any questions that you or any other members may
have. I would ask that my complete testimony be included in the
record in its entirety.
Senator Crapo. Without objection, so ordered.
Thank you very much, Mr. Hill.
The first question I have relates to the time lines that
you show at the top of your chart. Could you go over again with
me just what the language is in the statute or the regulations
that establishes these time lines?
Ms. McClure. The only statutory timeframe is for formal
consultation. That is 135 days for the entire process. The
Service policy to deal with informal consultations is 30 days.
But both of those clocks start ticking once the Services decide
that they have enough information from the action agency to
determine whether the activity will have an effect on species
or its habitat.
Senator Crapo. It is that point that I wanted to go into.
The Service gets to decide when the clock starts going. Is that
something that is in regulation or in statute, or is that just
a procedure that the Services has adopted?
Ms. McClure. It is a procedure that the Services have
adopted to implement the statute.
Senator Crapo. The statute contains the time deadlines that
we talked about. The reason I go into that is because I
certainly cannot say what was in the mind of those who wrote
and voted for the statute, but it would seem to me that they
had an idea in mind that there would be a deadline. If the
timing of the deadline does not begin until the Agency
performing the consultation decides that it will begin, then it
appears to me that we have a problem from the git-go with
regard to establishing some kind of a timeframe within which we
must operate.
Would you like to comment on that?
Mr. Hill. Well, I think what you are saying is true. But
just to provide some balance to this, I believe the controversy
is occurring over whether or not the biological assessment is
complete. That is a key point. That clock cannot start ticking
until that assessment, in the eyes of the Service agencies, is
complete. I think you have to be careful here in terms if you
expedite that process, already there are concerns about the
lack of scientific data and information that is being used to
come up with these biological assessments.
There has to be a balance here to make sure that the action
agencies are doing a good job on those biological assessments
in using the best available data that they have and doing that
in a way that can be done a little quicker and more streamline.
In that way, you can get to the point where you have a
biological assessment that is ready to go into this formal or
informal process.
Senator Crapo. This is not a new problem. It comes up in
other contexts. I first ran across this before I became a
Member of Congress when I was working on permitting processes
and the like. There were time lines for applicants for
environmental permits, but the time lines never start running
until something is decided by an Agency. That something is
never decided by the Agency, or decided months, if not years,
after the process is begun.
When I evaluated it at that time, it became evident that if
you were to put an actual firm deadline on the Agency, then
what they would simply do would be just to deny the permit and
say. ``We do not have enough information; so we cannot approve
it. You can make your application again. We will deny it again.
You can make it again and we will deny it again until we feel
like we are ready to grant it.''
The argument being made was, and always is, that we do not
have enough information to adequately evaluate the permit. It
is a serious problem. You raise a valid point.
The question I have is this. This is a creative thinking
question. How can we address this problem? If we want to find
some way to put some time parameters on the actions that we
require of our agencies--not just in the environmental arena,
but in any arena--how can we approach it? Have you given that
any thought?
Mr. Hill. We are auditors by nature. We look for data. We
look for evaluations. That is what is lacking here. No one
really has any good information as to how long this entire
process actually takes, or why it is taking so long. There is
not a lot of data out there that really indicates when the
initial contact is made to the Service agencies in terms of an
action agency coming in and saying, ``I have a project. I want
to talk with you about it and enter into these informal
consultations.''
There is not a lot of data out there that really indicates
just how long that process takes. You hear the horror tales now
and then, but we do not know how prevalent that is. More
importantly, without that kind of data and without that kind of
evaluative information, you really do not know what is broken
in that front end. That is where I think there could be some
gains made in terms of shortening that front-end process, that
once the clock starts ticking, that is a pretty set timeframe.
Senator Crapo. We hear the horror stories, but that we
really do not know how prevalent that is. In terms of the
analysis that you made in focusing on the Northwest, do we get
a feel there out of the data that we studied there as to how
prevalent these long delays and problems are?
Ms. McClure. We have some data on that which we are still
analyzing. The problem is that some of the data bases that the
Services maintain do not capture key points in time that you
would need to evaluate how long the process is. We did gather
data from service and action agency officials that can speak to
the process of how it has changed over time.
In terms of consultations in the 1998 and 1999 timeframe,
we have heard a lot of concerns through 2002, where they have
had the benefit of some of these improvement efforts, like
programmatics and streamlining. Folks do indicate that the
timeliness has improved as a result of some of the improvement
efforts. We will get into that in more detail in our full
report.
Senator Crapo. You heard my opening statement in which I
referred to a memo that was sent by the then regional forester,
Jack Blackwell, where he indicated that he could not adequately
convey the level of frustration, anxiety, and feelings of
helplessness that were occurring within the Forest Service at
that point, in terms of trying to work through the consultation
process.
In a follow up memo, he was reporting back to the Chief on
some of the information that they were trying to glean as they
tried to implement these streamlining processes that you have
talked about. From the tenure of that memo, I get the feeling
that, at least in this context, it was not felt that there had
been a lot of success.
One of his examples was that he reports what some of his
people are reporting to him. He says in other forest reports
that ``The streamlined consultation is an oxymoron. This
forester says the terms implies a fast, or at least a faster
approach to what existed previously. They say the current
process was developed because we had reached gridlock in
consultation.''
I guess if we have improvement over gridlock, that is good.
What I am getting at and what I am hearing you say is that we
do not have enough data to answer the question. How broad based
is this frustration? Are the streamlining processes working?
Are we talking about a limited number of horror stories? Are we
talking about a pervasive problem that is causing the agencies
to approach gridlock?
Do you have any further response to that?
Ms. McClure. In the three States that we looked at, as you
know, the Forest Service and the BLM are the only action
agencies that do streamlining. The vast majority of the
individuals we spoke with in those Agencies, and the Services
that service those agencies, felt that streamlining was working
well and was improving how consultations were working.
There was one exception in Idaho were things were not
working well. The individuals we spoke with seemed to think
that the problem was personality driven, and that the process
was not being implemented as it should be. There is a process
of the ground level biologists who serve on what are called
Level I teams. They are really the ones who do the grunt work
and try to make the decisions and work through issues.
When they cannot resolve issues amongst themselves and they
cannot proceed with projects, they are to elevate that to their
managers, to what is called a Level II team. That was not
happening. You did have projects that were gridlocked.
Senator Crapo. That is exactly what is further referenced
in this memo. When you said there was one problem in Idaho, was
Idaho the problem or part of Idaho was the problem?
Ms. McClure. A part of Idaho was the problem.
Senator Crapo. OK. One of the things that was mentioned in
this memo was the point you just raised, and that is that there
was a reluctance or a failure to elevate this from Level I
further up the chain, for various reasons. The speculation is
that people did not want to admit that it was not working, or
that there was a concern that there may be some retribution or
something like that, if they were to elevate the decision.
Is it your understanding that this particular problem is
not pervasive?
Ms. McClure. There does not appear to be gridlocked
consultations like there is in this one location in Idaho. We
did hear from other individuals involved in the streamlining
process, though, that there is some hesitancy to elevate issues
to managers. There is that fear that, ``This is not working and
we failed.'' There is some level of concern in other offices,
but it is not gridlocking the process.
Senator Crapo. There is something about this consultation
process that is out there that is causing an element of
concern. This is not the first time this committee has
addressed this issue. I am told that in the past they were not
able to get enough witnesses willing to come forward to talk
about it so that they could hold a full hearing. In terms of
getting this hearing put together today, there are a lot of
people that did not want to talk.
I am assuming that this is in the public section. These are
people who have a consultation on a project they are involved
with and who do not want to be irritating anyone at the Agency
who may be evaluating their projects by saying what their
frustrations are with the project. I am assuming that is the
kind of dynamic that we are dealing with.
I can tell you that we had to go through a tremendous
amount of effort to get people who were willing to come forward
and talk with us today. I am a little worried because of that,
that perhaps we are not getting a full story about what is
happening in terms of the implementation of this. I am assuming
that you are continuing to evaluate this. I would encourage you
to keep that in mind and perhaps be prepared to evaluate that
aspect of this with us, if you can get a feel for it as you
conduct your analysis.
Mr. Hill, aside from the significant increases in the
number of listed species, which is obviously going to increase
the number of consultations, are there other reasons why the
consultations have increased over the past few years; do you
know?
Mr. Hill. Well, the listing, particularly in the Pacific
Northwest, is a major factor. You have a number of species
listed in the late 1990's that have habitat areas that are so
far reaching that just about any activity you are going to be
doing there that is close to the rivers and steams, is going to
be examined closely. That was a significant factor.
Another factor certainly is the fear of litigation. There
is a lot of concern, quite frankly. There has been a lot of
litigation and there has been a lot of court decisions. If you
look back in time, I believe the action agencies in the past
had more of an inclination to basically look at their proposed
action and determine that t would not have a negative effect.
They would then go ahead without even having a consultation.
Now, because of the litigation that is occurring, I think
there is more of an inclination to play it safe. If they make
that determination, there is no effect and it is later found
out to have an effect, they are responsible. They are liable
for that action.
Senator Crapo. Are they personally liable for that; do you
know?
Ms. McClure. Personally, or as an Agency?
Senator Crapo. Personally.
Ms. McClure. I am not clear on that. We could check on
that.
Senator Crapo. If you would, I would appreciate that.
Without objection, so ordered.
Senator Crapo. Go ahead.
Mr. Hill. In order to play it safe, I think right now what
you have is, because of the fear of litigation, that they are
going to go through this consultation process and consult with
the Service agencies. At that point, the liability shifts from
them to the Service agencies. So I think you are seeing more of
an increase in consultations from that standpoint as well. It
is also adding to the problem of the nature, size, and risk of
the projects that are coming into the system. There are many
more ``low risk'' types of projects that are going through
consultations than the major actions that I think you were
seeing earlier on.
Senator Crapo. Tell me a little bit about what qualifies as
an action, or whatever the proper term is, that then has to be
evaluated?
Ms. McClure. Virtually anything. Any proposed action, even
a beneficial action, the action agency has to decide whether it
may harm, or jeopardize the continued existence, or adversely
modify its critical habitat.
Senator Crapo. I know that you used examples in your
testimony of construction of docks on private property, or the
like. In the materials I have here, I have things such as
grazing, road or trail maintenance, fire suppression,
recreation projects, and noxious weed treatment. They even have
firewood and Christmas tree cutting.
When I look at the statistics of 14,004 consultations just
in this one region, of which 13,141 were considered to be in
the category of discountable, insignificant, or completely
beneficial. Are we getting to the point where we are throwing
the net too broadly, that we are creating too broad a focus and
diverting resources away from what could be a more beneficial
use of these dollars and personnel in terms of species
protection?
Mr. Hill. That is a hard question to answer. Here again,
there is not a lot of good data and information to base that
on. There is not a lot of information in terms of the benefits
of this consultation process. The purpose of the process is to
sit down early and discuss the particular project, to explore
options or whatever, and to basically avoid the jeopardy, the
negative effects. To the extent that that is occurring, because
of the consultations, we really do not have a good handle to
what extent that is happening.
Senator Crapo. That really is the core question.
Mr. Hill. Right. That is the kind of information that I
think needs to be collected. Where do you have instances where
the consultation had a happy ending, a positive effect here,
and that we were able to avoid some type of negative action
because we had an early consultation and we were able to work
it out before this project got too far?
Senator Crapo. Are you evaluating that question as you
continue your study?
Mr. Hill. Here again, there is really no data to go out
there. I do not believe that we are going to be able to capture
that in the work that we are doing.
Ms. McClure. We can capture the amount of information that
is out there and what is being done, but we will not be
speaking to the benefits of the process.
Senator Crapo. As you are aware, I am sure, this committee
is also looking at the problems that we face in designating
critical habitat. It was the Fish and Wildlife Service that
said that they were out of money and that they do not do the
critical habitat designations anymore. I see a statistic here
that the number of personnel doing consultations in the NMFS in
the Northwest Region, went from six to 120.
I am thinking about where we are putting our resources in
endangered species protection. I am wondering if there any way
for us to construct a study that would enable us to answer this
core question. If the consultation process, as voluminous as it
is, is making us much better at avoiding harmful impacts to
species, then there is a benefit there.
If instead it is causing us to spend significant resources
evaluating whether a dock can be built on private property, or
whether a Christmas tree can be cut, after it has been
evaluated by the personnel managing it, then I have a hard time
justifying that kind of extensive utilization of resource, when
we could be utilizing resources in other parts of the Agency.
I think you have answered this, but I want to ask this
again. Is there a way that we could construct a study to get at
that question?
Ms. McClure. You would have to look at the benefits. You
would have to get into the benefits. I think you would also
need to address the legal vulnerabilities, or the legal
authorities and requirements under the Act. I think the Senator
raised the issue this morning that we did not know it would go
this far and wide when we signed the Act back in 1973.
I think there are several different pieces of analysis that
need to be done that could certainly get us closer to where we
are right now in answering that question.
Senator Crapo. Thank you very much.
In Idaho, I am told that we are now facing a situation
where just the time line that we are talking about here, is
getting drawn out for all the reasons you talked about. We hear
about the litigation aspect of it a lot. That time line is
interfering with projects that are going to have a very
beneficial impact if we can just proceed with them; for
example, reconnecting stream channels that have become
disconnected and impeding fish passage and migration and
rewatering streams that have become dewatered.
One of the concerns that I have is that we are losing
opportunities to put our resources where they count and to
engage in activities that will enable us to improve
circumstances for species.
That is not really a question. It is just a commentary of
the frustration that we are facing here as we look at some of
these statistics.
Mr. Hill. If I could interject, we did some work last year
on the Columbia River Basin salmon and steelhead. We ran into
that situation with regard to some of the projects that the
Forest Service was trying to do, particularly culvert
replacement. Some of this work is very seasonal. It can only be
done during certain times of the year because of the weather or
because of the spawning habits of the fish.
They raised that as a problem in terms of their inability
to get these culvert projects approved within a timely way.
They were delayed to the point where they missed their window
of opportunity to do the work. Here again, it was a beneficial
project. They are trying to open up the fish passages,
basically, by replacing these culverts. They missed their
window of opportunity. The project basically slid for a year,
and in some cases it was 1-year money. They lost the money, and
in essence, they had to go back to the drawing board.
It can have some significant effects if this thing is not
done in a timely way for some projects.
Senator Crapo. I appreciate your making that point. Again,
we run into this constantly. It happens whether it is in terms
of forest management, water management, fish issues, forestry
issues, or the like. Often in the Northwest we have a very
limited timeframe within which we can operate, as you
indicated. A couple of months of delay can result in a year's
lost time. That is one of the reasons that we are talking about
this.
Let me ask one other question and then I will turn to our
chairman for his questions.
Have you looked at the question of whether we are requiring
the same amount of documentation and consultation for small
projects, or projects that are considered not to have
significant impacts, as we are for larger projects and those
which have significant potential impacts? In other words, are
we requiring the full load for every kind of project?
Ms. McClure. I do not know if it is a equal load, but
certainly we heard concerns, again going back to the fear of
litigation, that even for simple projects the amount of
documentation required on the part of the action agency is
increasing and can be fairly significant.
But most officials we talked with said it went back to this
fear of litigation, that even on the part of the action
agencies, that they feel compelled to bulletproof, or feel
ensured that they have covered all of their bases, that they
would be immune from a legal attack.
Senator Crapo. In this memo, I want to find out how broadly
the facts in this memo apply, but one of the points that was
made in here is that as a result of what you have just
described in that effort to try to bulletproof things, and
protect against liability or responsibility for any problems,
that our personnel are now spending more time in the office
than they are in the field.
Again, it gets back to the point that I have made several
times and that is, are our resources being applied as
effectively as they should be in terms of the management of our
resources and the protection of species.
Mr. Chairman, do you have questions?
Senator Inhofe. Mr. Chairman, I do not. While I was
attending the Armed Services Committee hearing, I am sure that
anything I would ask would be redundant of what you have
already asked. I notice that we have a sizable third panel.
I have no questions.
Senator Crapo. All right. Thank you very much.
In light of the time constraints under which we are
operating, I am going to excuse you. Again, I am hopeful that
we will be able to continue this discussion, as you continue
your evaluation. Ultimately, I hope you come back with an
answer to that $64,000 question that we identified together
here, and that we can find a way to evaluate whether this is
actually doing its job and being worthwhile, or whether we are
diverting resources in a very significant way away from species
protection. Thank you very much.
I would like to call our third panel now. Please come
forward as I am introducing you. Our first panelist is Alan
Glen, Counsel, Smith Robertson, Elliott, and Glen; John
Kostyack, Senior Counsel; National Wildlife Federation;
Patricia Horn, Vice President and General Counsel, OGE Enogex
Incorporated; Jim Chilton, Arizona rancher, on behalf of the
Public Lands Council and the National Cattlemen's Beef
Association; and William Snape, Vice President and Chief
Counsel, Defenders of Wildlife.
We have had some of you with us before. We appreciate your
coming back again. For those who are here for your first time,
we appreciate your being here.
Let me lay down the one big ground rule. That is, follow
the clock. We do have your written testimony. We have reviewed
your written testimony. It will be a part of the record. We do
ask you to summarize what you have to say in the 5 minutes
which will be allocated to each of you so that we will have
time to engage with you in dialog and some questions.
I always remind the witnesses of this. I am confident that
when your 5 minutes is up, you will not be done saying what you
want to say. I would ask you to wrap it up at 5 minutes. If you
tend to go a little longer, I will rap the gavel here just to
remind you.
You will have an opportunity in the questions and answers
to get a part of the rest of what you want to say. We will give
you an opportunity to supplement the record if you feel you
really did not get to say everything.
With that, let us proceed.
Mr. Glen, you are first.
STATEMENT OF ALAN M. GLEN, COUNSEL, SMITH, ROBERTSON, ELLIOTT,
AND GLEN
Mr. Glen. Thank you, Mr. Chairman, and Senator Inhofe.
My name is Alan Glen. I am a private lawyer from Austin,
Texas. Much of my work is in the Endangered Species Act field,
and a much of my time is spent representing clients through the
consultation process. Most of my clients are in industry. I
also represent a number of local governments, including cities,
counties, and school districts.
Mr. Chairman, I am going to echo some of the concerns that
you raised in your opening remarks in three areas of the
consultation process. I will mention that I do think the
consultation process can be efficient and can be beneficial,
although it often is not.
Since my testimony focuses on problems, I will mention
briefly two laudatory examples that I have been involved with.
One was for Williamson County, Texas, where a very efficient
consultation process resulted in the approval of a road
program. The other was for a school district where a
desperately needed high school got through the consultation
process in record time and was able to go forward.
Unfortunately, problems do remain. I will touch on three
specific areas.
First, there seems to be a trend toward the lowering of the
threshold for consultation, in other words, the trigger point
that leads to consultation. This trend is occurring not only on
a case-by-case basis, but by broad actions by the agencies that
tend to pull numerous projects and activities into consultation
that in my view should not otherwise be there.
I provide in my testimony two examples of that. The most
notable and current is the cactus ferruginous pygmy owl
guidelines that are applicable in Southern Arizona. These were
consultation guidelines adopted as a result of litigation by
the Corps and the Fish and Wildlife Service. They have the
effect of lowering to an infinitesimal small level the
threshold for consultation. This means that we are going to get
exactly what you talked about in your opening remarks--the
thousands of consultations on projects that will cause a lot of
time, a lot of money, and with very, very little conservation
benefit for that consultation.
There were a similar set of guidelines adopted in Austin
relative to the Edwards A Aquifer and the Barton Springs
salamander. We have litigated those on behalf of the National
Homebuilders Association, and reached a settlement by which
they were withdrawn.
Next, I will mention the issue of delay. I will observe
that there are good Federal regulations under the Fish and
Wildlife Service relative to what the information standards are
to trigger consultation. In my experience, though, those
regulations are often not followed. By the way, the cite, I
believe, is 50 C.F.R. 402.14(c), which lays out what is
required to initiate consultation.
In my experience, the lengthy delays are oftentimes
associated with the Agency wanting much more information than
is achievable or obtainable during the 135 day consultation
time clock. Unfortunately, the regulations specifically
disallow the Agency to require surveys beyond the timeframe
allowed.
What tends to happen in practice, though, is that the
Agency starts to sell time. There are quite explicit trades
where we will let you out of this process in 30 days if you add
to your project these things. The Agency in some instances has
called this an alternative process by which you pay mitigation
in order to get a quicker turnaway. This mitigation, in my
view, is often at the end of the day not justified under the
law or the applicable science. It sets up a mechanism by which
the Agency is extracting merely for the speed of processing.
Last, I will mention the utilization of draft jeopardy
opinions. The statistics are good. There are thousands of
consultations and very few jeopardy opinions. In my personal
experience I have seen a number of actual draft jeopardy
opinions. I cover two of those in my written testimony. I have
been threatened to receive many of those.
The impact of that and other things that happen earlier in
the consultation process, cannot be reflected in the
statistics, but it is very significant. There are projects that
make enormous concessions along the way and spend an enormous
amount of time and money doing the scientific research, and
then ultimately receive non-jeopardy opinions. The statistics
of what that cost and what that involved is not reflected in
the statistics that can be gathered by the GAO.
With that, I will conclude my remarks. I would ask that my
complete testimony be included in the record in its entirety.
Senator Crapo. Without objection, so ordered. Thank you
very much, Mr. Glen. Mr. Kostyack?
STATEMENT OF JOHN KOSTYACK, SENIOR COUNSEL, NATIONAL WILDLIFE
FEDERATION
Mr. Kostyack. Good morning, Senator Crapo and Senator
Inhofe.
Thank you for the opportunity to testify.
I would like to make three observations based upon our 30
years of experience with Section 7 of the ESA, and my 10 years
of experience working with this provision. I would like to also
provide three recommendations for the future.
First, the big picture question: Is it worth all the
trouble? There has been a lot of discussion that there is a lot
of time and delay associated with Section 7, and unclear
benefits. My organization's experience, and the commonly held
view of people I work with in the conservation community and
the scientific world is that there are immense benefits.
Section 7 provides a crucial opportunity for the Government
to look before it leaps into potentially harmful activities. It
accomplishes a great deal for species conservation, despite a
modest investment in resources. We would say that any reduction
in conservation activities would be at the expense of listed
species.
I can give you a long list of examples and places around
the country today where Section 7 is the key driver behind long
overdue conservation actions, from the Klamath Basin, to the
Missouri, and to the Rio Grande. There are many ecosystems
where fish, wildlife, and plant species are at the brink of
extension.
Without the Endangered Species Act, Section 7 provisions,
the species there such as the coho salmon of the Klamath, and
the pallid sturgeon and piping plover on the Missouri, and the
silvery minnow on the Rio Grande would have no hope.
The second observation I would like to make is that we get
these benefits from Section 7 regardless of whether jeopardy or
adverse modification is found. In fact, the vast percentage of
consultations go forward with the Agencies sitting down,
working collaboratively.
We want to avoid, if possible, jeopardy and adverse
modification findings. That means that the process has broken
down. The general story and the history of the Endangered
Species Act is that these solutions are worked out in a
collaborative sense, win-win solutions result, and projects
move forward after adjustments are made to avoid unnecessary
harm to fish, wildlife, and plant species.
This should not be characterized as a failure of the Act.
You can go across the country for examples of these win-win
solutions. I have listed a number of them in my testimony. I
will give one right now.
If you go down Alligator Alley in Southern Florida, you can
see the wildlife underpasses beneath I-75. That was the result
of a Section 7 consultation concerning the endangered Florida
panther. As a result, we have avoided unnecessary vehicle
collisions with the panther, the No. 1 cause of panther
mortality. That project went forward fairly smoothly, while
having this immense benefit for a critically endangered
species.
The third observation I would like to make is that the vast
majority of ESA consultations are streamlined. There have been
many suggestions that people are being burdened with extensive
delays and paperwork. But if you look at the record, roughly 97
percent of Fish and Wildlife Service consultations between 1996
and 2002, were resolved informally.
An informal consultation, as a general proposition, means a
single phone call or a single letter. I have seen many of these
concurrence letters written by the Agencies. They are
essentially one paragraph long. They do not entail many
resources at all.
Yet, we can receive significant conservation benefits from
these informal consultations when both the wildlife agency and
the action agency agree to make project modifications to reach
this ``no adverse effect'' finding.
Let me turn to my three recommendations very quickly.
First, we really truly need a formalized program for tracking
the Section 7 process. The only way to systematically evaluate
the performance of Section 7, and to ensure that this key part
of the law works as effectively as possible, is to have a
rigorous monitoring program.
Right now there is little systematic collection of data.
Virtually all the information we have heard is anecdotal, or we
gather statistics that are not necessarily very meaningful,
such as how many no-jeopardy or jeopardy determinations have
been made. That really does not tell the story of what kind of
conservation outcomes we are receiving.
Looking simply at the pieces of paper that result from
consultation alone will not be enough either. You need to
follow through on the outcomes of these consultations to see
whether these conservation measures are truly being
implemented, and what have been the barriers to implementation.
All of this data should be collected in a systematic fashion
and it should be posted on the internet for public review,
debate, and discussion.
The second recommendation is that we really and truly need
to provide better funding to enable these wildlife agencies to
respond to their ever-increasing workload. We have heard a lot
about delays which is a legitimate concern. We really need to
get to the heart of the problem, and that is inadequate
staffing and funding of the Agencies. In addition to reducing
delay, this also ensures that the Agencies have better ability
to marshall the best available science.
There have been ESA funding increases in recent years and
they have been significant in terms of percentages. But if you
look at the rate of increase in the work load versus the rate
of increase in funding increases, they do not compare.
There is one example that I was able to pull out in a quick
analysis. In the past 7 years, the number of formal
consultations that were handled annually by the Fish and
Wildlife Service has grown fivefold in the past 7 years, while
the consultation budget has only grown threefold.
The third recommendation is perhaps the most important
thing I can say today. Congress really needs to reject the new
initiatives we are seeing from the Administration to
essentially weaken the consultation process. The two most
significant examples I can give you are:
One, in January of this year, the Administration proposed a
rulemaking for EPA that would allow that Agency to make its own
``no adverse effect'' determinations with regard to pesticide
registrations.
Similarly, just a week or two ago, the Administration
proposed to allow the Forest Service and three other land
management agencies to make its ``no adverse effect''
determinations with respect to logging under the National Fire
Plan.
With respect to both of these kinds of movements and
changes in the ESA policy, the result is that the Fish and
Wildlife Service and NOAA Fisheries have reduced ability to
protect listed species from threats that are well known. They
have reduced the ability to insert their expertise into the
process.
I thank you for the opportunity to testify. I would ask
that my complete testimony be included in the record in its
entirety.
Senator Crapo. Without objection, so ordered. Thank you,
Mr. Kostyack.
Ms. Horn?
STATEMENT OF PATRICIA HORN, VICE PRESIDENT AND GENERAL COUNSEL,
OGE ENOGEX INCORPORATED
Ms. Horn. Thank you, Chairman Crapo.
I appreciate the opportunity to be here in front of this
committee. I appreciate your leadership on this subcommittee
and the committee. I especially appreciate Senator Inhofe on
his work and commitment to Oklahoma.
I am Vice President of Enogex, a pipeline company in
Oklahoma. We are a natural gas pipeline and energy company. We
do most of our work in Oklahoma and Arkansas. We are the tenth
largest pipeline in the United States, so we do have a
significant presence in those two States.
The Company takes great pride and responsibility regarding
environmental performance, accountability, and stewardship. Let
me say we seek to achieve a balance between our dual
responsibility to protect the environment and deliver reliable,
safe, and reasonably priced services to our customers.
My testimony today will cover some of the experiences that
the company has experienced in the consulting process, both on
a historical basis and a current basis. Basically let me tell
you two background points.
The company is a natural gas pipeline company and it
connects natural gas wells that are completed and are capable
of producing in commercial quantities. The owners of the gas
are trying to get it to the market place--a time-sensitive
interest by the owners in getting natural gas to the community.
The issue that has come up is an endangered species called
the American Burying Beetle. I would like to talk a little bit
about that species. It was listed as endangered in 1989. At
that time it was only found in two States--Oklahoma and Rhode
Island. In 2002, a snapshot was taken, and it is located in
seven States.
It is in 17 Oklahoma counties, in the Eastern part of the
State, and four counties in Arkansas. It is a large beetle. It
is distinctive. It is a habitat generalist. It feeds on
carrion. It operates in two different seasons of the year which
gets to be critical with our construction practices. It is
active during May through September, and inactive from October
through April 1st. An interesting fact is that it can travel
two miles per night. It is a quite mobile little beetle.
I would like to talk about our historical clearance
process. Informal consultation has actually been very
favorable. Since 1989, continuing up to 2002, our consultations
with the Fish and Wildlife Service have resulted in favorable
clearances, either no presence of the beetle in the counties
that I talked about, or no impact to the beetle by our proposed
construction.
Again, the timing that we are involved to do business is as
follows. We go out and negotiate with producers who do not know
when they drill a well whether it is going to be commercial or
not. Once it is determined it is going to be producible in
commercial quantities, we have to get out there quickly,
construct the pipeline, and get that gas to market.
The history that I discussed with you has been important
that we knew predictability. We knew by going to the Agency we
would get a result. Some of the results came in as few as three
or 4 days, and we would get clearances. Other times it was up
to 30 days.
So again, the history has been favorable. We were surprised
in 2002 when there was a real change to the procedure that we
were required to go through, without a change in science,
without a change in any of the data that we could find, that
would really justify the change that we were required to go
through.
In July 2002, we were told by the Agency, ``OK, if it is an
inactive season, get out there, do your construction. There is
no problem. If it is during the active season when we were
going to be out, then you could gate off the right-of-way.''
Again, not a problem.
A complete reversal of that happened in October. In October
we went in with two clearances with two big producer wells,
Chesapeake Energy and BP Amoco. We were trying to connect those
two wells. When we sought our clearances, the Agency
determined, ``We do not have enough information. You are not
going to be able to connect this well until you go out and do a
survey of whether the beetle is present or not.''
October is the inactive season. We could not do a survey
until May. We were stuck with having a well that needed to get
gas to market, but we could not connect until we did a survey
that the beetle would not be active. We began a very aggressive
communication with the EPA, which was the permitting agency
here, and with the Fish and Wildlife Service. A stormwater
permit was what we were required to get.
We were trying to negotiate with them to enable us to do
the work for our customers and move forward. A lot of
information was requested. This was a daily process that we
were involved in. We were able to get the information in. We
requested this in September 2002. We received a final
biological opinion at the end of January 2003.
We were held up in that process. By that time we got a
biological opinion--I am not going into all the problems of
whether the biological opinion was justified or warranted; I am
trying to set out the timing for this committee to understand.
Again, this biological opinion is probably not warranted or
justified, but we moved forward with trying to do that in this
instance to try to connect the wells and get the process done.
We do not want to be bound by that, when there is not the
science, when there is not the balance being looked at, before
going forward.
I want to talk with you just a little bit about the effects
of these two wells. One well we lost to competition. We were
not able to connect that well. We lost a million dollars in
revenues over the life of the well. The producer lost $2
million by not being able to timely connect the well. As you
know, gas prices are volatile and based upon not being able to
connect that well during the time when prices were rising,
resulted in that loss.
We were able to construct and connect the other well.
Again, $2.5 million was lost in this delay and $150,000 to
Enogex. Overall, we are looking at $5 million as the economic
ramifications of that one instance that I wanted to point out
for this committee.
You raised an interesting point. Are you worried about
testifying here, Ms. Horn, because of ramifications to you? I
will tell you that is one of the things that I have questioned.
I want to have a good relationship, and the company wants to
have a good relationship with these Agencies. I am here only to
present the problem and to get resolution. I am not here for
any other purpose.
When we look at this and try to determine how we are going
to move forward, we think the Fish and Wildlife Service is
casting the net too widely. It is not based on sound science.
There is no evidence at all that prior construction activity,
75 years of oil and gas operations in this area of the State,
has caused any detrimental effect to this species.
Until we have that information, and until we determine why
these species deteriorated, and why now it seems to be building
back, we cannot go in and make any justifiable decisions about
what should be done when the real intent here is to protect
that endangered species.
Again, we are looking for reasonable and predictable
procedures. We are looking for sound science. We are looking to
strike a balance between preservation and business timing
ramifications that we have encountered here.
Senators we request your consideration in helping to
resolve this issue. I would ask that my complete testimony be
included in the record in its entirety.
Senator Crapo. Without objection, so ordered. Thank you,
Ms. Horn.
Mr. Chilton?
STATEMENT OF JIM CHILTON, ARIZONA RANCHER, ON BEHALF OF THE
PUBLIC LANDS COUNCIL AND THE NATIONAL CATTLEMEN'S BEEF
ASSOCIATION
Mr. Chilton. Good morning, Chairman Crapo, and Senator
Inhofe.
My name is Jim Chilton. I am a rancher from Arivaca,
Arizona. My family started ranching in Arizona in 1888. My
family first started ranching in the Arivaca area in 1987.
Arivaca, however, goes back much further than that. Father Keno
put the town on the map in 1695 when it was the center for
cattle grazing he brought with him from Mexico.
My father, brother, and I run approximately 1,250 head of
cattle on 85,000 acres of very good land for a semiarid area:
48,000 acres are Arizona school trust land, 35,000 acres are
forest land, and 2,000 acres are private. We are among the
23,000 permittees who manage livestock to harvest annually,
renewed grass resource grown on Federal lands.
I appreciate the opportunity to be here today on behalf of
sheep and cattle ranchers, and members of the Public Lands
Council and the National Cattlemen's Beef Association. Every
day is earth day for the men and women of the cattle industry.
My story involves this. Federal land management agencies
seriously misapplied the Endangered Species Act to the land and
my Federal allotments. This struck me as deeply unfair. I was
not willing to accept the judgment of their actions without a
fight.
I have spent countless hours and about $375,000 on lawyers,
respected range scientists, bringing in soil experts, and
assembled the best site-specific data to correct faults and
misleading information stuffed into my file by the Forest
Service and put in my record. After those expenditures, the
record shows that my grazing allotment is in good to excellent
condition, and is in an upward trend.
In 1997, the Forest Service removed 20 acres from my
Montana allotment. It is an Arizona allotment. It just happens
to be called Montana. They removed 20 acres from California
Gulch. That is a dry gulch that runs into Mexico. Our range is
right on the Mexico border. This was over a Mexican minnow, the
Sonora chub.
In 1998, a Forest Service fish biologist asserted that
grazing on my Forest Service allotment was likely to adversely
affect the minnow. The adverse call was astonishing, since
there was no water in the gulch nine to 10 months out of every
year.
The June 1990 issue of the Southwest Naturalist described
the Sonora chub as abundant in Mexico where the chub dominates
its 5,000 square-mile watershed. The fish was listed only
because its range barely extended into the United States and
one canyon east of my ranch. Any minnows that swim up across
the international border onto my ranch are truly wetbacks. They
die when it dries up.
In a similar vein, the Forest Service botanist concluded in
1998 that cattle grazing on the allotment was likely to
adversely affect the lesser long-nosed bat, a listed species,
even though the bat had never been on the allotment. Relying on
his biologists, the Forest Service supervisor signed a
biological assessment in November 1998 asserting that grazing
would harm the minnow and the bat.
Once the consultation process commenced, the Forest Service
refused to allow me or my representatives to participate in the
process. We were excluded even though we had applicant status.
The final biological opinion of the U.S. Fish and Wildlife
Service in April 1999 ignored my comments to the draft
biological opinion.
The final biological opinion included an incidental take
statement with owners' terms and conditions which regulated my
grazing allotment. As a practical matter, the Fish and Wildlife
Service and the Forest Service added an estimated $25,000 to
managing my allotment.
Fortunately, a Federal District judge in a court decision
struck down the biological opinion in 2000 as arbitrary,
capricious, and unlawful. The District Court concluded that the
species had to be present before the Fish and Wildlife Service
could issue an incidental take statement and promulgate land
use control and terms.
The Forest Service and the Fish and Wildlife Service cannot
regulate grazing based on potential or suitable habitat.
Senator Crapo. Mr. Chilton, we just had three stacked votes
called, which means we are going to be interrupted for a
significant amount of time. Senator Inhofe and I have just
discussed this. We are going to have to ask you to wrap your
testimony quickly, and have Mr. Snape wrap up his testimony as
quickly as he can.
We are going to stay here for another 15 minutes. We are
going to have to wrap up the hearing. We apologize for that.
If you would not mind, Mr. Chilton, could you wrap up your
testimony?
Mr. Chilton. I traveled 3,000 miles to be here.
Senator Crapo. We hear you. We will seriously consider your
testimony. I have read your written testimony as well.
Mr. Chilton. The bottom line is this. Not only did the
Federal judge declare the biological opinion arbitrary,
capricious, and unlawful, but the Forest Service decided to
redo the consultation process. The word went around. ``Well,
that was just one Federal judge's decision.''
We appealed it to the Ninth Circuit Court of Appeals. The
Arizona Cattlegrowers v. the United States Fish and Wildlife
Service and the Center for Biological Diversity. We won.
The Federal court said that the biological opinion was
unlawful, arbitrary, capricious, and the Fish and Wildlife
Service lacks the authority to impose terms, conditions, and
land use regulations on listed species on the land where the
species are not found. In other words, the species has to be
there before the Fish and Wildlife Service has the
jurisdiction.
Affirming the lower court's ruling, the Court determined
that the Federal agencies had the burden of proof to determine
if the species existed on a grazing allotment.
Furthermore, the Court ruled that even if cattle grazing
occurred in the area where the listed species exist, the U.S.
Fish and Wildlife Service must prove that cattle grazing will
actually kill or injure the species.
I will conclude by saying that we need sound science. We
need good science. Science starts with disinterested evaluation
of species listing proposals by objective scientists using peer
reviewed science. We would like to see the ESA be amended to
require the National Academy of Sciences or some other
reputable third party to delist species or list species, and to
review biological opinions and designated critical habitat. If
we had had proper science, the Sonora chub and the lesser long-
nosed bat would never have been listed.
Thank you. I would ask that my complete testimony be
included in the record in its entirety.
Senator Crapo. Without objection, so ordered. Thank you,
Mr. Chilton.
Mr. Snape, I apologize to you. I would ask you to be as
brief as you can. I promise you that we will thoroughly
evaluate your testimony.
STATEMENT OF WILLIAM SNAPE, VICE PRESIDENT AND CHIEF COUNSEL,
DEFENDERS OF WILDLIFE
Mr. Snape. Thank you, Mr. Chairman, and Chairman Inhofe.
Thank you for allowing me to testify. I am testifying not
only on behalf of the Defenders of Wildlife, but also on behalf
of the Endangered Species Coalition.
I am going to focus on the three points that I identified
on the cover page of my testimony. I flushed it out throughout
the rest of my written testimony, but in the interest of time I
will just emphasize those three points. I will take them in
turn.
The first conclusion that I made is that too frequently the
focus of consultation is on mere short-term survival of the
species and not recovery. Of course, recovery of the species is
what I think we all agree upon under the Endangered Species
Act. We may agree to disagree on many things. I imagine that we
will. But we should all agree that the point of the Endangered
Species Act is to recover these species and get them off the
list. It is our opinion that frequently species are managed to
hang on for survival, near the brink of extinction, but long-
term recovery measures are not taken. The woodland caribou is
an example of this.
Frequently, for many species, these consultations are not
aimed at recovery. I think that is a conflict that is
frequently not resolved. I think that results in litigation by
both sides, or all sides, as the case may be. That is point No.
1.
Point No. 2 is that species with critical habitats tend to
fare much better in consultation than species without such
designations. I note here in my testimony the example of the
pygmy owl and the silvery minnow. Mr. Glen and I have butted
heads in Federal court over the pygmy owl. I agree with a lot
of what he said, but certainly not all of it.
I will point out that the pygmy owl that a species that was
listed precisely because of habitat loss and habitat
degradation. Therefore, I do not think it is too much to ask
for Federal agencies like the Army Corps to take every acre of
its important habitat into account when they are permitting
under provisions such as the Clean Water Act. I do not think
that is unreasonable.
With all due respect to Senator Dominici, I disagree a
little bit on that recent silvery minnow decision, I will point
out only that he must be a speed reader. It is not a short
opinion. It is 57 pages in the majority opinion, a 7-page
concurrence, and a 35-page dissent. It is very complicated
stuff.
But my bottom line with the case, and I have to be a little
careful here because we are one of the litigants in that
litigation, is that the case is not about taking water out of
people's mouths, or out of farmer's fields, for the silvery
minnow. That is not what the case said and that is not what the
case held. That may be in the big picture of what he thinks is
happening.
All that case said was that when the Federal Government is
going to renew and implement a Federal contract with irrigation
districts and with the city of Albuquerque that it must simply
take endangered species into account. All the Court was saying
here was that it was not convinced that the Bureau of
Reclamation had no discretion or that the Bureau of Reclamation
could not do anything to find any water to help the silvery
minnow. The Court was asking the Bureau of Reclamation to ask
these questions meaningfully.
So I disagree with the concept that critical habitat or
consultation has created this crisis. This is a crisis in New
Mexico that they have known was coming down the pike and one
that I think that the Bureau of Reclamation purposely stuck its
head in the sand upon.
Last, the consultation process is of value not only to
wildlife but frequently to human beings. As John Kostyack said,
it is a provision that asks Federal agencies only to look
before they leap. Frequently, as Ms. Horn talked about, in the
informal consultation process, good mutually advantageous
changes can occur. I do not know much about the American
burying beetle, so I cannot help elucidate that particular
conflict.
But frequently during the informal consultation process,
negotiations and discussions occur where win-win solutions
really are hammered out. The same is true for formal
consultation. There are reasonable and prudent alternatives.
The terms and conditions that are frequently in biological
opinions almost always seek to avoid jeopardy and to find a way
of moving forward.
In fact, I am going to end by picking up with the theme
that Mr. Chilton left upon--and again we may have to agree to
disagree on our ultimate conclusions--but we want the best
science as well. I think that sometimes there is conflict
between the best available science, which is the standard in
the act, and peer reviewed National Academy-type science, which
leads to the very delays that permittees sometimes are
complaining about. That is where the conflict is frequently
occurring.
As you look to ask the GAO to find more facts out about the
consultation process, I would urge this subcommittee to look at
the case law that has occurred over the last decade with
Section 7 consultation. I think you will find lawsuits by
environmentalists and industry. I think you will see
environmentalists losing as much as they are winning. You also
will see industry losing as much as it is winning.
I think what you are seeing is the type of common sense
application of Section 7 that I think this subcommittee is
searching for. It is not always as efficient as someone like
Mr. Chilton would like. But I believe that it is a process that
is working and one that we need to get more information on to
actually fine tune.
Thank you, Mr. Chairman. I would ask that my complete
testimony be included in the record in its entirety.
Senator Crapo. Without objection, so ordered. Thank you
very much, Mr. Snape.
I am going to give the rest of the time that we have for
questioning to Senator Inhofe. I have a lot of questions. What
I am going to do is engage my questions in writing to this
panel. I would ask that you to respond in writing so that we
can continue the dialog.
Without objection, so ordered.
Senator Crapo. I apologize, but this series of votes which
we could not predict is going to take us for the rest of the
morning. When Senator Inhofe is done, we will conclude this
hearing.
Senator Crapo. Thank you, Mr. Chairman.
Mr. Chilton, I know when you commented that you came 3,000
miles to get here, I always feel badly. I happen to be a
Republican, and I thought that when the Republicans took over
we would not have this problem, but we do. When there are
votes, there are votes and we cannot help that.
Mr. Kostyack, you said that the consultation process has
been streamlined. What period of time are you talking about
that streamlining taking place?
Mr. Kostyack. Actually, I was not specifically referring to
the new measures that have happened in the past four or 5
years. As Mr. Hill testified, on behalf of the GAO, there have
been a number of very specific policy initiatives taken by the
two wildlife agencies to streamline the process.
My point about streamlining was simply that when you have
97 percent of the overall consultations concluding informally
without a biological opinion, and without the formal
consultation procedures, it is a streamlined process. If you
look at the regulations governing informal consultation, there
is nothing in there that imposes any procedures on the
Agencies, or that imposes any paperwork requirements.
My experience has been that these are very frequently
resolved with a single phone call and a single page letter
confirming the outcome.
Senator Inhofe. I was reading the quote that our chairman
made.
Who were you quoting at that time?
Senator Crapo. The regional forester.
Senator Inhofe. OK. There is very little difference between
informal and formal consultations. Is that essentially what it
said?
Senator Crapo. I think what he was saying was that the
amount of paperwork they were requiring was about equal.
Senator Inhofe. I see that during 2001, there were 46,227
informal consultation and 1,143 formal consultations. I would
not want that to be construed to take only the formal
consultations as evidence that this streamlining has taken
place. That is not your intention; is it?
Mr. Kostyack. No, not at all. My point is that obviously we
need follow up investigation. A large percentage of these
informal consultations, from my experience, do not involve
extensive paperwork.
There is a timeframe where neither Agency knows whether
they are truly going to go to formal consultation. When they
are in the information gathering mode, it may end up with an
informal consultation required, and it may not. That point is
the exact reason why we object to the Administration's new
proposals for allowing the action agencies to completely take
over this process and cut the wildlife agencies out.
That point is when you really need to get your arms around
the data, whatever data is available. There ought to be free
sharing among the key agencies.
Senator Inhofe. I would like to just ask very briefly, Mr.
Glen, Ms. Horn, and Mr. Chilton, do you agree that there has
been an improvement in this process? Are the trends going in
the right direction or the wrong direction?
Mr. Glen. To be honest, Senator, I think they are going in
both directions. I have seen very significant improvements in
some areas, but there are recent examples that trouble me as
going in the wrong direction.
An example in the wrong direction is the owl guidance I
mentioned. I take issue with what Mr. Kostyack is saying about
what happens in informal consultation. I mentioned in my
testimony the Barton Springs salamander guidelines. Those were
all resolved in informal consultation. The deal was you could
get out an informal consultation if you agreed to develop no
more than 15 percent of your property and you had no other real
available process for a bunch of bureaucratic reasons to get
out of that box. That is why those were actually litigated and
have been withdrawn.
Senator Inhofe. That is very interesting.
Mr. Chilton, do you have any comments to make as far as the
trends go?
Mr. Chilton. The trends are to list more and more species
using inadequate scientific information. If peer reviewed
science were used, these species would not be listed. It is
very important that the listing process be emphasized and that
peer reviewed science be used, and that the Forest Service not
make adverse calls when species are not present. They create
work for the U.S. Fish and Wildlife Service. It is very
inefficient. Yet, they tend to want to always want to make an
adverse call.
Senator Inhofe. Ms. Horn, do you have any comments to make?
Ms. Horn. Senator, we have seen a trend starting toward
this. We are seeing additional species being considered and
critical habitat, and Western Oklahoma being considered for
prairie chickens. We are seeing a trend for this increasing.
Senator Inhofe. In your testimony, you talk about the
various requirements that the Fish and Wildlife imposed on your
company to avoid jeopardizing the beetle. Can you describe some
of those requirements just so we can have them in the record.
Ms. Horn. Yes, they are very much changing our construction
practices. The costs are very prohibitive. One of the things
that we now have to do is to employ a biologist to go out to
every project that we have and do an assessment for the
presence or absence of the beetle if it is in one of these
counties.
We also have a lot of procedures about baiting any beetle
that could possibly be there again off the right-of-way. The
construction practices that we are having to follow cause more
resource time and energy delay. We are having to narrow the
right-of-way that we can use. We are having to stop using
pesticides and different practices that are not required
environmentally, but are required for the endangered species,
to make sure that we are trying to mitigate any possible
potential impact to the beetle that may be there.
Senator Inhofe. When you talk about biologists, are you
talking about your staff people or using outside biologists?
Ms. Horn. We are having to use an outside biologist because
it has to be someone who knows the history of the beetle, and
also someone who has a Section 10 permit.
Senator Inhofe. I have a number of questions that I am
going to submit for the record. I need to get very specific on
the model that you are using for this particular beetle. There
is not time to do it now.
Without objection, so ordered.
Senator Inhofe. Mr. Chilton, Ms. Horn, and Mr. Glen, we
need for you to submit for the record also constructive
suggestions on things that you could come up with that you
think would help in this situation.
As I think Mr. Kostyack and Mr. Snape both know, I had some
experience in the private sector for some 30 years and had some
similar problems. I am very sensitive to some of the things
that come to this committee. But I also think it is a good idea
to come up with constructive suggestions for improvements.
With that, I am going to go ahead and ask you to do that
for the record.
Without objection, so ordered.
Senator Inhofe. I am going to have to conclude this and
adjourn this meeting. I thank you very much for coming, and
particularly, Mr. Chilton, for coming as far as you did. I know
there are some very serious problems out in Arizona that I am
sure are affecting you right now. I appreciate your presence
here.
We are adjourned.
[Whereupon, at 11:19 a.m., the subcommittee was adjourned,
to reconvene at the call of the chair.]
[Additional material submitted for the record follows:]
Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
Thank you Mr. Chairman for calling this hearing today on the
Section 7 consulting process under the Endangered Species Act. I am
very interested in this issue, as this process has a particularly
significant impact on the ground in my State of Montana, just as I know
it does in yours, Mr. Chairman.
I was particularly interested in the preliminary report prepared by
the General Accounting Office, I believe at your request Mr. Chairman.
I was struck by the many similarities between what I have heard from my
constituents and the findings in that report.
For example, the GAO points out: ``Even under normal workload
conditions, the consultation process can be difficult, in part because
decisions about how species will be protected must often be based on
uncertain scientific information and on professional judgment.''
``Decisions resulting from consultations are sometimes challenged
in lawsuits and responding to the lawsuits can increase workload and
delay activities. These problems were magnified in the late 1990's
after several fish species in the Pacific Northwest were listed as
threatened or endangered.''
``The new listings increased the Service's consultation workload
significantly in Idaho, Washington and Oregon, and the Services were
unable to respond quickly.''
The Service's issues are no less compelling and complex in Montana,
and Montana has a fraction of the U.S. Fish and Wildlife staff that
Idaho, Washington and Oregon have to deal with its consultation
workload. Montana has only 18 permanent and 5 1-year term Fish and
Wildlife Service ecological services employees. These employees are
responsible for millions of acres of Forest Service, Bureau of Land
Management and other Federal lands, and countless activities that occur
across the State on private and State lands in Montana.
Activities in Montana that could potentially or actually impact
endangered, threatened or other sensitive species include: timber
harvests and hazardous fuels reduction projects, irrigation
development, coal mine development and expansion, new or expanded coal
and gas fired power plants, new hydroelectric generating facilities,
highway projects, airport facilities, sewage treatment plants and
cellular tower placements. Many if not all of these activities could
require some level of consultation with the Fish and Wildlife Service,
to address or reduce impacts to fish and wildlife. Lack of funds and
staff for Montana hamstrings every other Federal agency that depends
upon opinions from the Fish and Wildlife Service.
There's only so much that 18 full-time, permanent employees can do,
in a State the size of Montana, with as many endangered, threatened and
other sensitive species that we have, including grizzly bears, wolves,
lynx, bull trout, sage grouse, prairie dogs, Yellowstone cutthroat
trout, fluvial arctic grayling, sturgeon, and the list goes on.
I've been told that good projects often never see the light of day
in Montana, because the Fish and Wildlife Service just can't get to
them they're struggling just to keep up with a crippling backlog. That
backlog is hurting the economy of my State and rural, timber-dependent
communities like Eureka, Thompson Falls, Columbia Falls, Seeley Lake
and dozens and dozens more because every Forest Service timber sale
requires some level of consultation with the Fish and Wildlife Service.
County Commissioners bend my ear about this problem every time I'm back
in the State.
Not only can the Service do very little proactive work in Montana
to work with communities and landowners to recover species and prevent
species from being listed the staff is struggling to chip away at their
crippling backlog of consultation and other work.
Mr. Chairman, Montana is a growing State, and we're trying hard to
continue to grow our economy, to provide more and better paying jobs
for the citizens of our State. That means more projects, more
improvements, more activity, and more potential for conflicts with fish
and wildlife recovery goals.
As Montanans, we prize our first-class landscapes, our pristine
rivers and streams. We're proud of our outdoor heritage and our
abundant fish and wildlife. We don't believe that economic growth and
protecting fish and wildlife and their habitat are mutually exclusive
goals.
But, a lack of resources has made it very hard for the Fish and
Wildlife Service to respond in a proactive way to Montanans' needs or
the needs of our fish and wildlife populations. That's just not right.
I would like to ask the Chairman if he would include Montana in the
ongoing study on the consulting process required by Section 7 of the
ESA. I believe Montana merits this consideration, and if necessary I
will request a separate study from GAO of the situation in Montana.
We're getting close to a crisis here, and from what I understand, it's
been hard on the staff on the ground they've been working long hours,
weekends, just to keep from getting buried. I've asked the leadership
at the Fish and Wildlife Service and the Department of Interior
multiple times to address this situation, and have received no
response.
I'm sorry to sound like a broken record on this issue, Mr.
Chairman, but I believe very strongly that ensuring adequate resources
for the Fish and Wildlife Service would mean important Federal, State
and private sector projects more forward more quickly, more
efficiently, and that potential problems are addressed up front. More
people and more resources means the Service can work more pro-actively
with the State and local land-owners on species conservation efforts,
to avoid the need to list a particular species, or to help landowners
cope with the presence of an endangered or threatened species on their
property. For instance, as I've mentioned before, a few Service
employees did great things to improve habitat for bull trout by taking
the time to get to know local ranchers and citizens along the Blackfoot
River in Montana.
There may be other means to improve the section 7 consultation
process, and I know that's why the Chairman called this hearing today.
I too am interested about any way we can make this process work more
smoothly.
Mr. Chairman, I have worked hard in the past to propose common
sense reforms to the ESA, in order to help the Fish and Wildlife
Service and other agencies implement the Act more effectively, and with
greater sensitivity to the needs of private landowners and States. I
was proud of these efforts and the efforts of many of my colleagues on
this Committee. I know you are interested in pursuing similar common-
sense reforms. But, no matter what may or may not happen with ESA
reform this Congress or in any other Congress, we have to adequately
fund the Fish and Wildlife Service, and we have to put adequate staff
where it's needed the most. I can't say this enough.
The investment would be small compared with the benefits to species
and to the citizens of my State we'd see healthier forests, improved
species habitat, reduced conflicts, continued economic growth, and
fewer lawsuits.
Thank you again, Mr. Chairman for calling this important hearing
and I look forward to working with you in the future on this and other
issues important to my constituents and the country.
__________
Statement of Hon. Pete V. Domenici, U.S. Senator from the State of New
Mexico
Good morning. Thank you for inviting me to testify before the
Subcommittee on Fisheries, Wildlife and Water on Section 7
consultations required by the Endangered Species Act. I appreciate the
opportunity to provide comments on an issue with which I have become
all too familiar.
Today, I would like to discuss a recent Tenth Circuit Court of
Appeals decision by a three judge panel that essentially places the
needs of a small endangered fish called the silvery minnow over the
needs of the people of my State. On June 12, in a 2-to-1 decision, the
Tenth Circuit ruled that the Federal Government can completely
disregard its contractual commitments to provide much needed water to
the cities, farms, and Indian reservations in New Mexico and instead
take that water for the needs of the fish. The Court even found that
the government can order the importation of water from another basin
for the silvery minnow in violation of New Mexico State law that allows
such transfers for municipal uses only.
This judicial decision means that local governments, farming
communities, and Indian tribes cannot reasonably expect a permanent
water supply despite their long-held water contracts. If allowed to
stand, this far-reaching interpretation of the Endangered Species Act
will have a devastating impact in my State, which is already suffering
from years of drought. If the decision is used in future litigation-
driven efforts to expand the reach of the Act via the Courts--which
seems likely--the impacts of the Tenth Circuit's decision will register
throughout the west and even the Nation.
How did we get here? How can a Court interpret the ESA as
preempting 75 years of existing water law, all existing contracts, and
the needs of a burgeoning western population?
In the case of the silvery minnow, it began with the ESA's section
7 consultation process. As with many actions under the Act, the section
7 consultation process for the minnow was triggered by litigation. In
1999, a group of environmentalists demanded that the courts direct the
Bureau of Reclamation to consult with the Fish and Wildlife Service
over the Bureau's water and river operations on the Middle Rio Grande.
Until that time, the Federal agencies had not consulted on the
Bureau's operations because the Bureau was obligated to make water
deliveries. The water in the Middle Rio Grande, like most of the water
in the west, is completely accounted for pursuant to water contracts,
interstate compacts, and perfected water rights under State law. As the
Subcommittee is aware, one of the key issues with section 7
consultations is whether or not the agency has discretion or control
over the action at issue. In my opinion, because the Bureau had no
discretion to alter these water deliveries, a section 7 consultation
was not appropriate and should not have been ordered.
Mr. Chairman, once the Fish and Wildlife Service produced a
Biological Opinion in 2001, the litigation that began over a section 7
consultation was leveraged into a legal challenge to the Biological
Opinion. The environmentalists argued that the Bureau failed to consult
on the full range of its alleged discretionary authority--even though
the Bureau believed it had no discretion to take contractually
obligated water or the water resulting from interbasin transfers. The
section 7 consultation litigation was next transformed into a court
fight over an injunction sought by the environmental groups. The case
resulted in the district judge's determination that the Bureau has the
discretion, under the ESA, to take New Mexico's water.
The Tenth Circuit, in a divided opinion, upheld the district
court's determination of the Bureau's broad discretion. The dissent,
however, rightly characterized the ESA as a Frankenstein. Despite good
intentions, this law has become a monster. As a Senator who voted to
enact the ESA in 1973, I certainly do not recognize the statute after
thirty years of expansive interpretation by the courts. Did any of us
who voted for the ESA intend for it to apply retroactively? I did not.
Did any of us believe the Act would, through the courts, achieve super-
status to the point of abrogating pre-existing contracts? I did not. It
was never my intention, when I voted for the ESA, that the statute
would violate previous Federal commitments over these water resources.
The ESA must be applied prospectively. We cannot--particularly in
the west--exist in a world where the statute is allowed to undermine
the water contracts, interstate compacts, water rights perfected under
State law, and even treaties which have long governed a river's
management.
Now, 4 years after the section 7 consultation litigation was
brought, millions of dollars have been spent and the court case drags
on. New Mexico is now in the position where it must request a rehearing
en banc to the Tenth Circuit and, if necessary, take the fight all the
way to the Supreme Court. In order to counter the potential devastating
impact of the Tenth Circuit's decision, I am currently working with
other members in the New Mexico delegation on legislation to provide a
balanced approach--one that addresses both the needs of the people of
my State and the needs of the silvery minnow.
Mr. Chairman, the ESA, long-driven by litigation, is in dire need
of reform. The section 7 consultation process, as examined by the
Subcommittee today, seems to me a good place to start. Above all,
certainty must be imposed on the process. Not only is certainty the
bedrock of western water law, it is also critical for listed species. I
believe we can amend the law to protect struggling species while, at
the same time, allowing people access to the vital resources they need.
I stand ready to assist the Subcommittee in any attempt to achieve
comprehensive reform of the Act.
Again, thank you for having me here today. I appreciate the
opportunity to testify on this important matter.
__________
Statement of Barry T. Hill, Director Natural Resources and Environment,
General Accounting Office
ENDANGERED SPECIES: DESPITE CONSULTATION IMPROVEMENT EFFORTS IN THE
PACIFIC
Northwest, Concerns Persist about the Process
Why GAO Did This Study
The Endangered Species Act requires all Federal agencies to consult
with the Fish and Wildlife Service or the National Marine Fisheries
Service (the Services) to determine the effect that the activities they
conduct, permit, or fund may have on threatened or endangered species.
In particular, Federal agencies (action agencies) must ensure that
their activities do not jeopardize the continued existence of any
listed species or adversely modify critical habitat. After several fish
species in the Pacific Northwest were listed in the late 1990's, the
Services' consultation workload increased significantly in Idaho,
Oregon, and Washington, and the Services were unable to keep up with
requests for consultation. As a result, many proposed activities were
delayed for months or years. Even under normal workload conditions, the
consultation process can be difficult, in part because decisions about
how species will be protected must often be made with uncertain
scientific information using professional judgment.
This testimony is based on ongoing work requested by the Chairman
of the Senate Subcommittee on Fisheries, Wildlife, and Water. It
addresses (1) efforts to improve the consultation process, by the
Services and by four action agencies in Idaho, Oregon, and Washington;
and (2) concerns with the process expressed by officials at the
Services and action agencies, and by nonFederal parties. www.gao.gov/
cgi-bin/getrpt?GAO-03-949T.
What GAO Found
The Services and four action agencies in the Pacific Northwest have
taken a number of actions to improve the efficiency of the consultation
process. For example, the Services have increased their staff levels in
some offices, and the National Marine Fisheries Service has opened
additional offices to facilitate consultations at remote locations. The
Services have also increased their use of consultations that cover
multiple activities that are similar in nature, thus minimizing the
need to consult on individual activities. Another improvement, called
streamlining, uses interagency teams that work together on multiple
activities; these teams work to improve communication, reach agreement
on the potential effects of activities early in the process, and
resolve problems that arise to ensure that proposed activities will not
negatively affect listed species. In addition, the Services and the
action agencies have worked, both individually and together, to develop
and refine additional guidance and training for staff conducting
consultations.
Despite the improvement efforts, Service and action-agency
officials, as well as nonFederal parties, continue to have concerns
with the consultation process. A key problem that lengthens the
consultation process is the lack of a shared understanding between the
Services and action agencies on what constitutes a complete biological
assessment. According to Service and action-agency officials, this can
lead the Services to make multiple requests for information from the
action agencies about an activity until the Services are confident that
a biological assessment adequately addresses the effects of the
proposed activity on the species. Multiple requests for information are
also sometimes due to Service biologists' being unfamiliar with Action-
Agency programs, partly owing to high staff turnover. In addition,
Action-Agency officials noted that the Services and the action agencies
attempt to ensure that biological assessments are ``bullet proof'' by
making them so comprehensive that they will be immune to any legal
challenges. Action-Agency officials also expressed a concern that
Service and action-agency roles are not clearly defined. For example,
according to action-agency officials, Service officials sometimes make
judgments about whether an activity should occur or how it should
occur, rather than just judging its potential effects on species. In
response, Service officials commented that the purpose of the
consultation process is to discuss the potential effects of proposed
actions early in the planning process and to explore options that will
avoid jeopardy. Service and action-agency officials also identified a
lack of sufficient resources-particularly at the Services-as a key
concern, stating that staff-level increases have not kept pace with
their growing workloads. Among the nonFederal parties, permit
applicants expressed concerns about the time and expense required for
the consultation process. Environmental groups said land management
decisionmaking processes, such as consultation, are often closed to
them until after final decisions are made, and that the only way they
can make their voices heard is through administrative appeals and
lawsuits.
United States General Accounting Office
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss preliminary results from
our ongoing review of the consultation process required by the Federal
Endangered Species Act, particularly as applied in the Pacific
Northwest. Under the act, before Federal agencies may conduct, permit,
or fund activities in areas where species listed as threatened or
endangered may be present, the agencies must consult with the
Department of the Interior's Fish and Wildlife Service or the
Department of Commerce's National Marine Fisheries Service (the
Services). Such consultation is intended to allow Federal agencies to
ensure that the activities are not likely to jeopardize the species'
continued existence or adversely modify their critical habitat.
Consultation has particularly significant effects in the Pacific
Northwest because numerous species there are threatened with
extinction, including the Northern spotted owl, various salmon species,
and the bull trout.
Federal activities that agencies may need to consult about in the
Pacific Northwest range from operating hydroelectric dams on the
Columbia River-which provide about 60 percent of the Federal
electricitygenerating capacity in the region-to harvesting timber, to
dredging navigation channels. Responsible agencies-or ``action
agencies``-include the Department of the Interior's Bureaus of Land
Management and Reclamation, the Department of Agriculture's Forest
Service, and the Army Corps of Engineers, to name a few. Typical
nonFederal activities that these agencies permit, which may also
require consultation, include grazing, timber harvesting, and mining on
Federal lands, and building structures such as piers and docks on
private property. NonFederal parties, such as private landowners,
developers, or local governments, typically conduct these permitted
activities.
If an action agency determines that an activity may affect a listed
species, the agency may initiate either an informal or a formal
consultation with the appropriate Service. In an informal consultation-
which could be as simple as a brief telephone call-the Service and
action agency may agree that the activity is unlikely to negatively
affect the species and that formal consultation is not necessary. On
the other hand, if the Service or agency initially believes or finds
after informal consultation that the activity may have negative
effects, the action agency initiates formal consultation by submitting
a biological assessment of the activity and its potential effects. If
negative effects appear likely and formal consultation is required, the
Service has 135 days to formally consult and document, in a biological
opinion, whether the activity could jeopardize the species' continued
existence and what actions, if any, are required to mitigate those
effects. Avoiding jeopardy caused by federally conducted or approved
activities is important to achieving the overall purpose of the
Endangered Species Act, which is to conserve species that are at risk
of extinction.
Even under normal workload conditions, the consultation process can
be difficult, in part because decisions about how species will be
protected must often be based on uncertain scientific information and
on professional judgment. Decisions resulting from consultations are
sometimes challenged in lawsuits, and responding to the lawsuits can
increase workload and delay activities. These problems were magnified
in the late 1990's, after several fish species in the Pacific Northwest
were listed as threatened or endangered. The new listings increased the
Services' consultation workload significantly in Idaho, Washington, and
Oregon, and the Services were unable to respond quickly. As a result,
many activities that Federal agencies proposed were delayed for months
or years. Action agencies and others criticized the consultations as
unduly burdensome.
Our testimony, which is based on ongoing work that you requested,
addresses (1) key efforts to improve the consultation process in the
Pacific Northwest and (2) concerns about the consultation process
identified by officials from the Services and other Federal agencies,
and by nonFederal parties, including environmental advocacy groups. To
gather their views on consultations, we administered a structured
questionnaire to 61 officials with the Services and the Army Corps of
Engineers, the Bureaus of Land Management and Reclamation, and the
Forest Service in Idaho, Oregon, and Washington. We conducted 133
additional interviews with agency officials in headquarters and field
offices and with nonFederal parties; we also visited various locations
in the three States. Prior to issuing this testimony, we shared a
preliminary draft with the agencies we reviewed and incorporated their
comments as appropriate. We conducted our work in accordance with
generally accepted government auditing standards. Our final report,
which we anticipate issuing in late August 2003, will present
additional information about the adequacy of agency data bases that are
used to maintain key information on individual consultations. Our
report will also provide Service and action-agency perspectives on
improvements made to the consultation process.
SUMMARY
Efforts by the Services and action agencies to improve the
consultation process have focused on increasing the number of staff
that conduct consultations, improving the efficiency of the process,
and providing additional training and guidance for consultation staff
and nonFederal parties. For example, both of the Services have
increased their staff levels in certain offices, and the National
Marine Fisheries Service has established new offices, among other
things, to facilitate consultations at remote locations. To improve
efficiency, the Services have increased their use of consultations that
address multiple activities, minimizing the need to consult on
individual ones. For example, one consultation in western Oregon covers
ten types of routine activities in three national forests and two
Bureau of Land Management districts. Another improvement, called
streamlining, uses interagency teams for consultations to improve
communications among the Services and action agencies on multiple
activities, get agreement on the potential effects of an activity
faster, and help resolve problems that arise. Finally, the Services and
the action agencies have worked, both individually and together, to
develop and refine additional guidance and training for staff
conducting consultations. Interagency efforts include refresher
training on the streamlining process and development of Web sites that
provide staff with preparation instructions for, and examples of,
biological assessments and other key consultation documents.
Despite the improvement efforts, Service and action-agency
officials, as well as nonFederal parties, continue to have concerns
with the consultation process. A key problem that lengthens the
consultation process is that the Services and action agencies do not
always share an understanding of what constitutes a complete biological
assessment. According to Service and action-agency officials, this can
lead to multiple requests by the Services for information from the
action agencies about an activity until the Service is satisfied that a
biological assessment adequately assesses the effects of a proposed
activity on listed species. Multiple requests for information also
sometimes stem from Service biologists' unfamiliarity with action-
agency programs, partly owing to high staff turnover. In addition,
action-agency officials noted that the Services and the action agencies
attempt to ensure that biological assessments are ``bullet proof'' by
making them so comprehensive that they will be immune to any legal
challenges. Action-agency officials also expressed a concern that
Service and action-agency roles are not clearly defined. For example,
according to action-agency officials, Service officials sometimes make
judgments about whether an activity should occur or how it should
occur, rather than simply judging its potential effects on species. In
response, Service officials commented that the purpose of the
consultation process is to discuss the potential effects of proposed
actions early in the planning process and to explore options that will
avoid jeopardy. Service and action-agency officials also identified a
lack of sufficient resources-particularly at the Services-as a key
concern, stating that staffing increases have not kept pace with their
growing workloads. Among the nonFederal parties, permit applicants
expressed concerns about the time and expense required for the
consultation process. For example, the average permit processing time
for 19 permits issued in 2002 for building private docks or for similar
activities on Lake Washington (near Seattle) was about 2 years and
added about $10,000 to applicants' costs. Environmental groups said
land management decisionmaking processes, such as consultation, are
often closed to them until after final decisions are made, and that the
only way to make their voices heard is through administrative appeals
and lawsuits.
Background
The Endangered Species Act prohibits the ``taking'' of any
threatened or endangered species of animal and defines ``take'' as to
harass, harm, pursue, shoot, wound, kill, trap, hunt, capture, or
collect, or to attempt to engage in any such conduct. Federal agencies
must comply with prohibitions against taking species listed as
threatened or endangered and must consult with the Services to
determine the effect, if any, that their activities may have on listed
species. In particular, Federal agencies must ensure that their
activities do not jeopardize the continued existence of any listed
species, or destroy or adversely modify habitat designated as critical
for those species. If any proposed activities will jeopardize a species
or adversely modify its critical habitat, the Services will identify
alternatives to those activities.
The Fish and Wildlife Service and the National Marine Fisheries
Service together have responsibility for implementing the Endangered
Species Act. The Fish and Wildlife Service is responsible for the
protection of terrestrial, or land-dwelling, and freshwater animal and
plant species. Endangered or threatened terrestrial animals in the
Pacific Northwest include the Northern spotted owl, the grizzly bear,
and the Canada lynx. The Service also manages land in national wildlife
refuges and, like other land-managing agencies, must consult with its
own biologists in determining the effect of its activities on listed
species. The National Marine Fisheries Service is responsible for the
protection of oceandwelling species and anadromous species, such as
salmon.\1\
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\1\ Anadromous species live part of their lives in fresh water and
part in saltwater.
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Several Federal agencies manage land in the Pacific Northwest or
conduct activities there, many of which require consultation under the
Endangered Species Act.
<bullet> The Army Corps of Engineers (Corps) supports navigation
of the nation's waterways by maintaining and improving channels. In
Idaho, Oregon, and Washington, the Corps also operates 12 dams and
reservoirs that provide flood control, generate hydroelectric power,
protect fish and wildlife, and support recreation and other activities.
In addition, the Corps issues permits to parties who wish to conduct
activities in lakes, streams, and wetlands; these activities include
dredging or filling waterways, and building structures ranging from
docks and driveways to housing developments.
<bullet> The Bureau of Land Management manages about 28 million
acres of Federal land in Idaho, Oregon, and Washington. The agency
issues permits for and manages such activities as livestock grazing,
recreation, mining, and timber harvests; many of these activities
require consultation.
<bullet> The Bureau of Reclamation's core mission is to deliver
water and hydroelectric power throughout 17 western States. In the
Pacific Northwest, it operates and maintains 28 dams and administers 54
reservoirs. Its primary activities that require consultation are dam
construction, operation, and maintenance.
<bullet> The Forest Service manages about 45 million acres of
national forest in Idaho, Oregon, and Washington. The agency issues
permits for, manages, and must consult on activities such as timber
harvesting; recreation; livestock grazing; mining; environmental
restoration; and rights of way for road construction, ski areas, and
access to private land.
Improvement Efforts Have Focused on Staffing Resources, Efficiency,
Guidance, and Training
The Services and action agencies have increased the number of staff
that conduct consultations. Specifically, the Fish and Wildlife Service
increased the number of biologists in some of its offices in order to
address their growing consultation workload. The National Marine
Fisheries Service also increased staff levels at several offices, and
opened several new field offices in 2001 to facilitate consultations at
remote locations. Previously, the geographic distance between the
locations made consultations difficult. In addition, some action
agencies have found it useful to provide funding for one or more
Service biologist positions to specifically work on, or give priority
to, that action agency's consultations. For example, the Corps' Seattle
district provides funding for a Fish and Wildlife Service biologist
position. The district gives the Service a list of upcoming activities,
and the Corps-funded Service biologist works on consultations for those
activities.
To improve the efficiency of the consultation process, the Services
have increased their use of consultations that address multiple
activities, minimizing the need to consult on individual activities.
These multipleactivity consultations, often referred to as
programmatics, sometimes allow action agencies to approve activities
that meet predetermined criteria without additional consultation.
Programmatics may cover repetitive activities with similar effects,
such as road and recreation trail maintenance, or a variety of
activities affecting a particular area or group of species, such as
forest fuels treatment, grazing, and watershed restoration projects
conducted in bull trout habitat. Multiple-activity consultations may
also cover these types of activities in a specific region, as in three
western Oregon national forests and two Bureau of Land Management
districts, where one consultation covers ten categories of routine
activities.
Another improvement effort, streamlining, is intended to reduce the
time spent on consultations by facilitating early planning, up-front
coordination, and communication between the Services and action
agencies. Under the streamlined process, officials work on interagency
teams that meet regularly to discuss upcoming action-agency activities
and review draft biological assessments. The belief is that with
improved communication, more trust will develop between the Services
and action agencies, and problems will be easier to resolve when they
arise. Accordingly, for formal consultations that go through
streamlining, the Services, the Bureau of Land Management, and the
Forest Service set a goal of reducing the time allotted from the
current legal requirement of 135 days to 60 days. Streamlining is
currently used for most Bureau of Land Management and Forest Service
activities in the Pacific Northwest. In addition, the Bureau of Land
Management and the Forest Service are involved in a pilot process in
some locations in Idaho and Oregon. In this process, the action
agencies have been delegated the authority to certify that certain
activities meeting pre-established criteria are unlikely to adversely
affect listed species and can therefore proceed.
Both the Services and the action agencies have provided additional
training and guidance to improve understanding of the consultation
process and one another's roles and authority, including the following.
The Services have developed refresher training on the consultation
process, have prepared guidance on how to prepare a high-quality
biological assessment, and provide continuing professional education on
evaluating the biological effects of proposed activities.
<bullet> The Services, the Bureau of Land Management, and the
Forest Service have developed an interagency Web site with links to the
Endangered Species Act and its regulations and to guidance on
streamlined consultation procedures. They plan to add examples of
biological assessments and other documents as guidance for teams using
streamlined procedures.
<bullet> The National Marine Fisheries Service currently provides
links on its Web site to biological opinions and to a tracking system
that shows the status of consultations. The Service also plans to
launch a separate Web site this year to provide guidance to action-
agency biologists and others on preparing biological assessments.
<bullet> The Army Corps of Engineers has developed Web sites to
inform citizens about the permitting and consultation processes. These
Web sites include instructions on applying for permits for activities
such as pier and dock construction.
Several action-agency officials told us that they also sometimes
use site visits to educate stakeholders (e.g., the Services, the action
agency, and interested nonFederal parties) about a proposed activity.
An Army Corps official, for example, said the Corps has taken Service
biologists out on dredges to increase the biologists' understanding of
dredging operations and their likely effect on species. In another
example, a Forest Service biologist convened onsite meetings of all the
stakeholders in a consultation about the proposed development plan for
a ski area in Washington. These stakeholders (representatives of the
Forest Service, the Fish and Wildlife Service, the ski area, the State,
and a local hunting group) walked through the proposed development
areas and discussed ways to prevent the development from adversely
affecting the species involved. This onsite collaboration, according to
the Forest Service biologist, gained agreement by all stakeholders on
how the development could avoid adversely affecting listed species. It
also may have forestalled litigation by the State and the local hunting
group, which had previously opposed the proposed development plan.
Despite Improvement Efforts, Concerns Remain about Consultations
Despite ongoing efforts to improve consultations, Service and
Action-Agency officials continue to have concerns about the
consultation process. The absence of shared criteria for complete
biological assessments, Service biologists' lack of knowledge about
action-agency programs, and fear of litigation were frequently
mentioned by Service and action-agency officials as significant
concerns. In addition, according to some Action-Agency officials,
Service and action-agency roles are not clearly defined, which leads to
Service officials sometimes recommending changes to agencies' proposed
activities beyond what action agencies think is necessary to minimize
the negative effect on species. In response, Service officials
commented that the purpose of the consultation process is to discuss
the potential effects of proposed actions early in the planning process
and to explore options that will avoid jeopardy. Service and action-
agency officials were also concerned about a lack of sufficient
resources, particularly at the Services. Among nonFederal parties,
concerns were expressed about the time and cost required for
consultations and about a perceived lack of openness and effectiveness
in the consultation process.
Officials Do Not Have a Common Understanding of the Information Needed
in Biological Assessments
A key problem that lengthens the consultation process is that the
Services and action agencies do not always have an understanding of
what constitutes a complete biological assessment-that is, one that
provides sufficient scientific information to determine an activity's
effect on a species. Because of this lack of common criteria, and
because complete scientific information is rarely available for listed
species, officials often rely on their judgment and experience to
determine the likely effect of activities on species. Some Service
officials we interviewed said that they often do not receive
sufficiently detailed information from the agencies in a biological
assessment about the activity so that they can independently assess its
likely effects on the species. They therefore request additional
information and do so until they are satisfied that the assessment
adequately addresses the effects of the proposed activity on the
species. On the other hand, some action-agency officials said they
believe that the Services require much more detailed information than
is necessary to determine whether they agree with the action agency's
assessment of the activity's effects. Many Service and action-agency
officials said that these requests for additional information and
associated discussions can delay the consultation process and cause
frustration.
Disagreements over the detail needed in biological assessments are
exacerbated because many officials perceive the consultation process as
personality-driven. Specifically, Service and action-agency officials
said that sometimes officials on both sides of the issue take
unyielding positions on consultations, either on behalf of the activity
or the listed species, and they waste time arguing. In these instances,
the process takes much longer to complete than when participants are
able to compromise. In addition, action-agency officials said some
Service biologists-particularly new ones-can be overly zealous in their
efforts to protect species and may be unlikely to compromise; at the
same time, action agencies do not always involve the Services early
enough in consultation, making the process difficult. In other cases,
officials told us that some individuals that are key to the
consultation process lack the interpersonal or negotiation skills
necessary to resolve conflicts that arise in the process. One action-
agency official noted, ``there is no room in the process for zealots-on
either side.''
National Marine Fisheries Service officials recognize the need for
better guidance regarding the level of detail required in biological
assessments and are developing training for their biologists, along
with a Web-based template and checklist for action agencies. Service
officials told us that they believe deadlocked disagreements over
biological assessments are less common than they used to be, and when
they do occur it is sometimes because issues are not elevated to
management for resolution when they should be. Furthermore, they
believe that increased staff, planning, and field offices have helped
alleviate these issues.
Service Biologists Are Unfamiliar with Action-Agency Programs
Service and action-agency officials agreed that Service biologists
are sometimes unfamiliar with action-agency programs and activities and
that the time required for Service biologists to learn about activities
and how they may negatively affect species can lengthen the
consultation process. High turnover among Service biologists is one
factor that contributes to their lack of familiarity with action-agency
activities. In one example, Service biologists did not understand the
process of mining for gold in streams until they were given a field
demonstration. Allowing the Service biologists to see the mining
equipment in operation helped facilitate the consultation process
because the biologists did not have to ask numerous clarifying
questions to understand the activity's potential impact. Although site
visits can help familiarize biologists with action-agency activities,
because of resource limitations, Service and action-agency officials
said they are unable to make site visits a routine part of
consultation.
Service and Action-Agency Officials Are Concerned about Litigation
Service and action-agency officials alike cited the fear of
litigation as a significant concern that lengthens the consultation
process. Since 1999, the Services have been affected by at least 19
lawsuits involving consultations in courts with jurisdiction in Idaho,
Oregon, and Washington. For example, according to a Forest Service
official in Oregon, at least two dozen timber projects have awaited
consultation for 2 years because a court ruled that the National Marine
Fisheries Service used insufficient scientific data to support a
determination that natural vegetation growth would adequately mitigate
the effects of logging.\2\ This decision invalidated more than 20
existing biological opinions for timber harvests, which will await
formal consultation until the National Marine Fisheries Service
implements a strategy for addressing the court's concerns. In addition,
both Services must respond to notices of lawsuits and agreements that
settle lawsuits.
---------------------------------------------------------------------------
\2\ Pacific Coast Federation of Fishermen's Associations v.
National Marine Fisheries Service, 265 F.3d 1028 (9th Cir. 2001).
---------------------------------------------------------------------------
According to action-agency officials, such court rulings have led
Service officials to apply the same level of scrutiny to all
activities, regardless of the level of risk they pose to listed
species. Action-agency officials believe that the Services attempt to
ensure that all biological assessments are ``bullet proof``-or so
comprehensive that they are impervious to legal challenge-and this adds
to the time and cost of consultation. As a result, Service officials
apply similar scrutiny to activities that are less likely to have long-
term negative impacts, such as trail maintenance or habitat
restoration, as they do to activities with much higher potential for
long-term negative effects, such as mining. Some action-agency
officials recognized that this fear of litigation similarly causes them
to put more details in their biological assessments than they otherwise
would. Furthermore, Interior officials expressed concerns that existing
litigation, and the risk of future litigation, may be interfering with
the consultation process and diverting to litigation a disproportionate
amount of the funds intended for Endangered Species Act implementation.
Service and Action-Agency Roles in Consultations Are Not Clearly
Defined
According to action-agency officials, Service and action-agency
roles are not clearly defined. Some action-agency officials expressed
concern that Service biologists sometimes make judgments about whether
an activity should occur, rather than just its potential effects on
species. Action-Agency officials told us they believe decisions about
activities' design should be left to the action agencies. The
Department of the Interior's Assistant Secretary for Water and Science
recently discussed this concern in an address to Bureau of Reclamation
employees. The Assistant Secretary asserted that it is the Bureau's
responsibility to determine how its proposed activities should be
designed and the Services' responsibility to issue biological opinions
on those activities' potential impact on species. He emphasized that
the Bureau should not include components in its proposed activities
that it believes are not necessary for avoiding negative effects to
listed species, simply because the Services want those components
included. The Bureau's Commissioner also issued a policy statement
reiterating the Assistant Secretary's position that it is the Bureau's
responsibility-not that of the Services-to define its proposed
activities and to provide a biological assessment that is based on the
best available science. The policy states that the Bureau should rely
on the Services to respond with a scientifically sound biological
opinion-which may include a determination that an activity will
adversely affect a listed species. In that event, Bureau and Service
officials would work together to develop acceptable measures for
mitigating the activity's detrimental effects. In commenting on a draft
of this statement, Service officials said that the purpose of the
consultation process is to discuss the potential effects of proposed
actions early in the planning process and to explore options that will
avoid jeopardy.
Insufficient Staffing Resources Are a Key Concern
Service and action-agency officials identified a lack of sufficient
resources-particularly at the Services-as a key concern that limits
timely completion of consultations. Service and action-agency officials
are concerned that although staff levels have increased in recent
years, staffing has not kept pace with their growing workloads. For
example, data from the Fish and Wildlife Service's office in Portland,
Oregon, show that while the office's budget for consultations increased
approximately 40 percent between fiscal years 1998 and 2002, the number
of consultations for which each biologist was responsible increased
about 90 percent. One consequence of this disparity between resources
and workload is that the Services cannot always meet regulatory
timeframes. Furthermore, officials said that there is an upward trend
in the types of activities that require consultation. For example, as a
result of a court ruling in the mid-1990's, the Bureau of Land
Management and the Forest Service must consult with the Services on
their land management plans. This ruling created a substantial new
workload for the agencies and the Services, and they are still working
to complete the consultations in some areas.
Some NonFederal Parties Are Concerned about the Length and Cost of the
Permitting Process
NonFederal parties wishing to conduct activities requiring
consultation because they involve Federal permits or licenses also
expressed concerns about the time and cost required for the process.
When nonFederal parties apply to an action agency for a permit or
license, they must go through reviews required by the action agency for
approval. These reviews can include consultation. Action agencies
either prepare (sometimes at the applicant's expense), or ensure that
applicants have arranged for the preparation of, a biological
assessment; the agency then reviews the biological assessment and
requests additional information as needed. According to a Service
official, economic impacts and the scope of the proposed activity are
considered during consultation, in addition to whether or not the
activity will jeopardize listed species or adversely modify critical
habitat.
In one example, a private landowner waited about 3 years-including
time for Forest Service permit review and consultation-related
activities-for a permit that would allow him to cross Forest Service
land to harvest his privately owned timber stand. To cross the Forest
Service land, the landowner had to improve an old logging road and
construct about half a mile of new road, which he did himself, work
valued at about $9,000; he also reimbursed the Forest Service about
$6,800 for the costs to prepare a biological assessment for the
consultation. Further, according to the landowner, when he was finally
able to harvest the timber its market value had dropped by one-third to
one-half from its anticipated value. The Forest Service biologist who
worked on this consultation noted that it was affected by numerous
complicating factors, including a court decision barring the Fish and
Wildlife Service from issuing biological opinions on activities
affecting spotted owls and a new policy for dealing with private
landowners.
In another example, the average time for the Corps to process 19
permits issued in 2002 for building private docks or for similar
activities on Lake Washington (near Seattle) was about 2 years. This
time included the consultation time spent by each Service, as well as
the time spent by the action agency to help the permit applicant
complete a biological assessment and meet other Corps requirements for
the permit. For these permits, consultation added about $10,000 to
nonFederal parties' costs. Officials from the Services noted that these
types of delays were not uncommon when bull trout and salmon were first
listed because so many activities, many of them in urban areas, were
affected. A National Marine Fisheries Service official stated that
these listings created an ``automatic backlog'' of consultations that
overwhelmed them. A Fish and Wildlife Service official also noted that
the delays were at least partly due to their unfamiliarity with the
effects that building docks could have on bull trout. The bull trout
was the first aquatic species that they had to deal with in the Pacific
Northwest.
Environmental Groups Are Concerned that Consultations Lack Openness and
Effectiveness
Environmental advocacy groups also expressed concerns with the
consultation process. Representatives of two environmental advocacy
groups said land management decisionmaking processes, such as
consultation, are often closed to them until after final decisions are
made, and that the only way they can make their voices heard is through
administrative appeals and lawsuits. One representative expressed
concern that the streamlining process lacks transparency and
compromises the Services' role of scrutinizing action-agency
activities. Service officials noted that the Endangered Species Act
does not require public participation or public comment in the
consultation process. One environmental group's representative
expressed concern that the Services do not have a comprehensive view of
a species' status across its range and therefore are limited in their
ability to determine the potential effects of proposed activities. For
example, the bull trout may or may not be significantly affected by an
activity in one stream, but unless the Services know the trout's status
across its range, they cannot make informed decisions about how an
activity will affect the species as a whole.
Mr. Chairman, this completes my prepared statement. I would be
happy to respond to any questions that you or Members of the
Subcommittee may have.
__________
Statement of Alan Glen, Austin, TX
Good morning Mr. Chairman and Members. My name is Alan Glen, and I
am a lawyer from Austin, Texas. I am particularly interested in the
topic of interagency consultations under the Endangered Species Act
(``ESA'') and am hopeful that the interest and efforts of this
Subcommittee will help to enhance the consultation process and make it
a more efficient tool for species conservation.
I. Introduction
My testifying for increased efficiency in the ESA consultation
program is a little bit like a tax lawyer testifying for streamlining
the tax code. A significant proportion of my work involves assisting
clients in navigating the complex and acronym-rich ESA consultation
process. Our firm represents clients, ranging from developers, to
utility companies and State and local governments, across the Nation in
ESA matters. My experience with consultations under the ESA is
firsthand, having handled dozens of consultations involving a wide
variety of activities and species. Through this experience, I have seen
significant conservation and economic benefits derived from resolution
of endangered species conflicts through the consultation process.
Unfortunately, I have also recognized maddening inefficiencies and
uncertainties, many created by the very agency they afflict. I do see
the Fish and Wildlife Service (``Service'') making positive strides to
improve the efficiency and effectiveness of the consultation process,
but some problems remain.
Statistics regarding the ESA consultation process are often cited
in an effort to demonstrate that the program is working, and with
little impact on government and economic activity. We are told that
thousands of consultations are processed each year, with only a handful
resulting in a ``jeopardy'' conclusion. These statistics, however, do
not reveal the enormous cost in terms of time, money, project changes,
and mitigation property or payments associated with completing these
thousands of consultations. Perhaps the pending GAO report will shed
some light into the trenches of the process, where most of my labor is
performed.
Today, I will focus briefly on some of what I refer to as the self-
inflicted wounds of ESA consultations: areas in which the Service may
be making life harder on itself than necessary or appropriate. First, I
will mention the trend toward lowering the thresholds or ``triggers''
of the consultation process, resulting in many more consultations with
perhaps little conservation benefit. Next, I will discuss the use of
delay beyond the legally required timeframe for the completion of
consultations, and how illegal delays are sometimes used as a tool for
extracting concessions that are not otherwise required by law. Last, I
will mention the use and impact of ``draft'' jeopardy conclusions which
can be a tool to extract costly mitigation far beyond what the law
requires. The Service has been making progress in addressing some of
these concerns on a policy level. In practice, though, they still arise
with some degree of frequency.
II. Lowering Consultation Thresholds
The Service conducts thousands of ESA consultations every year.
Many of these, however, involve activities with little, or purely
speculative, biological impacts. Because the thresholds required for a
consultation to actually modify a project or activity (the project must
be found to jeopardize or at least ``take'' a listed species), are so
much higher than the threshold required to merely initiate consultation
(that a species might be affected, even if purely beneficially), these
marginal to no impact consultations end up amounting to delay and cost
for little conservation benefit. Moreover, the trend toward lowering
the thresholds to initiate consultation is severely impacting the
ability of other Federal agencies, perhaps most notably the Corps of
Engineers and the EPA, to have efficient general or nationwide
permitting programs. The lower thresholds mean that many projects with
little or no impact, that might otherwise have only the briefest of
interchanges with the Federal Government, are instead kicked into an
ESA consultation that can cause delays of over a year.
A very recent example of this trend toward lowering of consultation
thresholds are the cactus ferruginous pygmy owl consultation guidelines
(Attachment ``A'') worked out between the Corps and the Service for the
Corps' nationwide permitting program in southern Arizona. These
guidelines define a development project's potential impacts on the owl
so broadly that consultation would be required on dozens, if not
hundreds, of projects not located in critical habitat for the species
and in fact miles and miles from any known owls. Moreover, because the
guidelines state that, where consultation is triggered, the Corps will
require applicants to obtain an individual permit from the Corps, a
time-consuming and expensive process, even though the project would
otherwise qualify for a much more efficient nationwide permit
authorization. These guidelines have the effect, therefore, of
increasing the work load of two Federal agencies and increasing the
time and cost associated with projects' Federal environmental
approvals, all in exchange for little if any real species conservation.
To its credit, the Service is beginning to recognize the inefficiencies
of these guidelines and has expressed an interest in working with
appropriate stakeholders to improve the process.
A similar example of lowering the consultation threshold occurred
with the Service's Edwards Aquifer Water Quality Recommendations
(Attachment ``B'') in central Texas These guidelines have since been
withdrawn as a result of a settlement in a lawsuit we filed on behalf
of the National Association of Homebuilders. However, prior to the
withdrawal of these guidelines, they operated in a manner very similar
to the cactus owl guidelines. Under the aquifer guidelines, the
position of the Service was that every development project in a 350-
square-mile area should consult with the Service regarding potential
impacts on the endangered Barton Springs salamander, a small amphibian
that lives in the Barton Springs swimming pool in Austin's Zilker Park.
The Federal trigger for these consultations was the otherwise very
efficient EPA general permit for construction-related stormwater
discharges applicable to every development project over five acres. The
Service's position requiring consultation was contrary to its often-
stated view that no single project would result in harm to the
salamander. In this case, the lowered consultation threshold resulted
in more than mere delay for a number of projects. Applicants were
entitled under the EPA general permit to conduct ``informal''
consultations with the Service, but if differences could not be
resolved in informal consultation, the general permit did not authorize
resolution through formal consultation. In other words, applicants were
stuck in a Catch-22; they were required to initiate informal
consultation with the Service, but could not require the Service to
finally ``put it in writing'' in formal consultation. The Service was
overtly telling developers, ``if you agree to these project
modifications, we will let you out of the consultation; if not, you're
stuck.'' With no practical way for applicants ultimately to hold the
Service accountable for its extractions, most applicants simply gave up
and made concessions that in most instances could not have been
required of them if consultation were properly concluded.
III. Delay as a Tool of Extraction
One of the frequently cited benefits of the ESA Section 7
consultation process is that, unlike the process for approving habitat
conservation plans under Section 10(a), it is subject to specific and
generally reasonable statutory timeframes. For example, formal
consultation is required to be concluded within 135 days.
Unfortunately, at least in my experience, these timeframes are observed
much more often in the breaches than in compliance. While this fact may
largely be due to the heavy workload and limited budget of the Service,
it can and does give rise to an implicit trading of processing time for
conservation benefits that would not otherwise be the obligation of the
applicant to provide. For the private sector, particularly on larger
activities or projects such as pipelines and large-scale developments,
time is very, very expensive, and the time it takes to process
environmental approvals may directly affect a project's competitive
position. The Service sometimes takes advantage of this fact by, either
implicitly or expressly, offering an applicant a quicker turnaround if
they make concessions. This practice would not be particularly
disturbing if the concessions were those that could lawfully be
required by the Service at the end of a normal process. But, it has
been the case repeatedly in my experience that the concessions are
purely a trade for quicker processing.
A good example of this circumstance is the so-called ``alternative
consultation process'' informally adopted by the Service for the
Navasota ladies tresses (``NLT'') (a species of orchid). (See
Attachment ``C,'' correspondence and draft Notice of Intent to Sue).
Under this alternative process, projects, principally pipelines and
some real estate developments, which may affect NLTs or their habitat,
can simply offer to pay a per-acre conservation fee and receive an
expedited approval through consultation. Because the fee, even at tens
of thousands of dollars, often pales in comparison to the project cost
of unspecified delay, many applicants happily pay it. Indeed, this
would be a beneficial arrangement for all involved, if at the end of
the day the fee was legal. However, because plants are not protected
under the ESA Section 9 ``take'' prohibition, there is no lawful basis
for this fee. The Service is simply selling time.
Another problem that arises with respect to consultation timeframes
is the Service's understandable, though not lawful, desire to delay the
initiation of consultation or extend the period of consultation beyond
the statutorily required timeframe in order to allow the applicant to
gather more data concerning the species in question. Many species can
be observed only seasonally and for short durations. In these
circumstances, the Service is too often tempted to seek to require
delays in order to allow for more complete survey data. The Service's
own regulations and the courts, however, reject that approach.
Information is never perfect, and the Service is required to make its
judgments based on the data available within the statutorily prescribed
timeframe. Recently, I was involved in a large, regionally important
infrastructure project which, although it had received all of its major
Federal environmental approvals, faced the potential of significant
delay to allow time to perform some additional surveys for a plant.
IV. Draft Jeopardy Opinions
With the much-publicized statistic of how few final jeopardy
opinions the Service renders per year in ESA consultations, it is
surprising that I have personally been involved in at least four
written draft jeopardy opinions and several more specifically promised
if my client refused to relent. Again, this is an area in which the
Service is making progress, but, at least up until the recent past, in
my experience the Service's issuance, or overt threat of issuance, of
draft jeopardy opinions, can be another unwarranted tool of extraction.
Attachment ``D'' includes two attorney letters responding to draft
jeopardy opinions issued on projects in Pima County, Arizona. In both
instances, the draft opinions were based on clearly erroneous
understandings of the applicable regulations and facts. Also, in both
instances, the draft opinions were accompanied by demands for the
applicant's provision of costly mitigation which, at least in my view,
far exceeded the Service's authority to require. In the instance
involving the Pima pineapple cactus, the mitigation was ultimately
reduced from an initial demand that the applicant purchase and
permanently protect 400 acres of cactus habitat, to a payment of less
than $20,000 to a research program. In the instance involving the
cactus owl, due to severe economic pressure to avoid further delay, the
applicant largely relented to the mitigation demand, even though there
were no owls on the project site and the applicant proposed of its own
accord to leave approximately half of the property in its natural
condition.
V. Conclusion
Recently, I have observed the Service making significant strides to
improve the ESA consultation process. Difficulties nonetheless remain,
and I consider it appropriate and beneficial that this Subcommittee is
directing its attention to these issues.
______
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
__________
Statement of John F. Kostyack, Senior Counsel, National Wildlife
Federation
Good morning, Senator Crapo and members of the Subcommittee. I am
here to testify on behalf of the National Wildlife Federation, the
nation's largest conservation education and advocacy organization. I
appreciate the opportunity to come here today to talk about the
consultation process under Section 7 of the Endangered Species Act
(ESA). I would like to make three observations about our 30 years of
experience with this key feature of our nation's most important
wildlife law, and provide three policy recommendations for the future.
lessons from 30 years of implementing section 7
1. Section 7 is Fundamentally Sound
A key focus of today's hearing is the Subcommittee's March 22, 2002
request to the General Accounting Office (GAO) for a study of the
Section 7 consultation process. Although the request letter is 15
months old and the Subcommittee's views on Section 7 may since have
evolved, it is nonetheless important that its assertions not be left
unrebutted.
The Subcommittee's effort to gather statistical information about
how Section 7 operates makes sense. However, the request letter to the
GAO is harshly and unfairly critical of the consultation process.
Contrary to the arguments in the letter, Section 7 consultations have
not consumed inordinate time and money. In fact, this key provision of
the ESA has accomplished a great deal of conservation with a relatively
small investment of Federal resources. As with any statutory provision,
improvements could be made with implementation of Section 7; but the
basic structure of the consultation process is a good one and should be
left undisturbed.
Section 7 contains several crucial tools for conserving the
nation's threatened and endangered species and the ecosystems on which
they depend. Particularly important is Section 7(a)(2), which requires
all Federal agencies that carry out, fund or permit actions affecting
listed species to consult with the U.S. Fish and Wildlife Service (FWS)
or the National Oceanic and Atmospheric Administration (NOAA) on
avoiding jeopardy and critical habitat modification in connection with
those actions. This consultation provides a crucial opportunity for the
Federal Government to ``look before it leaps'' into potentially harmful
activities. As a result of the thousands of Section 7(a)(2)
consultations that take place every year, Federal agencies now
routinely adjust their actions to protect imperiled species while
carrying out or facilitating economic activities.
Another key tool, although given far less attention than Section
7(a)(2), is the Section 7(a)(1) conservation provision. Section 7(a)(1)
requires all Federal agencies to develop and implement a program to
conserve listed species, and to do so in consultation with FWS or NOAA.
In enacting Section 7(a)(1), Congress wisely put the burden on all
Federal agencies engaged in activities affecting listed species to help
promote the ESA's goal of species recovery, and to consult with the
expert wildlife agencies in devising their strategies for fulfilling
this conservation duty.
2. Section 7 Consultations Provide Important Benefits to Listed Species
Even in Cases When Neither Jeopardy Nor Adverse Modification of
Critical Habitat is Found
At the heart of the Subcommittee's March 2002 letter is the concern
that only 0.3 percent of projects reviewed under Section 7 between 1996
and 2002 were found to jeopardize a protected species or to adversely
modify critical habitat. The Subcommittee infers from this statistic
that ``only one out of every 300 consultations involved a project with
a potential to violate the ESA,'' and that resources are therefore
being wasted on ``elaborate consultations on projects that pose no
significant threat to species.''
This is simply not an accurate depiction of reality on the ground.
The fact that no jeopardy and no-adverse-modification conclusions have
been the outcomes of most consultations is not evidence that the
projects under review had no potential to violate the ESA, or that they
posed no significant threat to the species. In fact, the thousands of
consultations with no jeopardy and no-adverse-modification outcomes
mostly represent species conservation success stories. Rather than
responding to evidence of potential ESA violations with enforcement
actions, Federal wildlife agencies have worked collaboratively with
action agencies and others to negotiate ``win-win'' solutions solutions
where projects move forward after adjustments are made to avoid
unnecessary damage to fish, wildlife and plant species and their
habitats.
Examples of these ``win-win'' outcomes can be found across the
country. For example, in Florida, when you drive across the portion of
Interstate 75 known as Alligator Alley, you can see the results of a
consultation between FWS and the Federal Highway Administration
concerning the impact of I-75 improvements on the endangered Florida
panther. Tucked under the highway are several wildlife crossings that
allow the panther to roam across its range while avoiding vehicle
collisions. These crossing now serve as models for other wildlife
passages planned elsewhere in the country.
In Nebraska, the Whooping Crane Critical Habitat Maintenance Trust
is using income from a $7.5 million endowment, created as the result of
a Section 7 consultation, to finance habitat protection, land
acquisition, and other programs to conserve the critically endangered
whooping crane and other species threatened by dam-building along the
Platte River. On the Upper Colorado River basin, as a result of a
cooperative program stimulated in part by Section 7, the Bureau of
Reclamation is altering the timing and magnitude of releases from a
series of dams to help address habitat requirements of the endangered
fishes downstream.
Progress has been slower on the Klamath, Missouri, Rio Grande and
other river ecosystems where fish, wildlife and plant species hover on
the brink of extinction, but thanks to Section 7, these species are
finally receiving some attention. In the absence of Section 7, there
would be little hope for the coho salmon of the Klamath Basin, the
pallid sturgeon and piping plover on the Missouri, the silvery minnow
on the Rio Grande, or the natural systems for which these species serve
as indicators. Section 7 represents our best hope for achieve a balance
among development and conservation goals in our river basins and other
ecosystems, so that both people and wildlife can thrive. 3. The Vast
Majority of ESA Consultations are Streamlined
The Subcommittee's letter asserts that ``each of these [ESA Section
7] consultations requires extensive studies and reports by the Federal
action agency and one or both of the Services, and extends for months
or years before ending with the inevitable no-jeopardy finding that is
so often obvious from the start.'' In fact, the vast majority of
consultations are informal ones involving minimal time or paperwork.
FWS statistics show that roughly 97 percent of its consultations from
1996 through 2002 were resolved informally. NOAA Fisheries' statistics
for 2001 also show that the vast majority of its consultations are
resolved this way.
Informal consultations are, by definition, those that are resolved
with ``no adverse effect'' findings by FWS or NOAA Fisheries. Under
Section 7 regulations, such a finding does not have any paperwork
requirements, and there is no need for a formal consultation or a
biological opinion. Often, ESA compliance issues are resolved in a
single phone call, memorialized with a one paragraph letter.
Despite the streamlined nature of the informal consultation
process, significant conservation benefits are realized. In an informal
consultation, FWS or NOAA will often recommend modifications to project
proposals that, if adopted, will lead to a no-adverse-effect
conclusion. Harm to the species is avoided, and the project goes
forward without significant disruption.
RECOMMENDATIONS FOR THE FUTURE OF THE SECTION 7
CONSULTATION PROGRAM
Set forth below are NWF's policy recommendations for the procedural
aspects of the Section 7 program. NWF's recommendations regarding
Section 7's critical habitat protection were provided in my testimony
before the Subcommittee 3 months ago. If requested, I would be pleased
to provide additional recommendations on how to make the remaining
substantive protections of Section 7 work more effectively.
1. Greater Transparency into Consultation Outcomes Is Needed to
Systematically Evaluate the Performance of the Section 7
Program
In its March 2002 letter, the Subcommittee requests that the GAO
investigate the disposition of consultations by obtaining statistics on
the following outcomes: withdrawal by requesting agency; modification
of proposed agency action; issuance of biological opinion; issuance of
letter of concurrence that formal consultation is not required due to
``not likely to adversely affect'' finding. Unfortunately, nowhere in
the March 2002 letter is there a request for information concerning
what conservation measures were put in place, and what actions harmful
to listed species were avoided, as a result of Section 7 consultation.
In the absence of such information, it is extremely difficult to
evaluate the relative costs and benefits of the Section 7 process.
To ensure that Section 7 works as effectively as possible, Congress
should fund a comprehensive program for tracking the results of
consultations and monitoring the performance of resulting conservation
measures and programs. The data should be made available on the
Internet for public inspection. If such steps were taken, Congress, the
Administration and the public would be in the position to discuss and
debate species conservation strategies based on a comprehensive look at
past implementation of Section 7 on the ground.
Interestingly, the habitat conservation planning (HCP) program
under Section 10 of the ESA, which governs non-Federal activities, has
already achieved far greater transparency than the Section 7 program
governing Federal activities. All permits and corresponding HCPs are
currently listed on the FWS website, and the various documents
reflecting the terms of each of the permits and HCPs are available for
public review in a centralized library. Moreover, as a condition of
receiving a permit under Section 10, applicants must agree to submit
annual reports with data concerning permit implementation.
At a minimum, the level of transparency in the Section 7 program
should be brought up to the level of the Section 10 program.
Considering that Section 7 is applied in so many more circumstances
than Section 10 (roughly 77,000 Section 7 consultations were completed
in fiscal year 2002 versus less than fifty Section 10 permits issued),
the need for a systematic evaluation of the Section 7 program is
arguably greater than with the Section 10 program.
2. Provide Funding to Enable the Wildlife Agencies to Respond to their
Ever Increasing Workload
In its March 2002 letter to GAO, the Subcommittee requests that GAO
investigate several possible inefficiencies, such as duplication of
work by FWS and NOAA, that might be causing delays in the consultation
process. Eliminating inefficiencies is a worthwhile objective, one that
the wildlife agencies themselves have been working to achieve for
several years now with, for example, the increased use of programmatic
consultations and multi-stakeholder consultations. However, eliminating
inefficiencies alone will not solve the delay problem. Inadequate
funding of the wildlife agencies is the single biggest obstacle to the
timely completion of consultations.
So long as species continue to be placed at risk of extinction by
human activity, more species listings are inevitable. Each increase in
the number of listings inexorably leads to more Section 7
consultations, as Federal agencies proposing projects encounter greater
numbers of listed species on the landscape. Continued growth in human
populations and in the size of the economy means that there are ever-
increasing numbers of Federal projects being proposed that require
Section 7 review. Also, the expansion of the HCP program begun in the
1990's means that there are also increasing numbers of non-Federal
projects requiring review by FWS and NOAA biologists.
Congress should acknowledge these trends and provide the funding
needed by wildlife agencies to implement Section 7 successfully.
Although ESA funding has increased in recent years, funding levels
remain ridiculously low considering the enormity and complexity of the
challenges facing the agencies. Moreover, the rate of funding increases
has not kept up with the rate of increase in the workload. For example,
in the past 7 years, the number of formal consultations handled
annually by FWS has grown fivefold while the consultation budget has
only grown three-fold.
To ensure that Section 7 continues to protect listed species
without inordinate project delays, the budgets of FWS and NOAA
Fisheries must be increased to reflect the added responsibilities.
3. Reject ``Self-Consultation'' Initiatives Currently Being Proposed by
the Administration
Finally, it is essential that Congress reject the Administration's
current proposals to expedite project approvals by rolling back Section
7 safeguards. Rather than provide the obviously needed funding
increases to enable Federal wildlife agencies to fulfill their mandate
to conserve listed species, the Administration would remove crucial
regulatory tools that the wildlife agencies need to be effective.
For example, on January 24, 2003, the Administration issued an
Advanced Notice of Proposed Rulemaking calling for the EPA, not FWS or
NOAA, to make no-adverse-effect determinations concerning proposed
pesticide registrations. By eliminating EPA's duty to engage in
informal consultations and to obtain FWS's and NOAA's concurrence in
no-adverse-effect findings, the Administration would remove the
wildlife experts from the picture, leaving listed species and their
habitats increasingly vulnerable to pesticide contamination. EPA, which
has long simply refused to uphold its ESA consultation obligations with
respect to pesticides, would be rewarded for its obstinacy. EPA alone
would decide which chemicals would be subject to FWS and NOAA's
scrutiny and which would be shielded from ESA review.
Similarly, the Administration has issued a series of proposals that
would greatly reduce the ability of FWS and NOAA to protect listed
species from the impact of logging operations. On June 5, 2003, for
example, the Administration proposed to allow the Forest Service, the
Bureau of Land Management (BLM) and other land management agencies to
make their own no-adverse-effect determinations with respect to logging
activities under the National Fire Plan. As with pesticides, FWS's and
NOAA's ability to protect listed species from threats posed by logging
would be severely curtailed.
In its June 5, 2003, proposal, the Administration attempts to
justify the rollback of protection of species on Federal lands by
arguing that the land management agencies have sufficient expertise to
make their own judgments about ESA compliance. However, the Forest
Service, BLM and other agencies have frequently demonstrated a bias
toward resource extraction and resource extraction industries. In many
ESA consultations, wildlife conservation measures were put in place
only after Federal wildlife agencies negotiated extensively with the
land management to secure them.
For thirty years, the Federal wildlife agencies have played a
crucial role in protecting threatened and endangered species from
harmful Federal projects. Unlike the land management agencies, which
have a narrow focus on their particular landholdings, the wildlife
agencies continually monitor what is happening across the species'
range and maintain familiarity with the latest science on species
conservation. Unlike many action agencies, which are charged with
carrying out or approving economic development projects, Federal
wildlife agencies have no conflict of interest. Their sole mission is
to conserve fish, wildlife and plants and the ecosystems on which they
depend.
Congress should reject any and all efforts to weaken the ability of
FWS and NOAA to utilize the Endangered Species Act to conserve our
nation's imperiled wildlife.
CONCLUSION
Thank you again for the opportunity to testify. I welcome the
opportunity to answer any questions that the Subcommittee may have.
__________
Statement of Patricia D. Horn, Vice President, Enogex Inc.
Chairman Crapo and other members of the Fisheries, Wildlife and
Water Subcommittee, I am pleased to share with you the experiences of
Enogex Inc. (``Enogex'') concerning the consulting process pursuant to
Section 7 of the Endangered Species Act (``ESA'').
My name is Patricia Horn and I am Vice President of Enogex.\1\ Our
company takes great pride in our environmental performance. We know
that environmental responsibility is important to the quality of life
of our customers, the communities we serve and our own employees and
their families. It is also critical to our success.
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\1\ Enogex is a natural gas pipeline and energy company that
operates the nation's 10th largest natural gas pipeline system with
more than 10,000 miles of pipe, 13 processing plants and 23 billion
cubic feet of gas storage, principally in Oklahoma and Arkansas.
Oklahoma City-based OGE Energy Corp. (NYSE: OGE) is the parent company
of Enogex and Oklahoma Gas and Electric Company (OG&E). OGE Energy and
its subsidiaries have about 3,000 employees.
OG&E, a regulated electric utility, serves approximately 720,000
retail customers in a service territory spanning 30,000 square miles in
Oklahoma and western Arkansas, and wholesale customers throughout the
mid-continent region. OG&E has eight power generating facilities with
combined capacity of approximately 5,700 megawatts.
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We are a company committed to complying with and, when possible,
exceeding government-established environmental standards. We seek to
continually monitor, assess and improve our environmental performance.
We also seek to foster strong working relationships with the local,
State and Federal agencies that monitor our environmental stewardship.
Finally, we believe we have a dual responsibility to protect our
natural resources and to provide safe, reliable and reasonably priced
power and gas transportation services. The company will, therefore,
bring to any emerging environmental policy discussion the need for a
sensible balance between environmental gain and its resulting costs and
resources.
The purpose of this testimony is to outline the historical
interpretation and the more recent philosophy and change of the U.S.
Fish and Wildlife Service (``USFWS'') in its informal and formal
consultations relating to protection of an endangered species believed
to exist in areas where Enogex conducts pipeline construction
activities in Oklahoma and Arkansas.
Background
Enogex and the oil and gas industry conduct a wide variety of
operations from construction of well pads and access roads to laying
gathering and transmission pipeline systems for the delivery of natural
gas to intra and inter-state markets. Enogex conducts its activities in
the majority of counties in Oklahoma and in numerous counties in
Arkansas.
In order to proceed with oil and gas construction activities,
Enogex requests applicable environmental clearances or informal
consultations relating to any endangered species that may be present in
the areas of the planned construction. Enogex requests these clearances
from the USFWS. An endangered species, the American Burying Beetle
(Nicrophorus americanus) (``ABB'') has been identified as existing in
Oklahoma and Arkansas.
The ABB was listed as endangered in 1989. At the time of listing it
was believed that there were only populations in Rhode Island and
Oklahoma. As of 2002, populations are now known from Rhode Island,
Oklahoma, Nebraska, South Dakota, Kansas, Massachusetts and Arkansas.
The beetle is listed as existing in 17 Oklahoma Counties and 4 Arkansas
Counties. It is suspected in other counties in these two States. (These
known and suspected counties will be referred to as ``the ABB
Counties'')
The ABB is a large beetle that ranges from 1 to 1.5 inches in
length, has four red-orange spots on its wing covers, and is
distinguished by its larger size and its orange-red pronotum. The
beetles are habitat generalists, occurring in many different habitats.
They feed on carrion and lay their eggs in or adjacent to a buried
vertebrate carcass. It is suspected that carrion availability in a
given area is more important than the vegetation or soil structure. The
beetle is typically active in Oklahoma and Arkansas from mid-May to
mid-September. Adults are presumed to be an annual species, fully
nocturnal and are usually active only when nighttime temperatures
exceed 60 F (15C). The remainder of the year it hibernates. The ABB has
been recorded traveling as much as 2 miles per night.
Historical Treatment
Historically, Enogex has requested environmental clearances
relating to any endangered species in the ABB Counties from the USFWS
in Tulsa, Oklahoma and Conway, Arkansas. Informal consultations
relating to projects being initiated in the ABB Counties have always
resulted in a ``no adverse impact'' finding by the USFWS. Such
clearances from the USFWS were typically determined within a few days
to a little more than a month with the responses generally provided
within 30 days. Accordingly, projects received clearances and were
allowed to proceed without delay.
Enogex's main construction activities relate to laying gathering or
transmission pipeline to connect producing natural gas wells to its
pipeline system to allow the produced natural gas to be marketed. To be
competitive and allow Enogex the ability to provide these services,
wells must be connected efficiently and without delay. It is not
feasible to begin the construction of the connecting pipeline until it
is determined that a well being drilled will produce in commercial
quantities. Upon this determination, Enogex customers expect and demand
that the pipeline be constructed and placed in service without delay to
transport the natural gas produced to the market place. If Enogex is
unable to predict and understand the timing required to timely complete
its construction, it cannot be competitive and meet the expectations of
the well operators, working interest owners or royalty owners in the
producing well.
Prior to late 2002, Enogex submitted environmental clearance
requests or informal consultations to the USFWS for the ABB Counties
and received clearances that either no endangered species were present
or, if present, the proposed project would have no adverse effect on
the ABB. During years 2000 through 2002, Enogex submitted 54 informal
consultations to the Tulsa, Oklahoma USFWS and 46 to the Conway,
Arkansas USFWS and each time received the clearances to proceed with
the planned pipeline construction. A change in these clearances being
granted without comment began in July, 2002.
Initial Change in Consultation Process
By letters dated July 16 and 18, 2002, Enogex was advised by the
USFWS that two proposed pipeline projects in Latimer County, Oklahoma
were in the vicinity of where the ABB may occur. The USFWS, at this
time, recommended that the pipeline projects be implemented outside the
ABB's active period (early October through April) and thereby avoid
impacts on the species. If this recommendation was not feasible, the
agency recommended continuously baiting beetles away from the project
area using chicken parts or mice to ensure that beetles would not be
adversely impacted by the proposed projects. The USFWS advised that if
the proposed projects could be implemented outside of the beetle's
active period or if the recommended baiting protocol was followed, then
the ABB would not likely be adversely impacted by the projects.
Therefore, no further Section 7 consultation would be needed.
Drastic Change in Consultation Process
In October, 2002, in response to requested informal consultations
relating to pipeline construction projects to connect two recently
completed natural gas wells in Latimer County, Oklahoma, Enogex was
advised by USFWS of a drastic change in treatment relating to the
USFWS's informal consultation policy relating to the ABB. The USFWS
advised that sufficient site-specific information on the occurrence of
beetles within the project areas was not available and that therefore
the USFWS could not provide an accurate assessment of the impacts of
the projects on the species. The USFWS recommended that Enogex conduct
a survey for the presence of the ABB in the project areas. The USFWS
advised that the survey should be conducted by a biologist with
knowledge of the life history of the ABB and who has a Section 10
permit from the USFWS to conduct such surveys. Due to the beetle being
active only during the warm summer months, the USFWS advised that the
survey could only be conducted between late April and early September.
If beetles were observed, further Section 7 consultation would be
required.
If Enogex could not proceed until after a survey in the summer, the
connection of these newly completed wells by Enogex would be delayed by
at least 8 months. Enogex responded quickly to understand the request
and data that would be required to properly initiate a formal
consultation immediately. Enogex retained a biologist to conduct field
surveys. It consulted with the EPA to determine what further
information needed to be provided to EPA so that a formal consultation
could be requested. Enogex provided detailed project information,
construction protocol, operations and maintenance protocol, geological
survey maps, survey plats, storm water pollution prevention plans and
recently completed habitat surveys to the USFWS and EPA. The EPA formal
consultation letter was sent to USFWS on November 27, 2002. The final
Biological Opinion (``BO'') from the USFWS was received on January 23,
2003.
The BO issued by the USFWS determined that after reviewing the
current status of the ABB, the environmental baseline for the action
area, and the cumulative effects of the proposed action, the projects
were not likely to jeopardize the continued existence of the ABB across
its entire range. No critical habitat has been designated for this
species, therefore none was affected. The BO provided numerous
restrictions, implementation of required terms and conditions relating
to construction practices and established a permitted take.
Immediate Effects of Change to Pending Commercial Well Connects
As noted, these most recent requests for consultations to the USFWS
related to two recently completed natural gas wells ready to produce
natural gas to the market place. One of the wells was not connected to
Enogex and the connection was awarded to a competitor. This resulted in
significant revenue loss to Enogex exceeding $1,000,000 over the life
of the well. Additionally, because the delay prevented the natural gas
in the well from reaching the market, the well producer lost
approximately $2,000,000. After receipt of the BO by Enogex and
extensive education and training to its operators and contractors, the
second well was connected to Enogex. The delay in the treatment of the
ABB consultation resulted in a loss to Enogex exceeding $150,000.
Additionally, the delay caused the well producer to lose approximately
$2,500,000 because the natural gas in the well could not get to the
market.
Future Implications
This recent change in treatment and approach of the ABB by the
USFWS is not based on any new data or science about the ABB. Instead,
it is our understanding that this change is based upon new
interpretation of existing data differently from previous reviews.
Currently, the USFWS is responding with a very aggressive approach for
the purpose of preservation of the ABB. Enogex has been informed that
all proposed construction projects located within the ABB Counties will
be exhaustively scrutinized and formal consultation initiated.
If a pipeline, oil and gas operator or other construction company
wishes to construct during the ABB hibernating season (late September
to late April) and the project triggers a Federal nexus, the company
will be required to enter into formal consultation with the USFWS. The
result will be the issuance of a Biological Opinion that will State
restrictions, construction practices and permitted take of the species.
Such consultation, if not delayed, is required to be completed within
135 days after the Formal Consultation is officially requested. A
Federal nexus trigger includes projects that exceed 5 acres of soil
disturbance, cross jurisdictional waters or involve mechanized clearing
of forested wetlands, and include all FERC regulated projects.
The USFWS has noted construction activities presented to it for
consultation in the ABB Counties in 2002 included pipelines, roads,
cell towers, residential developments, bridges, mining, petroleum
production, sewer lagoons, commercial developments, recreational
developments, fiber optics, cable and electrical lines and water
treatment facilities. Clearly, the implications of this new procedure
and expansive interpretation of the ABB data will have far reaching
effects to any construction activity in these ABB Counties.
As noted, Enogex's experience in the past is that it took
approximately 30 days to receive clearances to proceed with pipeline
construction. Under the new interpretation, the USFWS has 135 days to
complete the formal consultation. The most recent construction projects
for which formal consultations were entered into by Enogex took
approximately 4 months to receive what the USFWS called ``expedited''
clearance.
In addition, Enogex has been required to hire a third party
biologist to survey the proposed project area for the presence of the
beetle. These surveys are time consuming and expensive to complete.
Enogex estimates an average of $5,000 is incurred for each project in
order to provide data relating to the specific area and the presence or
absence of the ABB.
Enogex (and all effected parties) will be required to expend
enormous resources of time, energy and money to establish construction
programs, training, third party experts and to implement the expansive
conditions and requirements to meet the conditions now being imposed by
the USFWS in these areas. Such additional costs and burdens must be
questioned when it has not been established that necessary preservation
or recovery of the ABB will result.
It is also believed that this new, expansive approach in the
preservation philosophy by the USFWS in one district will be
implemented in other areas. Enogex has recently been advised that this
same process will be implemented in Arkansas.
Conclusion
Along with numerous oil and gas industry trade associations such as
Mid-Continent Oil and Gas Association, Oklahoma Independent Petroleum
Association, Gas Processors Association and Oklahoma Farm Bureau,
Enogex is seeking to address the USFWS's procedural changes in the
protection of the American Burying Beetle. Enogex believes that the
first step needs to focus on whether the facts present relating to the
ABB merit this comprehensive and far reaching change in consultations
and clearances being granted. After accurate and complete data is
established then the measures necessary to properly preserve this
endangered species can be implemented. Until this step is undertaken
and accomplished, actions--such as the recent actions taken by the
USFWS--only tend to create unnecessary hardship on the agency and
unnecessary hardship on the public attempting to do business in these
areas, and they result in no true protection to the ABB. Enogex is
hopeful that this issue can be resolved without affected parties having
to resort to a costly and time-consuming litigation process.
Mr. Chairman and members of this Committee, Enogex appreciates and
seeks any assistance that this Committee can provide to address this
critical issue.
__________
Statement of Jim Chilton, Arivaca, AZ on behalf of the National
Cattlemen's Beef Association and the Public Lands Council on the
Endangered Species Act
Introduction
Good morning, Chairman Crapo and Distinguished Members of this
subcommittee, my name is Jim Chilton and I am a rancher from Arivaca,
Arizona. My family first started ranching in Arizona in 1888. Arivaca,
however, goes back much further than that. Father Keno first founded
the town in 1690 when it became a center for grazing cattle he brought
with him from Mexico. Today, the town has a population of 1500 people.
The largest employer in the town and surrounding area is ranching. My
father, brother, and I run approximately 1,250 cattle on 85,000 acres:
48,000 acres of Arizona school trust lands; 35,000 acres of Forest
Service land, and 2,000 private deeded acres. I appreciate the
opportunity to be here today to provide my story on section 7
consultation of the Endangered Species Act to the Committee on behalf
of the sheep and cattle rancher members of the Public Lands Council and
the National Cattlemen's Beef Association.
The Public Lands Council (PLC) represents sheep and cattle ranchers
in 15 western States whose livelihood and families have depended on
Federal grazing permits dating back to the beginning of last century.
The National Cattlemen's Beef Association (NCBA) is the trade
association of America's cattle farmers and ranchers, and the marketing
organization for the largest segment of the nation's food and fiber
industry. Both PLC and the NCBA strive to create a stable regulatory
environment in which our members can thrive.
Ranching out west has been part of the landscape, the economy, and
the culture for approximately three centuries. About 214 of the 262
million acres managed by BLM are classified as ``rangelands,'' as are
76 million of the 191 million acres managed by the Forest Service. More
than 23,000 permittees, their families, and their employees manage
livestock to harvest the annually renewed grass resource grown on this
land. Western ranching operations provide important additional benefits
to the Nation by helping to preserve open space and reliable waters for
wildlife, by serving as recharge areas for groundwater, and by
supporting the economic infrastructure for rural communities. Our
policy is to support the multiple use and sustained yield of the
resources and services from our public lands which we firmly believe
brings the greatest benefit to the largest number of Americans.
My Story
Federal land management agencies so seriously misapplied the
Endangered Species Act (ESA) to the land in my Federal allotments that
I unfortunately was forced to conclude that the Forest Service and the
Fish and Wildlife Service (FWS) were using the Act to force me out of
the business of ranching on historic grazing lands. The agencies took
these actions even though thirty years of data in the Coronado National
Forest files, detailed production and utilization studies by nationally
recognized range management scientists, and reports by numerous other
researchers showed my allotments to be currently in good condition and
are on an upward trend in which an exceptional number of high value
native climax species have been preserved. This struck me as deeply
unfair, and I was not willing to accept the judgment of their actions
without a fight.
I have spent hundreds of thousands of dollars on lawyers and
litigation and tens of thousands more to have respected range
scientists and specialists assemble the best site-specific data
possible. We spent countless hours of work with top-ranking
consultants, days and weeks of lost time in meetings and legal
wrangling, and months assembling a mountain of scientific evidence to
show that cattle grazing does not adversely impact the Sonora chub or
the lesser long-nosed bat. Even though many other permittees may face
similar challenges from the land managing agencies, not all grazing
permittees facing similar Federal actions are able to mount this kind
of elaborate defense which ultimately proved successful.
Section 7 Consultation: What Went Wrong
In 1998, a Forest Service biologist asserted that grazing on my
allotment (``the Montana'' allotment) was likely to adversely affect
the Sonora chub, a listed species. The adverse call was astonishing. In
1997, the Forest Service removed 20 acres from the Montana allotment
along the ``California Dry Gulch'' adjoining the border to protect the
chub. The excluded area had lush riparian growth and had been part of a
successful experiment-in-progress to demonstrate that rest-rotation
grazing could enhance riparian condition. In Arizona Cattle Growers'
Association v. U.S. Fish and Wildlife Service, 273 F.3d 1229 (9th Cir.
2001), the court considered the very actions addressed today and found,
among other things, that the chub ``are essentially confined to the
California Gulch, an area from which livestock are excluded.'' The
Southwestern Naturalist, June 1990, describes the Sonora chub as
abundant in Mexico where the chub dominates its 5,000 square mile
watershed and constitutes 99.97 percent of the total number of fish and
96.9 percent of the biomass of the species.
In a similar vein, a Forest Service botanist concluded in 1998 that
cattle grazing on the Montana allotment were likely to adversely affect
the lesser long-nosed bat, a listed species, even though the bat had
never been found on the allotment. One dead bat was found 10 miles east
of the allotment in 1959, but that is the extent to which the migratory
bat has ever had contact with the Montana allotment. Research has shown
that these bats are not food-limited even on the ranches where they
have roost caves. No roost sites occur on our allotment.
Relying on his scientists, the Forest Supervisor signed a
biological assessment for the Montana allotment in November 1998,
asserting that grazing could harm the minnow and bat. Once the
consultation process commenced, the Forest Service and FWS refused to
allow me or my representatives to participate in meetings or other
discussions prior to the issuance of the draft FWS Biological Opinion.
We were excluded even though we had applicant status for the
consultation. The FWS similarly excluded ranchers from the consultation
process in the Sierra Nevada consultation process. Of course, the draft
Biological Opinion represents a largely settled judgment by the agency,
which may be further adjusted in response to public comments but is
rarely ever reversed.
Nevertheless, I had my team of lawyers, range, riparian, soils, and
fish experts submit comments on the draft Opinion. The final Biological
Opinion issued by the FWS in April 1999 largely ignored my submitted
comments in the sense that they did not respond substantively to the
points. The conditions included by the FWS in the Opinion to benefit
the chub and bat added an estimated $25,000 of expenses annually in
managing the allotments. The Forest Service issued a Montana Allotment
Management Plan in September 1999 that was based on the Biological
Opinion. The plan allowed for my cattle to use 45 percent of the forage
and leave 55 percent for wildlife and esthetics. The plan also replaced
the fixed permit number of 500 cows with a ``range'' of 400 to 500 cows
per year (subject to annual determination). These restrictions
decreased the market value of the allotment by approximately $150,000.
A Federal district court decision struck down the Biological
Opinion in December 2000. Nevertheless, the FWS and Forest Service
reinitiated consultation on the chub and bat. A new draft Biological
Opinion was issued by the FWS in March 2001 eliminated grazing on 1,200
acres along the California Dry Gulch to protect the chub. I persuaded
the FWS Field Supervisor through discussions and the presentation of
exhaustive documentation that the Dry Gulch is an intermittent and
ephemeral stream, not the perennial stream repeatedly referred to in
the draft Biological Opinion. The Supervisor ultimately restored the
1,200 acres that had been withdrawn from grazing. The Ninth Circuit
issued the Arizona Cattle Growers' opinion in 2001 holding that the FWS
lacks authority to impose conditions in permits for listed species on
land where the species had not been found.
SECTION 7 CONSULTATION: POSSIBLE SOLUTIONS
1. Sound Science
Perhaps the most obvious failure in the ordeal described above is
that the agencies failed to use sound science, which in this case
really equates with common sense, when they embarked on consultation
for the Sonora chub and the lesser long-nosed bat. These species were
never found on my allotments, yet the government was prepared to impose
onerous restrictions on my livelihood to help them.
Sound science starts with disinterested evaluation of species
listing and delisting proposals by objective scientists utilizing peer
review of their work. FWS employees can have their judgment obscured at
times by their institutional interest in administering the ESA. Because
of the tremendous impact ESA can have on economics, communities, and
local land use generally, we believe additional procedures are in order
to ensure that no interest is unfairly minimized or excluded prior to a
decision. In particular, we would like the ESA to be amended to require
the National Academy of Science or some other reputable third party to
concur in FWS decisions to list or delist species or in the contents of
Biological Opinions.
2. Applicant Status
Another major failure of the consultation process in my instance
was the refusal on the parts of the agencies to allow myself, who was
legally recognized as having applicant status in the consultation
process under FWS regulations, or any members of my legal or scientific
team to participate in any Forest Service and/or FWS discussions,
meetings, or deliberations prior to the issuance of the draft FWS
opinion. Numerous times my lawyers asserted that under the law and
under FWS regulations they had the right to participate in the process
as applicants and still we were denied access to the discussions about
my allotment. By not allowing me to be there, I feel that decisions
were not made based on fact, but instead were based on irrelevant
factors.
I would have wanted my oral testimony to be heard and taken into
account by agency officials in the Forest Service and the Fish and
Wildlife Service as they made decisions concerning the future of my
livelihood on the allotment. I would have wanted the agencies to listen
to presentations by my experts, and then take the testimony of those
experts into consideration. I would have appreciated some
responsiveness from the agencies. Instead, we were kept out of the
discussion completely during the first consultation. Agency
decisionmaking would have benefited tremendously by a more complete
illumination of the facts and science affecting the species.
The general issue is that all members of the public who are
potentially adversely affected by the results of a consultation under
the ESA should be permitted, as a matter of law, to participate fully
in the consultation.
3. Mitigating Alternatives
If the Forest Service feels it necessary to remove a permittee from
the land pursuant to the terms of a Biological Opinion issued under the
ESA, the agency should be required, as a matter of law, to consider
alternatives to keep that rancher in business. Public land grazing
keeps many ranchers' operations viable, and to be forced off of the
land without any rectification could be the kiss of death to many
public land ranchers. The Forest Service should have to consider if
other, comparable range is available for the public land rancher to
graze his cattle on. It is a principle of fairness if land is to be
taken away, the land should be replaced with equally economically
viable land.
CONCLUSION
I want to thank you again for this opportunity to present the views
of the cattle industry with respect to section 7 consultation under the
ESA. We look forward to working with you to craft legislation that will
both respect the need to protect species and be respectful of the
ranchers and their families who have worked western lands for so many
generations.
__________
Statement of William J. Snape, III, Vice President and Chief Counsel,
Defenders of Wildlife
Introduction
Thank you, Mr. Chairman and Ranking Member of the Subcommittee on
Fisheries, Wildlife and Water. On behalf of Defenders of Wildlife
(Defenders), where I am vice-president and chief counsel, as well as
our approximately one million members & supporters, I appreciate the
opportunity to address the value of inter-agency consultation under the
Endangered Species Act (``ESA'' or ``Act''), 16 U.S.C. Sections 1531 et
seq., pursuant to Section 7 of the Act. 16 U.S.C. Sec. 1536. I am also
chairman of the board for the Endangered Species Coalition, which
represents approximately 400 citizen groups, scientific entities and
small businesses on behalf of a strong and vibrant Act. See generally
www. stopextinction.org. My biography was circulated to this Committee
earlier this year in connection with testimony on ESA critical habitat.
By definition, my written testimony can merely touch upon the many
varied consultations now going on across the country. I would be happy
to answer any questions regarding the policy themes I raise herein.
Familiarity with Section 7 of the ESA is presumed in this testimony.
For excellent background information, see, e.g., American Bar
Association, Endangered Species Act: Law, Policy and Perspectives
(2002); Stanford Environmental Law Society, The Endangered Species Act
(2002) at 78-103; and Daniel Rohlf, Jeopardy Under the ESA: Playing a
Game Protected Species Can't Win, 41 Washburn Law Journal 114 (2001).
Also relied upon was Senator Crapo's March 22, 2002 letter to the
General Accounting Office (GAO).
I wish to make three basic points this morning about the ESA
consultation process:
1) Too frequently, the focus of consultation is mere short-term
survival of the
species, not recovery, which is (and should be) the true goal of
the Act;
2) Species with critical habitat designations tend to fare much
better in
consultation than species without such designations; and
3) The consultation process itself is of value to wildlife and
humans alike.
SURVIVAL VS. RECOVERY
Case Studies: Woodland caribou and grizzly bear
In our estimation, the current problem over standards in the
consultation process derive from several questionable changes contained
in the 1986 Section 7 regulations. One change pertains to the
definition of ``jeopardize'', which now means, as a result of the 1986
rules purportedly still in effect, ``an action that reasonably would be
expected, directly or indirectly, to reduce appreciably the likelihood
of both the survival and recovery of a listed species in the wild . .
.'' 50 C.F.R. Sec. 402.02 (emphasis added). At least one Federal court
has found the Section 7 regulatory standards to be illegal because they
conflate the notions of ``survival'' and ``recovery'' contrary to
Congress' intent. Sierra Club v. U.S. Fish and Wildlife Service (FWS),
245 F.3d 434 (5th Cir. 2001).
Nowhere is this legal problem more evident than in northern Idaho,
eastern Washington, and western Montana, where the highly endangered
woodland caribou hangs by a tether. With only 30-40 individual adults
left in the U.S. wild, by all scientific accounts this species needs
all the old growth forest habitat it can get for breeding, feeding and
sheltering. U.S. FWS, Southern Selkirk Mountain Woodland Caribou
Recovery Plan (1994). In this same area, a remnant population of
grizzly bears, numbering no more than a dozen or so in the U.S., is
also jeopardized by Federal agency actions. U.S. FWS, Grizzly Bear
Recovery Plan (draft revised, 1993).
Yet, in example after example, the Forest Service which administers
most of the woodland caribou's remaining habitat allows actions on
Federal public lands that harm the species and prevents its
conservation, almost as if it is managing the species for fingernail
survival. For instance, the Colville National Forest recently approved
a request from the Stimson Lumber Company to build a road and secure
industry access in unroaded forest recovery areas for the woodland
caribou and grizzly bear; this project will definitely adversely affect
both species. U.S. FWS, Biological Opinion on the Stimson ANILCA Access
Easement Project at 58-68. In another instance of woodland caribou
habitat degradation, the Idaho Panhandle National Forest recently
announced a doubling of the Chips Ahoy timber sale. 68 Fed. Reg. 33906
(2003). Other so-called ``salvage'' timber sales in prime woodland
caribou recovery habitat are still pending. See, e.g., 65 Fed. Reg.
34654 (2000). Expanded snowmobiling use and trails, some of it illegal,
is also harming woodland caribou on Forest Service lands. See, e.g.,
Trevor McKinley, Snowmobile Mountain Caribou Interactions, (May 9, 2003
draft). The grizzly bear is now threatened by a number of increased
uses on Federal public lands, including the exponential increase in oil
and gas permits being issued by the Department of the Interior and
related agencies.
THE IMPORTANCE OF CRITICAL HABITAT
Case Studies: Pygmy Owl and Silvery Minnow
One need read no further than the plain language of the ESA Section
7(a)(2) to understand the importance of critical habitat during the
consultation process: ``Each Federal agency shall, in consultation with
and with the assistance of the Secretary, insure that any action
authorized, funded, or carried out by such agency is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of (critical) habitat . . .'' (emphasis added). As the FWS has stated
in the context of the northern spotted owl critical habitat
designation, ``the adverse modification standard may be reached closer
to the recovery end of the survival continuum, whereas the jeopardy
standard traditionally has been applied nearer the extinction end of
the continuum.'' 57 Fed. Reg. 1822 (1992).
Two species in the Southwest the Rio Grande silvery minnow and the
cactus ferruginous pygmy owl both vividly demonstrate the importance of
critical habitat for most species during Section 7 consultation. With
regard to the pygmy owl, the Army Corps of Engineers ended consultation
on several important estate development projects that would negatively
impact identified pygmy owl recovery habitat immediately after a
Federal court vacated the pygmy owl critical habitat designation.
National Association of Home Builders v. Norton, slip op. (D. Arizona
Sept. 19, 2001). With just approximately 18 adult pygmy owls identified
in the United States, and habitat loss and destruction being the key
factors in the species' decline, this imperilled bird (like the
woodland caribou and grizzly bear) needs all the prime desert habitat
it can get. See, e.g., 62 Fed. Reg. 10730 (1997)(final listing rule for
pygmy owl, emphasizing the central importance of habitat protection for
the species).
With regard to the silvery minnow a recent U.S. Court of Appeals
decision reinforces how critical habitat helps not only individual
species, but also entire ecosystems. Rio Grande Silvery Minnow et al.
v. Keys, slip op. (10th Cir. June 12, 2003). It should also be noted
here that, despite the rhetoric by some to the contrary, this decision
is balanced and requires only that the Bureau of Reclamation consider
wildlife imperilled with extinction when dealing with water shortages
under Federal water contracts. Id.
Thus, we are extremely concerned by the Bush Administration's
announcement last month that it will seek to delay once again its work
on the critical habitat designation for over thirty threatened and
endangered species. Having successfully engineered its own budget
crisis, the Administration now seeks to deny affirmative habitat
protection for those species that most need it, including the pygmy
owl, including many species that contribute to California's biological
diversity, and including the bull trout that is negatively impacted by
U.S. and Canadian forestry actions alike.
MANY BENEFITS OF THE CONSULTATION PROCESS
Case Studies: Sonoran pronghorn, Lynx, Migratory Birds
With all due respect, we disagree that: 1) most ``no jeopardy''
findings under the Section 7 process are ``inevitable'' or that 2)
``more and more of these unneeded consultations'' provide ``no
benefit'' imperilled wildlife species. Crapo Letter to GAO at 1.
First, the high incidence of ``no jeopardy'' opinions has as much
to do with the political and economic pressure that project applicants
apply upon the action agency as it does with the biological integrity
of the agency actions in question. See Oliver Houck, The Endangered
Species Act and Its Implementation by the U.S. Departments of the
Interior and Commerce, 64 University of Colorado Law Review 277, 326
(1993)(``Taken together, Interior's regulations present a composite
picture of an agency doing everything possible within law, and beyond,
to limit the effect of protection under Section 7(a)(2).''). Second,
even when a no jeopardy opinion is validly written, the statutory
language (and practice) of the ESA is that ``reasonable and prudent
alternatives,'' ``reasonable and prudent measures,'' and ``terms and
conditions'' by FWS or the National Marine Fisheries Service (NMFS) can
all positively impact the final agency action going through
consultation. See, e.g., ESA, 16 U.S.C. Sec. 1536(b)(4). Avoidance,
minimization and mitigation are important concepts in the Section 7 and
10 processes. See generally Michael Bean and Melanie Rowland, The
Evolution of National Wildlife Law (1997).\1\
---------------------------------------------------------------------------
\1\ See also David Malin Roodman, Paying the Piper: Subsidies,
Politics and the Environment (1996); Elizabeth Losos et al., Taxpayers'
Double Burden: Federal Resource Subsidies and Endangered Species
(1993); Thomas Power, Not All That Glitters: An Evaluation of the
Impact of Reform of the 1872 Mining Law on the Economy of the American
West (1993)(all three reports highlight examples of Federal agency
expenditures that are economic and ecological losers).
---------------------------------------------------------------------------
A case in point is the highly endangered Sonoran pronghorn, of
which as few as 20 individual adults now inhabit the United States.
Listed since 1967 when the original voluntary endangered species law
was passed by Congress, this desert species has declined due to a
number of individual agency actions that have degraded its habitat,
most of which is on Federal land (e.g., DOD, FWS, BLM, NPS, Border
Patrol). A Federal court has ruled, consequently, that the Federal
family must do a much better job cumulatively assessing and acting upon
threats to the Sonoran pronghorn. Defenders of Wildlife v. Babbitt, 130
F.Supp. 2d 121 (D.D.C. 2001). If anything, the subsequent consultations
pursuant to this judicial decision have usefully identified threats and
actions impacting the pronghorn. The problem has been getting the
action agencies to do the right thing. As one of several examples,
despite recognition that hot desert cattle grazing in the Sonoran
Desert is adversely impacting the Sonoran pronghorn (an earlier GAO
study already has concluded that hot desert grazing is an economic
disaster for the Federal Government), the Bureau of Land Management in
its ``no jeopardy'' opinion has essentially allowed ``business as
usual.'' U.S. FWS, Biological Opinion for Five Livestock Grazing
Allotments in the Vicinity of Ajo, Arizona (2002).
Another example of proper consultations leading to wiser
governmental decisions pertains to the lynx and northern national
forest management. Under court order to designate critical habitat for
this species, we believe the FWS (and the Forest Service, which tends
to be the action agency with regard to this species) would help both
the lynx and the national forest program by rigorously analyzing the
impact of certain projects upon meso-carnivore protection. See
generally Leonard Ruggiero et al., Ecology and Conservation of Lynx in
the United States (1999). However, the recent proposal by the Bush
Administration to allow the Forest Service to make its own consultation
decisions on actions ``likely to adversely affect'' listed species
turns the notion of independent wildlife analysis on its head, and is
illegal. 68 Fed. Reg. 33806 (2003).
Similarly, it is blatantly illegal for the Services to allow the
Environmental Protection Agency (EPA) to opt out of consultations
altogether with regard to its pesticide approval program. 68 Fed. Reg.
3786 (2003). As Defenders has noted in detailed comments to the EPA and
the Services, our Federal Government's top biologists cannot be written
out of the process to evaluate the safety of new chemicals that come on
line almost every day. This is an issue not only for many wildlife
species, and particularly the migratory birds discussed by Rachel
Carson almost forty years ago, but also for human health.
CONCLUSION
We believe Section 7 of the ESA is fundamentally sound. With
adequate financial resources, we believe the FWS and NMFS possess the
ability to streamline consultations (and related environmental reviews)
when necessary to do so. Long opposed by many industry applicants, we
believe the time has come to add sunshine to the relatively closed
Section 7 process in order to better understand the process and to
potentially fine tune it. Self-consultation by action agencies is not
the way to go. Holding action agency expenditures accountable to good
fiscal and ecological oversight is where we should be heading.
Thank you for your time and attention. I would be happy to answer
questions or respond to comments.
__________
Statement of Richard Dieker, President of the Yakima Basin Joint Board
ESA SECTION 7 CONSULTATIONS
Chairman Crapo and members of the Subcommittee: I am here
testifying today on behalf of the Yakima Basin Joint Board, an
association of major irrigation districts in the Yakima River Basin,
Washington. The Board has been attempting to work with the National
Marine Fisheries Service (now ``NOAA Fisheries'') and the U.S. Fish &
Wildlife Service on Section 7 Endangered Species Act issues for nearly
5 years.
As a result of the Services' actions, or more accurately lack of
actions, the Board has experienced significant hardship, expense, and
delay which has hindered the legitimate and valuable operation of the
Yakima Reclamation Project.
Our experience has led us to conclude the Section 7 consultation
process is seriously flawed because of the arbitrary, dilatory, and
negative administration of the process by NMFS and USFWS.
Both services have often even refused to include the Board in many
Section 7 consultation discussions, even though the Board has requested
to be treated as, and has been advised that we are being treated as, an
``applicant'' in the Section 7 consultation.
The Yakima Reclamation Project was begun in 1905, and has been the
backbone of the irrigated economy in the Yakima River Basin since
construction was largely completed in 1917. The Project includes 6 dams
in the Cascade Mountains that store winter and spring runoff for use in
the hot and dry summers. The Project has been completed and operating
since 1917, except for the Kennewick division which was completed in
the 1950's. It has been a very successful Reclamation project. More
information on the history of irrigation in the Yakima River Basin is
included in Appendix A-1.
Under Section 7 of the ESA, the Bureau of Reclamation has consulted
with NMFS and USFWS regarding the operation of the project, to the
extent the Bureau has discretion in its operations. The Bureau also
consulted with NMFS and USFWS regarding repair or reconstruction of one
of the Project dams,
Keechelus dam, under the Safety of Dams Act. That Keechelus dam
consultation is the subject of litigation which is still on appeal to
the U.S. Ninth Circuit Court of Appeals.
The following issues and relevant information describes the Board's
consultation experience. More detail about each subject is presented in
the Appendicessome appendices, which are identified with the same
letter as in the titles.
A. SPECIFIC ESA SECTION 7 PROBLEMS EXPERIENCED BY THE BOARD
(1) Consultation Has Cost Board, its Members and their waterusers over
$1.7 Million; YBJB scientific expertise
The Board and its members have incurred and paid more than
$1,000,000 to its fish biologists, more than $239,902.00 to attorneys,
and more than $530,000 for dedicated staff time and other costs
responding to the ESA Section 7 consultations on the operations of the
Yakima Reclamation Project, on the Keechelus dam repair consultation,
and for other ESA compliance issues.
Section 7 consultation costs have been a severe financial burden to
YBJB landowner/waterusers whose irrigated crop income and production
have been adversely impacted in the past five (5) years by drought and
depressed prices of major Project asparagus, fresh fruit (apples,
etc.), hops, mint and other irrigated crops.
Attached Appendix ``A-2'' contains more details about YBJB's
consultation related costs.
Most of these costs and expenses were required to provide the best
available science to the U.S. Bureau of Reclamation for its use in the
Section 7 consultations on the operations of the Yakima Reclamation
Project and its ESA Section 7 consultation.
The Board has, since 1992, retained experienced, independent and
professionally qualified fish biology advisors and consultants: (1) who
are familiar with, and knowledgeable about, fish, habitat, State and
Federal laws and regulations and other activities and conditions in the
Yakima River Basin, the Western United States, Alaska and Canada, and
(2) who have contributed to the preparation of this testimony and
statement. Since the listings of the Bull Trout and Steelhead, the
overwhelming majority of their time has been spent on ESA issues or
performing research that is directly relevant to and has been used in
the Section 7 consultation.
Appendix ``A-3'' contains brief statements describing the
qualifications of the Board's fish biologists.
(2) Delays in Resolution of the Consultation; Bureau of
Reclamation consultation chronology
For nearly 5 years, Tthe Board has been actively involved in ESA
Section 7 consultation and has helped the Bureau of Reclamation respond
to issues raised by NMFS and USFWS (the ``Services'') in the Project
operations consultationproblems for nearly 5 years. The Section 7
consultation on Project operations is still not complete.
The Board's Section 7 consultation expenses started in August, 1998
when a Bureau representative formally notified the Board's president
that the Bureau was required to consult with NMFS. Previously, the
Board's biologists had reviewed and commented on the proposed listings
of the fish. After the consul-tation started, the Board's biologists
provided input and assistance to the Bureau while the Bureau was
developing its ``Biological Assessment.'' The Biological Assessment is
the first step of a formal Section 7 ESA consultation. In 1999, The
Bureau presented a draft ``Biological Assessment'' to the Services for
their review and comment. The Bureau submitted a Final Biological
Assessment to the Services in August, 2000. Under Section 7 and its
implementing regulations, the Services are supposed to conclude the
consultation by issuing a ``Biological Opinion.'' Section 7 of the ESA
requires consultations to be completed within 90 days, subject to
extension only to 150 days unless the applicant consents to a longer
period. It has been almost 3 years, over 1000 days, and no Biological
Opinion has been issued.
To the Board's knowledge, there has still not yet been no
resolution of the original basic issues such as the scope of the
consultation, new issues have surfaced, problems, new problems keep
surfacing, and there is no realistic timeframe for completion. The
Services that would allow the Yakima system to function. The twohave
hired large numbers of staff to deal with new endangered species
listings, largely designated by themselves, to assist with their
workload. The effect of agency expansion, however, has only served to
allow the Services to attempt to ir expanded their authority over
Yakima Reclamation Project operational and maintenance issues, and the
extension of consultation far into the future.
Appendix A-4 is a chronology of consultation activities prepared by
the Bureau of Reclamation's Yakima Office which shows the Bureau's
efforts to conclude the consultation.
(3) Consultation requires education and Expense
The new hires by the Services have often been inexperienced junior-
level biologists who must negotiate complex and contentious technical
issues. The results of their questionable decisions has required the
Board to retain recognized experts in fisheries science to more
correctly examine the issues raised, provide accurate analyses, and
educate the new hires in the science they are supposed to administer.
Appendix A-5 contains more detail on this subject.
(4) ESA administrative rules are vague
The classification of hatchery fish by NMFS under the ESA, and the
subsequent judicial review of that classification, is a good example of
the Services' arbitrary interpretation of the ESA. Judge Hogan found
that NMFS wrongly excluded hatchery fish from the population under
consideration for listing and sent the issue back to NMFS for
reconsideration. (See, infra, p. 31) There are many other examples of
vague administrative rules that wrongly interpret the ESA, including
the appropriate definition of an ESA ``species'', what is meant by
``evolutionarily significant'', who determines ``evolutionarily
significance'', and differences in interpretation of responsibility by
NMFS and USFWS.
Another classic example of NMFS arbitrariness is the listing of
Steelhead trout as threatened. It is known beyond dispute that
Steelhead are genetically identical to rainbow trout and in fact
interbreed with rainbow trout. Rainbow trout are plentiful in the
Yakima River, which supports a trophy fishery for them. Yet, Steelhead
were listed as threatened, and NMFS has refused to delist them.
Appendix A-6 contains more detail on these issues.
(5) Impartial analyst or biased advocate?
The legal structure of the ESA is contrary to the precept of
keeping scientific data and analysis independent of the influence of
political objectives. The service which is expected in the ESA Section
7 consultation process to act as a ``neutral analyst'' while
determining deciding whether or not to list a species is the same
service charged with regulating activities which might affect the
species of concern. The potential for the service to act in its own
self-interest and expand it's own administrative power and budget is
obvious. Congress and the executive branch should amend the ESA and/or
require by regulation an independent review of the species' ``status''
to avoid the services' ``conflict of interest'' when the same service
is responsible for both analysis and advocacy.
B. ADMINISTRATIVE ERRORS AND ESA MISINTERPRETATION
During the past decade, NMFS has greatly expanded the ESA list of
Pacific salmon it considers ``threatened'' or ``endangered''. species.
The pace and scope of these listings is indicative of obvious,
substantial flaws with the Services' interpretation and administration
of the Act. These expensive, time-consuming listing problems can be
traced back to NMFS policies which redefine the intent and purpose of
the Act to: (1) conserve genetic diversity rather than protect actual
species, sub-species, or distinct population segments, (2) redefine the
unit at risk to be an ``Evolutionary Significant Unit'' or ``ESU'', a
concept introduced to satisfy the genetic conserva-tion goals only
incorrectly assumed by NMFS, and (3) further subdivide the units at
risk. An example of this last problem is the implementation of policies
to exclude fish of hatchery-origin from listed populations of the same
population segment, regardless of their relationship to naturally
spawning fish which was considered and rejected by Judge Hogan, noted
above and infra, p. 25.
More detail on this subject is contained in Appendix B.
C. IMPROPER LISTING OF SPECIES; COLUMBIA RIVER SALMON, STEELHEAD TROUT
AND BULL TROUT ARE NOT THREATENED WITH EXTINCTION
Salmon and steelhead in the Columbia Basin have experienced
declines in abundance since the end of the 19th century[BJI1].
Decreased abundance was, howeverin large part, a result of overfishing
and of an intentional Federal Government decision to develop the
Columbia River water resources for greater economic benefit. As a
result, only about 20 percent of the historical habitat remains
available to spring chinook and steelhead.
When the Federal Government made the decision to developthose the
Columbia River's water resources, it also decided to establish
hatcheries to produce salmon and steelhead to maintain the fisheries,
and later to supplement natural spawning populations. Those efforts
were largely successful, in conjunction with the changing ocean
environment. Numbers of chinook salmon and steelhead returning to the
Columbia in the last 4 years have been higher than any comparable
period since the 1930's. Steelhead are not at risk of extinction, yet
there is no serious discussion of delisting, and the power of the
Services power keeps expanding.
Similarly, there is no evidence that bull trout are at risk of
extinction. Bull trout status now in relationship to their historical
abundance in the basin is poorly known, mostly because of a lack of
information on historical abundance. Bull trout were listed because of
this lack of information, without any actual knowledge or evidence that
they were at risk of extinction, or even declining in numbers. Natural
production continues throughout the system and abundance seems to be
increasing mostly because of a restriction on fishing. Bull trout have
much lower population densities than steelhead and salmon because, as a
predator species, lower abundance is a strategy that favors survival in
headwater reaches and smaller streams. Bull trout are obviously not at
risk of extinction in the Yakima Basin. Their numbers are stable or
increasing.
More detail on this subject is available in Appendix C.
D. THE UNITED STATES HAS NO LEGAL AUTHORITY TO CHANGE THE USE OR
REALLOCATE YAKIMA RECLAMATION PROJECT SURFACE IRRIGATION WATER WHICH IS
OWNED BY YAKIMA RECLAMATION PROJECT LANDOWNER/WATERUSERS; THE U.S. IS A
``TRUSTEE'' FOR THE BENEFIT OF PROJECT IRRIGATOR LANDOWNER/ WATERUSERS.
Yakima Reclamation Project landowners and waterusers have,
according to the United States Supreme Court, a constitutionally
protected, vested Washington State approved and certificated ownership
ofrights to Yakima Reclamation Project surface water. and water rights
pursuant under Federal and Washington State water rights law. The
Bureau of Reclamation is obligated by law and contract to annually
deliver to Board members their full annual entitle-ments. The
Washington State Supreme Court has confirmed that the irrigator's
Project water rights are only subject only to a substantially
diminished Treaty fish water rightto protection of fish for
substantially limited because the Yakama Nation filed a claim in the
Federal Indian Claims Commission against the U.S., negotiated a
settlement and was, in 1968, paid $2.1 million by the U.S. as part of
the final settlement of three (3) land claims plus the Nation's fishing
diminution claim all of which were dismissed with prejudice.
Nonetheless, yet both NMFS and USFWS have been attempting through their
actions to modify or restrict the use of established irrigator water
rights. The Services continue to attempt to use the consultation
process to modify these vested water rights despite their own
regulations which recognize that consultation is required only for the
Bureau's discretionary acts. The Board does not believe the Bureau has
legal discretion to take any part of these vested irrigation water
rights and reallocate them for ESA or any other purpose including fish.
Appendix D provides additional background on the legal rights of
Yakima Reclamation Project irrigator landowner/waterusers.
E. CONCLUSION
The Endangered Species Act is important national legislation. The
Board supports the ESA, but only as it was originally passed by
Congress. The Board Yakima Basin Joint Board, a group of public water
suppliers who deliver water supplied by the United States Bureau of
Reclamation Yakima Project in central Washington State, considers the
problems it has encountered with the ESA, and particularly in the
Section 7 Consultation process, to have reached crisis proportions. The
serious and disabling problems created are the result of erroneous
administration and administrative interpretation of the Act by the NMFS
and USFWS, and weakness in the Act itself that permit service errors.
problems. Testimony on the controversial concepts and abuses in
administration of the Act has been identified in this presentation.
Bull trout and steelhead trout are listed as a threatened species
under the Endangered Species Act throughout the Columbia Basin,
including the Yakima River when in fact neither species is at risk of
extinction. Consequently, the Board has had to expend considerable time
and over one million dollars on legal and scientific advice to maintain
their constitutionally protected water rights and provide the best
available science to the Bureau of ReclamationUSBR, NMFS, and the USFWS
for use in the Section 7 consultation occurring on the operations of
the Yakima Reclamation Project.
This ESA burden exists because both bull trout and steelhead were
listed by services that NMFS and USFWS have misinterpreted the ESA to
protect genetic diversity, rather than subspecies or distinct
population segments as defined by the ESAAct. Pacific salmon,
steelhead, and bull trout in the Columbia Basin are not at risk of
extinction, but the misinterpretation of the ESA Act has allowed the
widespread listings of these species through arbitrary internal agency
policy decisions. These decisions have been upheld by the courts
because of the great deference the courts show to the services which
administer the ESA.
Congress must clarify the ESA to prevent the misinterpretations
that have resulted in the listing of species that are at no risk of
extinction. Congress must remove the Services discretion to list
``ESUs'' rather than subspecies or distinct population segments.
Congress must take action to correct the flaws in the administration of
the ESA that have resulted in grievous hardships to water users and
private land owners, and to prohibit the very controversial genetic
diversity concepts originating from the services' policy memoranda
rather than from the congressional legislation. It will be necessary
that Congress must precisely define its goals, objectives and expected
actionsbe precisely redefined to , and leave no uncertainty about the
purpose of the Act and the extent of its authority. Congress must
provide , as well as providing clear guidelines on agency actions,
administration of those actions, and the consultation process, and put
teeth in the provisions, routinely ignored, that consultations proceed
on time.
Congress will, by positive action, remove the discretion that has
caused the Ninth Circuit and other Circuits of the Federal Court of
Appeals to defer to the services' misinterpretation of the ESA and the
resulting seizure of power.
Appendices
APPENDIX A-1
Yakima River Basin, Irrigation in the Yakima River Basin
and the Yakima Reclamation Project
The Yakima River Basin (``Basin'') in south-central Washington
State is the approximate 6,155 square mile, 4 million acre (an area
larger than the State of Connecticut) surface water drainage of the
214+ mile Yakima River and its tributaries.
The Basin is bordered on the west by the Cascade Mountains with
desert/steppe rangeland on the east, north and south. The Yakima
River's headwaters are on the eastern slopes of the Cascades and flows
generally from northwest to southeast until it empties into the
Columbia River between Kennewick and Richland, Washington.
Annual Basin precipitation (mostly snow) on the eastern slopes of
the Cascades during late fall, winter and early spring may exceed 120
inches but both snow and rain in the irrigated farming areas of Benton,
Kittitas and Yakima Counties annually average only between eight (8)
and ten (10) inches.
Irrigated agriculture, the main economic activity in the Yakima
River Basin, uses approximately 1,000 square miles of the Basin's area.
(1) Pre-1905 Irrigation
By 1902, there were an estimated 121,000 acres under irrigation in
the Yakima Basin, representing about 25 percent of the present
irrigable development. This acreage was served by natural flows in the
river and tributaries, with none of the present large storage dams and
reservoirs in existence. The natural runoff was inadequate to insure a
dependable water supply for the development even at the turn of the
century.
Because of early over appropriation of available water supply, no
additional irrigation development for many fertile acres in the Valley
was feasible unless two things were accomplished: First, existing
claimants had to agree to restrict their water usage to beneficial use
and equitable distribution, particularly in the low late summer period;
and second, water storage was necessary to salvage the early season
runoff for supplying irrigation needs for new land development.''
[Lentz, Review of the Yakima Project and Other Data, (1974), pp. 1-2]
(2) Post-1905 Irrigation; the Yakima Reclamation Project
The U.S., between 1913 and 1933, developed the Yakima Reclamation
Project by constructing six (6) irrigation water storage reservoirs
(Bumping, Clear Creek, Cle Elum, Keechelus, Kachess and Rimrock) with
total active capacity of 1,070,700 acre-feet (``a/f''), as well as
diversion and conveyance facilities between 1906 and 1958 for the five
(5) major Yakima Reclamation Project divisions (Kennewick, Kittitas,
Roza, Sunnyside and Yakima-Tieton) plus the Wapato Irrigation Project
(``WIP'').
The water storage reservoirs are operated to conserve winter and
spring water (``runoff'') for release during the low water summer
irrigation season.
The Yakima Reclamation Project's 465,000 acres of irrigable land
annually requires approximately 2,500,000 acre-feet of water to
successfully grow marketable crops.
An ``acre-foot'' of water is the amount of water needed to cover an
acre of land to a depth of one (1) foot of water.
Yakima Reclamation Project landowner/waterusers have repaid, and
continue to annually pay, the U.S. for all Yakima Reclamation Project
construction, annual maintenance, operation and repair of the storage
reservoirs allocable to irrigation.
<GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT>
Figure 1. The western portions of the Yakima Basin are forested
mountains of the Cascade Range, while the eastern, low elevation
portions of the Basin are arid agricultural and range land. Over
465,000 acres of agricultural land is served by the Yakima Reclamation
Project.
APPENDIX A-2
Consultation has cost the Board, its members and their waterusers over
$1.7 million
(1) Joint Board Biologist Fees: $1,060,943.00
Since 1998, the Board has spent $1,060,943.00on biologists. The
work done by those biologists since that time has either been directly
related to the Section 7 consultation or has been research that is
relevant to and useful in the Section 7 consultation.
(2) ESA-related Attorneys Fees and Cost Estimates:
$239,902.00
Joint Board members estimate they have spent at least the following
amounts on attorneys fees and costs on matters directly related to ESA
matters. Because of divisions of labor among the members' attorneys,
the Kennewick Irrigation District's attorneys and the Yakima Tieton
Irrigation Districts attorneys have spent the most time and effort on
ESA matters.
a. Kennewick Irrigation District
------------------------------------------------------------------------
$
------------------------------------------------------------------------
1998....................................................... 12,170
1999....................................................... 18,387
2000....................................................... 5,312
2001....................................................... 6,634
2002....................................................... 16,159
2003 to date............................................... 12,501
------------
$71,163
------------------------------------------------------------------------
b. Roza Irrigation District
Roza Irrigation District estimates that its share of ESA-related
attorney's fees are approximately $50,000.
c. Sunnyside Division
------------------------------------------------------------------------
$
------------------------------------------------------------------------
8/98 to 12/98.............................................. 2,125
1999....................................................... 7,750
2000....................................................... 5,923
2001....................................................... 9,116
2002....................................................... 3,825
1/03 to 7/03............................................... 5,000
------------
$33,739
------------------------------------------------------------------------
d. Yakima Tieton Irrigation District
YTID estimates that its share of ESA-related attorney's fees are
approximately $50,000. This does not reflect all ESA-related work done
for YTID's benefit because YTID's attorneys were splitting the bill for
their Yakima River ESA-related work between YTID and other clients.
e. Kittitas Reclamation District
Kittitas Reclamation District estimates its ESA-related attorneys
fees have been $35,000.
TOTAL ATTORNEYS FEES AND COSTS: $239,902.00
(3) ESA-related Staff Cost and Other Cost Estimates: $534,786.00
a. Kennewick Irrigation District
Kennewick's Secretary/Manager estimates that he spends a minimum of
2 days per month on ESA matters. Prorating his annual salary for the
period since June, 1998 results in a staff time loss of: $63,440.
b. Roza Irrigation District
Roza estimates that its Secretary/Manager (now retired and part
time spends approximately 10-15 percent of his time on ESA related
matters)
c. Sunnyside Division
SVID estimated costs related to ESA: $113,652
Average Monthly meetings w/ some relation to ESA since Jan 1998:
At least 7 meetings per month with multiple staff members
concerning YBJB, WSWRA, AFW, Tri-County, and YRBWEP
d. Yakima Tieton Irrigation District
Did not provide estimate
e. Kittitas Reclamation District
i. KRD Manager: $29,040
Average Monthly meetings w/ some relation to ESA since Jan 1998:
5.5 yrs x 12 months x 5 meetings x 4 hrs per meeting x $22 payscale =
$29,040
Meetings include YBJB, KCWP, KRD Board, Manastash Creek, Tucker
Creek, Taneum Creek, YRBWEP, Tri-County, WSWRA, AFW)
ii. KRD GIS Staff: $12,562
iii. KCWP staff: $5000 per yr over 4 yrs: $20,000
iv. NRCS/KCCD: $7,500 per yr over 4 yrs: $30,000
v. KCWP/KCCD related activities: $15,000 per yr over 2
yrs: $30,000
vi. Additional District related Costs: $236,092
YRBWEP: KRD Comp plan and addendum: $130,000
Taneum Creek Gage Stations and related hardware: $50,000 ($10,000
per station x 5 stations [Confluence of Yakima, Bruton Ditch, Taneum
Ditch, Taneum Ck above chute, Mann Ditch]. Taneum Creek Gage Stations /
operations and related staff time: 5.5 yrs x ave yr $5266 = $28,962.
Taneum fish passage contract (weir pools at Mann Ditch): $27,130.44.
Total: $236,092
TOTAL KRD ESA STAFF TIME AND OTHER ESA EXPENDITURES: $357,694
TOTAL BIOLOGISTS, ATTORNEYS, STAFF AND OTHER COSTS ATTRIBUTABLE TO
ESA: $534,786
APPENDIX A-3
YBJB Scientific Expertise
(1) Ernest L. Brannon, Ph.D. is a Professor emeritus at the
University of Idaho who has specialized in salmonid life history, ESA
listed salmonid species, engineered habitat, aquaculture and is a
Distinguished Research Professor in fisheries.
(2) Steven P. Cramer has been a fisheries consultant to private
firms, State and Federal agencies, and Indian tribes since 1987, after
serving 13 years with the Oregon Department of Fish and Wildlife
(ODFW), where he directed major research programs. Mr. Cramer has
participated on the Technical Advisory Team set up by NMFS for the ESA
reviews of both Coho and steelhead on the West Coast. He has worked
closely with the key NMFS biologists responsible for completing the ESA
status reviews for anadromous salmonids. He has been the lead author on
six major reports supplied to NMFS for ESA status reviews of Coho and
steelhead populations. Three times, Steve Cramer has been contracted to
guide ESA status reviews for fish populations in an entire State,
including Coho in Oregon, steelhead in Oregon, and steelhead in
California. He was selected by Bonneville Power Administration to
organize and lead a team of Northwest consultants to prepare a series
of 11 reports on recovery issues of threatened and endangered Snake
River salmon.
(3) D. Brent Lister. Mr. Lister is a fishery biologist with 25
years of experience as a consultant in salmon enhancement and fish
habitat impact analysis, and 15 years experience as biologist and
senior program manager with the Canada Department of Fisheries and
Oceans on both the Pacific and Atlantic coasts. His key expertise is in
stream habitat utilization and population dynamics of salmon and
steelhead. Since 1990, Mr. Lister has been retained as a consultant to
the Yakima Basin Joint Board on ESA consultations and status reviews
relating to steelhead and bull trout, and on a variety of issues
concerning river flow regime effects on salmon spawning, and the
rearing and seaward migration of juvenile salmonids.
(4) Patrick A. Monk, consulting fish biologist for the Yakima Basin
Joint Board, an association of major irrigation districts and
municipalities in the Yakima River. Mr. Monk's has worked on a wide
variety of fisheries management projects, including Endangered Species
Act analysis and consultation and designing and conducting field
studies of fish and their habitats. Mr. Monk holds a Master of Science
degree in Fishery Resources, University of Idaho (2002), and a Bachelor
of Science in Zoology, University of Wisconsin-Madison (1989).
(5) Thomas R. Payne, Certified Fisheries Scientist, is Principal
Associate of Thomas R. Payne & Associates, Fisheries Consultants,
located in Arcata, California. He is a specialist in the application of
the Instream Flow Incremental Methodology (IFIM) to determine the
impacts of flow alteration on aquatic ecosystems. In the past 15 years,
he has conducted or reviewed over two hundred instream flow studies on
proposed and existing hydroelectric and irrigation projects. Projects
have been located in areas ranging from mountain streams in Hawaii to
major rivers on the East Coast, with an emphasis on high gradient
streams in the Pacific Northwest. Work associated with IFIM and
directed by Mr. Payne includes fish population sampling, habitat
mapping and typing, hydraulic measurements, habitat use determinations,
computer simulations, license application preparation, agency
negotiations, post-project analysis, and expert witness testimony.
(6) Kenneth L. Witty, senior fisheries consultant, started his
career in fisheries a district biologist for the Oregon Department of
Fish and Wildlife (ODFW) in 1963. The focus of his work with ODFW was
inventory and management of fish resources and inventory and protection
of their habitats. He administered the Lower Snake River Fish and
Wildlife Compensation Plan in Oregon. Since retiring from ODFW, Mr.
Witty has worked with S.P. Cramer and Associates, Inc., focusing on the
preparation of (1) reports assessing fish populations, trends and risk
assessments, genetics, competition/predation, and re-introductions, (2)
biological assessments for the ESA, 404 permits including Section 10
authorization to sample listed fish, and gravel fill/removal permits,
(3) habitat surveys, restoration, and carrying capacity estimates, (4)
hatchery siting, design, and brood stock collection, and (5) passage
evaluation at main-stem dams.
APPENDIX A-4
Bureau of Reclamation Consultation Chronology
YFO O&M consultation timeline
------------------------------------------------------------------------
------------------------------------------------------------------------
6/24/98........................... *COM001*Request for species list
from FWS to initiate consultation
on YFO operations
7/23/98........................... ESA Mtg with FWS. Discussion covered
how to approach compliance. OK'd
with a BO for interim period until
IOP complete. FWS approved outlined
process for proceeding with BA.
Reservoir operations (bull trout
access, fluctuations and
productivity, a minimum for Rimrock
pool 10,000AF), activities below
the reservoirs (hydro graphs,
passage at storage dams, show all
diversions, identify screens and
ladders, Clear Cr Ladder),
operations post flip-flop
7/28/98........................... Memo from BR to FWS concerning
relationship of IOP to consultation
suggesting a meeting
8/10/98........................... NMFS/BOR discussed biological issues
including, describing the fish
protective facilities, facility
maintenance, instream flows. NMFS
suggests getting data from YN
12/2/98........................... e-mail from FWS to BR concerning
draft sections of the BA supplied
to FWS
12/4/98........................... Mtg with FWS @ Moses Lake. FWS
comments on Reclamation data
development and biological
assessment outline. Outline
included w/ agenda.
9/1/1999.......................... Transmit draft BA to FWS and NMFS
and request comments. Hand
delivered to NMFS and made
PowerPoint presentation
10/14/1999........................ Memo from FWS to BR transmitting
comments on draft BA
11/30/1999........................ Met with NMFS to discuss Salmon
Creek and spoke with Fransen about
comments on the draft YFO ops BA
12/1/1999......................... Meeting with FWS to discuss comments
on draft BA
5/25/00........................... Met with NMFS to discuss BR
consultations including YFO ops and
Keechelus. NMFS raised issue of
``jeopardy'' at Keechelus if
passage not included. ``No train
wrecks"
8/7/2000.......................... Sent final BA to FWS and NMFS.
Offered to meet and discuss BA.
9/22/2000......................... Memo from FWS to BR indicating that
BA was adequate to initiate
consultation which began on August
8, 2000 and was to be completed on
or before December 20, 2000.
12/20/2000........................ 135 day consultation period ends on
YFO Ops
1/19/2001......................... Memo from FWS notifying us and
irrigation districts that FWS was
going to use 60 extension provided
to coordinate more with NMFS and
BR.
2/19/2001......................... First 60 extension for FWS ends for
YFO ops BO
3/12/2001......................... 2001 Drought Operations Mtg. @ BOR.
Discussion included Rimrock Lake,
Easton Ladder, flushing flows, etc.
3/27/2001......................... Memo from FWS to BR requesting 60
day extension to provide for
additional coordination with BR.
3/30/2001......................... FWS/BOR Yakima Field Office Section
7 Consultation Mtg. @ BOR.
Discussion included Legal and
Contractual Considerations, 2001
Operations, Brief overview of BA
4/13/2001......................... FWS/NMFS/BOR Section 7 Consultation
Meeting @ Kittitas Reclamation
Office. Discussion included FWS/
NMFS comments on Yakima Project
Operations BA, and presentation of
FWS Recommendations on Drought
Operations. 4/6/01 comments by USFW
on the Yakima Operations Biological
Assessment FWS and NMFS commit to
draft BO's in Aug/September
timeframe.
4/30/2001......................... Letter Received from USFW to the
BOR: Request for Extension on
Section 7 Consultation on the
Yakima Project Operations and
Maintenance. Committed to formulate
BO by July 18 and transmit draft BO
by September 1, 2001
5/11/2001......................... Meeting with NMFS and FWS to discuss
BA. Discussed 4/30 letter from FWS
to BOR. Handout prepared by Steven
P. Cramer and Ray Beamesderfer
entitled Simulation of Bull Trout
Impacts at Rimrock Reservoir
Resulting form Entrainment at
Drawdown as well as graphs with
fish counts and size
6/7/2001.......................... Two field trips hosted by ID's to
look at irrigation systems
7/18/2001......................... Per 4/307/2001 request, FWS to have
formulated BO on YFO ops
9/1/2001.......................... Per 4/30/2001 request, FWS to
deliver draft BO on YFO ops
9/17/2001......................... Meeting with FWS to discuss YFO ops
and Keechelus consultation.
9/21/2001......................... Meeting with NMFS and WA State to
discuss Keechelus and O&M
consultation. NMFS commits to
assign staff to work on both and
commits to a White Paper on the O&M
consultation
3/15/2002......................... Conference call with NMFS and FWS.
Both agencies commit to White
Papers outlining there assessment
of affects of the proposed action
on listed species and a jeopardy/no
jeopardy analysis.
6/27/2002......................... Meeting with NMFS and FWS. NMFS
provides an incomplete internal
review draft of their White Paper
dated 6/26/2002. FWS indicates
their White Paper is still under
development.
7/11/2002......................... Meeting with NMFS and FWS. NMFS
provides completed internal review
draft of their White Paper. BOR
commits to provide comments by 1
Aug. FWS commits to providing their
White Paper by ``mid-August'' (Aug
16). Agencies lay out tentative
schedule to complete consultation
by Oct. 2003. Includes a peer
review process for baseline and
project affects analysis.
8/2/2002.......................... BR sends comments to NMFS on draft
White Paper
8/19/2002......................... Conference call to discuss joint
agency letter outlining process and
schedule for completing O&M
consultation. On advice of consul
letter it is decided to delay
sending letter due to Keechelus
lawsuit.
11/20/2002........................ Meeting with NMFS and FWS to discuss
baseline and proposed action. FWS
provides draft version of White
Paper
12/04/2002........................ Meeting with NMFS and FWS to
continue discussion about baseline
and proposed action. Comments on
FWS White Paper discussed. FWS
agreed to lead peer review process.
Parties agree to develop affects
matrices.
12/09/2002........................ Conference call with NMFS and FWS to
discuss baseline issue relative to
the presence of the dams. Parties
eventually agree that dams are in
the baseline.
12/19/2002........................ E-mail from FWS indicating that 8/
2000 BA is inadequate for
consultation purposes and indicates
that consultation should be put on
hold until it is revised.
12/31/2002........................ Phone call to FWS to discuss 12/19 e-
mail. General agreement that
consultation can proceed with a
target date for completion of
October 2003 and BR would provide
additional information as requested
and if available to further
consultation process.
1/06/2003......................... Meeting with FWS and NMFS. Agree to
schedule to complete consultation
in October 2003. Interim dates for
peer review process included.
Worked on affects matrix. Discussed
dam/baseline issue again.
1/08/2003......................... Met with ID's to bring them up to
speed on meetings with NMFS and FWS
since 11/2002.
1/22/2003......................... Meeting with FWS and NMFS. Peer
review process discussed. Meeting
focused on affects matrix for two
example reaches--Cle Elum Reservoir
and Granger-Prosser.
1/30/2003......................... Meeting with FWS, NMFS and ID's. FWS
reports on peer review process
being developed. More discussion
about dams/baseline, FWS indicates
the issue needs to be elevated and
BR agrees. Work on matrix--outline
data sources and analysis
techniques for Cle Elum as an
example for other reaches.
1/31/2003......................... Phone call with FWS to discuss dams/
baseline issue. Agreed issues
needed to be elevated
2/13/2003......................... Meeting with FWS, NMFS and ID's to
discuss Yakima Project maintenance
details. FWS reports on peer review
process. Parties agree to have
matrices available by March 3.
2/19/2003......................... Phone call to FWS on dams/baseline
issue. FWS indicated they did not
believe now was the time to elevate
issue but rather wait until draft
BO was done.
2/20/2003......................... BR memo to FWS in reply to 12/19/
2002 email agreeing to time
extension till end of October 2003
to complete consultation
2/28/2003......................... Meeting with FWS and NMFS to discuss
consultation and peer review. FWS
proposes very abbreviated peer
review process which NMFS doesn't
like and then entire process is
dropped. Agree on interim dates to
complete consultation--affects
analysis by mid-May, BR review by 6/
1, release draft BO by 7/15, take
comments and re-release late
September with final the end f
October. Also agreed to develop
joint briefing paper on dams/
baseline issue.
3/7/2003.......................... Met with FWS to develop joint
briefing paper on dams/baseline
issue
3/19/2003......................... Met with FWS to review joint
briefing paper on dams/baseline
issue. Discussed need to elevate
issue quickly, FWS was to explore
and get back to BR.
3/26/2003......................... 3/27/2003E-mail exchange with FWS
concerning elevation of dams/
baseline issue
4/10/2003......................... Meeting with FWS to discuss dams/
baseline issue. BR feels dams are
in the baseline and FWS believes
affects of the presence of the dams
are an affect of the proposed
action.
4/11/2003......................... E-mail from FWS on dams/baseline
issue and jeopardy analysis. FWS
believes dams and their impacts
could be part of the baseline,
proposed action or both and for
purposes of jeopardy analysis it
make little difference.
4/23/2003......................... BR transmits draft effects analysis
to FWS and NMFS
5/2/2003.......................... Phone call to FWS to arrange meeting
to discuss draft affects analysis
and potential misunderstandings.
FWS doesn't commit.
5/6/2003.......................... E-mail to FWS in response to 4/11 e-
mail
5/7/2003.......................... Phone call to FWS to arrange meeting
to discuss draft affects analysis
and potential misunderstandings.
FWS indicated they had an internal
discussion schedule for 5/9 and
would then get back about arranging
a meeting.
5/14/2003......................... Phone call to FWS to arrange meeting
to discuss draft affects analysis
and potential misunderstandings.
FWS 5/9 discussion did not occur so
meeting can't be scheduled.
6/18/2003......................... E-mail from FWS concerning baseline
issue. Frames issue as BR's
reluctance to treat future affects
of proposed action as effect of the
action.
------------------------------------------------------------------------
APPENDIX A-5
Consultation Requires Education
NOAA and the U.S. Fish and Wildlife Service should insure
biologists conducting ESA consultations are fully qualified because of
the high stakes involved for both the species of concern and local and
regional economies.
ESA consultations can result in significant, negative, destructive
consequences on local and regional economies. After NMFS (now NOAA
Fisheries) listed Pacific salmonids over most of the West Coast, NMFS
was ill-equipped to handle the large volume of consultations required
by the listings. NMFS hired additional staff to cope with the work
load, but in our experience NMFS staff in the field consulting on ESA
issues are often junior-level biologists with limited knowledge of the
species and the factors affecting them.
Consequently, the decisions of ESA administrative personnel are
often contrary to good science and to common sense, and many entities
and individuals required to consult before obtaining government permits
hire biologists from consulting firms with generally high levels of
expertise and experience to resolve the problems created by services
personnel. Thus, ESA consultations frequently consist of novices from
the services consulting with experts from the scientific arena, who
must first educate the services novices before proceeding with the
consultation process. Services biologists should be able to understand
both technical and policy issues before they are responsible for
complex and contentious ESA consultations, but often are not.
APPENDIX A-6
ESA Administrative rules are vague
ESA rules are often vague, increasing the potential for litigation,
and leaving too much discretion to the individual agency biologists
involved directly in ESA consultations.
(1) Hatchery fish not counted.
The treatment of hatchery fish, and the decision from Judge Hogan
(Alsea Valley Alliance vs. Evans, infra, p. 31) in September, 2001, is
just one example of arbitrary and vague decisions made by The National
Marine Fisheries Service (NOAA Fisheries). In the Alsea Valley Alliance
case, Judge Hogan held that NMFS had arbitrarily decided that hatchery
fish were not to be included in the status of a population or species
under consideration for listing.
Although hatchery fish from the same parental source as wild fish
cannot be differentiated from those wild fish, and their progeny will
revert to wild fish when spawned in the wild, NMFS decided that only
the wild component of the population should be included in the
numerical status of the population when deciding whether the
``species'' was at risk, and in essence was subdivided the population
into what NMFS thought was suitable and unsuitable members. The only
difference between the hatchery and wild fish are the identifying marks
applied in the hatchery. Genetically, physically, and reproductively
they were the same fish.
(2) Proposed Bull Trout critical habitat.
Recently, USFWS proposed critical habitat rules for bull trout. A
review of the proposed critical habitat rules revealed the following
weaknesses:
The designation of the appropriate ``environmental baseline''
conditions forms the basis for evaluating actions which may affect
listed species, but the application of the concept is inconsistent
between the action agencies (NOAA/USFWS).
The USFWS may exclude areas from critical habitat designation if
the benefits of excluding areas outweigh the benefits of inclusion.
However, the proposal does not define benefits, or establish any
verifiable criteria for including or excluding habitat.
Critical habitat should, to comply with ESA, include only the
specific areas within the geographic area occupied by the species at
the time it is listed, and which contain the physical and biological
features essential to conservation of the species. Critical habitat
must be limited geographically to what is essential to conservation of
the species although more extensive habitat may be required to maintain
the species over the long term, critical habitat only includes the
minimum amount of habitat needed to avoid short-term jeopardy or
habitat in need of immediate intervention. These provisions of the ESA
are violated by USFWS' proposed bull trout critical habitat. For
example, USFWS proposes to include two (2) streams in the Yakima Basin,
Taneum Creek and the Teanaway River, as critical habitat, even though
these streams do not currently support bull trout. There has been no
discussion with stakeholders (YBJB and others) about whether or not
these streams should be included in critical habitat to avoid short-
term jeopardy. No economic impact analysis has been performed on this
designation of critical habitat.
Definitions of important biological concepts are often lacking when
new rules are proposed under the ESA. For example, the term
``population'' is an important biological concept. The ESA rules are,
however, so vague that on one hand the entire Columbia River basin
population of bull trout is considered a ``distinct population
segment'' for the purposes of listing the fish, while designation of
critical habitat and for a finding of one or two redds in a stream
reach is considered a population for the purposes of recovery planning.
APPENDIX B
Administrive errors and ESA misinterpretation
Serious and unnecessary negative impacts on Pacific Northwest
economy and way-of-life have resulted from the misapplication of the
Endangered Species Act (ESA). These impacts have occurred because of
the policy of the National Marine Fisheries Service (NOAA, formerly
National Marine Fisheries Services or NMFS) as the administering agency
of the ESA for anadromous Pacific salmon.
It is necessary to recall that the purpose of the Endangered
Species Act (ESA) of 1973, including amendments through 1996, is ``to
provide a means whereby the ecosystems upon which endangered species
and threatened species depend may be conserved, to provide a program
for the conservation of such endangered species and threatened
species,'' [ESA, Sec 2(b)].
It is also necessary to recall what the Statute means by the term
species. The term ``includes any subspecies of fish or wildlife or
plants, and any distinct population segment of any species or
vertebrate fish or wildlife which interbreeds when mature'' [ESA, Sec
3(16)]. Therefore, conservation is to include the species at risk and
the ecosystems they depend on, and the term ``species'' refers not only
to the traditional (taxonomic) species such as the condor, grizzly
bear, or northern spotted owl, but also to any distinct population
segment (DPS) of a species which interbreeds when mature.
NOAA has redefined the ``purpose'' of the ESA, the unit at risk,
and what constitutes members of the unit, all of which are contrary to
the wording of the Act.
(1) Purpose of the ESA expanded
The first unauthorized NOAA decision under the Act was declaring
that conserving the genetic diversity of the species was the major goal
of the Act. It was stated by Waples (NOAA Tech. Memo. 194, 1991) that
such a framework accomplished the major goal of the Act, which was ``
to conserve the genetic diversity of species (taxonomic) and the
ecosystems they inhabit''. The genetic characteristics that were
uniquely associated with the population unit would have to contribute
to the overall genetic diversity of the taxonomic species. Therefore,
NOAA decided that, rather than limiting the ESA to conserving species,
subspecies, or DPSs, NOAA's administration of the Act would be to
preserve genetic diversity. Preserving the genetic diversity of a
species, however, requires very different and much broader protections
than what is required for conserving species at risk of extinction.
NOAA's decision was flawed
because it created a purpose for the ESA different from and
substantially more burdensome than, the purpose stipulated by
Congress--to conserve ecosystems and species at risk.
(2) Unit at Risk
A second, but related, unauthorized NOAA decision was to overlook
the statutory definition of the unit at risk, i.e. ``species,''
``subspecies,'' and ``DPS,'' and to adopt the framework that stated a
population or a group of populations would be considered distinct under
the Act ``if it represents an Evolutionary Significant Unit (ESU) of
the biological species'' (NOAA Tech. Memo. NOAA F/NWC-194NOAA, Waples
1991).
NOAA then concluded that to qualify as an ESU the population or
group of populations must be (a) reproductively isolated from other
conspecific population units, and (b) represent an important component
in the evolutionary legacy of the species. NOAA concluded that
isolation need not be absolute, but sufficient to allow evolutionary
differences to accrue that would define the unit as genetically
distinct. These were subjective criteria and open to the interpretation
of the administering action agency.
NOAA established a unit different than species, subspecies, or
distinct population segments around which to administer the Act. An ESU
is not a unit defined by Congress as deserving protection under the
ESA, nor does it fit the definition of a DPS, for which it was meant to
substitute.
Congress intended that a DPS was an interbreeding unit, and that
meaning was clearly stated by Congress in the wording of the Statute.
But NOAA clearly states that ESUs are not limited to interbreeding
units. In fact, Utter et al. (American Fisheries Symposium 17:149-
165,1985) confirms the point that ESUs are not to be considered
panmictic (i.e. interbreeding), because NOAA there states the
``definition of an ESU by no means implies a single panmictic unit''.
The issue is that NOAA decided to substitute multiple, non-
interbreeding populations as a unit at risk, and therefore entitled to
protection in place of the DPS defined by Congress as the interbreeding
population unit. The substitution of ESU for DPS was a flawed NOAA
decision because it created a different category with different
criteria to classify population units than what was stipulated by
Congress.
NOAA's creation of ESUs as a category at risk combined with NOAA's
purpose to preserve genetic diversity, allowed NOAA to include, for
example, all Chinook salmon in NOAA's classification of ESUs. Several
populations can be lumped together based on genetic similarity and
listed within a single ESU, whether or not each population warrants
such treatment. Every population of Chinook salmon from the US/Canada
border to southern California is a member of an ESU and nearly a
hundred separate populations have been included in the listings. These
listings are contrary to congressional instructions, ``to use the
ability to list sparingly and only when the biological evidence
warranted such action'' (96th Congress, 1st Session, 1979 Senate Report
151). NOAA did not use the ability to list ``sparingly''.
Moreover, even listings were contrary to the instructions to list
only when the biological evidence warranted such action. For example,
hundreds of thousands of Chinook salmon were returning each year over
that geographical area, and recently near record numbers in the
Columbia River have returned over the last 3 years, yet several ESUs in
the Columbia Basin are listed at risk of extinction.
However, regardless of the demonstrated strength of Chinook salmon
and steelhead trout returns to the Columbia over the last 4 years,
water users are still subjected to restrictive regulations on the use
of water and adjoining land, justified under the pretense that Chinook
and steelhead trout are at risk. NMFS has adopted a ``no net loss''
policy that prevents any new water use out of the entire mainstem
Columbia River. The incongruity of these policies is underscored by the
fact that commercial and sport fisheries are still allowed to harvest
the reputed endangered species, with well over 400,000 Chinook
harvested annually off the coasts of Washington, Oregon, and
California.
(3) Subdividing the Unit at Risk--exclusion of hatchery
fish.
The third major flaw in NOAA's policy decisions was its subdivision
of the unit at risk. The ESA is ``to provide the means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved'' [ESA 1973, Sec 2(b)]. Under such mission-oriented
legislation all fish within the identified unit at risk should be
included in the census that determines their status, and in any plan to
protect them.
NOAA, however, made another unauthorized decision which allowed
NOAA to establish categories of the same fish and treat them
differently. NOAA decided that hatchery fish were excluded from the
numerical assessment of populations reviewed for listing, unless they
were considered essential to the recovery of those populations. This
unauthorized policy resulted in a U.S. District Court ruling against
NOAA in Alsea Valley Alliance v. Evans.\1\
---------------------------------------------------------------------------
\1\In the Alsea Valley Alliance v. Evans, 161 F. Supp. 1154 (D.
Or. 2001), Judge Michael Hogan of the United States District Court for
the District of Oregon ruled that NOAA was ``arbitrary and capricious''
in its decision to list the Oregon Coast Coho salmon distinct
population segment (DPS) (or ``Evolutionarily Significant Unit'' (ESU))
under the ESA. According to Judge Hogan, NOAA cannot list naturally
spawning fish separate and apart from hatchery fish in the same DPS (or
ESU). ``The central problem with the NOAA listing decision of August
10, 1998, is that it makes improper distinctions below that of a DPS,
by excluding hatchery populations from listing protection even though
they are determined to be part of the same DPS as natural Coho
populations.'' 161 F. Supp at 1162.
---------------------------------------------------------------------------
This third flaw, therefore, was subdividing the unit at risk. Myers
et al. (NOAA Tech. Memo. NOAA-NWFSC-35, 1998) stated in the Chinook
salmon status review that ``attention should focus on natural fish
which are defined as the progeny of naturally spawning fish''. This was
reiterated by Waples (NOAA Tech. Memo. NOAA F/NWC-194NOAA, 1991) in the
discussion on what constituted a ``species,'' and also where it was
indicated that NOAA will determine ``the role (if any) of artificial
propagation in development of recovery plans for listed species''. The
NOAA policy on artificial propagation under the ESA (Hard et al. NOAA
Tech. Memo. NOAA-NWFSC-2, 1992), again reconfirmed that in the view of
NOAA ``the primary objective of the ESA is the conservation of species
in their natural ecosystems''.
The wording in the ESA reads ``to provide the means whereby the
ecosystems upon which endangered species and threatened species depend
may be conserved'' [ESA 1973, Sec 2(b)]. The term ``conserved'' is
defined in the language of the ESA to include propagation. In the case
of salmon, propagation means hatchery production. The ESA does not
state or imply that we should discriminate against hatchery fish when
making biological assessments or recovery plans, but rather indicates
that hatchery propagation is a legitimate technology to sustain the
species under the ESA. Hatchery produced salmon came from wild
populations and are part of the legacy of those wild fish. They
represent the same discrete and distinguish-able elements of the wild
population, as demonstrated in genetic analyses, including Myers et
al., NOAA Tech. Memo. NOAA-NWFSC-35 (1998). The final irony is that the
progeny of hatchery fish spawning naturally are considered ``wild''
fish by NOAA.
The ESA does not provide for or allow NOAA to distinguish between
life history forms of the same species by listing one and excluding the
other. A prime example is the listing of steelhead trout, and the
exclusion of rainbow trout from the listing. Rainbow trout and
steelhead trout interchange life history forms, are indistinguish-able
genetically, and represent an ``ecosystem'' that has existed for
thousands of years, yet steelhead trout are listed in four separate
ESUs and rainbow trout are excluded. Part of the problem is the limited
biological perspective of the Services in making the listing decision,
but the fact remains that if rainbow trout were included in the ESUs
there would have been no possible justification to list steelhead trout
because rainbow trout are numerous throughout the Columbia River Basin.
The Yakima River has a renowned trophy rainbow trout fishery which are
genetically indistinguishable from Yakima River steelhead trout, and in
fact interbreed with Yakima River steelhead trout.
The three problems identified, i.e. (1) preserving genetic
diversity, (2) creation of the ESU classification, and (3) subdividing
the unit at risk, have created unnecessary and costly administrative
burdens on the public, the State, and the Federal Governments. NOAA
Fisheries' arbitrary and erroneous policy decisions have no
justification, are clearly inconsistent with the wording of the
Statute, and should be considered a serious breach of confidence in
NOAA's administration of the law.
APPENDIX C
Improper listing of species: Columbia River Salmon, Steelhead Trout and
Bull Trout are not threatened with extinction
The National Marine Fisheries Service (NMFS) made the determination
that the Upper Columbia River Spring Chinook, Lower Columbia River
Chinook, and Upper Snake River Spring/Summer Chinook, Snake River Fall
Chinook, Upper Columbia River Steelhead Trout, Lower Columbia River
Steelhead Trout, and Snake River Basin Steelhead Trout were in danger
of extinction or likely to become endangered in the foreseeable future,
and listed them respectively under the Endangered Species Act (ESA).
Similarly, bull trout in the Columbia River Basin have also been
listed by United States Fish and Wildlife Service (USFWS), involving
Lower, Mid-, and Upper Columbia and Snake River populations. Contrary
to the impressions given by such listings, Chinook salmon, steelhead
trout, and bull trout species are, however, not at risk of extinction
in the Columbia Basin. This represents a serious incongruity between
the rationale for having listed these species at risk and the actual
status of Chinook, steelhead trout and bull trout in the Columbia River
system.
In essence, this incongruity is at the foundation of the problems
associated with the ESA, and originates with the administration of the
Statute emanating from the policies developed by NMFS and USFWS, and
not from the Act itself.
As described in Appendix B, the error in listings of Chinook and
steelhead were from policy memoranda and represented major departures
from the precepts of the ESA. Listing of bull trout followed similar
errors of ESA interpretation.
With regard to the Columbia River Basin, the status of wild salmon,
steelhead trout and trout was very much influenced by Federal
development programs in the west, with efforts concentrated largely
around the extensive water resources of the Columbia. Of the 673,400
square kilometers of Basin (Mullan et al. 1992), 191,660 square
kilometers were made inaccessible to anadromous fish species with the
construction of Grand Coulee Dam on the mainstem Columbia River (Fish
and Hanavan 1948), and 189,070 square kilometers were blocked by Hells
Canyon Dam on the Snake River, reducing access to only 40 percent of
the original stream area available to anadromous salmonids (Netboy
1980).
Sixty-four percent (64 percent) of the remaining mainstem fish
habitat on the Columbia and Snake Rivers has been changed from flowing
stream to reservoir environ-ments (ODFW & WDFW 2000). Furthermore,
extensive introductions of exotic fish species have been made by USFWS
and State agencies. Bass, crappie, perch, walleye, shad, carp and brook
trout were introduced in the Columbia River and in many cases exotic
species out-number native fish.
The point often ignored by, or unknown to, anyone attempting to
expand production of wild salmonids in the Columbia River system is
that the reductions of populations experienced by these species and the
introductions of exotic fish were intentional changes which resulted
from planned development of the river.
Federal irrigation and hydroelectric projects greatly enhanced the
economic base of agriculture in Idaho, Oregon, and Washington, and
expanded urbanization in otherwise arid land east of the Cascade
Mountains. The cost of economically developing the Pacific Northwest
was loss of fish habitat and wild fish. Congress established, however,
fish hatcheries as the surrogate for wild Chinook and steelhead trout
in the Columbia River Basin, and maintained anadromous fish runs
through such measures. Congress assured sustained salmon and steelhead
trout production in the Grand Coulee Maintenance Project, the Magnuson-
Stevens Act, the Mitchell Act, and other compensation programs, as
Federal law and they have successfully achieved that objective.
Consequently, hatchery fish have been contributing to, and are thus
part of, naturally spawning wild populations for over 90 years in the
Basin.
Therefore, the suggestion that Chinook salmon and steelhead trout
are at risk in the Columbia is not supported by the data (Brannon 2000,
Brannon et al, 2002). As shown in Table 1, Chinook salmon adult returns
passing Bonneville Dam have averaged over 600,000 fish in the last 4
years, three times the average returns when these fish were listed in
the early 90's. Similarly, in the last 3 years, steelhead trout have
increased well over twice their previous average return, with both
steelhead trout and Chinook demonstrating returns greater than
experienced since before the 1930's, and wild fish are well represented
among returning populations.
In a like manner, bull trout are well represented throughout the
Columbia River Basin, although they are reported in low numbers. They
are present in all of the twenty-five separate regions identified in
the Columbia system, which demon-strates that bull trout, as a species,
are not at risk of extinction. The fact remains that until recently
bull trout were given no attention and very little is known about their
historical numbers in any of these regions. As a ``predator species''
that routinely undergoes extensive distribution throughout the system,
bull trout's evolutionary strategy would be to avoid concentrating in
large numbers, especially where food resources are limited as is often
the case in the upper, more mountainous reaches of the watersheds. The
bull trout's recently discovered wide ranging distribution within the
Columbia River Basin indicates that bull trout are effectively self-
sustaining, and their relatively low population density is not a matter
of a threat of extinction, but rather the consequence of life history
evolution which offers favorable survival opportunities in the type of
habitat bull trout seek.
In each case where salmon, steelhead trout, or bull trout have been
listed, the listing decision has been largely the result of limited
knowledge about the biology of the species, as well as the tendency for
NMFS and USFWS biologists to adopt general conservation measures rather
than limiting themselves to the objective of the ESA.
Chinook salmon, steelhead trout, and bull trout are not at risk of
extinction so the general conservation programs for these species are
the responsibility of State agencies, not the ESA or the services.
Table 1. Adult wild and hatchery Chinook and steelhead trout
passage at Bonneville Dam on the Columbia River over the last three 4
year spawning cycles (total Chinook includes jacks, total steelhead is
wild plus hatchery).
Chinook, Steelhead Trout
----------------------------------------------------------------------------------------------------------------
Year Spring Summer Fall Total Wild Total
----------------------------------------------------------------------------------------------------------------
2002................................................ 268,813 127,436 474,554 925,452 143,045 481,203
2001................................................ 391,347 76,156 400,410 971,331 149,582 633,464
2000................................................ 178,302 30,616 192,815 491,928 76,220 275,273
1999................................................ 38,669 26,169 242,143 343,276 55,064 206,448
1998................................................ 38,342 21,433 189,085 280,944 35,701 185,094
1997................................................ 114,000 27.939 218,734 387,088 33,580 258,385
1996................................................ 51,493 16,034 205,358 296,635 17,375 205,213
1995................................................ 10,192 15,030 164,197 240,050 -- 202,448
1994................................................ 20,169 17,631 170,397 243,450 39,174 161,978
1993................................................ 10,820 22,045 126,472 277,657 -- 188,386
1992................................................ 88,425 15,063 116,200 256,299 -- 314,973
1991................................................ 57,346 18,897 150,190 274,644 -- 274,535
----------------------------------------------------------------------------------------------------------------
References
Brannon, E., M. Powell, A. Talbot, and T, Quinn. 2002. Columbia River
Chinook salmon and steelhead population structure. BPA Report.
Project Number 98-004-03.
Brannon, E. L. 2000. Assessment of the ESA Listing of Columbia River
Anadromous Salmonids with Emphasis on Chinook Salmon. Center for
Salmonids and Freshwater Species at Risk, Aquaculture Research
Institute, University of Idaho, Moscow, Idaho 83843.
Fish, F.F., and M.G. Hanavan. 1948. A report on the Grand Coulee Fish
Maintenance Project.
Mullan, J.W., K.R. Williams, G. Rhodus, T.W. Hillman, and J.D.
McIntyre. 1992. Production and habitat of salmonids in mid-Columbia
River tributary streams. Monograph I, U.S. Fish and Wildlife
Service, Box 549, Leavenworth, WA 98826.
Meyers, J.M., R.G. Kope, G.J. Bryant, D. Teel, L.J. Lierheimer, T.C.
Wainwright, W. S. Grant, F.W. Waknitz, K. Neely, S.T. Lindley, and
R.S. Waples. 1998. Status review of Chinook salmon from Washington,
Idaho, Oregon, and California. NOAA Technician Memorandum NMFS-
NWFSC-35. U.S. Dept. of Comm/NOAA/NMFS/NWFSC. 443 pp.
Pacific Fishery Management Council. 2000. Ocean salmon fisheries off
Washington, Oregon and California. Report to National Oceanic and
Atmospheric Administration. NA07FC00026.
APPENDIX D A
The United States has no legal authority to change the use or
reallocate Yakima Reclamation Project surface irrigation water
which is owned by Yakima Reclamation Project landowner/
waterusers; the U.S. is a ``trustee'' for the benefit of
Project irrigator landowner/ waterusers
The 1902 Reclamation Act, Section 8 (43 USC 383) provides:
"Sec. 383. Vested rights and State laws unaffected
"Nothing in this Act shall be construed as affecting or intended to
affect or to in any way interfere with the laws of any State or
Territory relating to the control, appropriation, use, or distribution
of water used in irrigation, or any vested right acquired thereunder,
and the Secretary of the Interior, in carrying out the provisions of
this Act, shall proceed in conformity with such laws, and nothing
herein shall in any way affect any right of any State or of the Federal
Government or of any landowner, appropriator, or user of water in, to
or from any interstate stream or the waters thereof. (June 17, 1902,
ch. 1093, Sec. 8 in part, 32 Stat. 390.)'' (Emphasis added)
The Yakima Reclamation Project water rights are, pursuant to 43 USC
383 above-quoted, as well as unambiguous Federal and Washington State
water law, the vested property of the YBJB landowner/waterusers whose
predecessors-in-interest appropriated, beneficially used Yakima
Reclamation Project water on their land and perfected their Yakima
Reclamation Project water rights [See, Lawrence vs. Southard, 192 Wash.
287, 73 P.2d 722 (1937).]
The U.S. Supreme Court in Ickes vs. Fox, 300 U.S. 82, 95-96 (1937),
which involved YBJB landowner/waterusers in the Sunnyside Division of
the Yakima Reclamation Project, analyzed the 1902 Reclamation Act,
Federal and Washington State water law, the Yakima Reclamation
Project's surface water rights including ownership of them, the U.S.'s
perpetual water delivery contracts with, and obligations to, YBJB
landowner/waterusers, and unambiguously held:
`` . . . . Appropriation was made not for the use of the
government, but, under the Reclamation Act, for the use of landowners;
and by the terms of the law and of the contract already referred to,
the water rights became property of the landowners, wholly distinct
from the property right of the government in the irrigation works.
Compare Murphy vs. Kerr, 296 Fed. 536, 544, 545. The government was and
remained simply a carrier and distributor of the water (Id.), with the
right to receive the sums stipulated in the contracts as reimbursement
for the cost of construction and annual charges for operation and
maintenance of the works. As security therefore, it was provided that
the government should have a lien upon the lands and the water rights
appurtenant thereto--a provision which in itself imports that the water
rights belong to another than the lienor, that is to say, to the
landowner.
`` . . . . And in those States, generally, including the State of
Washington, it has long been established law that the right to the use
of water can be acquired only by prior appropriation for a beneficial
use; and that such right when thus obtained is a property right, which,
when acquired for irrigation, becomes, by State law and hereby express
provision of the Reclamation Act as well, part and parcel of the land
upon which it is applied.'' (Emphasis added)
The United States has no legal authority, discretion, or surface
water right approved or certificated by Washington State to
consumptively or non-consumptively ``re-allocate'' or use YBJB
landowner/waterusers' Yakima Reclamation Project surface irrigation
water for any purpose other than for the irrigation of YBJB landowner/
waterusers' land except for the substantially diminished treat fishery
water right affirmed by the Washington State Supreme Court in DOE vs.
Yakima Reservation Irrigation District, et al., 121 Wn.2d 257, 850 P.2d
1306 (1993).
The U.S. is, in addition, obligated by its ``perpetual'' contracts
executed with YBJB members for the benefit of YBJB landowner/waterusers
and also, as their trustee, to annually store and deliver the entire
Yakima Reclamation Project's total water supply available (``TWSA'') as
defined in KRD, et al. vs. SVID, et al., U.S. District Court (E.D.
Wash. 1945) (less the substantially diminished treaty fishery water)
for each landowner/wateruser's annual use and reuse as irrigation water
to the full extent of each YBJB landowner/wateruser's Yakima
Reclamation Project water and water right entitlement.
The U.S. Supreme Court in Nevada vs. United States, 463 U.S. 110,m
122-123, 127-128, 103 S.Ct. 2906, 77 L.Ed.2d 509 (1983), quoting from
43 USC 383, California vs. U.S., 438 U.S. 645, 664 (1978), Fox vs.
Ickes, supra, and Nebraska vs. Wyoming, 325 U.S. 589, 613-614 (1945),
unambiguously concluded and held:
``In California vs. United States, 438 U.S. 645 (1978), we
described in greater detail the history and structure of the
Reclamation Act of 1902, and stated:
``The projects would be built on Federal land and the actual
construction and operation of the projects would be in the hands of the
Secretary of the Interior. But the Act clearly provided that State
water law would control in the appropriation and later distribution of
the water.'' Id. at 664 (emphasis added).
``In the light of these cases, we conclude that the Government is
completely mistaken if it believes that the water rights confirmed to
it by the Orr Ditch decree in 1944 for use in irrigating lands within
the Newlands Reclamation Project were like so many bushels of wheat, to
be bartered, sold or shifted about as the Government might see fit.
Once these lands were acquired by settlers in the Project, the
Government's 'ownership' of the water rights was at most nominal; the
beneficial interest in the rights confirmed to the Government resided
in the owners of the land within the Project to which these water
rights became appurtenant upon the application of Project water to the
land. As in Ickes vs. Fox and Nebraska vs. Wyoming, the law of the
relevant State and the contracts entered into by the landowners and the
United States make this point very clear. (Footnote omitted)
``The Government's brief is replete with references to a fiduciary
obligation to the Pyramid Lake Paiute Tribe of Indians, as it properly
should be. But the Govern-ment seems to wholly ignore in the same brief
the obligations that necessarily devolve upon it from having mere title
to water rights for the Newlands Project, when the beneficial ownership
of these water rights resides elsewhere.'' (Emphasis added)
YBJB member entities, also acting as ``trustees'' for the benefit
of their landowner/ waterusers, have executed ``perpetual'' contracts
with the United States, obligating the U.S. to annually deliver to YBJB
member entities their landowner/ waterusers' full, annual Yakima
Reclamation Project irrigation water and water right entitlements.
Four (4) of the YBJB member entities (Kittitas, Roza, Sunnyside and
Yakima-Tieton) landowner/waterusers' annual irrigation water and water
right entitlements were unconditionally confirmed in the 1/31/45
``Judgment'' in KRD, et al. vs. SVID, et al., U.S. District Court (E.D.
Wash. 1945).
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