<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:32210.wais]
S. Hrg. 109-865
THE ENDANGERED SPECIES ACT
=======================================================================
HEARING
before the
SUBCOMMITTEE ON FISHERIES,
WILDLIFE, AND WATER
of the
COMMITTEE ON
ENVIRONMENT AND PUBLIC WORKS
UNITED STATES SENATE
ONE HUNDRED NINTH CONGRESS
FIRST SESSION
__________
MAY 19, 2005
__________
Printed for the use of the Committee on Environment and Public Works
Available via the World Wide Web: http://www.access.gpo.gov/
congress.senate
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COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS
ONE HUNDRED NINTH 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
LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia HILLARY RODHAM CLINTON, New York
LISA MURKOWSKI, Alaska JOSEPH I. LIEBERMAN, Connecticut
JIM DeMINT, South Carolina FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana BARACK OBAMA, Illinois
C O N T E N T S
----------
Page
MAY 19, 2005
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 1
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 22
Crapo, Hon. Mike, U.S. Senator from the State of Idaho........... 5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 9
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 3
Lautenberg, Hon. Frank, U.S. Senator from the State of New Jersey 28
WITNESSES
Clark, Jamie Rappaport, Executive Vice President, Defenders of
Wildlife....................................................... 33
Prepared statement........................................... 98
Responses to questions by Senator Inhofe..................... 101
Fontaine, Monita, Member, Board of Directors, National Endangered
Species Act Reform Coalition................................... 35
Prepared statement........................................... 103
Letters:
Western Governors' Association........................... 107
Defenders of Wildlife, Environmental Defense, and World
Wildlife Fund.......................................... 109
NESARC Membership List....................................... 111
White paper, Improving the ESA: a Potential New Approach..... 112
Responses to questions by:
Senator Chafee........................................... 97
Senator Inhofe........................................... 118
Hopper, M. Reed, Esquire, Principal Attorney, Environmental
Regulations, Endangered Species, and Wetlands, Pacific Legal
Foundation..................................................... 31
Prepared statement........................................... 84
Responses to questions by:
Senator Chafee........................................... 97
Senator Inhofe........................................... 93
Senator Vitter........................................... 95
Kostyack, John, Senior Counsel, National Wildlife Federation..... 29
Prepared statement........................................... 73
Letter to Hon. Daniel Lungren................................ 79
Responses to questions by:
Senator Chafee........................................... 83
Senator Clinton.......................................... 81
Senator Inhofe........................................... 79
Senator Jeffords......................................... 80
Senator Lautenberg....................................... 84
Lecky, James H., Senior Advisor for Intergovernmental Programs,
Marine Fisheries Service....................................... 13
Prepared statement........................................... 54
Responses to questions by:
Senator Chafee........................................... 60
Senator Inhofe........................................... 57
Senator Lautenberg....................................... 60
Senator Vitter........................................... 58
Manson, Hon. Craig, Assistant Secretary for Fish and Wildlife and
Parks, Department of the Interior.............................. 12
Prepared statement........................................... 42
Article, New York Times...................................... 46
Responses to questions by:
Senator Chafee........................................... 50
Senator Clinton.......................................... 51
Senator Inhofe........................................... 47
Senator Jeffords......................................... 53
Nazzaro, Robin, Director for Federal Land Stewardship Issues,
Natural Resources and Environment Team, GAO.................... 14
Prepared statement........................................... 62
Appendix I: GAO reports...................................... 70
Responses to questions by Senator Inhofe..................... 72
ADDITIONAL MATERIAL
Letter, Associated Oregon Loggers, Inc........................... 119
Letter, 10 prominent scientists.................................. 25
THE ENDANGERED SPECIES ACT
----------
THURSDAY, MAY 19, 2005
U.S. Senate,
Committee on Environment and Public Works,
Subcommittee on Fisheries, Wildlife, and Water,
Washington, DC.
The subcommittee met, pursuant to notice, at 9:15 a.m. in
room 406, Dirksen Senate Building, Hon. Lincoln Chafee
[chairman of the subcommittee] presiding.
Present: Senators Chafee, Inhofe, Clinton, Jeffords and
Lautenberg.
OPENING STATEMENT OF HON. LINCOLN CHAFEE,
U.S. SENATOR FROM THE STATE OF RHODE ISLAND
Senator Chafee. The hearing of the Subcommittee on
Fisheries, Wildlife, and Water will come to order.
Good morning. As the new chairman of the Subcommittee on
Fisheries, Wildlife, and Water, I welcome you today to the
subcommittee's first hearing on the Endangered Species Act.
Today we begin to look at the law that was crafted over 32
years ago with the goal of protecting and recovering threatened
and endangered species. The Endangered Species Act of 1973 was
enacted as a response to concern in the United States about the
decline of species around the globe. It is considered one of
the world's most comprehensive wildlife conservation laws, but
also one of the most hotly debated.
We find ourselves in a position to take a hard look of the
effectiveness of the Endangered Species Act and how successful
it has been at recovering species and bringing them back from
near extinction. We will be hearing from witnesses today that
will touch on new and innovative ways to not only protect
species and prevent their extinction, but also to do a better
job at moving ESA into the 21st century.
As this subcommittee pursues its hearing agenda on ESA and
begins to explore legislative options, I am also pleased to
announce that Senators Inhofe, Jeffords, Clinton, Crapo, and
Lincoln have joined me in sending a request to the Keystone
Center to initiate a stakeholder dialogue on the issue of
critical habitat. As one of the Act's most debated and
litigated provisions, the critical habitat provision, my
colleagues and I are beginning to explore new ways to address
this issue. I look forward to the outcome of the Keystone
dialog.
Similar to the efforts of my father, Senator John Chafee,
and then Senator Dirk Kempthorne in moving forward S. 1180, the
Endangered Species Recovery Act of 1997, by a committee vote of
14 to 3, I believe it is possible to pursue bipartisan
legislative options for the ESA. The Kempthorne-Chafee bill
focused on the timing of recovery plans, a priority system for
species protection, and enhanced roles for States, to name a
few. These are all areas where I believe we can still find
common ground and consensus.
Other witnesses today will be highlighting areas where the
Act will be strengthened by focusing on incentives for species
recovery at the local and private landholder levels. I welcome
these and other recommendations for ways to improve ESA.
Upon signing the Endangered Species Act on December 28,
1974, President Nixon stated: ``Nothing is more priceless and
more worthy of preservation than the rich array of animal life
with which our country has been blessed.'' As this subcommittee
reviews one of the Nation's most important environmental laws,
we must keep in mind the importance of species protection today
and in the future.
I will turn to Senator Jeffords, but first I want to
welcome Senator Mike Crapo here this morning. As my predecessor
in chairing this subcommittee, Senator Crapo has done a great
deal of work in reaching out to both the regulated and the
environmental communities to identify new ideas for making ESA
a more effective tool for species protection and recovery.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln Chafee, U.S. Senator from the
State of Rhode Island
The hearing will come to order. Good morning.
As the new chairman of the Subcommittee on Fisheries, Wildlife, and
Water, I welcome you today to the subcommittee's first hearing on the
Endangered Species Act.
Today, we begin taking a look at the law that was crafted over 32
years ago with the goal of protecting and recovering threatened and
endangered species. The Endangered Species Act of 1973 was enacted as a
response to concern in the United States about the decline of species
around the globe. It is considered one of the world's most
comprehensive wildlife conservation laws, but also one of the most
hotly debated.
To proponents of the ESA, the law has provided critical safeguards
to species and their habitats and, despite its flaws, has been a
success. The reintroduction of wolves in Yellowstone; the current
delisting process for the American Bald Eagle; and even the management
of the threatened piping plover in Rhode Island are all examples of the
power of the ESA to protect and recover species.
If one measures the success of the Endangered Species Act by the
number of species that have gone extinct while the law has been in
place, only 9 out of more than 1,200 U.S. listed species have gone
extinct since 1973.
This is good news. We are slowing species extinction for now. But
at the same time, what is happening to successfully recovering species
and bringing them back to sustainable populations?
During my tenure in the Senate, I have come to realize that our
nation's environmental laws are not perfect. As our understanding and
knowledge of the environment and ecosystems have grown, so too must our
ability to adapt our nation's laws to this new information. Critics of
the ESA declare that we must do a better job at streamlining the Act
and recovering species.
We find ourselves in a position to take a hard look at the
effectiveness of the Endangered Species Act and how successful it has
been at recovering species and bringing them back from near extinction.
We will be hearing from witnesses today that will touch on new and
innovative ways to not only protect species and prevent their
extinction, but also do a better job at moving the ESA into the 21st
century.
As this subcommittee pursues its hearing agenda on the ESA and
begins to explore legislative options, I am also pleased to announce
that Senators Inhofe, Jeffords, Clinton, Crapo, and Lincoln have joined
me in sending a request to The Keystone Center to initiate a
stakeholder dialog on the issue of critical habitat.
As one of the Act's most debated and litigated provisions, my
colleagues and I are beginning to explore new ways to address this
issue. I look forward to the outcome of the Keystone Dialogue.
Our first witness today is Senator Mike Crapo. As my predecessor in
chairing this subcommittee, Senator Crapo has done a great deal of work
in reaching out to both the regulated and environmental communities to
identify new ideas for making the ESA a more effective tool for species
protection and recovery.
Similar to the efforts of my father, Senator John Chafee, and then
Senator Dirk Kempthorne in moving forward S. 1180--the Endangered
Species Recovery Act of 1997--by a committee vote of 14-3, I believe it
is possible to pursue bipartisan legislative options for the ESA.
The Kempthorne-Chafee bill focused on the timing of recovery plans,
a priority system for species protection, and enhanced roles for
states, to name a few. These are all areas where I believe we can still
find common ground and consensus.
Other witnesses today will be highlighting areas where the Act may
be strengthened by focusing on incentives for species recovery at the
local and private landholder levels. I welcome these and other
recommendations for ways to improve the ESA.
Upon signing the Endangered Species Act on December 28, 1973,
President Nixon stated ``Nothing is more priceless and more worthy of
preservation than the rich array of animal life with which our country
has been blessed.'' As this subcommittee reviews one of the nation's
most important environmental laws, we must keep in mind the importance
of species protection today and in the future.
Thank you.
Senator Chafee. Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS,
U.S. SENATOR FROM THE STATE OF VERMONT
Senator Jeffords. Thank you, Chairman Chafee, for holding
this first in a series of hearings on the Endangered Species
Act. As you chair your first hearing of this subcommittee, I
want you to know how pleased I am that you are leading our work
on the Endangered Species Act, as well as water infrastructure,
water quality, and wetlands protection. Under your thoughtful
leadership, I am certain that working together we can find
solutions to these problems. You and the ranking member of the
subcommittee, Senator Clinton, will make a great team in
guiding us as we consider ESA and other issues to come before
the subcommittee during this Congress.
I hope that you are not tired of hearing this, but your
father was not only a champion when it came to preserving and
protecting our environment, he was a person I was privileged to
call a friend. I know he is looking down on you today with
great pride.
Thirty-two years ago the Endangered Species Act was enacted
to prevent extinction, the final doom of a species. For the
first time, our Nation listed the species endangered of
extinction, took steps to provide the diversity of life for
which we have been blessed. One thousand, eight hundred, and
twenty-six species have been listed as threatened or
endangered. The good news is that only nine of these species
have been since counted extinct. While the permanent loss of
nine species is nine too many, more than one thousand, eight
hundred species protected makes the Endangered Species Act one
of the most successful conservation measures.
By formally recognizing that a species is in trouble and
also protecting that species, the Act can be the deciding
factor in the fate of these species. In the face of a continued
threat of extinction, we need protections to remain in place.
One of the success stories of the Endangered Species Act is the
peregrine falcon. One of the first species listed under the Act
30 years ago, the peregrine falcon is a great example of how
the protections act at work. The falcon was delisted from the
national list in 1999. In my home State of Vermont, after
finding 29 pair of peregrine falcons, the State has proposed
the delisting of the falcon this year. The Endangered Species
Act's protections, along with the banning of DDT, helped to
rescue this bird from extinction.
Some 99 percent of the listed species have been protected
from extinction. Ninety-nine percent is pretty close to
perfect. A great percentage.
So if the Act is achieving its goals, why are we here
today? We are here because we are responsible for overseeing
the programs that this subcommittee has jurisdiction over, and
to hear from the witnesses on the status of the programs and
recommendations to improve them. I also want to welcome all of
our witnesses here today, especially our colleague and former
chair of the committee, Senator Crapo. I know he has been
interested in the Endangered Species Act for a long time, and I
look forward to hearing from him today. Thank you, Mr.
Chairman.
[The prepared statement of Senator Jeffords follows:]
Statement of Hon. James M. Jeffords, U.S. Senator from the
State of Vermont
Thank you, Chairman Chafee, for holding this first in a series of
hearings on the Endangered Species Act. As you chair your first hearing
of this subcommittee, I want you to know how pleased I am that you are
leading our work on the Endangered Species Act, as well as water
infrastructure, water quality and wetlands protection.
Under your thoughtful leadership, I am certain that working
together we can find solutions to these problems. You and the ranking
member of the subcommittee, Senator Clinton, will make a great team in
guiding us as we consider ESA and other issues to come before the
subcommittee during this Congress. I hope you are not tired of hearing
this, but your father was not only a champion when it came to
preserving and protecting our environment, he was a person I was
privileged to call a friend. I know he is looking down on you today
with great pride.
Thirty-two years ago, the Endangered Species Act was enacted to
prevent extinction, the final doom of a species. For the first time,
our nation listed the species in danger of extinction and took steps to
protect the diversity of life with which we have been blessed.
1,826 species have been listed as threatened or endangered. The
good news is that only nine of these species has since gone extinct.
While the permanent loss of nine species is nine too many, more than
1,800 species protected makes the Endangered Species Act one of our
most successful conservation measures. By formally recognizing that a
species is in trouble, and also protecting that species, the Act can be
the deciding factor in the fate of that species. In the face of
continued threats of extinction, we need protections to remain in
place.
One of the success stories of the Endangered Species Act is the
peregrine falcon. One of the first species listed under the Act 30
years ago, the peregrine falcon, is a great example of how the
protections of the Act have worked. The falcon was delisted from the
national list in 1999. In my home state of Vermont, after finding 29
pair of peregrine falcons, the state has proposed the delisting of the
falcon this year. Endangered Species Act protections, along with the
banning of DDT, helped rescue this bird from extinction.
Ninety-nine percent of listed species have been protected from
extinction. Ninety-nine percent is pretty close to perfect, a great
percentage. So, if the Act is achieving its goals, why are we here
today? We are here because we are responsible for overseeing the
programs that this subcommittee has jurisdiction over, and to hear from
the witnesses on the status of these programs and recommendations to
improve them.
I also want to welcome all of our witnesses here today, especially
our colleague and former chair of this subcommittee, Senator Crapo. I
know he has been interested in the Endangered Species Act for a long
time, and I look forward to hearing from him today.
Senator Chafee. Thank you, Senator Jeffords.
A couple of weeks ago, as we were debating the budget bill
and getting on toward midnight, bleary-eyed, Senator Crapo came
up and said they just discovered a bird they thought was
extinct down in Arkansas. So he had the breaking news on the
ivory-billed woodpecker at about midnight as we were debating.
The next morning, sure enough, there it was all over the
papers.
Welcome, Senator Crapo.
STATEMENT OF HON. MIKE CRAPO, U.S. SENATOR
FROM THE STATE OF IDAHO
Senator Crapo. Thank you very much, Senator Chafee and
Senator Jeffords. I appreciate the opportunity to come before
you in this hearing. It has been just a little less than half a
year since I served on this committee and I already feel
nostalgic in terms of coming back.
I appreciate the invitation to be here with you with you
today. I especially appreciate, Mr. Chairman, your continuing
what has become a decades long examination of the Endangered
Species Act. I look forward to a strong partnership with you
and the many other members who share your commitment to this
issue.
We have been accumulating good ideas for updating and
strengthening the Act for more than a decade now since its last
update. And everything we know is based on two clear lessons:
First, the protection of endangered and threatened species
continues to be a national priority; second, the Act must be
improved to be more effective. Those are the words of this
committee in 1997 and they remain true today.
These words gained new immediacy last month from the
rediscovery of the ivory-billed woodpecker in Arkansas, as the
chairman has just mentioned. The recovery program now
mobilizing for the ivory-billed woodpecker should inspire us to
mobilize recovery for more species. Surprisingly, though we
have worked hard at protecting species during the 30-plus years
since we passed the Act in 1973, we have few active recovery
programs compared to the many species listed as threatened or
endangered. And this is no criticism of the Act. It is an
opportunity for improvement.
We can help more wildlife in new ways if we support more
recovery programs. We can help ourselves, too, because this is
the key to rebuilding good will and trust over the species
conservation issues. If we in Congress seize this opportunity
to enhance recovery through partnerships, technology, and hard
work, we will be catching up to the people who are already
striving to recover species out in the field.
As the people behind success stories like the Black Bear
Conservation Committee in Louisiana, and the Whooping Crane
Eastern Partnership in Wisconsin have struggled to make the Act
work, Congress has remained in a meaningless and destructive
argument about whether the Act is broken. This is a
demonstration of gridlock.
An environmental group that has been very helpful to me on
this issue, the World Wildlife Fund, has observed as well,
saying, ``the real problem is gridlock on reauthorization,
which can be broken by enhancing conservation and simplifying
compliance with the Act.'' A property rights group has touched
on the same point, stating, ``We need to reestablish trust so
that we can conserve wildlife.'' A coalition of businesses has
called for changing the debate from ``a clash over existing
terms and programs to new tools that improve the Act.''
We do not need to repudiate the Act before we agree to
improve it. We must focus on the agreement on improvement in
order to work ourselves free from old political positions. We
must take up a bill that writes into law what people have made
to work on the ground.
We have a good head start on what it takes. The Endangered
Species Recovery Act, which is S. 1180 from the 105th Congress,
had balanced and strong cosponsorship and solid ideas. Chairman
Chafee has already referred to the fact that his father, John
Chafee, cosponsored this bill. My friend and predecessor in the
Senate, Dirk Kempthorne, was the chairman of this committee
when that bill was written. They joined with Senators Baucus
and Reid, mutual friends of yours and mine, and earned a strong
vote in this committee. The 109th Congress should honor their
work with its own commitment to the motto of those years;
``making allies out of adversaries.''
The focus now, as it was then, must be an improved and
energized recovery program supported by a simple outline of
ideas; namely, improving habitat conservation, providing more
and better incentives, enhancing the role of States where
appropriate, and ensuring reliable science. This outline
emerged from the more than one hundred witnesses over the 3
years of testimony in the mid-1990s. Continuing scrutiny and
debate has sharpened those ideas since. Conferences, workshops,
studies, and forthcoming papers and books have been sponsored
by the Universities of California and Idaho, Stanford Law
School, the Western Governors Association, the Government
Accountability Office, and many others.
In the debate today there are a number of promising ideas
for implementing the vision of a stronger ESA:
Ensure direct recovery work for listed species by setting
recovery goals and budgeting each year to make progress toward
them.
Create and improve incentives by codifying an effective
``no surprises'' policy, and speed the writing of habitat
agreements and use of special rules for threatened species.
Find responsible ways to increase funding. And some of this
should come from private sources by turning from litigation to
conservation.
Enhance the role of States and expand the option for States
to promote landowner involvement in protection and recovery.
I want to emphasize the importance of working respectfully
with landowners. Because private land and the support of
private landowners is so obviously necessary, we must jump at
any chance to work with the landowners who show interest in
joining conservation efforts. We are smarter about this today
than we ever have been. We are gaining experience in protecting
property rights as a part of voluntary agreements to promote
species conservation.
For example, in Idaho landowners have stronger property
rights today because they have advanced their own conservation
ideas for wolves, grizzly bears, sage grouse, ground squirrels,
and a desert plant, the slick-spot pepper-grass. Other States
have similar accomplishments. Colorado, California, Louisiana,
Texas, Wisconsin, and others have advanced recovery and
property rights together with lynx, songbirds, bears, and
butterflies. There are other examples as well.
In summary, Mr. Chairman, we have good ideas and strong
capabilities against the well-rehearsed controversy of
gridlock. We can and we must surmount entrenched positions. If
we update and strengthen the ESA to become less contentious and
more effective, we will have the votes to win passage of a
bill. I have suggested, asked, and even provoked interest
groups to unite on points of agreement and ignore the carping
that destroys the debate. I hope today we will hear evidence of
unity, and I urge the committee to join me in promoting it.
Thank you, Mr. Chairman.
[The prepared statement of Senator Crapo follows:]
Statement of Hon. Mike Crapo, U.S. Senator from the State of Idaho
Thank you, Mr. Chairman, for continuing what has become a decades-
long examination of the Endangered Species Act.
I look forward to a strong partnership with you and the many other
members who share our commitment to this issue.
We have been accumulating good ideas for updating and strengthening
the Act for more than a decade now since its last update.
Everything we know is based on two clear lessons: ``First, the
protection of endangered and threatened species continues to be a
national priority; and second, the Act must be improved to be more
effective'' (Sen. Rep. 105-128, p. 6).
Those are the words of this committee in 1997 and they remain true
today.
These words gained new immediacy last month from the rediscovery of
the ivory-billed woodpecker in Arkansas.
The recovery program now mobilizing for the ivorybill should
inspire us to mobilize more recovery for more species.
Surprisingly, though we have worked hard at protecting species
during the 30-plus years since we passed the Act in 1973, we have few
active recovery programs compared to the many species listed as
threatened or endangered.
This is no criticism of the Act; this is the opportunity for
improvement.
We can help more wildlife in new ways if we support more recovery
programs. We can help ourselves too because this is key to rebuilding
goodwill and trust over species conservation issues.
If we in Congress seize this opportunity to enhance recovery
through partnerships, technology, and hard work, we will be catching up
to the people already striving to recover species in the field.
As the people behind success stories like the Black Bear
Conservation Committee in Louisiana and the Whooping Crane Eastern
Partnership in Wisconsin have struggled to make the Act work, Congress
has remained in a meaningless and destructive argument about whether
the Act is broken.
This is a demonstration of gridlock.
An environmental group that has been very helpful to me on this
issue, the World Wildlife Fund, has observed this as well, saying,
``the real problem is gridlock on reauthorization, which can be broken
by ``enhancing . . . conservation and simplifying compliance with the
Act.''
A property rights group has touched on the same point, saying, ``We
need to reestablish trust so we can conserve wildlife.''
A coalition of businesses has called for changing the debate from a
``clash over existing terms and programs to new tools that improve the
Act.''
We don't need to repudiate the Act before we can agree to improve
it.
We must focus on the agreement on improvement in order to work
ourselves free of old political positions.
We must take up a bill that writes into law what people have made
to work on the ground.
We have a good head start on what it takes.
The Endangered Species Recovery Act, which is S. 1180 from the
105th Congress, had balanced and strong co-sponsorship and solid ideas.
My friend and predecessor, Dirk Kempthorne, and your father, John
Chafee, co-sponsored the bill.
They joined with Senators Baucus and Reid--mutual friends of yours
and mine--and earned a strong vote in this committee.
The 109th Congress should honor their work with its own commitment
to the motto of those years: ``making allies out of adversaries.''
The focus now, as it was then, must be an improved and energized
recovery program supported by a simple outline of ideas; namely:
improving habitat conservation.
providing more and better incentives.
enhancing the role of states where appropriate.
ensuring reliable science.
This outline emerged from the more than 100 witnesses over 3 years
of testimony in the mid-90s.
Continuing scrutiny and debate has sharpened these ideas since.
Conferences, workshops, studies, and forthcoming papers and books have
been sponsored by the Universities of California and Idaho, Stanford
Law School, the Western Governors' Association, the Government
Accountability Office, and others.
In the debate today there are a number of promising ideas for
implementing the vision of stronger ESA:
Ensure direct recovery work for listed species by setting
recovery goals and budgeting each year to make progress toward them.
Create and improve incentives by codifying an effective ``No
Surprises'' policy, and speed the writing of habitat agreements, and
the use special rules for threatened species.
Find responsible ways to increase funding--and some of this
should come from private sources by turning from litigation to
conservation.
Enhance the role of states and expand options for states to
promote landowner involvement in protection and recovery.
I want to emphasize the importance of working respectfully with
landowners. Because private land and the support of private landowners
is so obviously necessary, we must jump at any chance to work with
landowners who show interest in joining conservation efforts.
We are smarter about this today than we ever have been. We are
gaining experience in protecting property rights as part of voluntary
agreements to promote species conservation.
For example, in Idaho landowners have stronger property rights
today because they have advanced their own conservation ideas for
wolves, grizzly bears, sage grouse, ground squirrels, and a desert
plant (the slickspot peppergrass).
Other states have similar accomplishments: Colorado, California,
Louisiana, Texas, Wisconsin, and others have advanced recovery and
property rights with lynx, songbirds, bears, and butterflies. There are
others.
In summary, Mr. Chairman, we have good ideas and strong
capabilities up against the well-rehearsed controversy of gridlock.
We can and we must surmount entrenched positions.
If we update and strengthen ESA to become less contentious and more
effective, we will have the votes to win passage of a bill.
I have suggested, asked, and even provoked interest groups to unite
on points of agreement and ignore the carping that destroys the debate.
I hope today we will hear evidence of unity and I urge the committee to
join me in promoting it.
Thank you, Mr. Chairman.
Senator Chafee. Thank you very much, Senator Crapo. We look
forward to your continued leadership even though you are not on
the committee. And I would agree with you, building trust is so
important here. I am sure working with your former colleagues
on the House side, you bring a lot of credibility as we try and
move this forward.
I now recognize Chairman Inhofe for an opening statement.
Senator Inhofe. Thank you, Mr. Chairman.
Senator Chafee. I think, Senator Crapo, you are free too.
Senator Inhofe. Well, you are not free yet.
[Laughter.]
Senator Crapo. I would be glad to sit and listen to the
chairman.
Senator Inhofe. No, I just want to tell you that I had seen
your statement before you made it and I really do agree with
your approach, even more so than I did your predecessor. I
think now with the team we have put together, I know Senator
Chafee and Senator Jeffords, all of us want to get something
done. And so I do appreciate all the work that you have done on
this.
As you know, Mr. Chairman, as I had mentioned to you, we
are getting the defense bill ready to go on the floor. I would
like to just get a statement in here.
Senator Crapo, you do not have to wait around. I will say
essentially what you just said.
Senator Crapo. Thank you very much, Mr. Chairman.
OPENING STATEMENT OF HON. JAMES M. INHOFE,
U.S. SENATOR FROM THE STATE OF OKLAHOMA
Senator Inhofe. Mr. Chairman, thank you for having this
first hearing on the Endangered Species Act. ESA is one of the
most popular environmental laws despite the fact that it has
not yet reached most of the stated objectives. The U.S. Fish
and Wildlife Service has stated ``recovery is the cornerstone
and the ultimate purpose of the Endangered Species Program.''
Yet we have recovered only a tiny fraction of the 1,300-
plus species on the list, and half of all of the species that
have been taken off the Endangered Species List were removed
because the original data was in error and they never should
have been added in the first place.
According to the Fish and Wildlife Service's most recent
report to Congress, 77 percent of the listed species are
classified in the lowest recovery achievement category, and
only 2 percent fall into the highest recovery achievement
category. The reasons for this less than stellar record are
numerous and complicated, but clearly we ought to be able to do
better.
I have many concerns regarding the ESA. I believe the Act
contains perverse incentives for landowners. I have seen
firsthand in Oklahoma how the implementation of the Act
actually ends up penalizing landowners for being good stewards
of their land instead of being rewarded for trying to create
and preserve for an endangered animal or plant. They are
hamstrung by rigorous regulations that jeopardize their ability
to provide for their families and deliver power to rural
communities and develop water resources.
The Act encourages landowners to make their land
inhospitable to an endangered species in order to avoid
regulation. This is not good for the species. It is not good
for the landowner. It does appear, however, that the current
state of affairs is good for lawyers.
I am concerned that some groups have contorted and
distorted the Act's goals and provisions to turn it into a tool
to halt all land development, regardless of its true effect on
species. The Fish and Wildlife Service is currently being
inundated with lawsuits. In Oklahoma, I hear that it is common
for citizens groups to petition the Fish and Wildlife Service
to consider a species for listing knowing that the Service
cannot meet its statutory deadline for evaluating that
petition. The group then sues the Service for missing the
deadline, forcing it to settle the lawsuit and thus pay for the
group's attorney's fees. The use of the system in this manner
is detrimental to both the public and endangered species, as it
means that the agency's scarce resources are stretched even
thinner.
When I began my tenure as chairman of the Environment and
Public Works Committee I stated that I believe we should base
regulatory and legislative decisions on strong science. Part of
the problem with ESA is that the science associated with
listing and delisting decisions is often erroneous, incomplete,
or agenda-driven, and not readily available to the public. We
must ensure that regulatory decisions are made using
independent peer-reviewed science in an open and transparent
process.
Finally, I am interested in hearing what the witnesses have
to say with respect to the need for greater State and local
involvement. I have heard numerous stories where State and
local officials, private landowners, local environmental
citizens groups have worked together in partnership and have
agreed to a sensible protective strategy to recovery species
while protecting land only to have the Federal Government come
in and overrule them. States and localities need to be given
specific authorities and responsibilities for recovery and day-
to-day on the ground implementation. These are the individuals
with the closest knowledge of the species, its habitat, and
local conditions.
With the purpose of the ESA being to recover species, I
believe we can learn from other existing programs also being
administered by the Fish and Wildlife Service. One example of
this is the Partners for Fish and Wildlife program. We actually
held, Mr. Chairman, a hearing in our State of Oklahoma on this
program. We had testimonies from all over, people just working
with the Fish and Wildlife, people taking what they have on
their land and doing it on their own and reaping the benefits
of it. It is a program that has a very small Federal financial,
I think it is only 20 percent, participation, and yet we have
people lined up to do it. We need to expand programs like that.
That is the kinds of things we need to do rather than taking a
command and control regulatory approach to recovery.
So, Mr. Chairman, thank you for kicking this off. I look
forward to working with you in coming up with something that we
can actually get passed.
[The prepared statement of Senator Inhofe follows:]
Statement of Hon. James M. Inhofe, U.S. Senator from the State of
Oklahoma
Mr. Chairman, thank you for holding this important first hearing on
updating the Endangered Species Act. I look forward to hearing from the
witnesses, including my good friend and former chairman of this
subcommittee Mike Crapo, who is a recognized leader on the issue of
ESA. I am particularly interested in the witnesses' thoughts about
areas for improvement in the Act so that we may begin our work
considering much-needed legislative changes.
The ESA is one of our most popular environmental laws despite the
fact that it has not yet reached most of its stated objectives. The
U.S. Fish and Wildlife Service has stated, ``Recovery is the
cornerstone and ultimate purpose of the endangered species program.''
Yet, we have recovered only a tiny fraction of the 1,300-plus species
on the list. And, half of all the species that have been taken off the
endangered species list were removed because the original data was in
error and they never should have been added in the first place.
According to FWS' most recent report to Congress, 77 percent of listed
species are classified in the lowest recovery achievement category and
only 2 percent fall into the highest recovery achievement category. The
reasons for this less-than-stellar record are numerous and complicated.
But clearly we ought to be able to do better.
I have many concerns regarding the ESA. I believe that the Act
contains perverse incentives for landowners. I have seen first hand in
Oklahoma how the implementation of the Act actually ends up penalizing
landowners for being good stewards of their land. Instead of being
rewarded for trying to create and preserve habitat for an endangered
animal or plant, they are hamstrung by rigorous regulations that
jeopardize their ability to provide for their families or deliver power
to rural communities or develop water resources. The Act encourages
landowners to make their land inhospitable to an endangered species in
order to avoid regulation. This is not good for the species or the
landowner.
It does appear, however, that the current state of affairs is good
for lawyers. I am concerned that some groups have contorted and
distorted the Act's goals and provisions to turn it into a tool to halt
all land development, regardless of its true effect on species. The
Fish and Wildlife Service is currently being inundated with lawsuits.
In Oklahoma, I hear that it is common for citizen groups to petition
the Fish and Wildlife Service to consider a species for listing knowing
that the Service cannot meet its statutory deadline for evaluating that
petition. The group then sues the Service for missing the deadline,
forcing it to settle the lawsuit and thus pay for the group's
attorney's fees. The use of the system in this manner is detrimental to
both the public and endangered species as it means that the agency's
scarce resources are stretched even thinner.
When I began my tenure as Chair of the Environment and Public Works
Committee, I stated that I believe we should base regulatory and
legislative decisions on strong science. Part of the problem with the
ESA is that the science associated with listing and de-listing
decisions is often erroneous, incomplete or agenda-driven and not
readily available to the public. We must ensure that regulatory
decisions are made using independent, peer-reviewed science in an open
and transparent process.
Finally, I am interested in hearing what the witnesses have to say
with respect to the need for greater state and local involvement. I
have heard numerous stories where state and local officials, private
landowners, local environmental and citizen groups have worked together
in partnership and have agreed to a sensible, protective strategy to
recover species while protecting land, only to have the Federal
Government come in and overrule them. States and localities need to be
given specific authorities and responsibilities for recovery and day-
to-day, on-the-ground implementation. These are the individuals with
the closest knowledge of the species, its habitat and local conditions.
With the purpose of the ESA being to recover species, I believe we
can learn from other existing programs also being administered by the
Fish and Wildlife Service. One example of this is the Partners for Fish
and Wildlife program, for which I recently introduced authorizing
legislation. This innovative program provides Federal financial and
technical assistance to private landowners through voluntary agreements
to protect wildlife habitat. Rather than taking a command and control
regulatory approach to recovery, this program provides real results for
affected wildlife while protecting property rights and giving
landowners meaningful and lasting incentives to benefit species on
their land. Much can be learned by the success of programs such as
these.
Thank you, Mr. Chairman, for kicking off our legislative work with
this hearing today and I look forward to hearing the testimony.
Senator Chafee. Thank you, Mr. Chairman, very much.
Now we will move to the second panel. We have the Honorable
Craig Manson, Assistant Secretary for Fish and Wildlife and
Parks, with the Department of the Interior; Mr. James H. Lecky,
Senior Advisor for Intergovernmental Programs, with the
National Marine Fisheries Service; and Ms. Robin Nazzaro,
Director for Federal Land Stewardship Issues, with the General
Accounting Office.
Unfortunately, we have a 2-hour time limit on the overall
hearing today. And the fact that we have three panels, I
request that all of my colleagues and witnesses follow a 4-
minute time limit for statements and questions.
Judge Manson, when you are ready, we welcome your
testimony.
STATEMENT OF HON. CRAIG MANSON, ASSISTANT SECRETARY FOR FISH
AND WILDLIFE AND PARKS, DEPARTMENT OF THE INTERIOR
Judge Manson. Thank you, Mr. Chairman. As you know, the ESA
was passed in 1973 to conserve plant and animal species that,
despite other conservation laws, were in danger of extinction.
A key purpose of the ESA is to provide a program for the
conservation of endangered and threatened species so as to
bring them to the point at which measures under the Act are no
longer necessary.
Once listed, the species are afforded the full protection
available under the ESA, including prohibitions on killing,
harming, or otherwise taking listed species. In addition,
Federal agencies are to utilize their authorities to carry out
programs for the conservation of endangered or threatened
species.
Unfortunately, the Fish and Wildlife Service's work related
to endangered species is increasingly being driven by lawsuits.
As of the middle of March, the Service was involved in 35
active lawsuits on listing issues with respect to 57 species,
and was complying with court orders for 42 lawsuits involving
some 87 species.
But today I want to talk about cooperative approaches to
conservation under the ESA. This Administration believes that
conservation of habitat is vitally important to successful
recovery and delisting of species. We are committed to
implementing a cooperative approach through the development of
partnerships with States, tribes, landowners, and other
stakeholders.
The Department of the Interior and the Fish and Wildlife
Service is focused on identifying new and better means of
encouraging voluntary conservation initiatives. Indeed, we
currently have many conservation tools available, including
Candidate Conservation Agreements, Safe Harbor Agreements,
Habitat Conservation Plans, and Conservation Banking, which
provide for close cooperation with private landowners, State,
tribal, and local governments, and other non-Federal partners
which are particularly important in our implementation of the
ESA. Most of these, however, are nonstatutory programs.
The Habitat Conservation Planning Program, for example,
provides a flexible process for permitting the incidental take
of threatened and endangered species during the course of
implementing otherwise lawful activities. It encourages
applicants to explore different methods to achieve compliance
with the ESA and to choose the approach that best meets their
needs. It is the one example of a statutorily authorized
program and may provide a template for statutory authorization
of some of the other programs, such as the Partnership Program
that Senator Inhofe just talked about.
There are several challenges to the implementation of the
ESA without legislative change. We do need congressional action
in order to improve the implementation in several areas. I want
to take a few moments to talk about some of those.
Senator Crapo talked about the gridlock and litigation is
certainly part of that. As I noted initially, protection of
habitat is the key to sustaining and recovering endangered
species. But critical habitat designation has been the source
of much litigation.
The Service has long characterized the designation of
critical habitat, under several Administrations, as the most
costly and least effective class of regulatory actions
undertaken by the Service. It is often of little additional
value or counterproductive and can result in negative public
sentiment, and it is the key lightening rod for litigation.
I recently asked a group that frequently sues with respect
to litigation to forego the next critical habitat lawsuit and
join the Department of the Interior in a joint venture, using
the money that they would otherwise spend on litigation, to
spend that money in a joint venture with us and put that money
into a concrete habitat conservation program on the ground. We
have spent hundreds of millions of dollars in the Partners
Program and other programs restoring and enhancing and creating
hundred of thousands of acres of habitat, and that would be a
more useful example of conservation than litigation.
In closing, we appreciate the subcommittee's interest in
how the ESA works. I would like to reiterate the
Administration's interest in working with Congress to improve
the Endangered Species Act. We must work together to determine
how to get the most value for species conservation out of the
Federal resources devoted to the Endangered Species Program. I
would be happy to answer the committee's questions at the
appropriate time.
Senator Chafee. Thank you, Judge Manson.
Mr. Lecky.
STATEMENT OF JAMES H. LECKY, SENIOR ADVISOR FOR
INTERGOVERNMENTAL PROGRAMS, NATIONAL MARINE FISHERIES SERVICE
Mr. Lecky. Thank you, Mr. Chairman, members of the
committee. My name is Jim Lecky. I am Senior Advisor for
Intergovernmental Programs with National Marine Fisheries
Service.
I am pleased to be here today to discuss the Endangered
Species Act. I will focus my remarks on the National Marine
Fisheries Service's role in implementing the statute, and a few
areas that warrant special attention to ensure continued
protection and recovery of these species.
The National Marine Fisheries Service shares jurisdiction
with the Fish and Wildlife Service. We are responsible for the
marine and anadromous species and currently have jurisdiction
over 61 listed species.
We have been working to improve the transparency and
scientific integrity of our decisionmaking under the Act. In
the area of recovery planning, we have been working with Fish
and Wildlife Service to develop guidance for recovery plans.
This will ensure plans are focused on high priority management
actions and research needs. We want these plans to become
useful documents to provide meaningful guidance to our many
partners, and we want them to be dynamic and responsive to
changing conditions and new information.
Currently, we focus our limited resources on those
requirements that have statutory deadlines, such as listing
decisions and section 7 consultations. Recovery planning needs
to be given a higher priority, and we need to develop
collaborative mechanisms with our partners to implement
recovery actions.
We are working to improve our decisionmaking process for
listing determinations in section 7 consultations in terms of
transparency and quality of science used. A team of scientists
at Fish and Wildlife Service and National Marine Fisheries
Service is developing criteria for determining whether species
qualify for listing as threatened or endangered. These criteria
will be based on best available science on population ecology
and the processes of species extinction. Their application and
evaluation of species status should result in more transparent
and repeatable decisions.
In section 7, both NMFS and Fish and Wildlife are required
to render opinions about the effects of Federal actions on
species and their critical habitat. Likewise, the opinions are
based on the best scientific and commercial data available.
However, rendering these opinions is often difficult and
sometimes controversial where information is limited. To
address these concerns about quality of science that underlies
these consultations, we are revising our process for analyzing
effects in preparing Biological Opinions. We are designing an
analytical framework for biologists and managers that provides
a consistent and transparent structure to our section 7
decisionmaking that gives appropriate consideration to the
quality of data available.
Critical habitat designation remains a contentious and
controversial part of the statute. Although habitat
conservation does contribute to conservation of species, we
expend too much of our resources in litigation and redoing
designations as a result of that litigation. One key reason
these designations are controversial is at the time of listing
information on species distribution and habitat requirements is
generally not available, and information on land-use patterns
and economic activities that may affect that habitat likewise
is very limited. Usually these data are developed during
recovery planning processes because recovery plans need to
address those issues and risks associated with those economic
activities.
Finally, we are interested in developing a more
collaborative relationship with the States in species recovery.
We are working to foster partnerships with the States in
implementing the statute. Currently eight Atlantic Coast States
and two Caribbean territories have section 6 agreements with
NMFS, but they are very limited in scope and we are interested
in exploring how to share more resources and responsibilities
with the States under section 6. We would like to work with the
committee in strengthening partnerships and removing hurdles to
expand our partners' involvement.
Mr. Chairman, thank you for inviting me here today. We look
forward to working with the committee on reauthorization of the
ESA. I would be happy to answer questions at the appropriate
time as well. Thank you.
Senator Chafee. Thank you, Mr. Lecky.
Ms. Nazzaro. Welcome.
STATEMENT OF ROBIN NAZZARO, DIRECTOR FOR FEDERAL LAND
STEWARDSHIP ISSUES, NATURAL RESOURCES AND ENVIRONMENT TEAM, GAO
Ms. Nazzaro. Thank you, Mr. Chairman and members of the
subcommittee. I am pleased to be here to discuss the results of
our work related to the Endangered Species Act. Specifically, I
will focus on the collaboration among Federal agencies to
conserve threatened and endangered species while also
fulfilling other agency missions, and second, the utilization
of scientific information in key Endangered Species Act
decisions.
We found that Federal agencies have taken steps to improve
collaboration as a way to reduce conflicts between species
protection and other resource uses, but more could be done. In
September 2003, we reported on Department of Defense efforts in
Arizona where Air Force officials worked with the Fish and
Wildlife Service and National Park Service officials to enhance
food sources for the endangered Sonoran pronghorn in locations
away from military training areas. As a result, the Air Force
was able to minimize the impact of restrictions on training
missions due to the presence of the pronghorn. However, such
cases were few and far between.
In March 2004, we reported on collaboration that takes
place pursuant to section 7(a)(2) of the Act, referred to as
the consultation process. Again, we found that steps the
services and other Federal agencies had taken made the
consultation process run smoother and contributed to improved
interagency relationships.
However, some agencies disagree with the services about
when consultation is necessary and how much analysis is
required to determine potential impacts on protected species.
In each of these reports, we made recommendations intended to
further improve collaboration. DoD and Fish and Wildlife
Service have begun to discuss an implementation strategy for
improving collaboration regarding species protection on
military and other Federal lands, and the development of a
training program.
However, regarding the consultation process, while Fish and
Wildlife Service and the National Marine Fisheries Service have
continued to take steps to expand the collaboration process,
the agencies believe that current training and guidance is
sufficient.
With regard to the use of science, we have found that
generally the Fish and Wildlife Service used best available
information in key Endangered Species Act decisions, although
the service was not always integrating new research into
ongoing species management decisions. In addition, we
identified concerns with the adequacy of the information
available to make critical habitat decisions.
For example, in December 2002, we found that the decision
to list the Mojave Desert tortoise as threatened, its critical
habitat designation and the species recovery plan were based on
best available information. However, despite spending over $100
million in expenditures on recovery actions and research over
the past 25 years, it is still unclear what the status of the
tortoise is and what effect, if any, recovery actions are
having. Some question whether protective actions such as
grazing and off-road vehicle restrictions are necessary for the
tortoise's recovery.
Accordingly, we recommended that the Fish and Wildlife
Service better link management decisions with research results
to ensure that conservation actions and land use restrictions
actually benefit the tortoise. In response, the Fish and
Wildlife Service recently established a tortoise recovery
coordinator and plans to create an advisory committee to ensure
that monitoring and recovery actions feed back into management
decisions.
In August 2003, we noted concerns about the adequacy of the
available information for critical habitat decisions. As a
result, we recommended that the Secretary of the Interior
clarify how and when critical habitat should be designated and
identify if any policy, regulatory, or legislative changes are
required to enable the department to make better informed
decisions. The Fish and Wildlife Service has not responded to
our recommendations.
In conclusion, while there are no simple answers to the
conflicts and controversies, we believe that Federal agencies
responsible for managing endangered species and their habitats
can be more effective in how they manage these conflicts. Mr.
Chairman, that concludes my statement. I would be pleased to
respond to any questions you or members of the subcommittee may
have.
Senator Chafee. Thank you, Ms. Nazzaro, and thank all
members of the panel.
We are going to go to 4-minute questions and we will go in
order of the rank. So I will start off with Judge Manson. You
talked about voluntary programs. My question would be, how does
the Administration measure how well its shift to voluntary
conservation programs are benefiting species? How do you
measure it?
Judge Manson. I think the best measure is how much habitat
is being created and whether or not landowners are signing up
for these programs. Over the last 3 or 4 years, we have
obligated and spent literally hundreds of millions of dollars
out of the Partners Program, in the Landowner Incentive
Program, in the Private Stewardship Grant Program, and out of
the conservation title of the Farm Bill, and we have created,
restored, or enhanced hundreds of thousands of acres of habitat
for threatened and endangered species, habitat being the key
issue, for the most part, in the decline of most species.
Now, in fact, it may be some time before we are able to
point to a specific species and say this species is improving
or this species decline has been arrested. But we do know in
fact that more habitat has been created and more habitat has
been restored and enhanced as a result of these programs.
Senator Chafee. Thank you, Judge. You also talked in your
opening statement about less litigation and more conservation.
Can you expand on that. You said you are going to be meeting
with some of the litigators and try and channel some of that
energy into spending that money on conservation. How is that
going?
Judge Manson. Well, most of the litigation is over
procedural issues, quite frankly. It is over deadlines missed
or other procedural matters. Frankly, those are slam dunk
cases, if I can use that vernacular. The Fish and Wildlife
Service misses a deadline, the lawsuit is filed, there is no
defense, it is either settled or a judge is entered, and
attorneys fees are paid. That is really to the detriment of the
species because the time and effort that goes into that could
be spent more productively on conservation.
So my suggestion to some of the litigators is let us take
that money and let us put it into on the ground conservation
instead of putting it into the somewhat nonproductive exercise
of litigation. We can more easily prioritize and control that
in a joint venture with groups that are interested in doing
that, and we are prepared to do that.
Senator Chafee. Thank you, Judge. Boy, these 4 minutes go
fast.
Mr. Lecky, you were involved in the Klamath Basin issue.
Can you tell us what is the status of that dispute?
Mr. Lecky. The dispute is ongoing. We are working with the
Department of the Interior and the States' Department of
Agriculture to implement cooperative processes in the Basin. We
are continuing to pursue some of the science to better define
the requirements of both the endangered fish in the lake, two
sucker species, and the threatened coho salmon in the river
system.
We expect that information to become available in the next
year and we will evaluate that and decide at that time whether
it would be appropriate to re-initiate consultation. Meantime,
we are working cooperatively to improve operation of the
facilities, ensure water supply reliability, implement habitat
conservation measures both in the main stream and in some of
the tributaries in the downstream.
Senator Chafee. And at the conclusion of the dispute, is
there concrete recommendations to how we can improve ESA as a
result of having been involved in that? Are there concrete
areas that you can really pinpoint as to what we can do on ESA?
Mr. Lecky. Well, there certainly have been criticisms over
the quality of science and how science was used in that
decisionmaking process. I think it points out the fact that the
agencies have to make decisions regardless of the quality of
science that is available when it comes to evaluating jeopardy.
In those situations, we exercise professional judgment.
I think being able to share some of that process more
broadly with the public in terms of how biological opinions are
developed and getting more and broader input will help us
exercise professional judgment, it certainly will make it more
visible to the public on how that is done, and it will open up
the debate and perhaps refine the solutions.
Senator Chafee. Thank you, Mr. Lecky.
I would like to welcome the ranking member of the
subcommittee, Senator Clinton. Senator Clinton wants to make an
opening statement at the conclusion of this panel. We will
continue with our questions for now. Welcome.
Senator Clinton. Thank you, Mr. Chairman. I appreciate your
leadership on this issue and look forward to working with you
to determine whether we can reach some consensus that might
improve the law, if possible, and protect the underlying
purpose that it has stood for over all these years.
Judge Manson, in your testimony, I apologize I was not
here, I had a previous engagement, you state that the Fish and
Wildlife Service's priorities particularly in the listing of
critical habitats are driven by litigation and court orders.
Yet is it not the case that the Interior Department could
assert some control by developing a science-based priority
system for dealing with ESA decisions and the critical habitat
backlog? Could you perhaps explain to us whether that is
possible. And if so, why has the Department not put forward a
policy or initiative to ensure that ESA priorities are being
set based on science?
Judge Manson. Well, Senator, that is an excellent question.
The problem is that the law requires that critical habitat be
designated at the time of listing. There are 1,200 listed
species, something less than 400 have critical habitat
designated. So there are 800 that are without critical habitat.
So there are 800 that are essentially in default, if you will.
If we were to develop a priority system, that still would
not satisfy the courts because we still would be in default on
those 800. The courts would not give deference to our priority
system because each of those 800 are individual defaults. We
have tried to establish priority systems in the past and each
individual judge in each individual case tells us, you know,
I'm sorry, but you had an obligation to designate critical
habitat for this species 8, 10, 12 years ago, you are that far
behind, and so you have got to designate it now or within a
period of time that is reasonable.
So as a result, we have conflicting court orders and
litigation that goes on and on and on, and that is the problem.
This is a long-standing problem. It did not start recently and
it is not going to end any time soon without some legislative
relief.
Senator Clinton. Judge, one thing that concerns me, and you
certainly underscore the difficulty as you perceive it, yet it
is my understanding that this Administration has consistently
excluded or eliminated areas determined by Fish and Wildlife
Service biologists to be essential to a species' conservation
from final designated critical habitat. So how do you reconcile
these seemingly contradictory positions?
Judge Manson. Well, Senator, that is a completely different
issue. The statute provides that once a piece of habitat is
determined to be essential to the conservation of the species,
the secretary has the discretion to determine whether or not
the benefits of excluding it outweigh the benefits of including
it. That is in the statute itself and the secretary exercises
that discretion according to the law. That is part of the
designation process laid out in the statute.
Senator Clinton. Well, I think there is some confusion,
because the previous Administration and administrators of the
service took a slightly different approach. So I think that is
one of the areas, Mr. Chairman, we need to sort out and try to
understand.
But I would like you to have a chance to explain a quote
that appeared in an article in the Los Angeles Times on Friday,
November 14, 2003, in which you stated as follows: ``If we are
saying that the loss of species in and of itself is inherently
bad, I don't think we know enough about how the world works to
say that.'' Now, does your statement not reflect a fundamental
disagreement with the goals and purposes of the ESA? And
second, how do you reconcile that viewpoint with leading
scientists who do view the current rate of extinction as an
ecological and biological crisis and the majority of the
American people who support the ESA by an overwhelming margin?
Judge Manson. Let me say first, Senator, that I support the
ESA as well and I do believe in the fundamental goal of the
ESA, I always have and I did at the time that I gave that
interview. The statement that I made was this. That the ESA is
not designed to save every single species that goes extinct
everywhere in the world for any particular reason. It has
particular goals and it has particular processes and we have to
honor and respect those goals and processes. The issue of
species extinction is a very complex one. We simply do not have
the resources to deal with all of the complexities of the
science of species extinction. The resources that we do have we
must apply in a manner that honors the goals of the ESA as set
forth by the Congress.
Senator Clinton. Thank you, Mr. Chairman.
Senator Chafee. Senator Jeffords.
Senator Jeffords. Mr. Manson, I am troubled by some of the
recent administrative actions that have been taken with regard
to consultation with the Endangered Species Act. One eliminates
consultation between the EPA and the Fish and Wildlife Service
on the impact pesticide use would have on the wildlife. Another
eliminates the requirement that the Forest Service consult with
the Fish and Wildlife Service before logging and road building
to determine the impact on wildlife and the habitat.
Consultation with the Fish and Wildlife Service is required
under section 7 of the Act and not self-consulting. In
addition, you state that resources should be spent focusing on
actions that directly benefit species, such as improving the
consultation process. Do you consider eliminating consultation
a way of improving it?
Judge Manson. Senator, we have not eliminated consultation.
As you state, consultation is required by the law. What you are
referring to are two situations where we have adopted what are
referred to as counterpart regulations.
What happens in those counterpart regulations is that some
decisions, which by regulation and not by statute were given to
the Fish and Wildlife Service, are now made by biologists in
the particular agencies. These are threshold determinations and
not the actual consultative determinations on the issues of
jeopardy. The fundamental determination of whether or not
jeopardy to a species is caused is still made by the U.S. Fish
and Wildlife Service. The consultation process still exists,
there is still an obligation on the part of those agencies to
consult with the U.S. Fish and Wildlife Service on projects
that the statute requires consultation.
Senator Jeffords. Another administrative proposal that
concerns me is the one that Senator Chafee and I wrote to you
about last year, the draft policy for enhancement of survival
permits for foreign species listed under the Endangered Species
Act. Could you please tell me what the status is of this
proposal?
Judge Manson. That proposal is still under consideration.
Senator Jeffords. Thank you, Mr. Chairman. Do I go on to
Mr. Lecky?
Senator Chafee. Sure. Yes.
Senator Jeffords. Mr. Lecky, you said that you would like
to work with the committee to strengthen partnerships and
remove the potential hurdles to the partners' full involvement.
Does the National Fisheries Service have any legislative
proposals to accomplish this?
Mr. Lecky. No, sir, we have not developed any at this
point.
Senator Jeffords. Ms. Nazzaro, earlier Senator Chafee
talked about our request to the Keystone Center to convene a
group of stakeholders to try to reach a consensus on how to
deal with the issue of habitat conservation. Are you familiar
with the Keystone Center, and what do you think of this
approach?
Ms. Nazzaro. I am sorry, sir, I am not familiar with the
Keystone Center. But overall, the approach that you are talking
about sounds like a valid approach. Our primary concern is with
the critical habitat designations and we do have some follow-on
work for this committee as well as others that will be looking
at the recovery program as well.
Senator Jeffords. Thank you. Thank you, Mr. Chairman.
Senator Chafee. Senator Lautenberg.
Senator Lautenberg. Mr. Chairman, just a couple of seconds
of housekeeping before we throw the timer on. I would
recommend, obviously by the statements that have been made,
that for questions, 4 minutes is slightly too short a time to
do it. I have already used 4 minutes.
[Laughter.]
Senator Chafee. We do have some kind of a time constraint
at the end of the hearing. With three panels, I did not have
much choice.
Senator Lautenberg. Right. We may in the future have to
reduce the panels.
Senator Chafee. Another hearing, another day.
Senator Lautenberg. I thank you and I thank the witnesses
for their statements. Did I understand you to say also, Mr.
Chairman, that you were going to accept an opening statement
after this panel?
Senator Chafee. Yes, sir.
Senator Lautenberg. OK. Thank you. Thank you each for your
testimonies. Very important. And you are credible witnesses and
we appreciate your being here. But Mr. Manson, are you aware of
the fact that the Union of Concerned Scientists polled the
scientists working for Fish and Wildlife, and that one out of
five expressed an opinion or a view or reported that they were
asked to change their findings that had been earlier published.
Is that true?
Judge Manson. I am aware of that report. I think it is
significant that no one at all pointed to any specific report
or example of anything that had been changed. As far as I know,
no one was ever directed to change any scientific document.
Senator Lautenberg. You dismiss the polling done by the
Union of Concerned Scientists?
Judge Manson. I do. And I have---
Senator Lautenberg. I thank you very much for that
observation. As you look at the cost-benefit of decisions about
critical habitat, how does the Service decide what to count as
a benefit? I know that in my State, for instance, tourism is
substantially increased (a) because it is good for the soul,
(b) because it is good for my kids and grandchildren, and (c)
because it is very good for the economy. Do you count tourism
as one of the benefits in your cost-benefit analysis?
Judge Manson. Generally, we are focused on biological
benefit as opposed to other benefits.
Senator Lautenberg. Then why introduce cost-benefit at all
if that plays such an insignificant part? I think it should
play a huge part. But if we throw out the criteria by which we
measure the success of these programs, then I think that we
ought to have a further review of that.
Ms. Nazzaro, you said that the Government had spent $100
million to recover the Mojave Desert tortoise. But did you say
you did not know whether it is recovering, or do you know
whether it is recovering or not as a result of that
expenditure?
Ms. Nazzaro. That is right, at the time we did that work we
were not able to determine nor was the Service able to tell us
the status of that Mojave Desert tortoise. Part of the problem
that we saw was that while they were using best available
science in doing their listing, critical habitat designation,
and recovery plan, they were not integrating the results of new
scientific studies into ongoing management decisions.
Another problem was that, as Judge Manson noted, the time
period over which you have to monitor tortoise populations
before you could discern a trend in status is very long.
Monitoring would need to be done for at least one generation,
which is about 25 years. The Service just started this in 2001
to establish a baseline population; prior to that, they had
done nothing.
So while they have been spending this money over 25 years,
they did not have a baseline to even know what to measure
against. Now, in 2001 they have started the baseline, but it
will take 25 years to know what is happening. That is why I
said the work that we have planned to do at your request and
others will be looking at the recovery program and we should be
able to be more definitive as to what has been accomplished and
what has not.
Senator Lautenberg. I think the reverse of what you just
said is probably that these investments have to be made at an
early point in time because the review, and it has to be one
done thoroughly, perhaps could take a lot of time. So we should
be able to make those expenditures even though we are not down
to the last few of those in that species.
Thank you very much. Thanks, Mr. Chairman.
Senator Chafee. Thank you, Senator Lautenberg.
Before we dismiss this panel, I would like to give you each
a shot if you have any experience or knowledge of the S. 1180
that I mentioned in my opening statement, the Kempthorne-Chafee
bill of 1997. Judge Manson, do you have any comments on that
bill, which came out of this committee 14 to 3, I think I said,
and a lot of work was put into it. I know it is dated, but any
comments on that?
Judge Manson. Yes. I had the pleasure of representing the
Governor of California on the Western Governors Task Force that
took a look at S. 1180 when it was active at that time. And our
role in the Administration today is to assist the Congress as
it considers what needs to be done in terms of updating and
modernizing the ESA. And we will be pleased to take a look at
S. 1180 and evaluate that for your consideration as we go
through this process today.
Senator Chafee. Thank you. Mr. Lecky, did you work with
that in your capacity?
Mr. Lecky. I have reviewed that statute personally, and as
Judge Manson indicates, we will be willing to work with the
committee to update the legislation and address issues in it.
Senator Chafee. No ringing endorsements here.
[Laughter.]
Senator Chafee. Ms. Nazzaro?
Ms. Nazzaro. We have not evaluated the provisions, sir.
Senator Chafee. Or ringing criticisms either. Thank you
very much for your time.
We will now call our third panel.
Senator Clinton would like to make an opening statement,
and Senator Lautenberg, following Senator Clinton, as the third
panel takes their seats.
Senator Clinton.
Senator Clinton. Thank you very much, Mr. Chairman. I will
ask unanimous consent that my entire statement be submitted for
the record and just briefly summarize some of the key points.
Senator Chafee. Without objection, so ordered.
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Clinton. I want to begin by explaining why I think
it is so important that we start from a presumption that
conserving animal and plant species is good for us. I think it
is really a significant starting point that this is not an
exercise of balancing one set of priorities against another,
but that we start from a baseline that conservation is
important for a number of reasons, and one is simple
pragmatism.
We have long used plants for medicinal purposes. And even
in our current age of laboratory-created pharmaceuticals, many
important drugs are derived from plants. To give just a few
quick examples:
The cancer drug Taxol comes from the bark of the Pacific
yew tree and it is used to fight ovarian and breast cancer.
The bacterium thermos aquaticus that lives in the hot
springs of the Yellowstone National Park is the source of a
compound called taq polymerase, an enzyme required for DNA
fingerprinting in forensics and diagnostics.
We know that a protein found in the blood of the horseshoe
crab is used to detect bacterial toxins in medical implants and
injectable medicines and vaccines.
And just recently, in the last few weeks in our newspapers,
we saw that the saliva of the gila monster is going to be
useful in the treatment I think of diabetics.
We have no idea what is out there. And so we may have
started years ago with the idea of protecting plant and animal
species because we understood at some profound soul level that
we did not want to destroy the world in which we were a mere
inhabitant. We had nothing to do with creating it, we did not
want to be responsible for its destruction. And I think that is
an incredibly important philosophical basis for what we are
doing here today in trying to determine the best ways to
protect endangered and threatened species.
But I do not want to lose sight of the practical
implications of what we are doing as well. We do not know what
discoveries are out there yet to be learned. I hope that maybe
our hearings and our work can raise the visibility of the
significance of this aspect of our endeavors.
There are also economic reasons. I think Senator Lautenberg
was referring to the role that tourism dollars play in many
communities as people travel to see wolves or grizzlies. I have
traveled to see wolves and grizzlies myself. I know that it is
something that in the wild is so attractive and compelling, and
it is an area that I believe has tremendous potential
economically.
But, of course, the whole question of extinct is more
fundamental. We are really on the brink, according to many
scientists throughout the world, in seeing many, many forms of
life disappearing, and they are disappearing at an alarming
rate. Mr. Chairman, I would ask unanimous consent to include a
letter from 10 prominent scientists, including Edward O.
Wilson, documenting the global rates of extinction.
Senator Chafee. Without objection.
Senator Clinton. And as these scientists point out, the
rate of extinction in the United States is not as dire as other
parts of the globe. I would argue strongly that one of the
reasons it is not is because of the Endangered Species Act.
That we ought to be very proud of what we have done to maintain
and promote the life of our Planet. We have work to do in our
own country, but, clearly, when we look at the loss of critical
habitat throughout the world, when we look at what happens not
only to plant and wildlife species but what erosion does in
terms of flood, loss of farmland, if you go to some of the
places that we as senators travel and see treeless areas where
there once were millions of trees, and we talk to farmers and
government officials about how difficult it has been because
the erosion has wiped away everything, plant life, animal life,
and human sustenance.
Now, one reason that the Endangered Species Act has worked
so well is that 99 percent--99 percent--of the species that
have been put on the Endangered Species List have avoided
extinction. That is a tremendous record of accomplishment that
everybody in America ought to be proud of. And many of these
species are on the road to recovery. I brought a picture of
one, the Canada lynx cub.
In 1999, before the species was listed in Colorado, the
State, knowing that it was about to be listed, reintroduced the
Canada lynx in southern Colorado. Four years later, in 2003, 16
lynx kittens were born in the wild there. Now, there is still
more work to be done, but this is one example of how the States
and the Federal Government have worked together under the
framework of the ESA.
So I am excited by the progress we have made and the
success that we can celebrate. And I really applaud Senator
Chafee for his leadership in putting the Keystone Center
process in motion. I hope that process will produce ideas on
critical habitat that a range of stakeholders will be able to
support. About 2 or 3 weeks ago, we were all so excited about
the ivory-billed woodpecker.
I remember very well when my husband was governor of
Arkansas, one of his goals was to preserve critical habitats in
Arkansas. They put State money in, the teamed up with private
landowners who donated money, the Nature Conservancy, other
groups that came in and said we are going to buy up this
critical habitat, and now, all these years later, we know that
the ivory-billed woodpecker lives in that critical habitat.
And so, I think that there is so much that we can celebrate
with this act. I know that there are a lot of people who have
questions and concerns. I think it is clear that Senator Chafee
and I and members of the committee are open to ideas about how
to provide better incentives for private landowners to conserve
species, how to provide adequate funding to the agencies to
implement the act, how to do a better job protecting habitat
and involve the States.
So our goal is to continue this record of success but make
it better, make it work better, make it less cumbersome, make
the incentives more attractive. Just yesterday in my office, I
met with a group of my constituents who live along the Peconic
Bay on Long Island, and there has just been a wonderful gift by
a private landowner of some of the shell beds. We have lost a
lot of the shellfish. Well, now that a private landowner has
turned it over to a conservation group, we are going to see if
we can bring shellfish back to Long Island Sound and to the
Peconic Bay.
These are the kinds of advances that I think really tell
the story of the success of the Endangered Species Act. And we
want to hear how we can make it better, more effective, less
cumbersome, more flexible, but we want to maintain our
commitment to what this act has achieved and to the
extraordinary commitment the American people have made to
preserving the life of this planet.
[The prepared statement and referenced materials of Senator
Clinton follow:]
Statement of Hon. Hillary Rodham Clinton, U.S. Senator from the
State of New York
Thank you, Mr. Chairman. I congratulate you on your chairmanship of
the Fisheries, Wildlife and Water subcommittee. It's a pleasure to join
you here today as the ranking member for our first hearing in this
Congress.
I'm sorry that I missed Senator Crapo's testimony, but I want to
thank him for that testimony and will review it carefully. In addition,
I want to thank all of our witnesses for appearing today.
I want to begin my statement by explaining why I think it is so
important for us to conserve our plant and animal resources. One reason
is simple pragmatism. Human beings have long used plants for their
medicinal properties, and even in our current age of modern
pharmaceuticals, many important drugs are derived from plants. To give
one well-known example, the cancer drug Taxol, which is used to fight
ovarian and breast cancer, is derived from the bark of the Pacific Yew
tree. Fortunately, the Yew is not endangered, but the fact is that we
don't know which plant the next breakthrough drug might come from. By
protecting our plants from extinction, we keep our options open.
There are also economic reasons to conserve wildlife, such as the
tourism dollars that flow to communities where people go to see animals
such as wolves and grizzlies in the wild.
But to me, the most important reason--prevent extinction is more
fundamental. It's because we are custodians of this planet for future
generations, and the world we pass on to our children and grandchildren
is a richer, more interesting place with animals such as the Canada
Lynx, the Grizzly Bear and the Grey Wolf in it.
That's why the Endangered Species Act is so important. It is a
lifeline for creatures that are on the brink of disappearing forever.
And there is no question that on a global basis, plants and animals
are disappearing at increasing and alarming rates. Mr. Chairman, I ask
unanimous consent to include a letter from 10 prominent scientists,
including Edward O. Wilson, documenting global rates of extinction. As
these scientists point out, although we face the extinction of many
plants and animals here in the United States, our situation is not as
dire as other parts of the globe.
One reason is certainly the Endangered Species Act. Since its
enactment, 99 percent of the species that have been put on the
Endangered Species list have avoided extinction. And many of these are
on the road to recovery.
I have next to me a picture of a Canada Lynx cub. In 1999, before
the species was listed in Colorado, the state reintroduced the Canada
Lynx in southern Colorado, and just 4 years later in 2003, 16 Lynx
kittens were born in the wild there. There's still more work to be
done, but this is one example of how states and the federal government
can work well together under and the framework of the ESA to achieve
results.
So as I approach this issue, I do so without preconceptions, except
that I start from the premise that the Act is successfully achieving
its primary objective preventing extinction. At the same time, I
recognize that like any program, like any law, the Endangered Species
Act can be amended to increase its effectiveness.
Many stakeholders and some in Congress have put forward ideas about
how to provide better incentives for private landowners to conserve
species; how to provide adequate funding to the Agencies to implement
the Act; how to do a better job protecting habitat; how to better
involve states; and how federal agencies can better meet their
obligations to conserve listed species.
I am open to ideas on these issues, and I look forward to hearing
more today and at future committee meetings. In that regard, I want to
thank Senator Chafee for his leadership in putting the Keystone Center
process in motion. I hope that process will produce ideas on ``critical
habitat'' that a range of stakeholders can support and that we can look
at down the road.
In short, I look forward to working with Senator Chafee and my
other Senate colleagues to try to find consensus ideas about how to
improve the Endangered Species Act. I hope we are able to do that.
But until we get a bill to the President's desk, the current
Endangered Species Act is the law of the land. And I have to say that I
have concerns about the way that this Administration is interpreting
and implementing that law.
First of all, I am disturbed by evidence that political leadership
is subverting science at the Fish and Wildlife Service. A recent survey
by the Union of Concerned Scientists and the Public Employees for
Environmental Responsibility of 1400 scientists at the Fish and
Wildlife Service found that:
44 percent of respondents said they had been asked to refrain
from making scientific findings that protect species;
1 in 5 respondents had been directed to change technical
information in scientific documents;
and 3 out of 4 respondents felt that the USFWS is not acting
effectively to maintain or enhance species and their habitats.
These are troubling findings that deserve further inquiry, and I
intend to ask the GAO to look into them.
I am also concerned about the Administration's regulatory actions.
The Administration has weakened the consultation requirement, one of
the pillars of the Act. In addition, the number of species added to the
endangered species list has dropped under this Administration.
So, Mr. Chairman, I want to thank you for holding this hearing. I
look forward to working with you to find ways that we can improve the
Act, while at the same time, conducting oversight to review the way
that the current Act is being implemented. Thank you.
______
May 17, 2005
Hon. Lincoln Chafee, Chair,
Hon. Hillary Rodham Clinton, Ranking Member,
Environment and Public Works,
Subcommittee on Fisheries, Wildlife and Water
Dear Senators: As scientists from across the United States with
many years of experience in ecology, wildlife, conservation biology,
evolutionary biology, we would like to share with you our views on the
current extinction crisis.
We write out of deep and growing concern for biological diversity;
the full array of life on Earth, including the vast number of species
of plants, animals, fungi, and microorganisms and the natural
communities that these species form. Biological diversity at all levels
is tremendously important to humankind. For example, hundreds of
medicines and other compounds vital to human health are derived from
the natural world. Some of them come from unlikely sources,
exemplifying the need to protect as many species as possible:
A bacterium (Thermus aquaticus) that lives in hot springs in
Yellowstone National Park is the source of a compound called ``Taq
polymerase,'' an enzyme required for DNA fingerprinting in forensics
and diagnostics.
The important cancer treatment drug taxol is derived from the
bark of the Pacific yew tree (Taxus brevifolia).
A protein found in the blood of horseshoe crabs (Limulus
polyphemus) is used to detect bacterial toxins in all medical implants
and injectable medicines and vaccines.
Wild plant and animal species are the source of virtually all
domesticated foods and fibers. Even today breeders turn to wild
specimens for genes that help crops resist pests, survive drought, and
adapt to different growing conditions. Hence, the value of genetic
diversity, or variety within species, speaks to the need to preserve
more than just a few examples of each species. Perhaps even more
important, however, is the value of full, intact ecosystems, which
provide ecological services such as erosion control, water filtration,
climate regulation, flood control and pollination.
Despite the incredible importance of biological diversity, a grim
scientific consensus is emerging: we are in the throes of an extinction
crisis. Extinction is the irrevocable disappearance of a species
everywhere on planet Earth. Unlike 'extirpation', which refers to a
species disappearing from a particular jurisdiction (such as one state
or country), extinction cannot be undone. Extinction is the killing off
of all individuals, forever extinguishing the life of an entire
species.
Currently there is little doubt left in the minds of professional
biologists that Earth is faced with a mounting loss of species that
equals or exceeds any mass extinction in the geological record. Human
activities have brought the Earth to the brink of this crisis. Many
biologists consider that coming decades will see the loss of large
numbers of species; these extinctions will alter not only biological
diversity but also the evolutionary processes by which diversity is
generated and maintained. Extinction is now proceeding one thousand
times faster than the planet's historic rate.
As of 2000, a total of 539 species out of roughly 200,000 in the
United States have been recorded by NatureServe as extinct or missing.
Of these, 100 meet the stricter criteria of presumed extinct, with the
remaining 439 falling into the possibly extinct category. These
extinctions span the gamut of organisms, including vertebrates such as
the great auk and West Indian monk seal, plants like the Santa Catalina
monkeyflower and falls-of-the-Ohio scurf-pea, and invertebrates such as
the Wabash riffleshell and the Colorado burrowing mayfly.
In the United States, there have been more extinctions of birds
than of any other group of vertebrates--2.3 percent of our endemic bird
species are gone forever. The most current NatureServe data shows 30
bird species in all that are either presumed extinct or missing and
possibly extinct. The majority of these birds (23 species) were native
only to Hawaii. Four species native to the continental United States
are presumed extinct: the passenger pigeon, Carolina parakeet, the
great Auk, and Labrador duck. Furthermore, in the past 100 years the
United States has lost 2.2 percent of its endemic amphibians, 1.2
percent of the freshwater fishes, 1.1 percent of the plant species, and
a staggering 8.6 percent of the freshwater mussels forever.
Worldwide, the situation is even worse. Because of the incredible
density of species in tropical regions that are facing rapid
deforestation, we may be losing species at a rate of 30,000 per year,
or an overwhelming 3 per hour. Many biologists predict that coming
decades will see the loss of large numbers of species. One-quarter of
all mammals, including lions, tigers, rhinos, and most primates, could
be declared extinct by the end of this century, along with one in eight
bird species, and thousands of plant species.
Habitat destruction is widely recognized as the primary cause of
species loss. In the United States, habitat loss threatens about 85
percent of imperiled species. Worldwide, the figure may be higher.
Agriculture, logging, urban development, dredging, damming, mining and
drilling are just a few of the activities that eliminate or
significantly degrade habitats. Invasive species released intentionally
or imported accidentally take over habitats and crowd out native
species. Similarly, diseases imported to areas where the local flora
and fauna have no resistance also wreak havoc on biological diversity.
Pollution, over-exploitation, and global warming are also responsible
for sending numerous species toward extinction.
The future of humanity is inextricably tied to the fate of the
natural world. In perpetuating this, the Earth's sixth mass extinction,
we may ultimately compromise our own ability to survive. We need to
steer this nation and lead the world toward a more sustainable path.
As a result of the Endangered Species Act, passed in 1973 by an
overwhelming Congressional majority, the United States maintains a
Federal list of Endangered and Threatened Wildlife and Plants. The
Endangered Species Act represents our nation's most determined effort
to take responsibility for preserving its precious biological
diversity. By offering strict Federal protections to the species that
are included on the list, the government has drawn a line which it will
not allow human pressures to cross over. That line is extinction.
In both its scope and its irreversibility, extinction is the most
frightening, most conclusive word in our language. When a species has
been declared extinct, not only have all its individuals died, but the
possibility of any such individuals ever existing again has been
foreclosed. The variety of life with which we share the earth is sadly
in rapid decline. Life is grounded in biological diversity, and the
fate of this diversity, which created and sustains us, is now in our
hands.
Fortunately, we have the wherewithal and the tools we need to
address this crisis. The most important of them is the Endangered
Species Act. It is the alarm system our nation crafted to warn us when
species are facing extinction. It is the measure by which we halt
species' decline and give species a fighting chance at recovery.
Viewing our looming extinction crisis as a crisis for humans as well as
wildlife, the importance of the Endangered Species Act takes on even
greater significance. In the face of this crisis, we must strengthen
the Act and broaden its protections, not weaken them.
Thank you for considering our concerns and recommendations.
Sincerely,
E.O. Wilson, Ph.D.
University Research Professor, Emeritus
Harvard University
Cambridge, MA 02138
Paul R. Ehrlich, Ph.D.
Bing Professor of Population Studies
President, Center for Conservation Biology
Stanford University
Stanford, CA 94305-5020
Stuart Pimm, Ph.D.
Doris Duke Professor of Conservation Ecology
Duke University
Durham, NC 27708
Peter H. Raven, Ph.D.
Director
Missouri Botanical Garden,
St. Louis, MO 63166-0299
and Adjunct Professor, University of Missouri,
St. Louis University, and Washington University
Gordon H. Orians,
Professor Emeritus
University of Washington
Seattle, WA 98195-1800
Jared Diamond, Ph.D.,
Professor of Geography
University of California, Los Angeles
Los Angeles, CA 90095-1524
Harold A. Mooney
Paul S. Achilles, Professor of Environmental Biology
Stanford University Stanford, CA 94305-5020
and Chair, Millennium Ecosystem Assessment
Daniel Simberloff
Gore Hunger Professor of Environmental Science
University of Tennessee
Knoxville, TN 37996 USA
David S. Wilcove
Professor of Ecology and Evolutionary Biology
and Public Affairs
Princeton University
Princeton, NJ 08544
James T. Carlton
Director and Professor of Marine Science
Williams College-Mystic Seaport
Mystic, CT 06355
Cc Senators John Warner, Lisa Murkowski, Jim DeMint, David Vitter,
Joseph Lieberman, Frank Lautenberg, and Barack Obama
Senator Chafee. Thank you, Senator Clinton. Since 1973,
yes, the Act has done a lot of good. Think back, in 1973
Congress got together and passed a good law and then President
Nixon signed it, and now we are here in 2005 seeing if we can
make it better. Have you ever been to Cash River where the
ivory-billed woodpecker is now?
Senator Clinton. Yes, I have. I never saw the woodpecker,
however.
[Laughter.]
Senator Chafee. I am sure, as Senator Lautenberg said,
people are probably going to flock from all over the world to
come to Cash River in Arkansas to try and see this bird.
Senator Clinton. It is a good problem to have.
Senator Chafee. Yes. Maybe spend some money in the
restaurants and---
Senator Lautenberg. And also visit the wonderful library
that was recently established.
[Laughter.]
Senator Chafee. Senator Lautenberg?
OPENING STATEMENT OF HON. FRANK LAUTENBERG,
U.S. SENATOR FROM THE STATE OF NEW JERSEY
Senator Lautenberg. Thanks very much, Mr. Chairman. I will
try not to take too long. I come from New Jersey, the most
densely populated State in the country. As a consequence, much
of what I see and what I think about in terms of my
responsibilities here I see through the eyes of my 10
grandchildren, the oldest of whom is 11.
And we just heard from Ms. Nazzaro that an analysis of one
particular turtle's recovery, if any, would take many years.
And I worry about another species--the human species. We are
all part of the ecological chain that makes this world go
round.
It is short-sighted to have these disputes, in my view. And
I understand that the landowners, who paid for their land and
want to work it to the last degree possible, might feel that
they are being driven out by some species, and they will throw
out derogatorily a name of a bird or a little thing here or
there. But I come from the State also that was the home of
Joyce Kilmer, who wrote the poem so famous for all of us,
Trees, ``Poems are made by fools like me, but only God can make
a tree.'' Mr. Chairman, human beings can write poems but we
cannot build these species. We cannot recreate some of these
species.
I am going to shorten my statement in the interest of time.
But I just would say that we have made the Endangered Species
Act, which you mentioned Mr. Chairman, signed by a Republican
into law, Senator Clinton had an excellent recall of those
species that were endangered and may actually be in their last
stages. It is never too late to try to keep them going. We
talked about treeless plains, we talked about fishless streams.
Idaho, where Senator Crapo comes from, used to be filled with
salmon up the Snake River. Well, they are not around anymore
for all kinds of reasons. They were not protected when we had
an opportunity to do so.
And so, Mr. Chairman, I commend you for doing this. I wish
we had more time. We have a war against disappearing species,
and we have another war on the floor of the Senate which we
will have to get to. But thank you very much for having the
hearing.
[The prepared statement of Senator Lautenberg follows:]
Statement of Hon. Frank Lautenberg, U.S. Senator
from the State of New Jersey
Mr. Chairman, thank you for giving our committee an opportunity to
discuss this landmark piece of legislation--the Endangered Species Act.
The American poet Joyce Kilmer was born in New Jersey, and educated
at my alma mater, Columbia University.
Before he died in combat in World War I, Mr. Kilmer wrote many
wonderful poems. Perhaps the most famous is ``The Trees,'' which
includes the well-known lines,
``Poems are made by fools like me, But only God can make a
tree.''
Mr. Chairman, human beings can write poems. We can build things. We
can pass laws. But we cannot create a new plant or animal. We can
either destroy them and drive them to extinction . . .
Or, if we choose, we can protect them. I believe it is our duty as
stewards of this planet to protect other forms of life. It is our duty
to the future generations who will live on the planet we leave them.
The Endangered Species Act has done that.
Since it was enacted in 1973--during a Republican Administration,
by the way--many species of American wildlife have been saved from
extinction. Some of these, like the majestic bald eagle, have not been
officially removed from the endangered list, but it is widely agreed
they have recovered. It's more common to see a bald eagle today than it
was a few decades ago.
Others, like the Florida panther, would almost certainly be extinct
today if not for the Endangered Species Act. The bald eagle is one--the
17 animals on the endangered species list that are found in my state of
New Jersey. Others include the piping plover, the bog turtle and the
gray wolf.
Mr. Chairman, I have 10 grandchildren. I can't imagine how I would
feel if I knew that they were growing up in a world where the bald
eagle had become extinct.
The three purposes of the Endangered Species Act are to identify
species at risk of extinction, protect the remaining individuals of
these species and their habitats, and aid the recovery of these
species. The Act has been successful in all three cases. But that
doesn't mean it is perfect.
Since its original passage, Congress has revisited the Endangered
Species Act several times. Today, I am collaborating with my friend
from Idaho (Sen. Crapo) in requesting a GAO report to determine whether
the ESA can operate more efficiently.
We can undoubtedly find ways to implement this Act more
efficiently. But the main problem with the ESA today is that the
Administration is not following the spirit of the law--or in some
cases, the letter.
The Administration is turning its back on science--just as it has
done in ignoring global warming and allowing unsafe levels of mercury
to be released into the air we breathe.
This is an act that has broad support among the American people. It
has been renewed and strengthened through five different
Administrations of both parties before the current Administration.
Congress can't make a tree or an eagle--but we can uphold the
legacy of protecting those species that share the Earth with us.
Thank you for the time, Mr. Chairman.
Senator Chafee. Thank you, Senator Lautenberg.
Welcome to the panel. We have Mr. John Kostyack, from the
National Wildlife Federation; Mr. Reed Hopper, from Pacific
Legal Foundation; Ms. Jamie Rappaport Clark, with the Defenders
of Wildlife; and Ms. Monita Fontaine, with the National
Endangered Species Act Reform Coalition. Welcome.
We will start with Mr. John Kostyack.
STATEMENT OF JOHN KOSTYACK, SENIOR COUNSEL, NATIONAL WILDLIFE
FEDERATION
Mr. Kostyack. Thanks, Senator Chafee. Good morning. I would
like to address three issues today in my testimony. First, the
Endangered Species Act's overall effectiveness; second, that
critical habitat feature that has come up so much this morning;
and third, what changes to the Act would be most useful for
Congress to consider.
First, the Endangered Species Act has been a remarkably
effective law in its 32-year history. For that reason, its core
protections must be preserved. The folks who have been arguing
for a radical overhaul of the Act rely largely on one
statistic: that roughly a dozen or so U.S. species have been
fully recovered and delisted, and they say that is a major
indicator of failure of the Act. But once this misleading use
of the statistic is discredited once and for all, the entire
case for overhaul of the Act evaporates.
The bottom line is, the limited number of delistings we
have had as of 2005 is not an indicator of failure of the Act.
Species currently on the ESA list have been there for roughly
15 years on average. For reasons unrelated to the Endangered
Species Act, it will take decades before the conditions are
right for most of these species to be delisted: first,
restoration and management strategies must be designed; second,
funding must be secured to carry out those restoration and
management strategies; third, time is needed for the trees to
grow back or other key biological processes to be put in place
until the newly restored habitats become suitable and can be
reoccupied by the species; and finally, once a species is
recovered, delisting still cannot happen until some regulatory
mechanism is put in place to prevent the species from sliding
back toward extinction after the ESA regulations are removed.
So if the number of delistings after just a couple of
decades tells us very little, how can the Act's performance be
evaluated? Here are the questions that should be asked: Is the
Endangered Species Act rescuing species from extinction? Is it
helping stabilize species and moving them in the direction of
recovery? By using those measures, the Act has been quite
successful. Over 99 percent of species protected by the Act
remain with us today, and by the way, there is some dispute
whether it is 98 or 99 percent, but we can set that aside.
Of the listed species whose condition is known, 68 percent
are stable or improving, and only 32 percent are declining. And
a third statistic I will give you is probably the most
significant one. The longer a species enjoys the Act's
protection, the more likely its condition moves from the
declining category to the stable or improving categories.
These successes are playing out on the ground all across
the country. Cherished wildlife like the Whooping crane,
Florida panther, gray wolf, and bald eagle, and obscure plants
like the Robbins' cinquefoil that may someday help devise a
treatment for AIDS or cancer, all remain in our midst due, in
part, to the Endangered Species Act. As a manatee scientist
said just this week in response to the latest attacks on the
law, ``I just can't imagine what we would do for the species
without the Endangered Species Act.''
Let me get to my second point about critical habitat.
Critical habitat, as you know, if very controversial,
especially with those who rely on Federal lands or Federal
permits or subsidies for their development activity and do not
want that activity restricted to protect habitat needed for
recovery. Yet scientists tells us there is no way to recover a
species unless we protect its habitat.
Now, there are other provisions of the Act that protect
some habitat, but they have been interpreted as not protecting
all of the habitat needed for recovery. Only the Act's critical
habitat feature makes it absolutely clear that Federal actions
cannot destroy habitat needed for recovery.
Now, those who say this protection is redundant or
worthless have not done their homework. The only peer-reviewed
studies on a critical habitat's effectiveness show that species
with designated critical habitat are more likely to be stable
or improving than those without.
My final point. I would just like to give you some
suggestions on simple steps that you can take to improve the
chances of species recovery and reduce the risk of extinction.
First, encourage implementation of recovery plans. You can do
that by adopting a suggestion that was developed as early as
the mid-1990s by the Western Governors Association, it remains
a policy of theirs today, is the concept of Recovery
Implementation Agreements. We need to step down from sort of
the broad generality of recovery plans and get into the details
and make those formally adopted Recovery Implementation
Agreements.
Second, encourage proactive conservation. Give recognition
to those early cooperative recovery projects that we have been
talking about today that are springing up all around the
country. Let us give them some Federal recognition in the
recovery plan and then let us have Federal funding flow from
there. Provide the funding to support those projects that the
wildlife agencies have recognized in the recovery plan as being
the most successful and the most useful.
Third, provide conservation incentives to private
landowners through targeted changes to the tax code. That is
the only secure funding we are going to be able to give to
those private landowners to enable them to plan their
activities.
Fourth, integrate critical habitat designation with
recovery planning. Let us get all our science together at
roughly the same time in the same process.
And finally, and most important of all, is provide the long
over-due funding that is needed to implement this law.
Thank you for the opportunity to testify today. I would be
very pleased to answer any of your questions.
Senator Chafee. Thank you.
Mr. Reed Hopper. Welcome.
STATEMENT OF M. REED HOPPER, PRINCIPAL ATTORNEY, PACIFIC LEGAL
FOUNDATION
Mr. Hopper. Thank you very much, Mr. Chairman, members of
the committee. I appreciate this opportunity to express my
views on the efficacy of the Endangered Species Act.
In its 32-year history, the Act has been successful at
demonstrating our general lack of understanding of the physical
and biological needs of at risk species and the functions of
diverse ecosystems. A report issued this week to the House
Resources Committee documents that the Act is not achieving its
primary goal of recovery of species. I think that one of the
primary reasons for this is that the Act really does not
contemplate protections of human needs. And I think that this
breeds distrust in the Government and is ultimately
counterproductive.
As a people, we have a moral imperative to secure a
meaningful quality of life for present and future generations.
Society must both protect the environment and provide for
economic growth. It is the obligation of elected officials to
ensure that these ends are achieved by fair and orderly means.
While protecting the environment and maintaining a robust
economy are not mutually exclusive, the Federal Government has,
for the most part, failed to provide a proper balance.
As a result, we live in a system that in some cases
encourages the destruction or overuse of our natural resources
and in other cases nurtures the pursuit of marginal
environmental goals at disproportionate social costs. In its
implementation, the ESA does not strike a balance between
competing economic and ecological values, nor is it protective
of human rights.
This approach I believe pits people against species,
environmentalists against landowners, and urban communities
against rural communities. Further, the strict application of
the ESA has resulted in some unfortunate outcomes. For example,
homeowners in Texas have been threatened by the Fish and
Wildlife Service with criminal conviction if they erect fences
on their property in the habitat areas of the Golden-cheeked
warbler, a small bird. Likewise, homeowners in California have
been warned that clearing brush away from their homes for fire
protection in gnatcatcher habitat will subject them to
substantial fines or imprisonment.
In the Klamath River Basin, at the California-Oregon
border, Federal officials withheld water from farmers in a
drought year to increase river flows for protected fish.
Although Klamath farmers helped to pay for the water storage
and delivery system, and the Federal Government was obligated
by contract to deliver irrigation water to nearly 1,400
families and 230,000 agricultural acres, water delivery was
stopped. Nearly all crops were lost, along with hundreds of
families' income and their planting capacity for the next
season. Agricultural land dropped in value by tenfold. As a
result, hopes for college and retirement shrank.
Most tragically, a Federal Government report documents
actual loss of human life from concerns over ESA compliance.
During a wildlife fire in the Cascade Mountains of the State of
Washington, confused Forest Service officials, fearful of
violating the ESA, delayed for hours before allowing fire
fighting helicopters to scoop water from a river to help
trapped firefighters because the river was habitat to protected
fish. The Government admits that this delay was an influencing
factor behind the death of these four firefighters.
These examples underscore the problems created by an
inflexible law that fails to consider human needs and species
protection. Unfortunately, the societal costs of species
protection under the ESA are hidden, particularly to the
public. But I believe that any meaningful discussion of the
effectiveness of the ESA must include a consideration of these
costs.
In a study done recently by the Property and Environment
Research Center, PERC, that organization concluded that Federal
estimates of ESA spending are grossly understated, probably
four times the amount estimated, and that the ESA may be
wasting taxpayer dollars because only a few species benefit
from Government ESA expenditures; that is, 50 percent of
reported expenditures are for 7 species, just 0.6 percent of
the ESA list.
Bringing these costs of species protections to light is
vital to an intelligent debate about the efficacy of the ESA.
Those who are not aware of the social costs of species
protection cannot make an informed choice about how to expend
our finite economic and natural resources. Evidence shows that
when people do know of the costs of environmental protection
their priorities often change. Notable events in New Mexico and
elsewhere illustrate the point.
The city of Albuquerque is a city of about 500,000
residents and sits near the Rio Grande River. When a district
court and then a circuit court of appeals ruled the ESA
required Albuquerque to divert its own limited water supply to
increase river flows for protected fish, it caused a huge
public outcry. New Mexico officials, including Democrat
Governor Bill Richardson and Republican U.S. Senator Pete
Domenici, supporters of the ESA, were calling for intervention
by the U.S. Supreme Court.
In the midst of this controversy over how limited water
supplies should be used, for people or fish, the Albuquerque
Journal commissioned a survey of New Mexican opinions of the
ESA. The Journal asked: ``Thinking of recent development in New
Mexico involving the Endangered Species Act, such as efforts to
protect the Rio Grande silvery minnow, do you think the Act
goes too far, does not go far enough, or is working as it
should?'' Sixty-nine percent said the Act goes too far, while
15 percent said it is working as it should, and 6 percent said
it does not go far enough.
Senator Chafee. Mr. Hopper, you might have to wrap up.
Mr. Hopper. OK. Thank you very much.
Let me just add that in my written testimony I have
outlined 13 areas of concern that, if addressed, could improve
the efficacy of the Endangered Species Act, most notably a
resolution of the critical habitat controversy, improvement in
the best available science, and incentives for landowners.
Thank you.
Senator Chafee. Very good testimony. We look forward to
your recommendations.
Ms. Jamie Rappaport Clark.
STATEMENT OF JAMIE RAPPAPORT CLARK,
EXECUTIVE VICE PRESIDENT, DEFENDERS OF WILDLIFE
Ms. Clark. Thank you, Chairman Chafee and members of the
subcommittee. I would also like to acknowledge and thank
Senator Crapo for his commitment to this issue and his
leadership on the Endangered Species Act over the years.
Having spent the majority of my professional career in
Government and now in the private sector working on these
issues, I appreciate the invitation to speak on the importance
of this law in ensuring a healthy natural resources legacy for
future generations. We are ready and we are eager to join in a
bipartisan effort to improve the Act so that it works better
for all stakeholders, including species.
There can be no denying that, with the Act's help, hundreds
of species--manatees in Florida, sea otters in California, as
well as bald eagles, peregrine falcons, Americans alligators,
and California condors--have been rescued from the catastrophic
permanence of extinction.
In so many ways, Congress was prescient in the original
construction of the law. First, it crafted a law that spoke
specifically to the value, tangible and intangible, of
conserving species for future generations, a key point lost
sometimes in today's discussions.
Second, it sought to stem a looming crisis of wildlife
extinction that affects us all and by all accounts has been
extremely successful in doing that, given, as we have heard a
number of times, over 99 percent of the species that are listed
today are still with us.
Last, in passing the Act, Congress recognized another key
fact that subsequent scientific understanding has only
confirmed: the best way to protect a species is to conserve
their habitat. Today, loss of habitat is widely considered by
scientists to be the primary cause of species extinction and
endangerment.
But as important as what the Act does is what is does not
do. We must remember that the Act was not written to prevent
species from becoming threatened or endangered. It was written
to prevent them from going extinct.
Protecting wildlife from becoming endangered is the
province of our other conservation laws--those that protect our
water, our land, our air. The Endangered Species Act is meant
to prevent extinction when we have failed by not passing, not
enforcing, not funding, or not implementing all of those other
measures. The Act is the alarm, not the cause of the emergency.
When the alarm sounds, it is we who are failing to live
responsibly and in a manner that prevents species extinction.
Unfortunately, some ignore all the facts and call the Act a
failure. They say we should dismantle it because it does not
move enough species off the list to full recovery. They ignore
the fact that the Act is our Nation's best tool to prevent
extinction and they ignore the hundreds of species still around
today because of its protections. And they ignore the simple
truth that unless we prevent extinction first, there can never
be any hope of recovery.
Should the Endangered Species Act be improved so that it
works better for all stakeholders without sacrificing its
purpose and intent? Sure, it should. Although the Act is
fundamentally sound, like any law, it should be improved.
Improving the protection and conservation of habitat,
looking for opportunities to enhance the role of States where
appropriate, expanding incentives, especially for private
landowners, are some of the important issues we stand ready to
work on with the committee to further develop. But as we move
forward down this path of evaluating its effectiveness, we need
to consider an important benchmark, a measurement against which
all efforts to alter it should be measured--does it truly aid
species conservation. If the answer is no, then we have failed.
The bottom line is this, the Endangered Species Act is one
of our Nation's most critical and essential environmental laws.
Its basic premise and intent remain as sound today as when it
was first crafted. And now, more than ever, our Nation needs a
strong Endangered Species Act. If we work hard to uphold the
Act, we will build that trust and I believe better guide
improvement efforts going forward.
When the Nation rejoiced last month at the rediscovery of
the ivory-billed woodpecker, and I have canoed Cash River,
Secretary Norton said that we rarely have a second chance to
save wildlife from extinction. The Endangered Species Act is
all about first chances to do that very same thing, about
preventing wildlife extinction now, just in case nature is out
of miracles. Thank you.
Senator Chafee. Thank you.
Ms. Monita Fontaine. Welcome.
STATEMENT OF MONITA FONTAINE, MEMBER, BOARD OF
DIRECTORS, NATIONAL ENDANGERED SPECIES ACT REFORM COALITION
Ms. Fontaine. Good morning. The Endangered Species Act was
enacted in 1973 with the promise that we can do a better job of
protecting our Nation's species and ecosystems. We have learned
a great deal over the past three decades and it is time to
update and improve the ESA to reflect the lessons we have
learned.
I am here before you today on behalf of the National
Endangered Species Act Reform Coalition, NESARC, an
organization of 110 national associations, businesses, and
individuals who are working to develop bipartisan legislation
to modernize and strengthen ESA. My organization, the National
Marine Manufacturers Association joined NESARC in 2003 and I
now have the pleasure of serving on the board of NESARC.
NESARC members come from a wide range of backgrounds. We
are farmers, we are ranchers, cities and counties, rural
irrigators, electric utilities, forest and paper operators,
mining, homebuilders, and other businesses and individuals
throughout the United States. What we have in common is that we
have been impacted by the operation of the ESA. Without the
support and active commitment to the protection of listed
species by private landowners, businesses, and communities
where the species reside, the chances of success are slim. If
we are to do a better job protecting endangered and threatened
species, we need an ESA that can fully accommodate the range of
efforts that are necessary.
NESARC reviewed its members' experience with ESA and
attempted to identify the success stories in protecting species
as well as the roadblocks that had to be overcome. What we
learned was that, more often than not, our members have
succeeded in protection efforts in spite of, rather than
because of, the ESA. Attached to my testimony is a white paper
NESARC released in November of 2004 outlining a new approach to
improve the Act, to provide stakeholders the tools and
flexibility to take action, and the certainty that quantifiable
success will be rewarded by lifting ESA restrictions.
We urge the following reforms: expand and encourage
voluntary conservation efforts; give States the option of being
on the front line of species conservation; increase funding of
voluntary and State programs for species conservation;
encourage prelisting measures; establish recovery objectives;
strengthen the critical habitat designation process; improve
habitat conservation planning procedures and codify ``no
surprises''; and last, ensure an open and sound decisionmaking
process by providing for better data collection and independent
scientific review, we can ensure the necessary data will inform
the decisionmaking process.
For more than a decade, Congress has struggled with the
question of what, if any, changes to the ESA should be made. In
the interim, stakeholders like NESARC members have had to try
to make the Act work. It has been time-consuming, expensive,
and often frustrating, and the success has been limited. NESARC
urges this committee to work toward a bipartisan reform bill
that improves the Act so that the law better protects species
and does so in a way that fosters cooperation rather than
confrontation.
Thank you.
Senator Chafee. Thank you very much, Ms. Fontaine, all
members of the panel.
Since there are four members, let us go to 5 minutes for
this round of questions.
Senator Lautenberg. I would settle for one quick question
and then I will get out of your way altogether.
Senator Chafee. Senator Lautenberg.
Senator Lautenberg. Thank you very much. Ms. Fontaine or
Mr. Hopper, do you include fishermen when you consider
commercial enterprise being damaged or hurt? I mean, you have
lots of members. Either one of you.
Ms. Fontaine. Sure.
Senator Lautenberg. And you do not think the Act has been
that effective? I know Mr. Hopper does not. And here we see
disappearing species. And when the Federal Government got into
the striped bass, and the Senator from Rhode Island knows it
only too well, when the Federal Government got into the
protection of striped bass, it went from diminishing at such a
rapid rate to now some places you can stand and they will swim
between your legs. The cod, the billfish, all disappearing.
And to suggest--forgive me, Mr. Chairman. I do feel
passionately about this. I spend time in those waters watching
these things disappear in front of your face. Senator Clinton
said something about clam beds. We are expert on declining
shellfish beds in New Jersey. And if you do not include that in
your consideration, then you really do not see the full
picture. Thank you very much.
Senator Chafee. Thank you, Senator Lautenberg. Nothing
wrong with passion.
I have a question. I will start off with back to S. 1180
and the work that was done in 1997. Any criticisms or advice on
starting with that bill as we go forward here in this Congress?
Mr. Kostyack?
Mr. Kostyack. Yes. I was involved in that process back at
the time. The National Wildlife Federation and virtually all of
the other conservation groups that were involved ended up not
supporting that bill. I would like to explain at least two
reasons why. I think we have learned a lot of lessons since
that bill passed by this committee that would enable us to make
some fixes.
One is, section 7 is the basic safety net of the Act. The
bill had a waiver of section 7 responsibilities for anybody who
participated in a recovery agreement. Now, we talked earlier in
my testimony about how important recovery agreements are. But
the problem is people use the word recovery to mean a lot of
things and a lot of times it is a cover for bad things. And S.
1180 had insulation of any judicial review of these recovery
agreements and essentially said, if you get yourself under that
umbrella, no further Endangered Species Act review. We
essentially said that eliminates a large part of the safety net
that we have been relying upon in the Endangered Species Act.
That is one.
The other is the ``no surprises'' issue, which has been
alluded to by two of the folks on the panel here today. I know
it is a major agenda item for development interests to get that
codified. We are very supportive of giving developer interests
certainty in these planning processes, if they invest in a
planning process, at the end, would likely stick to the
Government's commitment.
The fundamental problem with ``no surprises,'' and today it
is even more apparent than it was 7 or 8 years ago when that
bill was passed, is that the Government at the time indicated
it was going to pick up the responsibilities for things that go
wrong with these conservation strategies if the developers are
not going to pick up the responsibility. But the problem is
there is a fallacy there; there is no legal mechanism where the
Government steps in and picks up the responsibility and there
is no funding mechanism.
And so we are very happy to give some kind of assurances to
developers once you make this conservation commitment, we are
not going to keep on coming back to you. But the problem is we
cannot just leave the species in the lurch. We have a lot of
new data now showing a lot of these conservation strategies
that have been developed under the HCP process have holes--a
lot of habitat destruction being allowed, not a lot of
conservation happening under a number of these plans. A
significant expose was done in the Seattle Post Intelligence
just a week or two ago, that I would recommend to your
attention, showing the holes in those processes.
We recognize that all conservation is inherently going to
be flawed. It is a political process. There are going to be
balls that will be dropped. We live in the real world. That is
fine. But the Federal Government needs to have a backstop.
Five, 10, 15 years later when the species are going down the
tubes, we need to have a plan and a strategy, and the ``no
surprises'' provision essentially says we are going to wash our
hands of this. If we do not have a strategy in the HCP, then
there is going to be no other strategy. And that is a problem.
Senator Chafee. Good history. Mr. Hopper?
Mr. Hopper. Yes. I am not sure that I recall all of the
particulars of that particular bill; however, I do seem to
recall its emphasis on recovery and critical habitat as two
major components.
With respect to recovery, I think that any emphasis on
recovery as opposed to mere protection is an improvement. It is
not enough to simply set aside land. It must be managed,
enhanced, improved for the betterment of the species. That is
one of the problems with critical habitat, of simply
designating an area as essential to the conservation of the
species. I would say, however, with respect to recovery, one
concern we have is that there is a clear recognition in the law
for landowners to mitigate for the impacts of their specific
projects. They have a remediation obligation. However, they do
not have a general obligation, as does the Government, for
recovering the species generally.
And emphasis on recovery, I would encourage, should be
sensitive to the obligation of the Government for the general
enhancement of habitat and recovery of the species. We all have
an interest in the environment. We all have an interest in
protecting species. We should, therefore, all share in that
burden.
With respect to critical habitat in that bill, as I recall,
our concern was that it did not really go far enough in
resolving the controversy over critical habitat. As you are
aware I am sure, for years now the Fish and Wildlife Service
has been screaming for relief with respect to critical habitat.
In each of its designations of critical habitat, which
generally occurs as a result of litigation, the agency includes
in its preamble a statement that goes something like this: in
30 years of implementing the ESA, the designation of statutory
critical habitat provides little additional protection to most
listed species while consuming significant amounts of
conservation resources.
Senator Chafee. Thank you, Mr. Hopper. I am going to have
to keep moving. I am the cruel keeper of the time here and I am
trying to stay on our allotted time. So I am sorry to interrupt
once again.
Ms. Clark, if you could quickly go through S. 1180 again,
and then I will turn to Senator Clinton.
Ms. Clark. Sure. I worked on S. 1180 while I was inside the
Administration. At the time, I thought it was a great
bipartisan effort, first in a long time, where we worked on
what were some of the serious implementation challenges of the
Endangered Species Act. It was bipartisan, we worked on
achieving common ground, we tried to deal with strengthening
some of the transparency needs of the Act, deal with making the
Act more user friendly, more efficient, more effective. And I
would strongly urge it be used today as a great reference
point.
The reason I think you cannot just pick it up and go with
it is because I think we have learned a lot in the last 4 years
about what can happen with administration of the Endangered
Species Act and oversight. So I would relook at it today to
strengthen some of the provisions of how it is administered.
But I stand behind a lot of the concepts and a lot of the
transparency, and the fact that it reached a lot of common
ground in bipartisan fashion.
Senator Chafee. How would you respond to Mr. Kostyack's
criticism of the section 7 element?
Ms. Clark. When we dealt with that issue that John is
referring to, we were trying to tighten and make more efficient
and more effective the relationship between the Federal
agencies in dealing with the recovery planning and allowing
Federal agencies to step up to the plate, as they should, in
commitments to recovering endangered species.
So what we were trying to do is diminish what we felt could
potentially be duplicative bureaucracy. In today's world, I
might look at it differently. But at the time, the
relationships were such that with a lot of evaluation and a lot
of the administrative processes in place, it should work. But
the unraveling of the administration of the Act may have called
that into question.
Senator Chafee. Thank you very much. Ms. Fontaine?
Ms. Fontaine. I have only looked at it very superficially.
But I do believe that it is a great starting point. I do
believe that there was a lot of good in that particular piece
of legislation. And I think, and I share with Ms. Clark, I
certainly think that you could not go wrong by taking that as
your opening review of the ESA.
Senator Chafee. Thank you once again.
Senator Clinton. Thank you, Mr. Chairman, and thanks to the
panel members. I also want to just point out that in Ms.
Fontaine's written testimony, she includes a letter signed by
Ms. Clark, as well as others. So I think that there are some
common understandings of how we might proceed.
Ms. Clark, I wanted to ask you to help perhaps clarify some
of the issues that have been raised. My understanding of the
Act is that ESA does explicitly allow costs and benefits to be
considered in the designation of critical habitat. Not in the
listing process, but when we get to the point of trying to
figure out how to go about preventing extinction, then costs
and benefits have to be taken into account. I would like you to
perhaps comment on some of the points made by Mr. Hopper as how
we balance the needs of human beings and species. Obviously,
that is an essential part of this. I would be curious to hear
your response to some of the points he made.
Ms. Clark. Sure. The Act is quite clear in that when
deciding whether or not a species should be afforded the
protections of law it is clearly a science question; a species
is in trouble or it is not based on the scientific
understanding of that species and the biological status. It
does evolve a bit when designating critical habitat. And in
designation of critical habitat, it obliges the consideration
of economics and allows for the weighing of costs and benefits
in determining whether or not that habitat should be
designated. It does not diminish the importance of habitat for
species survival and recovery.
What is really most troubling about the way it is being
administered today, never have I seen this in a long career
with the Fish and Wildlife Service, but in doing the economic
analyses today, the reason you are seeing such obviously
underbalanced designations of critical habitat is because the
economic analyses that are being done in today's administration
weigh only the costs. I think most reasonable people would
agree that there is terrific economic benefits of having
endangered species, a la ivory-billed woodpecker. So the notion
that you can do economic analysis work and only look at costs
defies any kind of natural resources economics that I have ever
been exposed to.
Senator Clinton. Mr. Kostyack, I know that you also share
the opinion that there are partnerships between public and
private sector entities as well as governments to advance the
purposes of the Endangered Species Act. Can you perhaps
elaborate on the potential for increased economic
opportunities, eco-tourism and some of those benefits?
Mr. Kostyack. Yes. We have been working on that quite a lot
because of the fact that it is becoming increasingly a concern
of ours, particularly when a large part of the Endangered
Species Act debate is happening now through the media. The
Administration is generating large dollar figures associated
with every implementation step, and only on the cost side.
So we have been investigating benefits and trying to
quantify them. And the numbers are actually staggering. If you
go to different regions of the country, you will find that
entire economies depend upon a healthy environment, and the
first indicator of a healthy environment is whether or not it
can sustain fish and wildlife.
If you look at the Pacific Northwest, for example, with
Pacific salmon, you have entire recreational industries that
depend on people coming out to healthy rivers and fishing, but
also just enjoying that environment. You have all kinds of
commercial fishing that depends upon a sustainable fishery. And
if you go up and down the coast, if you do not have a healthy
ecosystem, it has direct dollar impacts.
You can also look at it in terms of the indirect benefits.
Oftentimes on the cost side of things we see a lot of indirect
steps and the causal cycle about how many jobs or industries
might be affected. Well, if you do that on the conservation
side, you would look, for example, at drinking water and flood
protection. If you are protecting habitats, you are generally
also helping protect our drinking water supply, and you are
generally helping protect against flood damage, and those
numbers need to be factored in if we are going to do an honest
analysis.
Senator Clinton. Thank you.
Senator Chafee. Senator Jeffords.
Senator Jeffords. Mr. Kostyack, I would like to hear more
about your proposals to encourage private landowners to do
their part to contribute to the recovery of listed species.
Mr. Kostyack. OK. There are two that I would like to focus
your attention on. One is, and it really depends on how
ambitious you want to be, because I know working with the tax
code is sometimes a hurdle, but this is an item that has been a
consensus item since I participated in the Keystone dialog back
in 1995 on private landowner incentives.
If you can get a private landowner to sit down, enter a
conservation agreement for the benefit of listed species to
carry out conservation measures and either defer State taxes or
have some kind of credit for their expenses on the income tax,
that is a win-win solution. I have been on the Hill lobbying
with the farm bill on that very issue. There is no dispute on
any part of the regulated community or the conservation
community to make those kinds of tax code changes. It is an
opportunity that has been waiting for action for 10 years, and
I would very like to work with this committee on that.
Once you get outside the tax code, you obviously depend
much more upon the appropriators. Therefore, there is a certain
amount of uncertainty about the levels of funding, and
therefore it is harder for private landowners to do planning.
Nonetheless, there are existing grant programs that are well-
established that can be relied upon to provide conservation
benefits for wildlife. Yet they do not take the key extra step,
that we have not yet seen at least in most of these programs,
of explicitly linking those grants to endangered species
recovery.
We have a number of wildlife related grant programs. The
Interior Department has two they have been touting in recent
years, the Landowner Incentive Program and the Stewardship
Program, and you have a long array of farm bill programs. And
if this committee were willing to look at some of those grant
programs and just make a few tweaks and say we are going to
reward people who are carrying out actions that are specified
in an endangered species recovery plan, all of a sudden, we are
going to have all kinds of progress.
And again, this is a consensus point. There is no
controversy among the development and conservation side that we
should be spending more money on private landowners who are
willing to carry out beneficial conservation measures.
Senator Jeffords. Ms. Clark, I am interested in the
reference you made in your testimony to upstream mechanisms
that come into play to stop species declines before the
Endangered Species Act is ever triggered. Can you comment
further on this point.
Ms. Clark. Certainly, Senator. There are a couple of
issues. Clearly, front-ending the Endangered Species Act,
enhancing the role of the States, increasing the capacity and
capability and legal authorities of the State where
appropriate, makes good sense, as the primary owners of
wildlife in this country.
At the end of the last Administration, the initiation of a
program called the State Wildlife Grant Conservation Program
allowed for an upstream solution to the Endangered Species Act
through the development of wildlife conservation strategies,
plans, if you will, by the States to encompass the conservation
needs of all wildlife within the jurisdiction of the State,
focusing on species in greatest conservation need.
By the time a species is on the Endangered Species Act list
it is very tough to balance. You are out of flexibility. And so
providing those resources up front--candidate conservation
agreements, there is a watch list that is almost 300 species
long already maintained by the Federal Government, engaging in
candidate conservation agreements and providing the certainty
to those that engage, particularly the private landowners, is a
really important way so that you do not tumble into the
regulatory framework of the Endangered Species Act. But
enhancing the capacity of States, enhancing the funding ability
and legal authorities where States are willing and have the
political will to step up should be encouraged to stave off the
declining species dilemma that we are facing today.
Senator Jeffords. Thank you. Thank you, Mr. Chairman.
Senator Chafee. I have no further questions of the members
of the panel. Thank you very much for your testimony. We look
forward to working with you as we go forward. I do not think
any of us would disagree, it is a difficult path to get
legislation through the entire process. But where there is a
will, there is a way, and we have some will.
Thank you once again.
[Whereupon, at 11:05 a.m., the committee was adjourned.]
[Additional statements submitted for the record follow:]
Statement of Craig Manson, Assistant Secretary, Fish and Wildlife and
Parks, Department of the Interior
Mr. Chairman and members of the subcommittee, I appreciate the
opportunity to testify today regarding the Endangered Species Act
(ESA).
The ESA was passed in 1973 to conserve plant and animal species
that, despite other conservation laws, were in danger of extinction.
The ESA provides significant policy direction and tools to encourage
and accomplish species conservation and protection. The Act states that
the policy of the Congress is that the Federal Government will seek to
conserve threatened and endangered species. It further states that the
purposes of the Act are to provide a means to conserve the ecosystems
upon which listed species depend, to develop a program for the
conservation of listed species, and to achieve the purposes of treaties
and conventions such as the Convention on International Trade in
Endangered Species (CITES).
A key purpose of the ESA is to provide a program for the
conservation of endangered and threatened species to bring them to the
point at which measures under the Act are no longer necessary. At the
Department of the Interior, the ESA is administered by the U.S. Fish
and Wildlife Service (Service). Under the law, species may be listed as
``endangered'' or ``threatened.'' All species of plants and animals,
except pest insects, are eligible for listing as endangered or
threatened if they meet the criteria specified in the ESA. Once listed,
the species is afforded a range of protections available under the ESA.
These protections include prohibitions on killing, harming or otherwise
taking listed species of animals. In addition, Federal agencies are to
utilize their authorities to carry out programs for the conservation of
endangered or threatened species, and must insure that any action
authorized, funded, or carried out by the Federal agencies is not
likely to jeopardize the continued existence or any listed species or
result in the destruction or adverse modification of a listed species'
critical habitat.
Currently, there are 1,264 listed domestic species (988 endangered
and 276 threatened) and 386 species under consideration by the Service
for possible inclusion on the list. Of the 386 species, 286 are
candidate species being reviewed on an annual basis. The Service has
determined that these candidate species warrant listing, but listing
proposals are precluded by higher priorities. In addition, the Service
currently has published proposed rules to list 24 species as either
endangered or threatened, 21 domestically and 3 internationally.
Further, the Service has 56 pending petitions to list a total of 76
species as either endangered or threatened. Of these petitions, the
Service has published 8 findings that the petitioned action to list the
subject species may be warranted, and has initiated a status review for
the involved species.
Unfortunately, the Service's work related to endangered species is
in large part driven by lawsuits. As of March 18, 2005, the Service is
involved in 35 active lawsuits on listing issues with respect to 57
species; including 8 lawsuits on 90-day petition findings for 11
species, 9 lawsuits on 12-month petition findings for 13 species, 13
lawsuits regarding final determinations for 23 species, 13 lawsuits
regarding critical habitat for 21 species, and 18 lawsuits regarding
merits challenges on 17 species. The Service is also complying with
court orders for 42 lawsuits involving 87 species.
cooperative approaches to conservation under the esa
The Administration believes that conservation of habitat is vitally
important to successful recovery and delisting of species. We are
committed to implementing a cooperative approach through the
development of partnerships with states, tribes, landowners, and
others. The Department is focused on identifying new and better means
of encouraging voluntary conservation initiatives. Indeed, the Service
currently has many conservation tools available, including Candidate
Conservation Agreements, Candidate Conservation Agreements with
Assurances, Safe Harbor Agreements, Habitat Conservation Plans and
Conservation Banking, which provide for close cooperation with private
landowners, state, tribal, and local governments, and other non-Federal
partners that are particularly important in our implementation of the
ESA.
Through the Candidate Conservation program, the Service can work
with Federal agencies, states, landowners, and other non-Federal
partners to voluntarily conserve candidate or other declining species.
Under this program, the Service works to identify species that face
threats that make listing under the ESA a possibility and provides
information, planning assistance, and resources to encourage voluntary
partnerships and agreements. These resulting conservation agreements or
plans may contribute to removing the threats that might otherwise
necessitate listing under the ESA.
In 1999, the Service published regulations that provided for
Candidate Conservation Agreements with Assurances (CCAA). Conservation
of fish and wildlife resources on private lands is critical to
maintaining our Nation's biodiversity. However, landowners are often
concerned over the potential impact of the listing of a species on
their property. CCAAs provide regulatory certainty to landowners who
voluntarily promote candidate conservation on their lands.
For example, in 2002, Georgia Power, the Georgia Department of
Natural Resources, and the Service signed the Candidate Conservation
Agreement with Assurances for the robust redhorse. A key objective is
to establish a population of this fish in the Ocmulgee River. In return
for conservation activities in the river, the agreement specifies that
the hydropower production company will not be required to take
additional measures beyond those in the agreement if it is necessary to
list the species under the ESA in the future. Initially, Georgia Power
implemented a new flow regime for the Sinclair Dam to emulate natural
seasonal discharges in the Oconee River and is now funding research to
learn the life-history and preferred habitat of the robust redhorse,
estimate its population numbers, and determine the best conditions for
reintroducing the fish.
Similar to Candidate Conservation Agreements with Assurances, Safe
Harbor Agreements also help garner non-Federal property owners' support
for species conservation on their lands. Under Safe Harbor Agreements,
non-Federal property owners who commit to implement voluntary
conservation measures that will result in a net conservation benefit
for listed species receive assurances that at the end of the agreement
period, the landowner can return the enrolled property to the baseline
conditions that existed at the beginning of the agreement.
For example, under the North Carolina Sandhills Safe Harbor
Agreement, 44 non-Federal landowners are enrolled through certificates
of inclusion covering 48,000 acres and protecting 50 groups of red-
cockaded woodpeckers. In addition, more than 325 private landowners
have signed up under 30 additional Safe Harbor Agreements to conserve
and protect 35 endangered and threatened species including 13 birds, 7
fish, 4 amphibians, 3 mussels, 3 mammals, 3 butterflies and 2 plants.
Over 3.6 million acres of private land and 16 linear miles of stream
have been enrolled in the Safe Harbor program.
As successful as the Safe Harbor program is, we are committed to
updating and improving the program based on the lessons learned from
the private landowners and partners participating in the program. The
Service is using more ``umbrella'' Safe Harbor Agreements to cover
species across all or a relatively large segment of its range by
partnering with state wildlife agencies and non-governmental
organizations (NGO). The state or NGO holds the Safe Harbor permit and
individual landowners enroll, and thus receive assurances, by signing
up through certificates of inclusion.
The Habitat Conservation Planning Program provides a flexible
process for permitting the incidental take of threatened and endangered
species during the course of implementing otherwise-lawful activities.
The program encourages applicants to explore different methods to
achieve compliance with the ESA and to choose the approach that best
meets their needs. Perhaps the program's greatest strength is that it
encourages locally developed solutions to listed species conservation,
while providing certainty to permit holders. Through this process of
consultation and cooperation with our partners, the program helps
provide for the conservation of listed species on non-Federal land
throughout the country.
In April the Service approved an incidental take permit based on a
Habitat Conservation Plan for the lower Colorado River. In all, the
plan covers 6 listed species, 2 candidate species, and 18 unlisted
species that may become listed in the future. The permit covers the
present and future activities of non-Federal entities within the states
of Arizona, California, and Nevada that involve the consumption of
water and power resources. The plan includes the development of 8,132
acres of native riparian, marsh and aquatic habitats, extensive
stocking and monitoring of native fishes, a monitoring and research
effort on the species, their habitats and how best to restore native
habitats, and an adaptive management program to take the results of
research and monitoring and adjust the conservation actions to best
meet the needs of the covered species for the next 50 years.
On May 8, 2003, the Service announced new conservation banking
guidance to help reduce piecemeal approaches to conservation by
establishing larger reserves and enhancing habitat connectivity, while
saving time and money for landowners. This guidance details how, when,
and where the Service will use this collaborative, incentive-based
approach to species conservation. Conservation banks are lands acquired
by third parties, managed for specific threatened or endangered species
and protected permanently by conservation easements. They may also help
avoid the need to designate critical habitat. Banks may sell a fixed
number of mitigation credits to developers to offset adverse effects on
a species elsewhere.
In December 2003 Dove Ridge Conservation Bank, a privately owned,
2,400-acre site located in Butte County, California, was approved to
sell vernal pool preservation credits for the vernal pool fairy shrimp,
tadpole shrimp, and Butte County meadowfoam. It is currently the single
largest conservation bank for vernal pool species in the State of
California. Other resources on the bank site include a stream with
wetland banking potential. Establishment of the Dove Ridge Conservation
Bank has spurred more interest in preserving habitat within the county
and it is likely more habitat within this watershed will be acquired
for similar conservation purposes.
As Members are aware, we recently announced the rediscovery of the
Ivory-billed woodpecker at the Cache River National Wildlife Refuge in
Arkansas. The Ivory-billed woodpecker, the largest woodpecker in the
United States, is the second largest in the world and was thought to be
extinct in the United States for more than 60 years.
On April 28, 2005, Secretary Norton and USDA's Secretary Johanns
announced a multi-year, multi-million-dollar partnership effort to aid
the rare bird's survival. The Department and USDA have proposed more
than $10 million in Federal funds for research and monitoring, recovery
planning and public education. In addition, the funds will be used to
enhance law enforcement and conserve habitat through conservation
easements, safe-harbor agreements and conservation reserves.
After consulting with Governor Mike Huckabee and other officials at
the Federal, state and local levels, the Interior Department will
appoint members to a Corridor of Hope Cooperative Conservation team.
The conservation efforts to be established for the benefit of the
Ivory-billed woodpecker will emphasize working with local citizens and
private landowners. Local involvement is critical to ensuring
successful, effective and long lasting conservation results. This
approach, not imposition of the regulatory critical habitat scheme now
in the Act, is how the species will be recovered.
procedural and resource challenges related to critical habitat
While the Department has made great strides in improving
administration of the ESA without legislative changes, we do need
congressional action in order to update and improve implementation in
certain areas. I would like to take the opportunity to discuss one area
of implementation that continues to be both a challenge and a source of
controversy--the designation of critical habitat.
The Service has been embroiled in a relentless cycle of litigation
over its implementation of the listing and critical habitat provisions
of the ESA for over a decade. This has resulted in a Section 4 program
with serious problems due not to agency inertia or neglect, but to a
lack of scientific or management discretion to focus available
resources on the listing actions that provide the greatest benefit to
those species in utmost need of protection. In fiscal year 2004, the
Service proposed critical habitat for 12 species and completed critical
habitat designations for 25 species. Currently, the Service is working
on 31 critical habitat proposals for 51 species. All of the fiscal year
2004 and fiscal year 2005 proposed and final designations were the
result of court orders or settlement agreements.
As I noted initially, protection of habitat is the key to
sustaining and recovering endangered species. However, the critical
habitat process as currently established is not an effective means of
conserving habitat.
The Service has characterized the designation of critical habitat
as required by the ESA as the most costly and least effective class of
regulatory actions undertaken by the Service. It is often of little
additional value or counterproductive and can result in negative public
sentiment. This negative public sentiment is fueled by inaccuracies in
the initial area designated when we must act with inadequate
information to meet deadlines and also because there is often a
misconception among the public that, if an area is outside of the
designated critical habitat, it is of no value to the species. At the
same time, the designation of critical habitat imposes burdensome
requirements on Federal agencies and landowners and can create
significant economic and social turmoil.
As a result, for many years the Service often found designation of
critical habitat to be ``not prudent,'' and did not designate it for
most listed species; an approach which was formalized by the previous
Administration. In the late 1990s, some critics began successfully
challenging these ``not prudent'' findings in court; those successes
led to a flood of additional suits which continue to this day. These
lawsuits have subjected the Service to an ever-increasing series of
court orders and court-approved settlement agreements, compliance with
which now consumes nearly the entire listing program budget.
Consequently, the Service has little ability to prioritize its
activities to direct resources to listing program actions that would
provide the greatest conservation benefit to those species in need of
attention. The previous Administration recognized this when it said
that lawsuits that force the Service to designate critical habitat
necessitate the diversion of scarce Federal resources from imperiled
but unlisted species that do not yet benefit from the protections of
the ESA.
The accelerated schedules of court-ordered designations initially
left the Service with limited ability to take additional time for
review of comments and information to ensure the rule addresses all the
pertinent issues before making decisions on listing and critical
habitat proposals. This in turn fostered a second round of litigation
in which those who will suffer adverse impacts from these decisions
challenged them. This cycle of litigation appears endless, is very
expensive, and in the final analysis provides relatively little
protection to listed species.
Extensive litigation has shown that the courts cannot be expected
to provide either relief or an answer, because they are equally
constrained by the strict language of the ESA. The Department of
Justice has defended these lawsuits and sought to secure relief from
the courts to allow the Service to regain the ability to prioritize the
listing program according to biological need. Almost universally, the
courts have declined to grant that relief.
In 2001, a Federal district judge, in Center for Biological
Diversity v. Norton, No. CIV 01-0258 PK/RLP (ACE), observed that ``the
Secretary is caught in a quandary'' in trying to ``fulfill the myriad
of mandatory [ESA] duties.'' The judge opined that ``[m]ore lawsuits
will inevitably follow'' unless, among other things, the Service
regains its discretion to prioritize its workload. The judge suggested
that a legislative solution is necessary; otherwise ``tax dollars will
be spent not on protecting species, but on fighting losing battle after
losing battle in court.'' Other courts have agreed with this
assessment.
In short, litigation over critical habitat has hijacked the
program. Simply put, the listing and critical habitat program is now
operated in a ``first to the courthouse'' mode, with each new court
order or settlement taking its place at the end of an ever-lengthening
line. The Service is no longer operating under a rational system that
allows them to prioritize resources to address the most significant
biological needs. As a direct result of this litigation, the Service
has had to request a critical habitat listing subcap in its
appropriations request the last several fiscal years in order to
protect the funding for other ESA programs. At this point, compliance
with existing court orders and court-approved settlement agreements
will likely require funding into fiscal year 2008.
Congress added the strict deadlines to the Act to ensure that
listing actions are completed in a timely manner. However, absent some
measure to allow for a rational prioritization of the workload based on
a consideration of the resources available, those strict deadlines will
only worsen the current untenable situation. It cannot be overstated
that managing the endangered species program through litigation is
ineffective in accomplishing the purposes of the ESA.
Former Secretary Bruce Babbitt wrote in a New York Times op-ed
piece in April 2001 (attached) that, in its struggle to keep up with
court orders, the Service has diverted its best scientists and much of
its budget for the ESA away from more important tasks like evaluating
candidates for listing and providing other protections for species on
the brink of extinction. We also believe that available resources
should be spent focusing on actions that directly benefit species such
as improving the consultation process, development and implementation
of recovery plans, and voluntary partnerships with states, tribes, and
private landowners.
doi fiscal year 2006 funding for the endangered species program
The Administration's budget request for fiscal year 2006 provides
funding to meet resource protection goals and address the growing
litigation-driven workload. The requested funding includes $18.1
million for listing activities, an increase of $2.2 million over the
fiscal year 2005 funding level. Of this, $12.9 million is directed to
critical habitat designation. This funding will allow the Service to
meet its current and anticipated court orders for the designation of
critical habitat for listed species. In this regard, I would note that
as of May 2, 2005, there were 64 lawsuits pending or expressly
threatened related to critical habitat or other section 4 actions.
We are also requesting $64.2 million for recovery, $8.3 million for
Candidate Conservation and $49.5 million for Consultation and Habitat
Conservation Planning. In addition, our budget requests significant
increases for grants that we provide to states, tribes, and private
landowners to conserve and recover endangered species on non-Federal
property. We are requesting $40 million for these State and Tribal
Landowner Incentive Program, an increase of $18.3 million from fiscal
year 2005; $10 million for the Private Stewardship Grants Program, an
increase of $3.1 million; $80 million for the Cooperative Endangered
Species Conservation Fund; and $74 million for the State and Tribal
Wildlife Grants--all grant programs that can aid in endangered species
conservation and recovery efforts. These programs are central to
helping the agency pivot toward cooperative conservation and voluntary
approaches to species conservation and protection.
conclusion
In closing, we appreciate the subcommittee's interest in the ESA
process. I would like to reiterate this Department's interest in
working with Congress to improve the Endangered Species Act. We must
work together on a bipartisan basis to determine how to get the most
value for species conservation out of the Federal resources devoted to
the endangered species program. I would be happy to answer any
questions that Members may have.
______
[From the New York Times, April 15, 2001]
Bush Isn't All Wrong About the Endangered Species Act
(By Bruce Babbitt)
Washington, DC.--The Bush administration has again outraged
environmentalists, this time by proposing that Congress modify the
budget for the Endangered Species Act. The administration wants to
place financial restrictions on a process called ``designation of
critical habitat,'' which maps areas occupied by endangered species.
Environmentalists resist any change, fearful of giving opponents of
the Endangered Species Act any openings. But on this matter, they are
overreacting. Critical habitat is a problem that ought to be fixed, if
not in the manner proposed by the administration.
When a species is listed as endangered, the underlying cause is
usually destruction of its habitat by activities like road building,
land development or clear cutting. To ensure the survival of the
species, the Fish and Wildlife Service must at some point in the
process designate, with detailed maps, those areas of habitat that
require special protection.
The controversy now flaring up turns on a seemingly simple
question--when to prepare the maps. Should it be at the beginning of
the process, when there is often not much information available, or at
the end, when the biologists have had an opportunity to prepare a
comprehensive plan for the protection of the species? Since mapping and
the scientific surveys are time-consuming and expensive, biologists
have generally preferred to prepare habitat maps later, as part of the
comprehensive plan.
Then in the 1990's, environmentalists brought lawsuits arguing that
the Endangered Species Act requires mapping immediately upon listing of
a species, whether or not the biologists have enough information.
Because the statute is ambiguous, courts have by and large agreed
with environmentalists, and are now ordering the Fish and Wildlife
Service to undertake these mapping projects all over the country on
strict deadlines. Struggling to keep up with these court orders, the
Fish and Wildlife Service has diverted its best scientists and much of
its budget for the Endangered Species Act away from more important
tasks like evaluating candidates for listing and providing other
protections for species on the brink of extinction.
In one recent case in California, the Fish and Wildlife Service was
ordered by a federal court to produce, on a short deadline, a habitat
map for the endangered red-legged frog. The frog has been identified in
streams and wetlands scattered throughout southern California, but the
Fish and Wildlife Service had limited biological surveys to identify
its critical habitats. So the service quite understandably painted with
a broad brush--in this case four million acres, an area the size of
Connecticut. Unsurprisingly, this map enraged landowners and
developers, who feared the regulatory consequences of such a
designation.
These uncertainties undermine public confidence in one of our most
important and successful environmental laws. That is why during my
tenure as interior secretary I repeatedly asked Congressional leaders
to write budget restrictions that would prevent money for important
endangered-species programs from being siphoned off into premature
``critical habitat'' map-making. This request was denied every year.
The Bush administration now proposes something similar.
That said, putting restrictive language in the budget is not the
best way to fix the problem. The better alternative is to amend the
Endangered Species Act, giving biologists the unequivocal discretion to
prepare maps when the scientific surveys are complete. Only then can we
make meaningful judgments about what habitat should receive special
protection.
Back in 1997 we tried to do just that through a comprehensive
overhaul of the Endangered Species Act. At that time, John Chafee, the
late Republican senator from Rhode Island, called all the usual
antagonists into his office and expressed his desire to update the act.
He wanted to address the mapping of critical habitats, to codify the
voluntary participation of landowners in conservation planning, to
require scientific peer review of listing decisions and to encourage
state participation. Senator Chafee then patiently worked out a
consensus. This legislation sailed through the normally gridlocked
Senate Environment and Public Works Committee before it was killed by
the Senate leadership.
If the Bush administration is sincere about improving the
Endangered Species Act, rather than stirring controversy, it should
revive the Chafee reform measures.
Bruce Babbitt served as secretary of the interior in the Clinton
administration.
______
Responses by Craig Manson to Questions from Senator Inhofe
Question 1. In your testimony, you mentioned that the USFWS
approached an organization that often sues the USFWS with a plan that
would have used the money they would have spent on litigation on
ground-level species and habitat protection efforts, What is the name
of this organization and did they accept your offer or sue instead?
Response. I made the offer myself, to the Center for Biological
Diversity, in May of this year. To date, I have received no formal
response, but they have filed two or three additional lawsuits.
Question 2. Many of the species being protected have a wide
geographical range. How does the USFWS ensure uniformity in the
protection of species among its various regional and field offices? For
example, in OK the protections and restrictions for the American
Burying Beetle are different from those in Arkansas?
Response. The U.S. Fish and Wildlife Service (Service) coordinates
conservation efforts to address species that may inhabit several
regions. Regional and field offices use recovery plans as guidance
regarding measures needed to conserve the species. Additional
coordination is achieved by assigning each species to a lead region.
The lead region will track and coordinate the activities of other
regional and field offices involved. Within the non-lead regions, state
offices are often assigned responsibilities for a species, including
coordination with the lead region. In addition, if other offices have
done work on a particular species, the regional and field offices will
frequently ask for assistance from those offices. For example,
previously completed biological opinions on a species are shared as
well as other analyses regarding threats to a species.
With regard to past differences in protection and restrictions for
the American burying beetle (ABB), there have been discrepancies in the
manner in which the ABB was treated in the consultation process by
Arkansas and Oklahoma. While some of the differences were simply a
result of interpretation of the ``best available science,'' other
differences arose as a result of threats to the species that vary from
state to state. For instance, in Oklahoma the Service deals with an
overwhelming number of oil and pipeline issues that are not as abundant
in Arkansas. However, recognizing that there needs to be more
consistency between regions in the treatment of the ABB, the Arkansas
and Oklahoma Field Offices have met several times over the last 12
months to align the consultation processes. Any remaining differences
in consultation for ABBs (between regions or field offices) should
result from differences in threats to the species at a given locality
and the cumulative effect of those threats in relation to other ongoing
or future projects.
Question 3. How is the Fish and Wildlife Service complying with the
Data Quality Act in reference to listings, internal policy decisions
for listed species, critical habitat determinations, recovery plans,
delisting, etc.?
Response. The Service is committed to using science in its
decisionmaking and to providing the American public with information of
the highest quality possible.
Federal agencies are required to publish guidelines for ensuring
the quality, objectivity, utility, and integrity of information we use
and disseminate, and to provide mechanisms for allowing the public to
seek correction of that information. The Service's Policy on
Information Standards Under the Endangered Species Act (Act), published
in the Federal Register on July 1, 1994 (59 FR 34271), and Section 515
of the Treasury and General Government Appropriations Act for Fiscal
Year 2001 (P.L. 106-554; H.R. 5658) and the associated Information
Quality Guidelines issued by the Service, provide criteria, establish
procedures, and provide guidance to ensure that decisions made by the
Service represent the best scientific and commercial data available.
They require Service biologists, to the extent consistent with the Act
and with the use of the best scientific and commercial data available,
to use primary and original sources of information as the basis for
listing, reclassification, delisting, critical habitat designations,
recovery planning and implementation, and petition findings. All
information is used in accordance with the provisions of Section 515 of
the Treasury and General Government Appropriations Act for Fiscal Year
2001 (P.L. 106-554; H.R. 5658) and the associated Information Quality
Guidelines issued by the Service.
The Service has a web site, http://www.fws.gov/informationquality/
that is intended to meet those requirements. In addition to our
information quality guidelines and those of the Department of the
Interior, we also present on the site Service responses to inquiries
concerning the quality of information on specific topics as well as a
Year-End Information Quality Report for fiscal year 2004 and fiscal
year 2003.
Specifically, in regard to listings, critical habitat
determinations, recovery planning and implementation,
reclassifications, and delistings, in accordance with our joint peer
review policy published in the Federal Register on July 1, 1994 (59 FR
34270), we solicit review, from at least three appropriate and
independent specialists/experts regarding the proposed rule. The
purpose of such review is to ensure that listing, reclassification,
delisting, critical habitat designations, recovery planning, and
recovery implementation (as appropriate) are based on scientifically
sound data.
Question 4. GAO's testimony stated that the service ``was not
always integrating new research into ongoing species management
decisions.'' Should the Fish and Wildlife Service employ the best
science as it becomes available to ensure that those restrictions on
activity imposed actually have the effect of helping species? What
steps should be taken to ensure that the best science is continually
being used in managing species?
Response. The Service is committed to using the best available
science in its decisionmaking and to providing the American public with
information of the highest quality possible. The Service's policies and
practices, including the Information Quality Act, Interagency
Cooperative Policy on Information Standards Under the Endangered
Species Act, and the Interagency Cooperative Policy for Peer Review in
Endangered Species Act Activities help to ensure that species
management decisions are based on the best available science. The
Service routinely consults with experts and considers information from
Federal and state agencies, academia, other stakeholders, and the
general public. Decisions are subject to independent peer review, as
appropriate, to help ensure that they are based on the best available
science and conform to contemporary scientific principles.
Question 5. As a follow-up there have been allegations of political
influence or agenda driven science on both sides of the issues, would
it not be prudent to have a statutory standard by which to judge good
science to avoid this finger-pointing?
Response. I agree that additional statutory clarification of the
science requirements of the Act would be beneficial. Issues which might
be addressed include definitions of terms such as ``scientific data''
and ``scientific information;'' setting a point at which ``best
available'' scientific or commercial data is or is not sufficient to
make an informed decision; and establishing a workable peer review
requirement.
Insofar as political influence is concerned, the Department and the
Service place great importance on the integrity of science and the role
it plays in the decisionmaking process. Over the past 4 years, the
Department has taken a number of actions to enhance both the integrity
of our science and the role it plays in the decisionmaking process. We
take seriously any concerns employees or others might have about
scientific integrity. To that end, our Inspector General and other
outside parties have investigated recent allegations of interference
and have found them to be unsubstantiated.
Notwithstanding these particular findings, upon receipt of the
recent survey to which you refer regarding concerns among employees
about science integrity, we are evaluating options for improved
communication and procedures for ensuring high scientific standards and
information flows throughout the Service.
Question 6. How does the USFWS manage the various activities (among
region and field offices) being conducted on a species to eliminate
duplication and ensure the right projects are being funded for that
species? Is there ``central'' oversight?
Response. The Service has a lead field office and region for each
candidate and listed species. When a species occurs in more than one
office's or region's area of responsibility, all activities for the
species are coordinated through the lead office and region. This
ensures consistency and eliminates duplicative activities between and
among offices/regions. The Service clearly directs how the regional and
field offices should implement the endangered species program by
dividing appropriated funds into a separate budget for each program
area. Regional and field offices are responsible for developing
recovery plans and tracking implementation of actions for those species
for which they have lead recovery responsibility, to ensure the
appropriate projects are being funded for the species and to avoid
duplication of efforts. One way of tracking recovery implementation
actions is through the newly developed Recovery On-line Activity
Reporting data base that will be accessible to our partners and the
general public at the end of 2005. Similarly, regional and field
offices with lead responsibility for candidate species are responsible
for coordinating conservation efforts to address such species, and to
annually update the status of candidates and conservation efforts for
them.
Question 7. You mentioned all of the cooperative agreements and
partnership programs that the Fish and Wildlife Service has implemented
by rule. We'll hear from others later that these practices need to be
codified if updates to the Act are made. Do you concur? Are there other
types of partnership programs that the Service would like to have the
authority to pursue?
Response. We now have a wide variety of cooperative and partnership
programs underway, most of which have been initiated administratively
under our general conservation authorities rather than by statute. We
believe it would be very helpful to have express authority for these
programs, particularly those directly related to ESA activities. I am
not aware of additional programs that might be added to the existing
ones, as they now cover the full spectrum of activities.
Question 8. You testified that ``The Service has characterized the
designation of critical habitat as required by the ESA as the most
costly and least effective class of regulatory actions undertaken by
the Service''. And ``that litigation over critical habitat hijacked the
program''. The previous administration was disparaging of the critical
habitat program. Are there ways to fix this program or do we need a
whole new way of doing business?
Response. I believe we need a new way of doing business under the
ESA with respect to habitat conservation. The current process, in
addition to being costly, is not effective in providing for the habitat
needs of the species, and in many cases we believe is counter-
productive to those needs.
Protection of critical habitat occurs only where there is Federal
agency involvement (through funding, permits or direct action) in the
proposed alteration of that habitat. The fact of listing provides in
almost all cases the same general protection against adverse
modification or destruction of critical habitat, through the
requirements of section 7(a)(2); even under the recent court rulings
distinguishing between survival and recovery as standards for
evaluating impacts to critical habitat, the net result is likely to be
measured in degrees of permitted impacts in cases where there is
Federal involvement, not protection for additional habitat.
However, what species generally need with respect to habitat is
habitat enhancement or restoration, not maintenance of the status quo.
This cannot be compelled under the Act, and it is the Service's
experience that even the prospect of a critical habitat designation
serves to antagonize landowners and governmental land managers, often
preventing the actions most beneficial to the species. We believe this
is a compelling argument for changing the Act's approach to habitat
conservation toward one of cooperative conservation.
The Service firmly supports the philosophy that by working
together, the Federal Government and private landowners can achieve
tremendous success in habitat conservation. In August 2004, President
Bush signed an Executive Order on Cooperative Conservation asking all
agencies to strengthen their efforts to work together and with tribes,
states, local governments, and landowners to achieve conservation
goals. During the years 2002-2004, the Department provided over $1.3
billion in grants to states and private landowners and, with our
partners, have restored millions of acres of habitat; removed invasive
exotic species and replanted native grasses and shrubs; improved
riparian habitat along thousands of miles of streams; conserved limited
water resources to benefit fish and other species; and developed
conservation plans for endangered species and their habitat.
We need to move more toward basing the ESA's habitat conservation
provisions on the many cooperative, voluntary habitat conservation
efforts now underway. These programs have solid records of
accomplishments over many years.
Question 9. I have recently introduced with Senator Jeffords, S.
260, the Partners for Fish and Wildlife Act authorizing a conservation
program that works in cooperation with private landowners. Will you
address the need for incentive programs, like the Partners program to
be a part of any updating of the ESA?
Response. Yes, voluntary, incentive-based programs should be one of
the key parts of updating the ESA. The Partners for Fish and Wildlife
program has a long track record of significant accomplishments, and
despite considerable funding increases in recent years, has a backlog
of landowners waiting to sign up. Other programs which should also be
included are those such as the Candidate Conservation Agreement with
Assurances and Safe Harbor agreements, which ensure that landowners are
not penalized for assisting in the conservation of listed or candidate
species, and the Landowner Incentive Program and the Private
Stewardship Grants Program, referred to collectively as the ``Species
Protection Partnership Program,'' which offer incentives for private
landowners to protect imperiled species and restore habitat while
engaging in traditional land management practices like farming or
ranching.
______
Responses by Craig Manson to Questions from Senator Chafee
Question 1. Previous Administrations have listed far greater
numbers of species to the Endangered Species Act list. For example 58
species per year were listed under the first President Bush and 65 per
year under President Clinton in comparison to less than 10 species per
year over the past 4 years. What is the cause for this recent decline
in listing species?
Response. The decline in listing new species began in the last
Administration. On November 22, 2000, former Director Jamie Clark
issued a press release that stated, in part:
The U.S. Fish and Wildlife Service announced today that it will
be unable to consider adding any new species to the Endangered
Species List, except on an emergency basis, for the remainder
of the 2001 Fiscal Year because all available funding must be
allocated to conduct critical habitat designations required by
court orders or settlement agreements.
``We have reached the point where the staff time and funding
needed to list species have been consumed by the requirement to
do court-ordered critical habitat designations stemming from a
flood of lawsuits,'' said Service Director Jamie Rappaport
Clark. ``Unfortunately many species that should be listed in
the coming year won't be listed.''
The consequences of that ``flood of lawsuits,'' many of which were
not decided until 2003 and 2004, continue to dominate the listing
process. Although funding for the listing element of the endangered
species program has increased from $6.3 million in fiscal year 2001,
when former Director Clark made her statement, to the $15.9 million
enacted last year, with $18.1 million requested for fiscal year 2006,
most of the money continues to go to compliance with court orders
related to these critical habitat lawsuits.
We do have some funding this year to undertake additional listing
actions, which we are devoting to the highest-priority pending species,
and to address a backlog of petition actions relating to yet more
listings, in an effort to hold off an entirely new flood of lawsuits on
that issue. If our budget request is appropriated, we anticipate having
additional funds for listing actions next year as well. However, as
long as the critical habitat backlog remains, there is no prospect of
listing species in the numbers done in the prior two Administrations.
I would also note that approximately 400 of the 520 listings (65
per year times 8 years) in the Clinton Administration were the subject
of the settlement of a single lawsuit. It should also be understood
that listing does not, in and of itself, result in direct, on-the-
ground, recovery of species or enhancement of their habitat. Recent
significant investments by the Administration in cooperative
conservation grants significantly contribute to enhancement and
restoration of habitat, as well as to species protection.
Question 2. There has been a great deal of criticism recently that
scientific decisions with regard to threatened and endangered species
have been unduly influenced by the political process at the Fish and
Wildlife Service. How do you respond to these accusations?
Response. The Department and the Service place great importance on
the integrity of science and the role which it plays in the
decisionmaking process. Over the past 4 years, the Department has taken
a number of actions to enhance both the integrity of our science and
the role which it plays in the decisionmaking process. We take
seriously any concerns employees or others might have about scientific
integrity. To that end, our Inspector General and other outside parties
have investigated several allegations of interference and have found
them to be unsubstantiated.
Notwithstanding these particular findings, upon receipt of the
recent survey to which you refer regarding concerns among employees
about science integrity, we are evaluating options for improved
communication and procedures for ensuring high scientific standards and
information flows throughout the Service.
Question 3. Is it possible to reform Endangered Species Act while
at the same time ensuring species and their habitat are protected?
Response. Yes. The type of reforms we are discussing will continue
to protect listed species, and will enhance their prospects for
recovery by encouraging improvement, not just protection, of their
habitat.
Question 4. In your testimony you noted that protection of habitat
is key to sustaining and recovering endangered species, but rampant
litigation has eroded the Services ability to identify critical habitat
for listed species. In your opinion, what types of regulatory or
legislative solutions are available for resolving this situation?
Response. The most effective approach to habitat conservation is
one that provides incentives--which need not be entirely financial--to
land owners and land managers to manage their lands for the benefit of
fish and wildlife, including specifically listed species. There are a
variety of ways to accomplish this, including using programs already
underway such as Partners for Wildlife, Landowner Incentive Program,
Private Stewardship Grant Program, and ESA-specific efforts such as
Candidate Conservation Agreements and Safe Harbor Agreements. We look
forward to working with you on this.
______
Responses by Craig Manson to Questions from Senator Clinton
Question 1. In your testimony at the hearing you remarked that
``there are 800 species that are without critical habitat . . . If we
were to develop a priority system that still would not satisfy the
courts because we still would be in default on those 800. The courts
would not give deference to our priority system because each of those
800 are individual defaults . . . So as a result, we have conflicting
court orders and litigation that goes on and on, and that is a problem.
This is a long-standing problem. It did not start recently and it is
not going to end any time soon without some legislative relief.
Notwithstanding your answer, I understand that the Fish and
Wildlife Service maintains a list of potential critical habitat
designations for internal use in estimating its budget needs for each
year and that list includes only those species listed in the past 6
years and still without critical habitat. It is true that there are
over 850 listed species for which critical habitat has never been
designated. However the lack of critical habitat designations can be
challenged in court for only about 44 of these species because there is
a 6 year statute of limitations to challenging Federal actions. (In
this case, the statue of limitations begins from the final listing
rule). Given these facts, how do you justify your statements during the
hearing that: (1) the courts will not allow FWS to develop a priority
system to designate critical habitat because FWS still would be in
default on 800 species and (2) ``it is going to end any time soon
without some legislative relief''? Is it not, in fact the case that you
would develop a schedule to designate critical habitat for those
hundreds of species listed more than 6 years ago but still without
critical habitat and that schedule could not be challenged in court?
Response. While I agree that the application of the statute of
limitations should apply to critical habitat designations for species
listed more than 6 years ago, that does not ultimately resolve the
problem. First, the application of the statute of limitations to ESA
Section 4 listing deadlines, including those for designating critical
habitat is unsettled. While a recent district court decision has upheld
the government's position that the statute of limitations does apply,
see Center for Biological Diversity v. Hamilton (N.D. Ga. June 2,
2005), a previous decision, issued before the hearing, viewed the
failure to meet an ESA Section 4 deadline as an ongoing violation and
held, consequently that the statute of limitations did not apply. See
Southern Appalachian Biodiversity Project v. U.S. Fish and Wildlife
Service, 181 F. Supp. 2d 883 (E.D. Tenn. 2001). Plaintiffs have already
filed a motion for reconsideration of the June 2005 decision.
Second, at most, the statute of limitations is a defense to current
liability, which is what the Service's internal list addressed.
Notwithstanding the statute of limitations argument, the public may
always petition the Service to designate critical habitat for any of
those 800-plus species, see 50 C.F.R. 424.14(d), and if the Service
does not respond in a timely fashion, it may be subject to a new claim,
effectively resetting the statute of limitations. The underlying
problem remains in either scenario--there is no ``warranted but
precluded'' or similar provision in the Act with respect to critical
habitat that would allow the courts to recognize or respect a priority
system.
Question 2. Many, including Congress when the Endangered Species
Act was enacted, consider Section 7, entitled ``Interagency
Cooperation'', to be the heart of the Act. Sec. 7, as you know,
requires each Federal agency to consult with the Fish and Wildlife
Service or National Marines Fisheries Service to ensure that no Federal
actions jeopardize listed species or adversely modify or destroy their
critical habitat. Yet this administration seems to be moving down a
dangerous road to undermine this key protection by issuing new
regulations allowing two agencies--Forest Service for ``National Fire
Plan'' and EPA for pesticide registration--to circumvent this
requirement and make their own determinations. In my view, allowing
Federal agencies to bypass review by the Services plainly violates the
Act's section 7 requirements. I have several questions about these
changes. Can you please explain to me how these new regulations are
legal under the Endangered Species Act? Does the administration plan to
propose similar changes to the section 7 regulations for other Federal
agencies?
Response. The Service's regulations authorize the adoption of joint
counterpart regulations by Federal agencies and the Fish and Wildlife
Service and NOAA Fisheries (Services). The authorizing regulations are
in 50 C.F.R. 402.04 which was finalized as a rule on June 3, 1986. The
intent of the counterpart regulations is to allow Federal agencies to
``fine tune'' the general consultation procedures to fit their specific
program responsibilities and obligations. Counterpart regulations must
be designed to improve efficiency while still placing the ultimate
responsibility for compliance with section 7 on the Federal agency.
Furthermore, the counterpart regulations must retain the ``overall
degree of protection afforded listed species'' required by the
Endangered Species Act.
In both sets of counterpart regulations that the Services developed
(50 CFR Part 402, subparts C for fire management and D for pesticide
registration), we have worked closely with the affected action agencies
(Bureau of Indian Affairs, Bureau of Land Management, National Park
Service, U.S. Forest Service, and Environmental Protection Agency) to
develop regulations that maintain the same standards for making effects
determinations; provide training to the action agencies in making these
effects determinations; and include a monitoring/oversight role for the
Services. As a result of these considerations, the Services are
confident that the counterpart regulations are consistent with the
provisions of section 7 of the Act.
There are no other counterpart regulations being drafted at this
time.
Question 3. In your testimony, you speak about the importance of
conserving habitat for species, yet it is my understanding that this
administration has consistently excluded or eliminated areas determined
by Fish and Wildlife Service biologists to be essential to a species'
conservation from final designated critical habitat. How do you
reconcile these two seemingly contradictory positions?
Response. Section 4(b)(2) of the Act states that critical habitat
shall be designated, and revised, on the basis of the best available
scientific data after taking into consideration the economic impact,
national security impact, and any other relevant impact of specifying
any particular area as critical habitat. Congress has given the
Secretary the discretion to exclude an area from critical habitat if it
is determined that the benefits of exclusion outweigh the benefits of
specifying a particular area as critical habitat, unless the failure to
designate such area as critical habitat will result in the extinction
of the species. The legislative history is explicit that Congress
anticipated that in some cases no critical habitat might be designated
as a result of this authority, and therefore significant exclusions
from areas otherwise eligible for designation were contemplated at the
time the authority was enacted. In our critical habitat designations,
we use the provisions outlined in section 4(b)(2) of the Act to
evaluate those specific areas that we are consider proposing
designating as critical habitat as well as for those areas that are
formally proposed for designation as critical habitat.
Question 4. The Union of Concerned Scientists and Public Employees
for Environmental Responsibility surveyed FWS scientists and found that
a majority of the scientists who responded did not trust the agency to
make decisions that will protect species and habitats. Could you
explain how the Department is working to address the lack of confidence
among it own employees in the agency ability to make administrative
decisions regarding the ESA that are grounded in science?
Response. The Department and the Service place great importance on
the integrity of science and the role which it plays in the
decisionmaking process. Over the past 4 years, the Department has taken
a number of actions to enhance both the integrity of our science and
the role which it plays in the decisionmaking process. We take
seriously any concerns employees or others might have about scientific
integrity. To that end, our Inspector General and other outside parties
have investigated several allegations of interference and found them to
be unsubstantiated.
Notwithstanding these particular findings, upon receipt of the
recent survey to which you refer, regarding concerns among employees
about science integrity, we are evaluating options for improved
communication and procedures for ensuring high scientific standards and
information flows throughout the Service.
______
Responses by Craig Manson to Questions from Senator Jeffords
Question 1. In your testimony, you stated Congressional action is
necessary in order to update and improve implementation in certain
areas of the Endangered Species Act. In addition to designation of
critical habitat, what other areas of the Act does the administration
consider in need of legislative action?
Response. There are a number of areas in addition to critical
habitat that Congress may want to consider as part of ESA
reauthorization. Providing a statutory basis for voluntary, incentive-
based programs could provide greater assurances to private parties.
Another area that has been the subject of considerable litigation,
and so might profitably be looked at, is additional statutory
clarification of the science requirements of the Act. Issues that have
been contentious include definitions of terms such as ``scientific
data'' and ``scientific information;'' setting a point at which ``best
available'' scientific or commercial data is or is not sufficient to
make an informed decision; and establishing a workable peer review
requirement. Yet another subject of extensive litigation is the various
deadlines in the Act, which some courts have even indicated Congress
should review.
While the Administration has not proposed a bill, we remain
committed to working with the committee to develop a reauthorization
proposal we can all support.
Question 2. Under the current Administration, the Department of the
Interior has listed far fewer species than recent Administrations, a
rate of about 10 per year for this Administration, as compared to 58
per year under the first President Bush and 65 per year under President
Clinton. Approximately 286 candidate species are currently awaiting
protection under the Act. Please explain why this Administration has
not made greater process in listing species?
Response. The reduction in listing new species began in the last
Administration. On November 22, 2000, former Director Jamie Clark
issued a press release that stated, in part:
The U.S. Fish and Wildlife Service announced today that it will
be unable to consider adding any new species to the Endangered
Species List, except on an emergency basis, for the remainder
of the 2001 Fiscal Year because all available funding must be
allocated to conduct critical habitat designations required by
court orders or settlement agreements.
``We have reached the point where the staff time and funding
needed to list species have been consumed by the requirement to
do court-ordered critical habitat designations stemming from a
flood of lawsuits,'' said Service Director Jamie Rappaport
Clark. ``Unfortunately many species that should be listed in
the coming year won't be listed.''
The consequences of that ``flood of lawsuits,'' many of which were
not decided until 2003 and 2004, continues and has resulted in numerous
court-ordered and settlement deadlines extending 2 to 3 years out, thus
making it continually difficult for the Service to set priorities by
any factor other than court-ordered or settlement deadlines. Although
funding for the listing element of the endangered species program has
increased from $6.3 million in fiscal year 2001, when former Director
Clark made her statement, to the $15.9 million enacted last year, with
$18.1 million requested for fiscal year 2006, most of the money
continues to go to compliance with court orders related to these
critical habitat lawsuits.
We do have some funding this year to undertake additional listing
actions, which we are devoting to the highest-priority pending species,
and to address a backlog of petition actions relating to yet more
listings, in an effort to hold off an entirely new flood of lawsuits on
that issue. If our budget request is appropriated, we anticipate having
additional funds for listing actions next year as well. However, as
long as the critical habitat backlog remains, there is no prospect of
listing species in the numbers done in the prior two Administrations.
I would also note that approximately 400 of the 520 listings (65
per year times 8 years) in the Clinton Administration came from the
settlement of a single lawsuit. It should also be understood that
listing does not, in and of itself, result in direct, on-the-ground,
recovery of species or enhancement of their habitat. Recent significant
investments by the Administration in cooperative conservation grants
significantly contribute to enhancement and restoration of habitat, as
well as to species protection.
Question 3. In your testimony, you state and have repeatedly
complained that the Fish and Wildlife Services priorities, particularly
in the listing and critical habitat contexts, are being driven by
litigation and court orders rather than by scientists. However, the
Interior Department could attempt to assert some control by developing
a science based priority system for dealing with Endangered Species Act
decisions and the critical habitat backlog. Please explain why the
Department has failed to put forth a single administrative policy or
initiative to ensure that Endangered Species Act priorities are being
set based on science.
Response. We do have a science-based priority system for making
listing decisions and prioritizing recovery actions under the ESA. This
ranks entities according to whether they are a species, subspecies, or
population, and the degree of threat they face. It was developed
pursuant to section 4(h)(3) and (4), after public review and comment,
and has been in effect for many years.
The problem we face is not from lack of listing priority system,
but rather that the flood of litigation related to critical habitat
designation has forced us to use virtually all of our available listing
resources to comply with court orders for critical habitat
designations, even though science tells us that we get far more for our
money from a listing. We have not attempted to develop a priority
system for critical habitat because there is no basis for it. The Act
requires that critical habitat be designated at the time of listing,
and contains no ``warranted but precluded'' or similar provisions
allowing us to utilize available funds for higher priority actions. The
courts have accordingly held that each failure to designate critical
habitat is an individual violation of the Act, required to be addressed
notwithstanding other demands on resources (including those arising
from other failures to designate). There is no point to developing a
critical habitat priority system in these circumstances, unless the Act
were amended to authorize one, as the courts by these rulings have said
neither they nor we can undertake such prioritizing of critical habitat
designations.
Question 4. Some scientists say the rapid rise in global
temperatures could be top cause of an unprecedented wave of species
extinction. ``Climate change will simply accelerate habitat loss which
already is the leading threat to species'' said Jeff McNeely, the chief
scientist for the World Conservation Union. The current rate of species
loss is 1,000 times faster than at any time in history, and up 30
percent of all mammal, bird and amphibian species could be lost by
2050, according to the latest Millennium Ecosystem Assessment released
March 2005. Do you agree with this assessment? If so what is this
administration doing to address the problem? If you do not agree,
please explain why you disagree with the worlds leading scientists.
Response. In examining the report, it actually states:
``The number of species on the planet is declining. Over the
past few hundred years, humans have increased the species
extinction rate by as much as 1,000 times over background rates
typical over the planet's history (medium certainty).
[referenced chart not copied here] Some 10-30 percent of
mammal, bird, and amphibian species are currently threatened
with extinction (medium to high certainty).''
The phrases in italics are ``judgmental estimates of certainty,
based on the collective judgment of the authors.'' (Readers Guide,
Ecosystem and Human Well-being Synthesis)
We have no basis on which to agree or disagree with these
estimates, which are aimed at the situation globally and in which the
report's authors have varying degrees of confidence, since we do not
collect information on species status worldwide.
The percentage of species in the United States currently threatened
with extinction is far lower than these worldwide estimates, as there
are approximately 50,000 species within the United States, while only
1,264 are listed as either threatened or endangered, and less than 300
are on the candidate list. Some of those listed are close to or have
achieved recovery, and will be taken off the list in the near future.
To the extent that threats to species from climate change or other
factors may be increasing, we believe this provides an additional
reason why funding should be available for other conservation actions
rather than tied up in the marginally valuable, if not counter-
productive, critical habitat designation process.
__________
Statement of James H. Lecky, Senior Advisor,
Intergovernmental Programs, National Marine Fisheries Service
Mr. Chairman and members of the committee, I am James H. Lecky,
Senior Advisor for Intergovernmental Programs for the National Marine
Fisheries Service of the National Oceanic and Atmospheric
Administration (NMFS). I am pleased to be here today to discuss the
Endangered Species Act (ESA). I will focus my remarks on NMFS' role in
implementing the ESA, and a few areas of the ESA that warrant special
attention to ensure species protection and recovery in the future.
nmfs' role in implementing the esa
The ESA (16 U.S.C. 1531-1543; P.L. 93-205, as amended) requires
NMFS and the U.S. Fish and Wildlife Service (FWS) to list species that
are determined to be endangered or threatened, and to subsequently
protect those species and their habitat. Pursuant to a 1974 Memorandum
of Understanding between the two agencies, FWS has management authority
for terrestrial and freshwater species, while NMFS manages marine
species, including anadromous species that spend most of their life
cycle in the ocean. NMFS currently manages 61 listed species.
The NMFS programs are coordinated by our Office of Protected
Resources at NOAA's Silver Spring, Maryland, headquarters. These ESA
activities are implemented through our Regional Offices and Fisheries
Science Centers in cooperation with other Federal agencies, states,
tribes, conservation groups, private property owners, and other members
of the public. NMFS' management of many ESA-listed species also
requires coordination with foreign nations. When necessary, our Office
for Law Enforcement works with the U.S. Coast Guard and other partners
to enforce provisions of the ESA.
Section 4(a) requires NMFS to determine whether a species should be
placed on--or removed from--the Federal list of endangered or
threatened species. This determination is based on a rigorous status
review. These status reviews involve the public, States, Tribes, and
local government in a process to collect and consider the best
available scientific information. At the end of the status review, NMFS
determines whether the species meets the threshold for listing.
If a species does not warrant listing but we have concerns that it
may be in decline, we may designate it as a ``species of concern.''
Species of concern are those species about which ``NMFS has some
concerns regarding status and threats, but for which insufficient
information is available to indicate a need to list under the ESA.''
They may also include species ``for which NMFS has determined,
following a biological status review, that listing under ESA is 'not
warranted' but for which significant concerns or uncertainties remain''
(64 FR 19975-April 15, 2004). We have initiated pilot proactive
conservation efforts aimed at these species of concern to minimize
their risk of decline. Proactive conservation can be more cost-
effective than recovering a species once it is listed. We work with
interested partners using other authorities besides the ESA to rebuild
these at-risk stocks. For example, our Northwest and Southwest Regions
are relying on the authority provided in the Magnuson-Stevens Fishery
Conservation and Management Act to work with the states and commercial
and recreational fishing interests to rebuild bocaccio and other
depleted groundfish stocks.
The listing of an endangered species generally protects the species
from ``take'' by making it illegal to harass, harm, or kill a listed
species. NMFS is required to address all activities that may impact an
endangered species. However for threatened species, section 4(d) of the
ESA provides some flexibility to permit activities that may not
contribute to the decline of a species.
Section 7 of the ESA requires Federal agencies proposing actions
that may affect listed species to consult with NMFS or FWS to ensure
that their proposed actions are not likely to jeopardize the continued
existence of the species or adversely modify its critical habitat. The
section 7 consultation process often concludes when NMFS issues a
Biological Opinion, which presents NMFS' assessment of how the proposed
actions would affect listed species. It offers measures to minimize
take or reasonable alternatives that will not jeopardize the continued
existence of the species or result in adverse modification to critical
habitat.
Finally, the ESA requires development of recovery plans that
identify conservation measures to recover listed species. NMFS works
with other Federal agencies, state and local governments, tribes, and
private entities to develop and implement measures in these plans.
These plans allow NMFS to prepare better informed analyses, inform
other Federal agencies on how to use their authorities, and guide
cooperation with states and other interested parties.
Over the past few years, we have heard from our constituents and
other parties affected by our implementation of the ESA that several
aspects of our process need to be more transparent and scientifically
sound. We are developing processes to improve transparency and
consistency in listing decisions, consultations, and recovery planning
that I would like to share with you today.
improving the prospects for recovery of species
NMFS is required under section 4(f) to prepare recovery plans for
all ESA-listed species. The recovery plan provides a roadmap for
actions and funding priorities needed to remove the species from the
list and ESA protections. We have been working with FWS to improve how
we prepare recovery plans. For example, we are standardizing the
process of identifying threats to listed species, communicating the
threats to the public, and engaging the public in developing responses
to the threats. In the future, we want our recovery plans to become
living documents that provide meaningful guidance to our many partners.
Additional improvements can be made to aid recovery, including
making the recovery planning process more timely. Currently we focus
our limited resources on those areas of ESA that have strict statutory
deadlines, such as listing and section 7 consultations. The President's
fiscal year 2006 Budget Request includes an increase of $8.5 million
for Pacific Salmon ESA recovery and research activities, including
section 7 consultations and recovery planning. We would like to put
more emphasis on our recovery efforts in the future. To speed recovery,
we need to focus our efforts beyond recovery planning into
collaborative recovery actions.
using the best available information in an open and transparent manner
NMFS understands the importance of improving the quality of
conclusions drawn from data used to implement the ESA and ensuring that
decisions are based on the best data available. This has proved
difficult in situations where policy decisions must be made when the
information is limited.
NMFS biologists evaluate all information to ensure that it is the
best available science. We incorporate independent peer review in
listing and recovery activities. We devote a significant portion of our
budget to allow our scientists to stay up-to-date in their respective
fields, and to incorporate state-of-the-art analytical techniques and
methods to assess and understand species and their ecosystems.
Over the past few years, we have dedicated substantial time and
energy to systematically change how we implement the ESA in response to
concerns about the quality of the science used in decisionmaking. We
focused these efforts on improving the processes regarding species
listing as well as section 7 consultations.
Efforts to Improve Species Listing Determinations. A team of
scientists (including NMFS and FWS) has been assembled to develop
specific criteria for determining whether species qualify for listing
as threatened or endangered. The scientists involved in this effort
represent a cross section of the best scientific minds working on
population ecology in the Federal Government. They are developing
criteria that are transparent, repeatable, and based on the best
scientific knowledge of population ecology and the process of species
extinction. When this effort develops a working set of criteria, we
will collaborate further with our Federal and state partners. We also
plan to engage the larger scientific community and the public through
workshops, presentations at scientific meetings, and papers published
in peer-reviewed scientific journals.
Efforts to Improve the Section 7 Consultation Process. As I
mentioned earlier, section 7 consultations require NMFS and FWS to
render an opinion based on the best available data, which has proven
difficult and sometimes controversial in situations where information
is limited. To address concerns raised about the quality of the science
that underlies these consultations, we have revised our process for
consultations and preparing Biological Opinions. NMFS is designing an
analytical framework for biologists and managers that provides a more
consistent and transparent structure to our section 7 decisions
regardless of whether information is limited.
NMFS and FWS personnel have worked for more than 2 years to develop
this analytical framework, which makes the process of reaching
conclusions transparent, objective, and reproducible, while continuing
to protect threatened and endangered species from further declines. We
have tested this framework in actual consultations, and in each case
the framework provided the expected guidance and made the conclusions
of our consultation more legally defensible. Soon, we will start
preparing policy and guidance on the use of an application of the
framework, which we will finalize in a process that actively engages
the larger scientific community, the public, and our Federal and state
partners.
For consultations on actions our agency takes under the Magnuson-
Stevens Fishery Conservation and Management Act and related fisheries
authorities, we are developing operational guidelines that weave
section 7 consultations into our procedures for interacting with the
Regional Fishery Management Councils. These operational guidelines are
designed to address endangered species issues early in the process of
developing fishery management actions, and to ensure that the Regional
Fishery Management Councils have the information they need to integrate
our obligation to protect and recover threatened and endangered species
with our interest in the production of sustainable fisheries.
These changes seek to make the process more transparent to all
parties involved in a consultation--action agencies, applicants, and
other interested parties--and will engage them as active participants
in the process of assessing the effects of Federal actions on
threatened and endangered species and designated critical habitat.
Active and open discussions and exchanges of information between action
agency, applicant, and our consulting biologists will now be at the
center of the consultation process.
designating critical habitat
The designation of critical habitat continues to be both a
challenge and a source of controversy. Critical habitat is defined as
those areas ``on which are found those physical or biological features
(I) essential to the conservation of the species and (II) which may
require special management considerations or protection.'' The
designation of critical habitat is one of the few areas of the statute
where economics is taken into account--the Secretary may exclude
habitat from a designation if the economic benefit of exclusion
outweighs the benefit of inclusion and the exclusion will not result in
extinction of the species.
Habitat conservation contributes to a comprehensive effort to
recover species. However, much of our critical habitat resources are
focused on litigation. One key reason these designations are
controversial and litigious is a lack of understanding about exactly
what habitat the species needs at the time of listing. At the time of
listing, data about the distribution and habitat needs of species and
land-use patterns is often not readily available.
Usually such data becomes available during the recovery planning
process. Development of recovery plans requires collecting information
on distribution, habitat needs, and activities affecting habitat. It
also requires an analysis of how activities adversely affecting habitat
need to be changed to conserve and restore habitat needed for recovery.
increasing the conservation partnership role of states
Section 6 of the ESA identifies the states' key role in conserving
wildlife. NMFS and FWS recognize the important role of states in
species recovery, and have worked to foster partnerships with them in
this regard. We acknowledge that states possess broad trustee
responsibilities over species and their habitats, compile valuable
scientific data and expertise on the status and distribution of
species. States often have a more constant working relationship with
property owners and local governments.
Currently, eight Atlantic Coast states and two U.S. Caribbean
territories have section 6 cooperative agreements with NMFS. These
agreements encompass a total of 15 federally listed species and 23
species of concern under NOAA's jurisdiction. In 2003, Congress
provided funding to NMFS to implement the section 6 program. Through a
competitive grants program, NMFS awarded this funding to states and
territories. Last year, section 6 funding supported research on sea
turtles, shortnose sturgeon, Atlantic sturgeon, and smalltooth sawfish.
NMFS has continued this competitive grants program with similar levels
of funding in fiscal year 2004 and 2005. NMFS has requested
approximately $1 million in the fiscal year 2006 President's budget to
be available as grants.
We are interested in exploring how to share more resources and
responsibilities with our partners. We would like to work with the
committee on strengthening partnerships and removing potential hurdles
to the partners' full involvement.
conclusion
I want to thank you, Mr. Chairman and members of this committee,
for inviting me here to speak today. We look forward to working with
you to improve ESA and to ensure available resources are spent on
actions that benefit threatened and endangered species.
______
Responses by James H. Lecky to Questions from Senator Inhofe
Question 1. In your testimony, it appears that NMFS will be working
on developing listing ``criteria that are transparent, repeatable, and
based on the best scientific knowledge of population ecology and the
process of species extinction.'' What should the role of economic and
social factors be in making a listing decision?
Response. Listing determinations under the Endangered Species Act
(ESA) are made ``solely on the basis of the best scientific and
commercial data available after conducting a review of the status of
the species and after taking into account those efforts, if any, being
made . . . to protect such species . . . .'' Therefore, listing
determinations are made independent of economic and social factors.
However, social and economic factors are important in other ESA actions
and are considered in designation of critical habitat, recovery
planning, and development of conservation regulations. Listing a
species does not mean that landowners or fishers, for example, cannot
continue their activities. Section 10(a)(1)(A) research and enhancement
permits, section 10(a)(1)(B) incidental take permits (i.e., habitat
conservation plans), and section 6 cooperative agreements provide for
exceptions to the section 9 ``take'' prohibitions, while still ensuring
that the listed species can recover.
Question 2. You mention that you believe information should be used
in an ``open and transparent manner.'' At what point is the public
notified officially of a NMFS activity? Does the public get notified
when a request for listing is made or are they notified only after a
listing decision is made?
Response. Within 90 days of receiving a petition, the National
Marine Fisheries Service (NMFS) publishes a finding on the petitioned
action in the Federal Register. If NMFS finds the petitioned action is
warranted (a ``positive 90-day finding''), NMFS solicits relevant
information (e.g., status, threats, and critical habitat) and initiates
a review of the status of the species. The species under consideration
in the positive 90-day finding is also added to the NMFS Candidate
Species list. Within 12 months of receiving the petition, NMFS
determines whether listing the species as either threatened or
endangered is warranted; if listing is warranted, NMFS publishes a
proposed rule and simultaneously solicits additional comments from the
public and other interested parties. If anyone submits a request, NMFS
also holds a public hearing(s) on the proposed action. Dates and
locations of hearings are published in the Federal Register and press
releases are issued at various stages in the process. We value input
from the public, and the public has many opportunities to get involved
in the listing determination process.
Question 3. I have recently introduced with Senator Jeffords S.
260, the Partners for Fish and Wildlife Act, authorizing a conservation
program that works in cooperation with private landowners. Will you
address the need for incentive programs, like the Partners Program, to
be a part of any updating of the ESA?
Response. NMFS recognizes the importance of incentive programs for
private landowners. One incentive program under development at NMFS is
the ESA section 6 program on Cooperation with States. This program
provides grants to states to conserve listed and candidate species and
species of concern. Since our first line-item appropriation of $1
million in 2003, we have increased from 6 to 11 the number of
Cooperative Agreements with states and territories, and we have funded
dozens of on-the-ground research and management projects to help
various species reach recovery. We are examining the feasibility of
expanding this program in the future.
Question 4. In your testimony, you suggest that more time needs to
be spent on recovery, specifically on recovery actions, not just
recovery planning. Can you elaborate on what you see as the difference
between the two?
Response. When a recovery plan is written, specific actions are
identified that must be taken to achieve species recovery. The
development of recovery plans is required by policy to be completed
within 2.5 years of listing. Because NMFS is emphasizing stakeholder
involvement in recovery planning to ensure the ``buy-in'' of affected
parties and to encourage early implementation of these actions, often
we do not meet the goal of 2.5 years. However, the completion of
recovery plans is a tangible accomplishment, and is sought and achieved
for most species.
Although we minimize impacts to species via section 7 interagency
consultations and Habitat Conservation Plans and help some species
recover through regulation, most listed species need additional
measures, such as habitat protection and restoration, propagation,
protection from predators and introduced species, and research to help
us understand the cause of decline. Unfortunately, there is no set
deadline for any of these recovery actions and, because they are not
urgent on a day-to-day basis, other more pressing needs often take
priority over implementation of these actions. This limits species'
recovery and thus the success of the ESA. One way we can implement
recovery actions is through section 6, mentioned in the previous
question. For this reason, we are examining ways to expand this program
within the current budget constraints.
______
Responses by James H. Lecky to Questions from Senator Vitter
Question 1. Mr. Lecky, are you aware that the National Marine
Fisheries Service office in Santa Rosa, California has advised the
State of California, in writing, that no timber operations should occur
in the flood plain of a river with listed salmon?
Response. The January 21, 2005, letter and recommendation refer
exclusively to the 148-acre proposed timber harvest plan submitted by
Gualala Redwoods and timberlands manager Henry Alden. The plan area is
located entirely on 4.8 miles of the highly meandering and frequently
inundated floodplains of the Little North Fork and North Fork of the
Gualala River; it is not a recommendation to the State that no timber
operations should occur in the floodplain of any river with listed
salmon. The Little North Fork River supports one of the two known
remaining runs of ESA-listed Central California Coast coho salmon in
the Gualala watershed.
Question 2. Do you know how many acres in the United States are
designated as floodplains? Based upon your California application, are
you saying it would be appropriate to regulate all floodplains for the
protection of fish?
Response. We have not estimated how many acres are contained within
floodplains. Application of the recommendation ``no timber operations
should occur in the floodplain of a river with listed salmon'' across
all floodplains in the United States would not be appropriate.
Question 3. Could you describe the relationship between floodplains
and the protection of fish?
Response. Floodplains serve as ``safety valves'' for rivers
(Goodwin 1999). Floodplains (1) slow the velocity of flood flows down
rivers; (2) reduce extreme shifts in stream channel structure and
function, limiting physical damages that floods can cause; (3) provide
settling areas for sediment, and organic material such as wood and
debris; (4) absorb floodwater and release it slowly, nourishing the
stream during dry seasons; and (5) act as a natural reservoir to reduce
the height of the flood downstream. All definitions of floodplain agree
on one point: ``the river channel and its floodplain inseparably
comprise a stream'' (Ligon 1999).
Floodplains support higher biotic diversity (Junk et al. 1989) and
increased production of fish (Bayley 1991; Halyk and Balon 1983 in
Sommer et al. 2001). Floodplains of a river channel (1) provide low-
velocity refugia habitat to salmonids during high-flow events; (2)
support salmonid habitat by absorbing floodwaters and slowly releasing
floodwaters to the active channel during dry seasons; and (3) support
channel and riparian processes that develop off-channel habitats and
provide cover, structure, and nutrients to salmonids. In fact, many
salmonids seek out these low-velocity areas during flood events to
optimize foraging and maximize net energy gain (Fausch 1984).
nmfs references
Bayley, P. B. (1991). ``The flood pulse advantage and the
restoration of river-floodplain systems.'' Regulated Rivers Resource
Management 6: 75-86.
California Department of Forestry timber harvest plan 1-00-101 MEN
and 1-04-032 MEN administrative record.
Fausch, K.D., 1984. Profitable stream positions for salmonids:
relating specific growth rate to net energy gain. Canadian Journal of
Zoology, 62: 441-451.
Goodwin, C. N. (1999). ``Improving future fluvial classification
systems.'' Wildland Hydrology TPS-99-3.
Halyk, L. C. and E. K. Balon (1983). ``Structure and ecological
production of the fish taxocene of a small floodplain system.''
Canadian Journal of Zoology 61: 2446-2464 in Sommer, T. R., Nobriga
M.L., et al. (2001). ``Floodplain rearing of juvenile chinook salmon:
evidence of enhanced growth and survival.'' Canadian Journal of Aquatic
Sciences 58: 325-333.
Junk, W. J., P. B. Bailey, et al. (1989). The flood pulse concept
in river-floodplain systems in D.P. dodge, ed. Proceedings of the
International Large River Symposium. Canadian Special Publications in
Fisheries and Aquatic Sciences 106: 110-127.
Ligon, F., A. Rich, et al. (1999). Report of the scientific review
panel on California Forest Practice Rules and salmonid habitat.
Sacramento, The Resources Agency of California and the National Marine
Fisheries Service: 21.
National Marine Fisheries Service letter to California Department
of Forestry and Fire protection for Timber Harvest Plan 1-04-032 MEN.
January 21, 2005.
Respondent's Trial Brief in Opposition to Petition for Writ of
Mandate, Gualala Redwoods, Inc. v. California State Board of Forestry,
Sacramento Superior Court Case No. 02CS00356
Committee References:
(a) In a letter to the California Department of Forestry dated
January 21, 2005, NMFS comments on page 10: ``The classification of the
Class I watercourse should extend laterally to include both the river
and the floodplain.''
(b) Under the California Forest Practice rules, no harvesting is
allowed in Class I watercourses.
______
Responses by James H. Lecky to Questions from Senator Chafee
Question 1. For ESA decisions at the National Marine Fisheries
Service where science comes into play, how often does your agency
utilize independent peer reviews and how exactly does it work? Is there
a protocol for sending items out to be peer reviewed?
Response. On July 1, 1994, NMFS and the U.S. Fish and Wildlife
Service (FWS) promulgated an interagency policy on information
standards that requires biologists from NMFS and FWS to gather and
impartially evaluate all scientific and other information that will be
used to support listing actions, recovery planning and recovery
actions, interagency consultations, and permitting actions the Services
take under the ESA.
Our Northwest and Southwest Regions have established protocols for
biological review teams and technical recovery teams conducting formal
reviews of the science on the biology, ecology, status, and trends of
threatened or endangered Pacific salmon. When these teams meet, they
gather the available evidence from published and unpublished sources
and form topical teams to critically evaluate that evidence for
quality. These teams then use this evidence to make conclusions about
the state of scientific knowledge on the status and trends of salmon
and to evaluate the reliability of those conclusions.
Regarding recovery planning, per NMFS policy outlined in our
Recovery Planning Guidance, all recovery plans are sent to at least
three independent peer reviewers (in addition to public review of draft
plans, during which any member of the public, including experts on the
species or some portion of the plan, may comment on the plan). Comments
from peer reviewers are given great weight and are usually incorporated
into the final draft of the plan. If not incorporated, a response to
the comments is made, either in an appendix to the plan or in the
administrative record for the planning process.
NMFS has not established formal peer-review procedures for section
7 consultations; the limited time available to complete a consultation
generally precludes formal, independent peer review. However, over the
past 7 years, NMFS has worked with independent panels to conduct peer
reviews on six controversial biological opinions. For example, the 2001
and 2002 biological opinions on the Klamath Water Project operations
were reviewed by the National Academy of Sciences.
Question 2. The designation of critical habitat for terrestrial
species seems more clearly defined by geography than designating
critical habitat for marine and fish species. How does the National
Marine Fisheries Service go about designating critical habitat for
species such as salmon or whales?
Response. The ESA defines critical habitat as ``the specific areas
within the geographical area occupied by the species, at the time it is
listed, on which are found those physical or biological features (I)
essential to the conservation of the species and (II) which may require
special management considerations or protection; and specific areas
outside the geographical area occupied by the species at the time it is
listed that are determined by the Secretary to be essential for the
conservation of the species.'' For species under NMFS' jurisdiction,
such as salmon and whales, an evaluation is conducted to determine the
habitat meeting this definition-i.e., what habitat contains the
physical and biological features essential to the species'
conservation, and are those features present in areas occupied by the
species? A biological report is available on the NMFS Northwest
Regional Office website (http://www.nwr.noaa.gov/) listing the features
(also known as primary constituent elements, or PCEs) and sites
essential to support one or more salmon life stages (spawning, rearing,
migration, and foraging). These sites in turn contain physical or
biological features essential to the conservation of an Evolutionarily
Significant Unit (e.g., spawning gravels, water quality and quantity,
side channels, and forage species).
NMFS uses the best available data and considers economic impacts
when designating critical habitat.
______
Responses by James H. Lecky to Questions from Senator Lautenberg
Question 1. The Endangered Species Act is primarily an alarm
system, indicating that all other management strategies for a species
have failed. For species that your office deals with, what actions
could be taken before we get to the situation in which a species is on
the brink of extinction? Do you routinely work with other offices at
NOAA to solve these problems before they become such problems? Is there
anything more that offices at NOAA can do to work synergistically to
prevent a species from being listed?
Response. In April 2004, NMFS initiated a Species of Concern List.
This nonregulatory list is used to identify species potentially at
risk, increase public awareness about those species, stimulate
cooperative research efforts to obtain the information necessary to
evaluate species status and threats, and foster proactive efforts to
conserve the species before listing becomes warranted. NMFS Regional
Offices and Science Centers assist in identifying species for inclusion
on this list. NOAA and NMFS Regional Offices also work with state
partners through ESA section 6, which provides Federal assistance to
states to implement recovery actions.
Question 2. We learned just yesterday that the eastern oyster, a
species with such rich tradition and an important role in the history
of this nation, might be considered for listing. Can you speak about
the status of the eastern oyster? Will this have any affect on the
introduction of non-native oysters into areas that traditionally
contained our native eastern oyster?
Response. NMFS initiated a status review of the eastern oyster on
May 18, 2005. Results of the full status review are expected in January
2006. Until the status review is completed and NMFS makes a
determination on whether and how to list the species, we cannot predict
what effect the introduction of non-native oysters would have on native
oysters.
The eastern oyster is distributed from the Gulf of St. Lawrence to
the Gulf of Mexico and south through the Caribbean to the Yucatan
Peninsula. Declines of eastern oysters off the Atlantic Coast and in
the Chesapeake Bay are well-documented; these declines are the combined
result of overharvesting (reflected by dramatically decreased
landings), habitat degradation (sediment load and nutrient loading),
and disease (MSX and Dermo). The petitioner presented substantial
information on the status of and threats to the Atlantic Coast
populations of eastern oyster, but little information regarding the
status or threats in other areas such as the Gulf Coast and Caribbean.
In its status review, NMFS will determine whether there is a separate
Atlantic coast subspecies of eastern oysters that is threatened or
endangered or whether the entire species of eastern oyster is
threatened or endangered throughout a significant portion of its range.
The U.S. Army Corps of Engineers is working with other Federal
agencies, including NMFS, to prepare an Environmental Impact Statement
(EIS) under which permits would be issued allowing the introduction of
non-native oysters. If the eastern oyster were to be listed under the
ESA, then an ESA section 7 consultation would be conducted on the
issuance of any permit for the introduction of non-native oysters.
Through the consultation process, NMFS would consider the impacts of
introducing non-native oysters to the listed species and to any
designated critical habitat. Those who are considering introducing non-
native oysters into the Chesapeake Bay would also need to consider the
impacts on the native eastern oyster under other laws such as the
National Environmental Policy Act (NEPA) or the Clean Water Act,
regardless of whether the eastern oyster is listed as threatened or
endangered under the ESA.
Question 3. What is the current status of the right whale in U.S.
waters? Is there any possibility that shipping lanes might be closed
under the Endangered Species Act to prevent more deaths of these
animals from ship strikes?
Response. The North Atlantic right whale is listed as endangered.
The population has shown little sign of recovery after being severely
depleted by commercial whaling, hovering at about 300 individuals for
at least the past several decades. Although calf production has
increased somewhat in recent years, recovery is seriously affected by
fatalities and serious injury resulting from human activities,
primarily from entanglement in fishing gear and collisions with ships.
Since 1972, 6 right whale deaths have been attributed to fishing gear
entanglements and 27 to ship strikes. The actual number of deaths is
almost certainly higher, as not all carcasses are detected or reported.
In the past 18 months (January 2004 through June 2005), 8 right whale
deaths have been confirmed--1 due to ship strike, 3 possibly due to
ship strikes, and 1 possibly due to entanglement (it was not possible
to determine the cause of the remaining 3 deaths). Of these eight
deaths, six were females, three of which carried fetuses. In addition,
at least eight right whales are believed or confirmed to be currently
entangled alive.
NMFS has taken several steps to address these threats. Regarding
ship strikes, NMFS has developed a multi-year, range-wide Ship Strike
Reduction Strategy. The Strategy was issued as an Advance Notice of
Proposed Rulemaking (ANPR) (69 FR 30857, 1 June 2004) and a series of
public meetings were held on the ANPR. On June 22, 2005, NMFS published
a Notice of Intent to prepare an Environmental Impact Statement under
the National Environmental Policy Act on the Strategy and its
alternatives. The Strategy does not contain, and at no time was
consideration given to, shipping lane closures. Instead, the Strategy
and its alternatives identify a network of relatively minor routing
changes (none of which is expected to affect navigational or human
safety nor seriously impact East Coast commerce) and a set of ship
speed restrictions along the eastern seaboard. The U.S. Coast Guard
(USCG) is currently conducting Port Access Route Studies (70 FR 8312,
18 February 2005) on two routing changes recommended in the Strategy--
one in Cape Cod Bay and the other in right whale critical habitat in
waters off Florida and Georgia. The USCG analysis will assess potential
navigational and environmental problems should the routes be imposed.
The USCG is required to provide its recommendations on the proposed
routes in a report to Congress by the end of 2005.
As to fishing gear entanglement, NMFS has worked through the Take
Reduction Team process to develop the Atlantic Large Whale Take
Reduction Plan as required by the Marine Mammal Protection Act. This
rule was published on June 21, 2005.
On a related matter, NMFS recently completed an updated Recovery
Plan for the North Atlantic right whale. Copies are available from the
Office of Protected Resources, and the Plan can be downloaded from
www.nmfs.noaa.gov/pr/pr3/recovery.
__________
Statement of Robin M. Nazzaro, Director for Federal Land Stewardship
Issues, Natural Resources and Environment Team, GAO
endangered species act: successes and challenges in agency
collaboration and the use of scientific information in the decision
making process
Why GAO Did This Study
The purpose of the Endangered Species Act is to conserve endangered
and threatened species and the ecosystems upon which they depend. This
law currently protects more than 1,260 animal and plant species. Within
the Department of the Interior, the Fish and Wildlife Service
implements and enforces the act. In addition, all Federal agencies,
such as the Department of Defense and the Bureau of Land Management,
must ensure that their activities do not jeopardize a protected
species' continued existence or adversely modify or destroy habitat
that has been designated as critical to its survival.
The Endangered Species Act and its implementation can be
controversial when there are conflicting uses for a natural resource
as, for example, when timber on Federal lands is both habitat for
endangered and threatened species and a valuable commodity to be
harvested. Conflicts also occur over the adequacy or interpretation of
scientific information in making species protection decisions.
GAO has issued numerous reports on the implementation of the
Endangered Species Act. This testimony is based primarily on four of
these reports and addresses (1) collaboration among Federal agencies to
conserve threatened and endangered species and (2) utilization of
scientific information by the Fish and Wildlife Service.
www.gao.gov/cgi-bin/getrpt?GAO-05-732T.
To view the full product, including the scope and methodology,
click on the link above. For more information, contact Robin Nazzaro at
(202) 512-3841 or nazzaror@gao.gov.
What GAO Found
We have found that effective agency collaboration can reduce
conflict over competing uses of natural resources and improve agencies'
abilities to protect species while carrying out other mission-related
activities. While we have noted several instances of effective
interagency cooperation, we have also discovered that agencies could be
doing more to work together to find effective species protections. For
example, at one military facility, Air Force officials worked with the
Fish and Wildlife Service and others to entice the endangered Sonoran
pronghorn--a species similar in appearance to antelope--away from
military training areas. As a result, the agencies were able to
minimize the impact of species protections on training exercises.
Previously, Air Force officials had reported that 32 percent of their
live-fire missions were either canceled or moved due to the presence of
the pronghorn. However, we have found that there are obstacles to
further agency collaboration that need to be addressed.
We have found that the Fish and Wildlife Service generally used the
best available information in key endangered species decisions,
although the agency was not always integrating new research into
ongoing species management decisions. For example, since the Bureau of
Land Management eliminated sheep grazing on more than 800,000 acres in
tortoise habitat in California, neither the Bureau or the Fish and
Wildlife Service had ensured that necessary research was conducted to
assess whether this action had benefited the tortoise. Unless managers
link research findings to recovery actions, they cannot develop a
scientific basis to make decisions about whether land use
restrictions--such as limiting grazing or other activities in tortoise
habitat--should remain unchanged, be strengthened, or whether
alternative actions are more appropriate. Developing such information
is important as some of the restrictions imposed to protect the
tortoise have been controversial because of their broad impact and some
affected by the restrictions have questioned whether they are necessary
for the tortoise's recovery.
Mr. Chairman and Members of the Subcommittee:
I am pleased to be here today to discuss our work related to the
Endangered Species Act. As you know, the purpose of the act is to
conserve endangered and threatened species and the ecosystems upon
which they depend. This law currently protects more than 1,260 animal
and plant species. Under the act, no one may ``take'' a protected
species, which is defined as harming, harassing, pursuing, shooting,
wounding, killing, trapping, hunting, capturing, or collecting, or
attempting any such conduct. In addition, Federal agencies and
federally authorized activities may not jeopardize a species' continued
existence or adversely modify habitat deemed critical for a species'
survival. The U.S. Fish and Wildlife Service (FWS) and the National
Marine Fisheries Service (NMFS)--collectively referred to as the
Services--are responsible for working with other Federal agencies,
tribal, state, and local governments, private companies, and citizens
to ensure that species are appropriately protected. In addition, all
Federal agencies are directed by the act to utilize their authorities
to conserve threatened and endangered species.
The act requires FWS and NMFS to list as endangered any species
facing extinction and to list as threatened any species likely to
become endangered in the foreseeable future. When a species is listed,
the act also generally requires the agencies to designate critical
habitat--habitat essential to a species' conservation--because the loss
of habitat is often the principal cause of species decline. FWS and
NMFS are also required to develop a plan to recover the listed species
to the point that they are no longer endangered or threatened, an
achievement marked by their removal, or delisting, from the list of
endangered or threatened species.
The act's success in protecting species depends on one's point of
view. Some believe it has been successful because in the face of
chronic underfunding only 9 species have gone extinct since the act's
inception, others say it has been a failure because only 9 species have
been recovered. Advocates on both sides of the argument would likely
agree, however, that the Endangered Species Act and its implementation
have served as lightning rods in the ongoing national debate concerning
the tradeoffs that must often be made between economic, social, and
environmental values. The tradeoffs required to implement the act were
vividly apparent in 1978, when the Supreme Court ruled that
construction of the Tellico Dam could not be completed because doing so
would jeopardize the continued existence of the endangered snail
darter--a species of fish.\1\ The dam, which has since been
completed,\2\ is located on the Little Tennessee River and provides
flood control, hydropower, and water supply. In this case, the Court
ruled that the Endangered Species Act explicitly prohibits activities
that would jeopardize the continued existence of an endangered species
or result in the destruction or modification of its habitat, and stated
that the act represents a congressional decision to require agencies to
give greater priority to the protection of endangered species than to
their other missions. Under the Court's decision, Federal agencies
generally are prohibited from authorizing, funding, or carrying out
actions, such as dam construction, permitting timber harvesting and
livestock grazing, and wetland dredging, if doing so would jeopardize
the continued existence of arty endangered or threatened species or
destroy or adversely modify their critical habitats.
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\1\ Tenn. Valley Auth. v. Hill, 437 U.S. 153 (1978).
\2\ Legislation, passed in 1979, allowed for completion of the
Tellico Dam.
---------------------------------------------------------------------------
The legacy of this decision continues to this day as Federal
agencies struggle to balance their obligation to protect species and
carry out other mission-related activities that often involve ensuring
industries, ranchers, farmers, recreational enthusiasts, tourists, and
others, appropriate access to and use of the very natural resources on
which those species depend. One prominent recent example is the
federally-operated Klamath Project--dams, reservoirs, and associated
facilities that sits on the California-Oregon border. Here, under
extreme drought conditions, several Federal agencies--including the
Services and the Bureau of Reclamation--are trying to balance the water
needs of irrigators and others who receive water from the project, and
threatened and endangered fish, which must have sufficient water to
survive. In 2002, thousands of fish died while water was delivered for
agricultural irrigation; the prior year, farmers experienced crop
losses while water was used to maintain stream flows for fish.\3\
Another prominent example involved the threatened Northern spotted owl.
In the early 1990s, timber sales on Federal lands that are habitat for
the Northern spotted owl were brought to a virtual halt by Federal
court injunctions. In various rulings, the Federal courts enjoined the
Forest Service and Bureau of Land Management from selling timber until
they addressed issues related to protecting the habitat of the owl.\4\
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\3\ For a more comprehensive assessment of the status of the
nation's freshwater supply see U.S. General Accounting Office,
Freshwater Supply: States' Views of How Federal Agencies Could Help
Them Meet the Challenges of Expected Shortages, GAO-03-514 (Washington,
D.C.: July 9, 2003).
\4\ For a fuller account of this controversy and efforts to resolve
it, see U.S. General Accounting Office, Ecosystem Planning: Northwest
Forest and Interior Columbia River Basin Plans Demonstrate Improvements
in Land-Use Planning, GAO/RCED-99-64 (Washington, D.C.: May 26, 1999).
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More recently, controversies surrounding the act have centered on
the adequacy of the scientific information used to make decisions about
whether and how to list species. Just in the past few months sparks
have flown in response to scientific decisions concerning the Florida
panther, the Preble's meadow jumping mouse, and the greater sage
grouse. In the first case, FWS conceded weaknesses in the data used to
craft some of its plans to protect the endangered panther. While
critics of FWS claim the agency's use of faulty information was
politically motivated, FWS officials defend it as an honest mistake
made in the context of an ever-evolving body of knowledge. In the case
of the Preble's mouse, FWS announced in January 2005 that it will
propose removing the mouse from the endangered species list because new
research indicates that it is genetically not a separate subspecies of
meadow jumping mouse as previously thought. Critics of the act cite
this as evidence that the act does not require sufficient scientific
evidence before a species is listed. Finally, FWS also recently
announced that it will not place the sage grouse on the endangered
species list. Critics of the decision are concerned that politics
interfered with a scientifically justified decision to list the
species. FWS claims that the decision was the result of an extensive
review of scientific data and analysis.
While there are no simple answers to the conflicts and
controversies surrounding the act, we believe that the Federal agencies
responsible for managing endangered species and their habitats can be
more effective in how they manage these conflicts or potentially avoid
conflicts altogether. We have issued more than 15 reports in the past
10 years addressing how the Endangered Species Act is being
implemented. (These reports are listed in Appendix I along with other
GAO reports that discuss the effect of the act on other programs).
Today, I am going to discuss our work on two of the major issues
currently being debated concerning the Endangered Species Act--the
difficulty of balancing species needs with other resource uses and the
use of science in implementing the act. Specifically, this testimony
addresses (1) collaboration among Federal agencies to conserve
threatened and endangered species and (2) utilization of scientific
information by FWS in key Endangered Species Act decisions.
This testimony is based primarily on four previously issued
reports. In general, we did not perform additional audit work in
preparing this testimony. We made recommendations in these four reports
and have updated the status of agencies' efforts to implement our
recommendations. Our work was conducted in accordance with generally
accepted government auditing standards.
summary
In summary, we found that Federal agencies have taken steps to
improve collaboration as a way to reduce conflicts that often occur
between species protections and other resource uses, but that more
could be done to promote routine use of collaboration and clarify
agencies' responsibilities under the Endangered Species Act. In
September 2003, we reported on efforts taken by the Department of
Defense (DOD) to coordinate with other Federal land managers in order
to reduce the impact of species protections on military activities. We
found several cases where such efforts were successful. For example, at
the Barry M. Goldwater range in Arizona, Air Force officials worked
with officials at FWS and the National Park Service to enhance food
sources for the endangered Sonoran pronghorn in locations away from
military training areas. As a result, the Air Force was able to
minimize the impact of restrictions on training missions due to the
presence of the pronghorn. However, such cases were few and far between
because, among other things, there were no procedures or centralized
information sources for facilitating such collaboration. In March 2004,
we reported on collaboration that takes place pursuant to section
7(a)(2) of the act--referred to as the consultation process--in the
Pacific Northwest. In this area, large numbers of protected species and
vast amounts of Federal land conspire to make balancing species
protection and resource use a contentious endeavor. We found that steps
the Services and other Federal agencies had taken made the consultation
process run smoother and contributed to improved interagency
relationships. However, some problems have persisted. For example, some
agencies disagree with the Services about when consultation is
necessary and how much analysis is required to determine potential
impacts on protected species. In each of these reports, we made
recommendations intended to further improve collaboration among Federal
agencies with regard to balancing species protections and other
resource uses, and--in the March 2004 report--to resolve disagreements
about the consultations process. DOD and FWS have begun discussing an
implementation strategy to improve collaboration regarding species
protection on military and other Federal lands and development of a
training program. With regard to the consultation process, while FWS
and NMFS have continued to take steps to expand their collaboration
processes, the agencies did not believe that disagreements about the
consultation process require additional steps. They believe that
current training and guidance is sufficient to address questions about
the process.
With regard to the use of science, we have found that FWS generally
used the best available information in key Endangered Species Act
decisions, although the agency was not always integrating new research
into ongoing species management decisions. In addition, we identified
concerns with the adequacy of the information available to make
critical habitat decisions. In December 2002, we reported on many
aspects of the decisionmaking for species protections regarding the
Mojave Desert tortoise. We found that the decision to list the tortoise
as threatened, its critical habitat designation, and the recommended
steps in the species' recovery plan, were based on the best available
information. However, despite over $100 million in expenditures on
recovery actions and research over the past 25 years, it is still
unclear what the status of the tortoise is and what effect, if any,
recovery actions are having on the species because research has not
been coordinated in a way to provide essential management information.
Such information is critically important as some of the protective
actions, such as restrictions on grazing and off road vehicle use, are
vigorously opposed by interest groups who question whether they are
necessary for the tortoise's recovery. Accordingly, we recommended that
FWS better link land management decisions with research results to
ensure that conservation actions and land use restrictions actually
benefit the tortoise. In response, FWS recently established a new
office with a tortoise recovery coordinator and plans to create an
advisory committee to ensure that monitoring and recovery actions are
fed back into management decisions. In August 2003, we found that,
similar to the decisionmaking regarding the tortoise, FWS decisions
about listing species for protection under the act were generally based
on the best available information. However, while most critical habitat
designations also appeared to be based on the best available
information, there were concerns about the adequacy of the information
available at the time these decisions are made. Specifically, critical
habitat decisions require detailed information of a species' life
history and habitat needs and the economic impacts of such decisions--
information that is often not available and that FWS is unable to
gather before it is obligated under the act to make the decision. As a
result, we recommended that the Secretary of the Interior clarify how
and when critical habitat should be designated and identify if any
policy, regulatory, or legislative changes are required to enable the
department to make better informed designations. FWS has not responded
to our recommendation.
collaborating to protect endangered species
At the heart of many of the controversies surrounding the
Endangered Species Act is the competition for natural resources--
competition between the needs of threatened and endangered species and
resource extraction industries, land owners, and other users of the
natural resources on which those species depend. Our work has largely
focused on the challenges that agencies face in protecting species
while carrying out their other mission-related related
responsibilities, some of which could have a negative impact on
protected species. While our work has highlighted positive examples
where collaboration between Federal agencies has reduced conflict,
there is still room for improvement.
collaboration can help the military sustain critical functions while
protecting endangered species
We saw the importance of collaboration among Federal agencies in
our work evaluating the protection of threatened and endangered species
and habitat on military installations in the United States. Many DOD
and other Federal agency officials have recognized that military lands
often provide some of the finest remaining examples of rare wildlife
habitat for protected species. In fact, more than 300 threatened or
endangered species inhabit military lands. However, DOD officials are
concerned that the presence of protected species may constrain
essential military training. DOD officials have identified the
Endangered Species Act, along with other factors such as competition
for air space and urban growth around military installations, as issues
affecting or having the potential to affect military training and
readiness.\5\
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\5\ U.S. General Accounting Office, Military Training: DOD Lacks a
Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02-
614 (Washington, D.C.: June 11, 2002). See also U.S. General Accounting
Office, Military Training DOD Approach to Managing Encroachment on
Training Ranges Still Evolving, GAO-03-621T (Washington, D.C.: April 2,
2003); and U.S. General Accounting Office, Military Training: DOD Needs
a Comprehensive Plan to Manage Encroachment on Training Ranges, GAO-02-
727T (Washington, D.C.: May 16, 2002).
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In September 2003,\6\ we issued a report on the extent to which DOD
and other Federal land management agencies are cooperatively managing
the protection of endangered species affecting military training
ranges, and the factors that can limit such collaboration. We found
several cases where DOD and other Federal land managers have entered
into cooperative agreements that have benefited both the species and
the military. For example, collaboration among Federal agencies around
the Air Force's Barry M. Goldwater Range in Arizona, minimized the
impact of restrictions on training exercises that were necessary to
protect the endangered Sonoran pronghorn (a species similar in
appearance to an antelope). Previously, Air Force officials reported
that 32 percent of their live-fire missions were either canceled or
moved due to the presence of the pronghorn. Air Force officials worked
with FWS and National Park Service officials to jointly fund forage
enhancement plots, which provided food sources for the Sonoran
pronghorn. The plots enticed the pronghorn to an adjacent national
wildlife refuge and away from military training areas and, as a result,
minimized the impact of restrictions on training missions.
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\6\ U.S. General Accounting Office, Military Training:
Implementation Strategy Needed to Increase Interagency Management for
Endangered Species Affecting Training Ranges, GAO-03-976 (Washington
D.C.: September 29, 2003).
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However, the instances of collaboration between DOD and the
Departments of the Interior and Agriculture were limited. Although the
departments have entered into memorandums of understanding that contain
specific actions to be taken to implement cooperative management--such
as forming interagency working groups, identifying geographic regions
for species management, and identifying reporting requirements--many of
the specific actions in these agreements were never fully implemented
and most agreements had expired. When there were examples of
cooperative management efforts between DOD and other Federal land
managers, they were often initiated in response to a crisis, such as a
marked decline in a species' population or land-use restrictions that
significantly impacted Federal land managers' abilities to carry out
their missions. The Departments of Defense, the Interior, and
Agriculture identified a number of factors that can limit interagency
cooperative management for endangered species affecting military
training ranges. In addition to the absence of a shared sense of crisis
among Federal land managers, other obstacles to agency collaboration
included limited agency interaction, resource constraints, lack of land
manager training and experience, and the lack of centralized or
otherwise easily accessible sources of information.
In our September 2003 report, we recommended that the Secretaries
of Defense, the Interior, and Agriculture develop and implement an
interagency strategy, a comprehensive training program, and a
centralized data source for cooperative management efforts. The
departments concurred on the need to improve interagency cooperation.
The Department of Defense, FWS, and others have initiated plans for an
interagency strategy, training program, and information sharing
mechanisms.
Collaboration Can Help Reduce the Contentiousness of the Consultation
Process
Collaboration is central to the consultation process required under
section 7(a)(2) of the Endangered Species Act, where Federal agency
officials must jointly assess the potential impacts of agency
activities on protected species. The process can get contentious,
however, because it sometimes pits officials at the Services against
officials from other agencies who are attempting to carry out typical
agency activities. For example, the process can become difficult when
an agency such as the Corps of Engineers is planning an activity in
accordance with its mission to support navigation in the nation's
waterways, such as issuing permits for dock construction, and the
Services recommend project changes in order to meet the requirements of
the Endangered Species Act. Such changes can impact the nature of the
original project, and add to the time and cost necessary to complete
what some agency officials described as seemingly benign or
insignificant activities.
We issued a report in March 2004 that evaluated the consultation
process in the northwestern United States.\7\ We were asked to evaluate
the consultation process in this region because of persistent concerns
about the time and cost that consultation added to Federal activities
and activities that are federally permitted or funded. In the northwest
United States, the consultation process is a prominent feature of
Federal land management because of the region's combination of large
areas of Federal land and significant numbers of listed species.
Endangered or threatened species in this region include the Northern
spotted owl, grizzly bear, Canada lynx, bull trout, and various species
of salmon.
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\7\ U.S. General Accounting Office, Endangered Species: More
Federal Management Attention Is Needed to Improve the Consultation
Process, GAO-04-93 (Washington, D.C.: Mar. 19, 2004). See also U.S.
General Accounting Office, Endangered Species: Despite Consultation
Improvements Efforts in the Pacific Northwest, Concerns Persist about
the Process, GAO-03-949T (Washington, D.C.: June 25, 2003).
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Between 1997 and 2000, 25 species in the northwest were identified
for protection under the Endangered Species Act. This prompted concerns
about the consultation process because many projects in the region were
delayed, sometimes for years, because of the services' inability to
address the associated workload increases. For example, according to a
local community representative, before salmon were listed for
protection in the late 1990s, the Corps of Engineers' permitting
process for activities such as constructing or modifying private docks
on Lake Washington generally took only 2 or 3 months and averaged about
5 percent of construction costs. Since salmon were listed, the Corps
must consult with NMFS when issuing these permits. This representative
said that, as a result, the timeframes for permits have increased to
about 24 months and permitting costs have increased to about 33 percent
of construction costs.
We found that, in response to concerns about the consultation
process, the Services and other Federal agencies had taken steps in
three general categories to make the consultation process more
collaborative and efficient.
The Services and other Federal agencies took steps to facilitate
collaboration among their staffs so that disagreements about species
protections and project modifications could be resolved before they
slowed down the consultation process. Officials at the agencies cited
several benefits of these steps such as increased trust between the
Services and other agencies, better communication, and earlier
involvement in projects, which many officials emphasized as important
for consultations to run efficiently.
The Services and other Federal agencies also developed approaches
to reduce the consultation workload, such as including multiple related
activities in a single consultation. According to officials, this has
increased the efficiency of the consultation process and enabled the
agencies to deal more quickly with activities for which the effects on
species are known.
The Services and other Federal agencies took steps to increase
the consistency and transparency of the consultation process, such as
providing interagency training courses and posting guidance and
information on agency Web sites. For example, to address disagreements
between the Services and other Federal agencies, the Services issued
guidance on how to assess the effects of right-of-way permits on
protected species.
Despite efforts to improve the consultation process, officials with
the Services and other Federal agencies still have concerns about two
key issues. First, officials at the agencies are still concerned about
workload. While staff levels have increased in recent years, increases
in personnel have been outpaced by the increasing number and complexity
of consultations. Officials told us that more activities are going
through the consultation process than before and that projects are
becoming more complex, requiring greater analysis and staff time to
identify potential impacts on species and any necessary protections.
Second, officials at the Services and other Federal agencies sometimes
disagree about the extent to which consultation is necessary. Some
agency officials said they feel pressured by the Services--and by the
fear of litigation--to seek consultation, regardless of the likely
effects of an activity on protected species, including in situations
where they feel consultation is unnecessary. Officials at the Services
also cited the fear of litigation, and said they believed that they
were simply fulfilling their responsibilities under the act to consult
on projects that may affect protected species regardless of the level
of the potential impact. The result is a continued sense of frustration
among agency officials regarding what protections are necessary under
the Endangered Species Act and the time it takes to reach agreements in
agency consultations.
Because many concerns about the consultation process center on its
timeliness, we recommended in our March 2004 report that FWS and NMFS
work with other agencies to determine how best to capture data on the
level of effort devoted to the consultation process and use this
information to manage the process. We further recommended that the
Secretaries of the Interior and Defense, the Under Secretary of
Commerce for Oceans and Atmosphere, and the Chief of the Forest Service
work together to resolve disagreements about when consultation is
required and how detailed an analysis is necessary. Both FWS and NMFS
have taken steps to improve information management of the consultation
process, although it is unclear whether they have determined how to
capture the level of effort devoted to the process--admittedly, a
difficult task. While FWS and NMFS have continued to take steps to
expand collaborative processes, in an update on their actions, the
agencies stated that they did not believe that disagreements about the
consultation process require the adoption of additional measures. They
believe that the current training and guidance on consultation is
sufficient to address questions about the process.
Using Scientific Information to Make Decisions
Scientific information is a key component of most decisions
regarding the implementation of the Endangered Species Act. Our work
has largely focused on how FWS has used information in key decisions
about endangered species, such as listing threatened and endangered
species, designating critical habitat, and developing species recovery
plans. While we found that FWS has generally done a good job using
available information to make decisions, there is still room for
improvement.
While Many Key Protection Decisions for the Mojave Desert Tortoise Were
Based on the Best Available Information, FWS Has Not Always
Integrated Research Into Ongoing Recovery Decisions
In a December 2002 report,\8\ we found that key FWS decisions were
supported by the best available information. We relied on experts
identified for us by the National Academy of Sciences to review FWS
listing, critical habitat, and recovery plan decisions for the Mojave
Desert tortoise. Based on their review of the information available at
the time the respective decisions were made, the scientists we
consulted agreed that the listing of the desert tortoise in 1990, the
critical habitat designation, and the recommendations in the recovery
plan were reasonable. These scientists recognized that, as is often the
case with such decisions, little published data on the species were
available. However, they agreed that FWS's decisions were appropriate
and consistent with their understanding of the agency's
responsibilities under the act.
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\8\ U.S. General Accounting Office, Endangered Species: Research
Strategy and Long-Term Monitoring Needed for the Mojave Desert Tortoise
Recovery Program, GAO-03-23 (Washington, D.C.: Dec. 9, 2002).
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Our report, however, was less positive with regard to what FWS had
learned about the tortoise since their decisions were made. We found
that while over $100 million (in constant 2001 dollars) had been spent
on research and recovery efforts over the past 25 years, there was
still little known about the species' status, the key threats to its
survival, or the effectiveness of management actions implemented to
help the tortoise. While many actions intended to protect the tortoise
have been taken, necessary research had not been conducted to determine
whether these actions were effective. For example, the Bureau of Land
Management prohibited sheep grazing on more than 800,000 acres of
tortoise habitat in California and implemented restrictions on off-road
vehicles in tortoise habitat. While individual studies had been
conducted on these issues, the research had not been coordinated in a
way to answer questions about the impact of such actions on tortoise
populations or habitat. Determining the effectiveness of such
protective actions is important because they affect large areas of
land, were recommended on the basis of limited published data, and in
some cases, are vigorously opposed by certain interest groups. Unless
managers link research findings to assessments of recovery actions that
have been implemented, they cannot make determinations based on
scientific information as to whether land use restrictions should
remain unchanged, be strengthened, or whether alternative actions are
more appropriate.
To ensure that the most effective actions are taken to protect the
tortoise, we recommended in our December 2002 report that the Secretary
of the Interior develop and implement a coordinated research strategy
for linking land management decisions with research results and
periodically reassess the recovery plan for the tortoise. In response,
FWS recently established a new office with a tortoise recovery
coordinator and three field coordinators who will help coordinate
research and management. In addition, the agency plans to create an
advisory committee to ensure that monitoring and recovery actions are
fed back into management decisions. FWS previously utilized an expert
committee to review the recovery plan for the tortoise. Although the
committee found that the plan was fundamentally sound, it similarly
recommended that ties between research and management be strengthened.
Species Listing and Critical Habitat Decisions Are Based on Best
Available Information, But Concerns Remain About the Adequacy
of That Information
Recent concerns about FWS listing and critical habitat decisions
have focused on the role that ``sound science'' plays in the
decisionmaking process and whether FWS properly interprets scientific
data and bases its decisions on adequate scientific information.
Critics of FWS decisions warn that improper listing and critical
habitat decisions may disrupt social and economic activities and divert
funding and attention away from species truly facing extinction. The
Endangered Species Act requires FWS to use the best available
information when making decisions to list species or designate critical
habitat. It is important to note that the ``best available'' standard
does not obligate FWS to conduct studies to obtain new data, but
prohibits the agency from ignoring available information. FWS goes
through an extensive series of procedural steps that involve public
participation and review by outside experts (i.e., peer reviewers) to
help ensure that it collects relevant data and uses it appropriately.
In August 2003, we reported on FWS's use of available scientific
information in making listing and critical habitat decisions.\9\
Because of the number of species decisions to analyze and the inherent
difficulties in independently assessing available scientific
information and determining what constitutes a scientific sound
decision, we identified several proxies for assessing the reliability
of FWS listing and critical habitat decisions. These proxies entailed
reviews of:
---------------------------------------------------------------------------
\9\ U.S. General Accounting Office, Endangered Species: Fish and
Wildlife Service Uses Best Available Science to Make Listing Decisions,
but Additional Guidance Needed for Critical Habitat Designations, GAO-
03-803 (Washington, D.C.: Aug. 29, 2003).
The procedures FWS follows for gathering information and
internally reviewing decision documents;
Comments from peer reviewers on listing and critical habitat
decisions;
The outcomes of legal challenges to these decisions; and
Subsequent changes to FWS listing and critical habitat decisions,
such as after additional scientific information had been gathered.
In each case, we determined that, overall, FWS species listing and
critical habitat decisions were based on the best available
information. However, experts and others knowledgeable about the
Endangered Species Act have expressed concerns about FWS's ability to
designate critical habitat for some listed species given the amount of
information available on the species' habitat needs at the time
decisions must be made--at the time of listing or shortly thereafter.
Unlike listing decisions that are more straightforward--requiring FWS
to answer only a ``yes or no'' question as to whether a species
warrants listing--critical habitat decisions often require more
detailed knowledge of a species' life history and habitat needs and
call for FWS to factor in the species' special management needs as well
as the economic impacts of the designation. FWS officials, experts, and
others with whom we spoke agreed that the amount of scientific
information available when they are required to designate critical
habitat is limited and often affects FWS's ability to adequately define
the habitat essential to the species' conservation. While some
interested parties stated that FWS designated areas too broadly and
included lands unsuitable for several species, others said that FWS did
not designate enough habitat for some listed species. According to FWS
officials, the resource and time constraints under which its scientists
work often preclude them from collecting new information and, as a
result, their ability to produce adequate critical habitat designations
may be limited by the information available for some species. We found
that most scientific disagreements surrounding recent critical habitat
designations concerned whether the area chosen as critical habitat is
sufficiently defined or whether the overall information used to support
the designation is adequate. In order to increase the amount of
information available on which to base critical habitat designations,
FWS and others, including the National Research Council, have
recommended delaying designations until recovery plans are
developed.\10\
---------------------------------------------------------------------------
\10\ National Research Council, Science and the Endangered Species
Act (Washington D.C.: National Academy Press, 1995) pp. 71-93.
---------------------------------------------------------------------------
We also reported that FWS's critical habitat program faced a
serious crisis that extended well beyond the use of science in making
decisions. Key court decisions have invalidated certain practices
adopted by the agency, causing its critical habitat program to become
overburdened by litigation. Specifically, a key court case in 1997
invalidated FWS's policy regarding when it was prudent to designate
critical habitat for listed species.\11\ Prior to the decision, FWS had
designated critical habitat for only about 10 percent of listed
species. Since then, court orders and settlement agreements have
compelled FWS to designate critical habitat in cases that the agency
had previously determined doing so was not prudent. In 2001, FWS lost
another key lawsuit, challenging the adequacy of the economic analyses
the agency used to support its critical habitat designations.\12\ Since
this decision was issued, court orders and settlement agreements have
prompted FWS to re-issue some critical habitat decisions. The
Department of the Interior believes that the flood of litigation over
critical habitat designation is preventing FWS from taking what it
deems to be higher priority activities, such as addressing the
approximately 250 ``candidate'' species waiting to go through the
listing process (listing and critical habitat activities are funded
under the same line item in the department's budget).
---------------------------------------------------------------------------
\11\ Natural Resources Defense Council v. United States Department
of the Interior, 113 F.3d 1121 (9th Cir. 1997).
\12\ New Mexico Cattle Growers v. United States Fish and Wildlife
Service, 248 F.3d 1277 (10th Cir. 2001).
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Because FWS's critical habitat program faces serious challenges,
including questions regarding the role of critical habitat in species
conservation, we recommended in our August 2003 report that the
Secretary of the Interior provide clear strategic direction for the
critical habitat program by clarifying the role of critical habitat and
how and when it should be designated and recommending policy,
regulatory, and/or legislative changes necessary to address these
issues. The Department did not respond to our request to comment on a
draft of this report and has not formally indicated whether or not it
intends to implement the recommendation.
conclusion
We recognize that passions run high when issues concern the
Endangered Species Act. The act, with its broad powers to restrict the
use of natural resources and impinge upon individual property rights,
coupled with its noble purpose to conserve the ecosystems upon which
threatened and endangered species depend, provides a crucible for an
ongoing national debate concerning the tradeoffs between economic,
social, and environmental values. As members of the subcommittee are
well aware, there are no easy answers. However, there is common ground
among everyone concerned about the act and its impact on the Nation and
its resources. All can agree that reducing the negative impacts of
implementing the act--whether it be the loss of credibility for the
Services over debates about ``sound science'' or the perceived
injustice of limited resource use due to needed species protections--
while improving the status of threatened and endangered species is a
worthy goal. In our testimony today, we have highlighted just a few
examples where Federal agencies, working cooperatively and diligently,
have achieved just that. Unfortunately, we found too few examples of
this in our work. We believe more can be done. The task before us is to
identify how all concerned parties--Federal, tribal, state, local, and
private--can work together to improve the status of threatened and
endangered species while further reducing the negative impacts of
implementing the act. As we begin a new review of how species recovery
plans are being implemented--work that was requested by a bipartisan
group of Senators and Congressmen including the chairman of this
subcommittee--we hope that the successful examples on collaboration and
the use of science we noted here are harbingers for future cooperation
and success.
______
Appendix I: GAO Reports Concerning the Endangered Species Act
reports addressing implementation of the endangered species act
Endangered Species: Fish and Wildlife Service Generally Focuses
Recovery Funding on High-Priority Species, but Needs to Periodically
Assess Its Funding Decisions. GAO-05-211. Washington, D.C.: April, 6,
2005.
Protected Species: International Convention and U.S. Laws Protect
Wildlife Differently. GAO-04-964. Washington, D.C.: September 15, 2004.
Endangered Species: Federal Agencies Have Worked to Improve the
Consultation Process, but More Management Attention Is Needed. GAO-04-
93. Washington, D.C.: March 19, 2004.
Military Training: Implementation Strategy Needed to Increase
Interagency Management for Endangered Species Affecting Training
Ranges. GAO-03-976. Washington, D.C.: September 29, 2003.
Endangered Species: Fish and Wildlife Service Uses Best Available
Science to Make Listing Decisions, but Additional Guidance Needed for
Critical Habitat Designations. GAO-03-803. Washington, D.C.: August 29,
2003.
Endangered Species: Despite Consultation Improvement Efforts in the
Pacific Northwest, Concerns Persist about the Process. GAO-03-949T.
Washington, D.C.: June 25, 2003.
International Environment: U.S. Actions to Fulfill Commitments
Under Five Key Agreements. GAO-03-249. Washington, D.C.: January 29,
2003.
Endangered Species: Research Strategy and Long-Term Monitoring
Needed for the Mojave Desert Tortoise Recovery Program. GAO-03-23.
Washington, D.C.: December 9, 2002.
Columbia River Basin Salmon and Steelhead: Federal Agencies'
Recovery Responsibilities, Expenditures and Actions. GAO-02-612.
Washington, D.C.: July 26, 2002.
International Environment-U.S. Actions to Fulfill Commitments Under
Five Key Agreements. GAO-02-960T. Washington, D.C.: July 24, 2002.
Endangered Species Program: Information on How Funds Are Allocated
and What Activities Are Emphasized GAO-02-581. Washington, D.C.: June
25, 2002.
Canada Lynx Survey: Unauthorized Hair Samples Submitted for
Analysis. GAO-02-496T. Washington, D.C.: March 6, 2002.
Unauthorized Hair Samples Submitted for Analysis GAO-02-488R.
Washington, D.C.: March 6, 2002.
Accidental Contamination of Samples Used in Canadian Lynx Study
Rendered the Study's Preliminary Conclusion Invalid. GAO-01-1018R.
Washington, D.C.: August 14, 2001.
Endangered Species Act: Fee-Based Mitigation Arrangements. GAO-01-
287R. Washington, D.C.: February 15, 2001.
Fish and Wildlife Service: Challenges to Managing the Carlsbad,
California, Field Office's Endangered Species Workload. GAO-01-203.
Washington, D.C.: January 31, 2001.
Fish and Wildlife Service: Weaknesses in the Management of the
Endangered Species Program Workload at the Carlsbad, California Field
Office. T-RCED-00-293. Washington, D.C.: September 14, 2000.
Endangered Species: Caribou Recovery Program Has Achieved Modest
Gains. RCED-99-102. Washington, D.C.: May 13, 1999.
Department of Commerce, National Oceanic and Atmospheric
Administration: Endangered and Threatened Species; Threatened Status
for Two Chinook Salmon Evolutionarily Significant Units (ESUs) in
California OGC-00-5. Washington, D.C.: October 15, 1999.
Department of Commerce, National Oceanic and Atmospheric
Administration: Endangered and Threatened Species of Salmonids. OGC-99-
38. Washington, D.C.: April 7, 1999.
Estimated Costs to Recover Protected Species. RCED-96-34R.
Washington, D.C.: December 21, 1995.
Reports Related to the Endangered Species Act
Military Training: DOD Approach to Managing Encroachment on
Training Ranges Still Evolving. GAO-03-621T. Washington, D.C.: April 2,
2003.
Transboundary Species: Potential Impact to Species. GAO-03-211R.
Washington, D.C.: October 31, 2002.
Military Training: DOD Lacks a Comprehensive Plan to Manage
Encroachment on Training Ranges. GAO-02-614. Washington, D.C.: June 11,
2002.
Military Training: DOD Needs a Comprehensive Plan to Manage
Encroachment on Training Ranges. GAO-02-727T. Washington, D.C.: May 16,
2002.
Consequences of the Ruling by the 11th Circuit Court of Appeals on
Forest Management Projects. GAO-01-51R. Washington, D.C.: November 30,
2000.
Timber Management: Forest Service Has Considerable Liability for
Suspended or Canceled Timber Sales Contracts, GAO-01-184R. Washington,
D.C.: November 29, 2000.
Army Corps of Engineers: An Assessment of the Draft Environmental
Impact Statement of the Lower Snake River Dams. RCED-00-186.
Washington, D.C.: July 24, 2000.
National Fish Hatcheries: Authority Needed to Better Align
Operations With Priorities. RCED-00-151. Washington, D.C.: June 14,
2000.
Fish and Wildlife Service: Agency Needs to Inform Congress of
Future Costs Associated With Land Acquisitions. RCED-00-52. Washington,
D.C.: February 15, 2000.
Fish and Wildlife Service: Management and Oversight of the Federal
Aid Program Needs Attention. T-RCED-99-259. Washington, D.C.: July 20,
1999.
International Environment: Literature on the Effectiveness of
International Environmental Agreements. RCED-99-148. Washington, D.C.:
May 1, 1999.
Ecosystem Planning: Northwest Forest and Interior Columbia River
Basin Plans Demonstrate Improvements in Land-Use Planning. RCED-99-64.
Washington, D.C.: May 26, 1999.
Forest Service: Distribution of Timber Sales Receipts, Fiscal Years
1995 Through 1997. RCED-99-24. Washington, D.C.: November 12, 1998.
Water Resources: Corps of Engineers' Actions to Assist Salmon in
the Columbia River Basin. RCED-98-100. Washington, D.C.: April 27,
1998.
Federal Land Management: Estimates of Value and Economic Effects of
Canceled and Suspended Timber Sale Contracts in the Pacific Northwest.
RCED-98-18R. Washington, D.C.: October 6, 1997.
Forest Service: Unauthorized Use of the National Forest Fund. RCED-
97-216. Washington, D.C.: August 29, 1997.
Tongass National Forest: Lack of Accountability for Time and Costs
Has Delayed Forest Plan Revision. T-RCED-97-153. Washington, D.C.:
April 29, 1997.
Federal Power: Issues Related to the Divestiture of Federal
Hydropower Resources. RCED-97-48. Washington, D.C.: March 31, 1997.
Timber Management: Opportunities to Limit Future Liability for
Suspended or Canceled Timber Sale Contracts. RCED-97-14. Washington,
D.C.: October 31, 1996.
Bureau of Reclamation: An Assessment of the Environmental Impact
Statement on the Operations of the Glen Canyon Dam. RCED-97-12.
Washington, D.C.: October 2, 1996.
Northwest Power Planning Council: Greater Public Oversight of
Business Operations Would Enhance Accountability. RCED-96-226.
Washington, D.C.: August 30, 1996.
Animas-La Plata Project: Status and Legislative Framework. RCED-96-
1. Washington, D.C.: November 17, 1995.
______
Responses by Ms. Nazzaro to Questions from Senator Inhofe
Question 1. Under the Endangered Species Act (ESA), landowners may
be required not only to refrain from economic activity in order to
avoid environmental damage, but also to expend funds to actively manage
their property to benefit the environment. In your testimony you
mentioned the need for increased collaboration among Federal agencies.
Do you believe that increased collaboration and cooperative agreements
with private landowners are equally beneficial and what are some ways
to get landowners to voluntarily perform species-beneficial activities?
If you can comment, what assurances do landowners need to engage in
these voluntary-efforts?
Response. GAO has not specifically evaluated the benefits of
increased collaboration and cooperative agreements with private
landowners to protect threatened and endangered species. However, it is
likely that such cooperation and collaboration would be beneficial to
some threatened and endangered species because many species live or
depend on privately owned land. For example, in 1994, we reported that
some or all of the habitat for over 600 of the nearly 800 species then
under the jurisdiction of the Fish and Wildlife Service (FWS) was on
private lands.\1\ Additionally, we have repeatedly heard from Federal
and nonFederal officials during the course of our reviews that such
cooperation and collaboration is needed. We have not evaluated what
assurances may be needed to encourage landowners to take voluntary
actions to benefit species.
---------------------------------------------------------------------------
\1\ U.S. General Accounting Office, Endangered Species: Information
on Species Protection on NonFederal Lands, GAO/RCED-95-16 (Washington,
D.C.: Dec. 20, 1994).
---------------------------------------------------------------------------
Question 2. In your testimony, you note that it has been
recommended that critical habitat designations be delayed until
recovery plans are developed. What is a reasonable timeframe for this
delay?
Response. We have not determined what a reasonable timeframe is for
issuing critical habitat designations. Currently, the ESA generally
requires that critical habitat be designated at the time of listing or
shortly thereafter. As we reported in August 2003,\2\ there are
concerns about FWS's ability to designate critical habitat for some
listed species given the amount of information available on species'
habitat needs at the time decisions must be made. For this reason, we
recommended that the Secretary of the Interior require that FWS
clarify, among other things, when critical habitat should be
designated. In its 1995 report, the National Research Council
recommended delaying critical habitat designations until recovery plans
are developed in order to increase the amount of information available
on which to base the designations.\3\ The FWS's policy is to issue a
recovery plan within 2 years of a species being listed as a threatened
or endangered species. However, the Council also recommended that
temporary critical habitat be designated at the time of listing. A
temporary designation would automatically expire with the adoption of a
recovery plan and the formal designation of critical habitat.
---------------------------------------------------------------------------
\2\ U.S. General Accounting Office, Endangered Species: Fish and
Wildlife Service Uses Best Available Science to Make Listing Decisions,
but Additional Guidance Needed for Critical Habitat Designations, GAO-
03-803 (Washington, D.C.: Aug. 29, 2003).
\3\ National Research Council, Science and the Endangered Species
Act (Washington D.C.: National Academy Press, 1995) pp. 71-93.
---------------------------------------------------------------------------
Question 3. A December 2002 GAO report noted that FWS failed to
integrate new research into ongoing species management decisions on a
consistent basis. The agency is attempting to address this issue by
establishing an advisory committee to ensure that monitoring and
recovery actions feed back into management decisions. In light of the
results of a survey by the Union of Concerned Scientists, in which one
in five agency scientists responding had been 'directed to
inappropriately exclude or alter technical information from a USFWS
scientific document,' what recommendations would you make to the FWS to
ensure that sound science is the basis for ongoing species management
decisions?
Response. In conducting the review for our December 2002 report as
well as a report we issued in 2003,\4\ we did not encounter allegations
that FWS inappropriately excluded or altered technical information in
ESA decisionmaking. In the latter report, we specifically reviewed the
processes FWS follows when making listing and critical habitat
decisions (we evaluated the 64 listing decisions and 37 critical
habitat decisions made during fiscal years 1999 through 2002). We
concluded that the processes-internal reviews, peer reviews, and public
comment-generally ensure that FWS decisions are based on the best
available science. In addition, we also spoke with experts spanning the
political spectrum in academic, government, nonprofit, and private
sectors to identify recent listing and critical habitat decisions that
were particularly controversial due to scientific disagreements and
asked them to briefly explain the nature of the controversy. Although
these experts identified a number of controversial decisions, no one
raised concerns about FWS altering the data or science used in listing
or critical habitat decisions.
---------------------------------------------------------------------------
\4\ U.S. General Accounting Office, Endangered Species: Research
Strategy and Long-Term Monitoring Needed for the Mojave Desert Tortoise
Recovery Program, GAO-03-23 (Washington, D.C.: Dec. 9, 2002). U.S.
General Accounting Office, Endangered Species: Fish and Wildlife
Service Uses Best Available Science to Make Listing Decisions, but
Additional Guidance Needed for Critical Habitat Designations, GAO-03-
803 (Washington, D.C.: Aug. 29, 2003).
---------------------------------------------------------------------------
Question 4. Many past GAO studies seem to advocate for adaptive
management in species protection, which is incorporating learned
lessons throughout the process of protecting a species. Why does this
not seem to be taking place in most situations when it comes to
endangered and threatened species management?
Response. GAO has not specifically evaluated the extent to which
adaptive management is being used in recovering threatened and
endangered species. However, we are beginning a review of recovery plan
implementation during which we will identify recovery actions taken for
species and the role recovery plans play in these actions-including
whether FWS and the National Marine Fisheries Service are incorporating
new information about a species. Fish and Wildlife Service officials
have told us that recovery plans are considered ``blueprints'' for
species' recovery and that the Service may deviate from it as new
information about the species becomes available. Our recently initiated
review should shed light into this process.
Question 5. The important role that states play in species
management is a common theme among both proponents and critics of the
act. What opportunities exist for exploring the resources that states
are investing in species management as part of a future GAO study?
Response. There are many possibilities for a GAO review evaluating
the states' role in implementing the ESA. While much has been written
on other sections of the act, little has been done on section 6, which
authorizes cooperative agreements with and funding to states. One
source of information about state resources for species management is
an annual report published by FWS that includes state expenditures on
threatened and endangered species.\5\
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\5\ See Federal and State Endangered and Threatened Species
Expenditures, Fiscal Year 2003. This is the most recent report
available.
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__________
Statement of John Kostyack, Senior Counsel, National Wildlife
Federation
Good morning, Senator Chafee and members of the subcommittee. My
name is John Kostyack, and I am Senior Counsel and Director of Wildlife
Conservation Campaigns with the National Wildlife Federation. I
appreciate your invitation for me to testify here today on the
Endangered Species Act. I have been working on Endangered Species Act
law and policy, both here in Washington, DC, and in various regions
around the country, for the past 12 years. Over this time my
appreciation for the value and wisdom of this law has grown
continuously.
I'd like to talk today about how Congress could update the law to
deal with the wildlife conservation challenges of the coming decades.
The challenges are many. Consider, for example, the following threats,
each of which is accelerating over time:
Invasive Species. According to the USDA, 133 million acres of land
in the U.S. are already covered by invasive plants, and each year
another 1.7 million acres are invaded. Invasive species threaten the
survival of nearly half of all listed species.
Sprawling Development Patterns. The amount of land covered by urban
and suburban development in the U.S. has quadrupled since 1950, with
the rate of land consumption greatly outpacing population growth and
increasing every decade. According to Endangered by Sprawl (2005), a
study recently completed by National Wildlife Federation, Smart Growth
America, and Nature Serve, over 1,200 plant and animal species will be
threatened with extinction by sprawl in just the next two decades.
Global Warming. According to the U.S. State Department's recent
Climate Action Report (2002), global warming poses serious risks to
species and habitat types throughout the United States, threatening,
among other things, alpine meadows across the West, prairie potholes in
the Great Plains, and salmon spawning habitats in the Pacific
Northwest.
If we truly want to pass on this nation's wildlife heritage to our
children and grandchildren, we are going to need a strong Endangered
Species Act to address these threats.
Before moving to some suggested updates to the Endangered Species
Act, I would first like to talk about what kind of law we already have.
It is crucial that Congress understands the benefits the law is already
providing, and the law's many on-the-ground success stories, before it
proceeds to reauthorization. The positive accomplishments of the past
32 years are the foundation that future changes to the Act must be
built upon.
the benefits of the endangered species act
The Endangered Species Act represents the only effort by this
nation to grapple in a comprehensive way with the problem of human-
caused extinctions. For the many animal and plant species at risk of
extinction, it is the only safety net that our nation provides.
Fortunately, the Endangered Species Act has been quite successful
in rescuing plants and animals from extinction.
Over 98 percent of species ever protected by the Act remain on
the planet today.
Of the listed species whose condition is known, 68 percent are
stable or improving and 32 percent are declining.
The longer a species enjoys the ESA's protection, the more likely
its condition will stabilize or improve.
This is the most important thing for Congress to understand about
the Endangered Species Act. It has worked to keep species from
disappearing forever into extinction and, over time, it has generally
stabilized and improved the condition of species. As a result, we have
a fighting chance of achieving recovery, and more importantly, we are
passing on to future generations the practical and aesthetic benefits
of wildlife diversity that we have enjoyed.
The other key benefit provided by the Endangered Species Act,
besides stopping extinction, is that it protects the habitats that
species depend upon for their survival. The habitats protected by the
Act are not only essential for wildlife, they are oftentimes the very
natural areas that people count on to filter drinking water, prevent
flooding, provide healthy conditions for hunting, fishing and other
outdoor recreation, and provide a quiet and peaceful respite from our
noisy and frenetic everyday lives.
To this date, no one has come up with a better way to protect our
wildlife and wild places for future generations. So, when our children
peer into the eyes of a manatee swimming by their canoe in a clear cool
Florida river, or listen to a wolf howl in Yellowstone, or watch a
condor soar majestically over the Grand Canyon, our generation and the
one before ours should take pride in what we have done for them in the
past 32 years. As a result of the commitment Congress made in enacting
the Endangered Species Act in 1973, and as a result of the efforts of
many people working with the law ever since, we still have a rich and
wonderful wildlife legacy to pass along.
measuring success: a lesson from the ivory-billed woodpecker
In the past few years, opponents of the Endangered Species Act have
repeatedly tried to persuade the American people that despite the law's
success in stopping extinction, the law is broken and needs a radical
overhaul. Their argument boils down to a single statistic: only 13 or
so species have been removed from the endangered species list due to
recovery.
Recovery and delisting are certainly goals that the National
Wildlife Federation shares, and I will speak in a moment about how to
improve the odds of achieving them. However, I must first challenge the
premise of the ESA's opponents that recovery and delisting should be
the only measure of the success of the Endangered Species Act. Because
it is not the only measure of success--it is not even the best
measure--the entire case for a radical overhaul of the Act evaporates.
The story of the ivory-billed woodpecker highlights three reasons
why the Endangered Species Act cannot be evaluated based upon the
number of species fully recovered and delisted. Although the ESA has
not yet been applied to the ivory bill, this species symbolizes the
challenges facing wildlife agencies today. It shows that some of the
biggest obstacles to recovery and delisting are largely beyond the
influence of the Endangered Species Act.
First, restoring species and habitats requires funding.
Although the ivory-billed woodpecker has been listed as endangered
under the ESA and predecessor laws since 1967, it has been presumed
extinct since the 1940s. In perhaps one of the most exciting wildlife
stories in our nation's history, a single bird was recently sighted in
the Cache River National Wildlife Refuge in eastern Arkansas. We hope
and expect that there are more birds in that area, but in any case, the
bird's numbers are extremely low.
The ivory bill historically inhabited swampy bottomland hardwood
forests. It prefers older trees, where it finds its primary food
source, beetle larvae, living under the bark. In the southeastern U.S.
where the bird once ranged, the vast majority of these old-growth
forests are now gone, cleared for farms and pine plantations, and it
will take decades to grow them back.
Restoring the habitats that the ivory bill needs to recover is
going to take a lot more than the Endangered Species Act. Although safe
harbor agreements under the ESA can remove disincentives, substantial
public and private dollars will be needed to create positive incentives
for private landowners to plant bottomland hardwood trees and protect
them until they reach the stage where they are suitable habitat for the
ivory bill. The fact that the ivory bill is listed as endangered under
the Endangered Species Act will help concentrate everyone's attention
on this task. However, if sufficient restoration dollars are not
raised, it will not be a failure of the Endangered Species Act.
Congress and other key actors need to provide funding to make this
large-scale restoration project happen.
Second, as a matter of biology, achieving full recovery often takes a
long time.
The average period of time in which species have been listed under
the ESA is 15.5 years. In that amount of time, our best-case scenario
is that we will have discovered and begun protecting a few more ivory
bills and developed a strategy for accommodating range expansion. As a
matter of simple biology--there aren't currently enough old trees
around that could sustain a viable meta-population--full recovery of
the ivory bill will take many decades.
Although the condition of most other listed species is not as dire
as the ivory bill, many have severely depleted population numbers and
habitats. As with the ivory bill, bringing their population numbers
back and restoring their habitats often takes a long time for reasons
of biology alone. Add in economic and political obstacles--such as the
fact that many areas that need to be restored as habitat have
potentially competing uses--and you can reasonably expect that recovery
will not be completed for many species for a long while.
Third, delisting requires putting in place non-ESA regulatory measures.
Once a species' numbers and habitats are restored to the point of
long-term viability, delisting still may not be feasible. Under the
ESA, the Fish and Wildlife Service or NOAA Fisheries must first ensure
that adequate regulatory measures are in place to prevent immediate
backsliding after delisting.
For the ivory bill and many other listed species, there are no
protections in place to prevent immediate habitat losses after the
Endangered Species Act's protections are removed. In addition, many
species require continuing management even after their population sizes
and habitats have been restored to targeted levels. Conservation
agreements with funding, monitoring and enforcement mechanisms must be
negotiated with land managers to ensure that this management is carried
out over the long run.
In summary, those who claim the ESA is broken due to the absence of
a sizable number of delistings are ignoring the facts. The realities
that impede quick recovery and delisting--inadequate funding, slow
biological processes, and the absence of any alternative safety net--
are not the fault of the Endangered Species Act.
The Endangered Species Act is making an essential contribution to
recovery by stabilizing and improving the condition of species over
time. Thanks to the Act, the ivory bill has a real chance of making it
into the next century. But Congress needs to look outside the four
corners of the Act to fully understand and address the reasons why so
few species are removed from the threatened and endangered list due to
recovery each year.
In addition, members of Congress should stop relying a single
statistic about delistings as the measure of the Act's success, and
instead encourage the wildlife agencies to develop new and better
mechanisms for tracking progress. As authors Michael Scott and Dale
Goble point out in the April 2005 issue of BioScience, the wildlife
agencies currently do not maintain a database enabling policymakers and
the public to track Endangered Species Act actions. A database that
identifies, among other things, how much habitat is being conserved and
how much is being authorized for destruction as a result of ESA
consultation processes, would greatly inform the debate over the
effectiveness of the law.
on-the-ground success stories to build upon
The Endangered Species Act has produced numerous on-the-ground
successes. The small list of examples below is designed simply to
highlight the variety and creativity of the conservation actions that
the law has fostered. These examples show that the Endangered Species
Act is empowering people to find a place for wildlife in a country that
is increasingly crowded with extractive industries, real estate
developments, and other human uses of natural resources. Because of the
Act's safety net features and its recovery programs, native wildlife
still has a place on the American landscape.
1. Whooping Crane.
The whooping crane is a dynamic and charismatic bird that, if it
were not for the Endangered Species Act and its predecessors, would
probably no longer exist in the wild today. As a result of a recovery
program developed under the Act, birds have been bred in captivity,
released into the wild, and trained with the help of an aircraft to fly
and migrate. Endangered Species Act enforcement action to protect the
bird's designated critical habitat led to the creation of the Platte
River Critical Habitat Maintenance Trust, which has acquired over
10,000 acres of riparian habitat along the crane's migratory route.
Prior to the Endangered Species Act, a mere 16 birds existed in the
wild. Today, nearly 200 birds thrive in the wild, attracting
birdwatchers from around the world.
2. Florida Panther
The Florida panther is one of the most endangered large mammals in
the world. As recently as 15 years ago, its numbers had been reduced to
somewhere between 30 and 50. Due to the Endangered Species Act, a
number of innovative conservation measures have been taken to bring the
animal back from the brink. The U.S. Fish and Wildlife Service
successfully addressed the panther's inbreeding problem by bringing
Texas cougars (a closely related subspecies) into south Florida.
Vehicle mortality, one of the leading causes of panther deaths, has
been greatly reduced with the construction of highway underpasses. The
underpasses created for the Florida panther now serve as a world model
for facilitating movement of wildlife in an urbanizing landscape.
Today, the number of cats living in the wild approaches 100. The
Florida panther is still a long way from full recovery, but it has a
fighting chance.
3. Gray Wolf
Although the gray wolf once ranged across much of the continental
United States, several centuries of hunting and predator control
programs, reduction of prey, and habitat loss greatly reduced the
species' numbers. By the mid-1960s, the only gray wolves in the lower
48 states were the 200 to 500 animals in Minnesota and roughly 20 on
Isle Royale, Michigan. Today, thanks to the Endangered Species Act,
there are thriving gray wolf populations in the Western Great Lakes and
Northern Rockies, a small population in the Southwest, and occasional
wolf sightings in the Northeast and Pacific Northwest. The dramatic
recovery of the gray wolf in the Northern Rockies was jump-started by
an historic reintroduction of wolves to Yellowstone National Park and
the central Idaho wilderness one of the most successful wildlife
reintroductions in the nation's history.
4. Bald Eagle
In the 1960s, the bald eagle, our Nation's symbol, had fewer than
500 breeding pairs remaining in the continental U.S. Widespread use of
the pesticide DDT in the post-World War II period had contaminated the
majestic bird's food supply, causing its populations across the country
to plummet. Although the Federal ban on DDT in 1972 was a major factor
in turning around the bald eagle's decline, the Endangered Species Act
also played an essential role in its recovery. The Act protected the
bird's key habitat and facilitated translocations of eaglets from areas
where the bird was numerous to states where it had been eliminated or
severely depleted. Today, the number of bald eagles in the lower 48
states exceeds 7,600 breeding pairs.
5. Puget Sound Chinook Salmon
Chinook salmon have long been a symbol of the Pacific Northwest,
providing important cultural values for Native American tribes and
sustenance and recreation for all residents. The Puget Sound population
of the Chinook was listed in 1999 after declining steadily due to
logging, mining, dam-building and suburban development in its habitat,
and interbreeding of hatchery fish. Recently, in response to the
Endangered Species Act, Seattle City Light improved prospects for the
fish by modifying its dam operations on the Skagit, the Puget Sound's
largest river. Prospects for the fish and habitats also have improved
due to the emergence of Shared Strategy, a groundbreaking collaborative
effort by a diverse array of citizens and organizations to build an ESA
recovery plan for the Puget Sound chinook from the ground up, watershed
by watershed. This effort will ensure broad public support for the
array of recovery actions that will ultimately be needed to bring the
chinook back to full recovery.
6. Robbins' Cinquefoil
The Robbins' cinquefoil is a species of the rose family, found at
just two locations on the slopes of the White Mountains in New
Hampshire. In the 1970s, its numbers were reduced to roughly 1,800
plants due to trampling by horses and hikers and harvesting by
commercial plant collectors. After listing and critical habitat
designation pursuant to the Endangered Species Act, the Appalachian
Mountain Club and New England Wild Flower Society teamed up with
Federal agencies to relocate a hiking trail, educate the public and
reestablish healthy populations. By 2002, the species' numbers had
rebounded to over 14,000 plants in two populations, and the species was
removed from the endangered list. A cooperative agreement with the U.S.
Forest Service helps ensure the continuation of the Robbins'
cinquefoil's success story through management and monitoring.
opportunities for updating and improving the act
Many lessons can be learned from the successes described above and
from the numerous other positive experiences implementing the
Endangered Species Act. The following are some ideas for updating and
improving the Act that are drawn from these experiences.
Implement Recovery Plans and Encourage Proactive Conservation.
Any effort to update the Endangered Species Act must begin with steps
to promote greater and earlier progress toward recovery. As discussed
above, due to Act's flexibility the Nation has benefited in recent
years from numerous collaborative initiatives to restore species and
habitats. Wildlife agencies should build recovery plans around these
proactive recovery initiatives, and Congress should support them with
funding so long as they are consistent with recovery plans. If such an
approach were taken, ESA conflicts would be reduced because there would
be greater buy-in to the Act's implementation. Because greater amounts
of habitats would be restored, wildlife agencies would have greater
management flexibility.
The Endangered Species Act already provides a solid foundation for
this approach. Section 4(f) calls for one of the two wildlife agencies
to develop a recovery plan with objective measurable criteria for
success and to implement it. However, recovery plans oftentimes are not
completed for many years after listing, and thus there is no early
blueprint to guide management and restoration actions. A simple
solution to this problem would be to require that recovery plans be
finalized within a specified time after listing (e.g., 3 years).
A related problem is that the two wildlife agencies are typically
not in the position to carry out many of the actions that are needed to
bring about recovery. Section 7(a)(1) of the Act requires all Federal
agencies to utilize their authorities in furtherance of species
recovery, but it does not link this duty to the recovery plan. As a
result, agencies have often chosen recovery actions in an arbitrary
manner.
A solution to this problem would be for Federal agencies to be
required to develop and implement Recovery Implementation Plans to set
forth the specific actions, timetables, and funding needed for that
agency to help achieve the recovery goals set forth in the Recovery
Plan. The Western Governors Association developed a variation of this
idea when it adopted its ESA legislative proposal in the 1990s.
``Implementation agreements'' for Federal and state agencies to help
carry out recovery plans remains part of WGA policy to this day.
Another problem related to implementation of recovery plans is that
Federal agencies oftentimes carry out actions that are at odds with
those plans. For example, the Corps of Engineers has issued dredge-and-
fill permits for development in Florida panther habitat despite the
fact that the habitat is deemed essential for the species in the
recovery plan. Congress could easily fix this problem by clarifying
that Federal agencies must ensure that their actions do not undermine
the recovery needs of listed species. The recovery needs of the species
would be identified in the recovery plan, and updated by the latest
scientific data. If Congress were to adopt this approach, agency
decisions would more likely to contribute to the Act's recovery goal.
They would also be easier to defend in court, and less likely to
attract litigation, because they would be tied to a larger strategic
framework, the recovery plan.
Provide incentives for private landowners to contribute to
recovery. According to the GAO, roughly 80 percent of all listed
species have at least some of their habitat on non-Federal land; about
50 percent have the majority of their habitat on non-Federal land. Much
of this non-Federal land is private land, and yet the current
Endangered Species Act does not provide many incentives for private
landowners to carry out the management measures that are often needed
for listed species to thrive. Although ESA regulatory programs such as
Safe Harbor remove disincentives, they do not provide incentives.
Technical assistance programs can help, but by far the most meaningful
incentive that Congress can provide is financial assistance. To ensure
a reliable source of funding, this assistance should be provided
through the tax code. In return for conservation agreements in which
private landowners commit to actively manage habitats for the benefit
of listed species, Congress should defer indefinitely Federal estate
taxes or provide immediate income tax credits for expenses incurred.
Protect critical habitat. The Administration has attempted to
justify its efforts to weaken the Act's critical habitat protections by
claiming that these protections are redundant with other ESA
protections and therefore without value to listed species. At the same
time, the Administration contradicts itself by generating cost-benefit
analyses claiming that critical habitat protections are imposing
enormous costs on the private sector. None of this rhetoric is
supported by any meaningful analysis of data. The only quantitative
studies on critical habitat have shown that critical habitat indeed
provides benefits to many listed species. Species with critical habitat
designations tend to do better than species without such designations.
Critical habitat is particularly important when it comes to
protecting unoccupied habitat, because the other protections in the
Endangered Species Act generally do not adequately protect such
habitat. Most species will never recover unless they can return to some
part of their historic range that is currently unoccupied.
Because of the hostility shown by the current Administration toward
critical habitat, it will be essential for Congress, when it
reauthorizes the ESA, to strongly reaffirm the importance of critical
habitat protection. Congress should push back the deadlines to 3 years
after listing, thereby giving the wildlife agencies the time they need
to get the science right. It also should encourage the wildlife
agencies to integrate recovery plan and critical habitat designation
decisions. Congress also should develop a schedule, and authorize the
funding, for cleaning up the backlog of species awaiting critical
habitat designations. When the late Senator Chafee took these steps in
S. 1100 back in 1999, they attracted broad public support.
Provide adequate funding. Finally, there perhaps can be no more
important step that Congress can take to improve implementation of the
Endangered Species Act than to increase funding to reasonable levels.
At a bare minimum, Congress must provide the funding that the wildlife
agencies need to carry out their mandatory duties. For example, the
U.S. Fish and Wildlife Service has estimated that it would take
approximately $153 million over 10 years to eliminate the current
backlog of listings and critical habitat designations. Congress could
immediately eliminate dozens of lawsuits simply by providing these
funds and other funds needed for the basic implementation steps of the
Act. In addition, many of the concerns about the Act's impact on
states, local governments and private landowners could be alleviated if
Congress were to expand its Section 6 and other grant funding for
recovery actions.
Thank you again for the opportunity to testify today. I would be
pleased to answer any questions.
______
June 15, 2005
Hon. Daniel Lungren
Committee on Environment and Public Works,
Hart Senate Office Building
Washington, DC.
Dear Mr. Lungren: As requested by Senators Chafee and Clinton, I
have prepared responses to the questions posed to me as a follow up to
my testimony at the Endangered Species Act oversight hearing on May 19,
2005. The attached document provides both the questions posed by the
Senators and my responses.
Please let me know if I can provide further assistance.
Sincerely,
John Kostyack
Senior Counsel.
Attachment
______
Responses by John Kostyack to Questions from Senator Inhofe
Question 1. In your testimony you state that the Act ``over time,
has generally stabilized and improved the condition of species.'' In
the FWS most recent report to Congress, the recovery status of 60
percent of listed species is either ``uncertain'' or ``declining'',
while 30 percent are classified as stable, and 6 percent are classified
as improving. Only 6 percent are classified as improving. Don't you
think we can do better than 6 percent? And as a follow-up, do you know
exactly how many species were endangered but stable at the time of
listing versus the number the ESA itself has stabilized?
Response. Although we can do better, this summary of FWS statistics
does not accurately portray the ESA's performance. FWS's statistics
show that the ESA indeed has been successful in stabilizing and
improving the condition of listed species.
First, by suggesting in its most recent recovery report that only
30 percent of listed species are stable and only 6 percent are
improving, FWS distorts its own data. See U.S. Fish and Wildlife
Service, Recovery Report to Congress, Fiscal Years 2001-2002, Figure 1.
FWS's report inaccurately states that the trends of listed species fall
within six distinct categories: uncertain, declining, improving,
stable, presumed extinct, and found only in captivity. In fact, species
with an uncertain trend also fall within the stable, improving and
declining categories. The only accurate way to characterize the data is
to provide separate statistics for species with ``known'' trends and
those with an ``uncertain'' trend. For those species whose trend is
``known,'' 49 percent are stable, 10 percent are improving and 34
percent are declining.
Second, FWS's report contains two sets of statistics concerning the
trends of listed species: one covering all listed species, and one
covering those that have been listed for six or more years. See U.S.
Fish and Wildlife Service, Recovery Report to Congress, Fiscal Years
2001-2002, Figure 1 and Table 4. The question posed above uses only the
former data set. However, to meaningfully assess the performance of the
ESA, it is more appropriate to use the latter data set. This is because
it is unrealistic to expect that the ESA or any law could have a
measurable impact on the overall trend of a species during the first
few years after the law has gone into effect.
According to FWS's breakdown of the ``known'' trends of species
under ESA protection for 6 or more years, 55 percent are stable, 13
percent are improving, and 32 percent are declining. See Table 4.
Moreover, FWS's report shows that over time, the trends of listed
species shift from declining to stable or improving. Ibid. This is an
impressive record, especially considering that most species are not
listed until their populations have been reduced to very low numbers.
See Wilcove, D.S., M. McMillan, K.C. Winston. 1993. What exactly is an
endangered species? An analysis of the U.S. endangered species list:
1985-1991. Conservation Biology, V. 7(1): 87-93. To make the ESA work
even better, Congress should encourage conservation action to be taken
before species have declined drastically and management options have
become limited and costly.
Regarding the follow up question, I am unaware of any study
suggesting that threatened and endangered species are stable at the
time of listing. Considering that most imperiled species do not receive
focused management efforts until after they are listed under the ESA, I
would presume that the species deemed to be ``stable'' in FWS's
recovery reports became stable only after receiving ESA protection.
Question 2. As you mention in your testimony, there have been
allegations of political influence or agenda-driven science on both
sides of the issue, would it not be prudent to have a statutory
standard by which to judge good science to avoid this finger-pointing?
Response. Enforcing the current statutory standard, which requires
use of the best scientific and commercial data available, would achieve
the goal of ensuring that ``good'' science drives management decisions.
Because science is constantly evolving, Congress is in no position to
dictate what kinds of scientific data is the best data available.
The Union of Concerned Scientists survey of FWS biologists is not
about finger pointing; it is a necessary first step toward fixing a
serious breakdown in ESA implementation. The essay responses, in
particular, provide Congress and the public with a rare window into the
political manipulation of science in which the current administration
has been engaged. It would be helpful for Congress to investigate
whether the abuses exposed by FWS biologists in this survey are being
addressed and, if not, to provide the administration with direction on
removing the abuses.
Question 3. What is your view as to the need for requiring the
completion or amendment of recovery plans for a given species before
designating critical habitats for that species?
Response. As my oral and written testimony make clear, the National
Wildlife Federation supports setting a 3-year deadline for both
recovery plans and critical habitat designations, so that the agencies
have the time they need to do the necessary scientific work and to
ensure that this science is integrated into all ESA decisionmaking.
However, the failure to complete a recovery plan by the 3-year deadline
should not provide an excuse for failure to designate critical habitat.
Congress should provide funding and direction needed to end the lengthy
delays that have plagued both recovery plans and critical habitat
designations.
Question 4. Most species do require management even if from
overpopulation. If the targeted level for recovery has been met, is the
ESA a better management tool than state and local wildlife agencies and
why?
Response. It is true that many species will require management even
after recovery targets are met. Whether state, local, tribal and
Federal managers of land or water will be willing and able to put in
place effective management tools in the absence of the ESA is not yet
known. It would be worthwhile for Congress to provide these managers
with the funding they need for species conservation so that they can
begin management prior to the date on which recovery targets are met.
This would provide FWS and NMFS with a track record to evaluate whether
the tools these resource managers have put in place are adequate to
prevent a reversal in the trend of the species. If FWS and NMFS can
reasonably conclude that these tools are adequate to enable the species
to continue thriving in the wild, then it is appropriate for the
species to be delisted and for ESA management tools to be removed once
recovery targets are met.
______
Responses by John Kostyack to Questions from Senator Jeffords
Question 1. In your testimony, you mention three major threats to
wildlife: invasive species, urban sprawl, and global warming. How can
we minimize or eliminate these threats?
Response. Most of the actions that Congress can take to address
these threats are outside the scope of the Endangered Species Act.
Regarding global warming, the McCain-Lieberman Climate Stewardship Act
is a bipartisan plan of action in Congress that sets achievable goals
for reducing global warming pollution in the United States. The bill
requires power plants, oil companies, and other major sources to
collectively reduce emissions of carbon dioxide and other greenhouse
gases to what they emitted in the year 2000. The bill also allows
businesses to implement their own solutions, using a flexible emissions
trading system that has successfully reduced air pollution under the
Clean Air Act at a fraction of the anticipated costs. The Act will:
Create more than 800,000 new energy technology jobs in the U.S.
Provide new income to farmers by rewarding environmentally
friendly farming and forestry practices that help remove global warming
pollution from the atmosphere
Take an important step toward protecting Americans and wildlife
from the impacts of global warming.
The National Wildlife Federation has additional policy
recommendations for Congress on global warming and invasive species on
its website, http://www.nwf.org/ourprograms/
Policy recommendations for urban sprawl are set forth in our report
co-authored with NatureServe and Smart Growth America, entitled,
Endangered by Sprawl: How Runaway Development Threatens America's
Wildlife, which can be found at http://www.nwf.org/nwfwebadmin/
binaryVault/EndangeredBySprawlFinal.pdf
These threats are already implicitly addressed in the Endangered
Species Act, which calls for Federal agencies to take whatever action
is necessary to conserve listed species and their habitats. However,
wildlife agencies and agencies charged with managing land and water
resources are often focused heavily on responding to immediate threats
of piecemeal habitat loss and frequently lack the programs and
resources needed to grapple with the underlying causes of species
decline. Congress should consider giving wildlife agencies and resource
managers additional direction and funding to address these looming
threats more proactively.
Question 2. You state in your testimony that there are no
protections in place to prevent immediate habitat losses after the
Endangered Species Act protections are removed for the ivory-billed
woodpecker and other listed species. What do you think can be done to
protect species habitat immediately upon delisting?
Response. As indicated in my answer to Senator Inhofe's fourth
question, Congress should provide state, local, tribal and Federal
managers of land and water resources with funding and other support for
managing and restoring listed species. If recovery targets are later
met, these managers will already have a track record of successfully
conserving the species and could be expected to continue doing so in a
post-delisting environment. Congress should continue to insist (as is
currently required by the ESA) that regulatory mechanisms be put in
place prior to any delisting so that wildlife agencies can ensure that
species will be adequately protected after delisting.
Question 3. Please explain what your concerns are when you say that
``two wildlife agencies are typically not in the position to carry out
many of the actions that are needed to bring about recovery.'' What are
your recommendations to address these concerns?
Response. To achieve recovery of listed species, Congress must
devise strategies to encourage greater involvement by the numerous
public and private entities that make decisions affecting natural
resources. The two Federal wildlife agencies lack the resources to
participate in the many public processes where decisions are made
affecting the fate of threatened and endangered species.
For example, local governments routinely enact comprehensive plans
outlining where development will take place; local transportation
officials routinely enact plans outlining where roads will be built;
and state technical committees routinely set policies allocating Farm
Bill dollars. Congress should consider ways to encourage these and
other non-Federal resource managers to (1) provide input into recovery
planning for listed species and specify their own contributions to
recovery, (2) make themselves aware of the contents of final recovery
plans, and (3) ensure that their decisions do not undermine agreed-upon
recovery strategies.
With respect to Federal resource managers, Congress should
elaborate on the Federal agencies' mandatory duty to affirmatively
promote species recovery. As explained in my oral and written
testimony, Federal agencies with activities affecting listed species
should be required adopt Recovery Implementation Plans setting forth
the agencies' contribution to implementation of the Federal recovery
plan.
______
Responses by John Kostyack to Questions from Senator Clinton
Question 1. I was pleased to hear you mention the ivory-billed
woodpecker in your testimony. When my husband was Governor of Arkansas,
he supported a combination of Federal, state and privately financed
conservation efforts. How does the Endangered Species Act encourage
public-private partnerships to save threatened species? What is the
economic impact of such partnerships?
Response. The Endangered Species Act encourages such public-private
partnerships in countless ways. For example, after listing, a recovery
team consisting of Federal, state, university, and other experts is
typically formed and a research agenda is decided upon and implemented.
State and local agencies and private landowners qualify for ESA 6 and
a host of other grants that are used for public-private partnerships.
ESA 7 stimulates negotiations and partnerships among Federal agencies
and many others who are involved in Federal actions affecting listed
species. Habitat conservation planning efforts and safe harbor
agreements are partnerships stimulated by ESA 9 and10.
The economic benefits of these partnerships are difficult to
measure, but are undoubtedly substantial. By stimulating a discussion
among key players about how natural resources can be managed
sustainably, the ESA ensures that decisions are made and action is
taken before damage to natural systems is impossible or extremely
costly to reverse. The partnerships formed as a result of these
collaborative decisionmaking processes can be long-lasting and help
raise substantial public and private dollars for local communities. For
example, enforcement of ESA 7 to protect the endangered whooping crane
led to the formation of the Platte River Whooping Crane Maintenance
Trust, which has acquired nearly 10,000 acres of habitat, providing
enormous economic, aesthetic and ecosystem benefits to Nebraska
communities. Thanks in part to the ESA, the whooping crane, once
teetering at the brink of extinction, is now on the rebound and
attracting tourists from around the world. Success stories like this
one can be found all across the country.
Question 2. In your testimony, you mention that the current
Administration is attempting to weaken the Act's critical habitat
protections. Could you please elaborate on the ways in which the
Administration has failed to act in accordance with these provisions of
the Endangered Species Act?
Response. The Administration has been claiming for the past 5 years
that the critical habitat feature of the Endangered Species Act is
broken, and yet it has failed to offer any improvements. Instead, it
has engaged in a relentless campaign to undermine critical habitat
protection at every turn. Last year, the National Wildlife Federation
issued a report, entitled Unsound Economics: The Bush Administration's
New Strategy for Undermining the Endangered Species Act, documenting
some of the worst of these abuses. See http://www.nwf.org/nwfwebadmin/
binaryVault/Unsound%20Economics.pdf
The report shows how the Bush administration has used flawed
economic data to cut in half the critical habitat designations for
imperiled wildlife recommended by Interior Department wildlife experts.
It also shows that the administration has consistently overestimated
the costs and suppressed and ignored the benefits of proposed critical
habitat designations, thereby reducing the amount of habitat protected
under the Act.
The Bush administration is the first administration to justify
reducing the amount of proposed critical habitat primarily on the
grounds that it costs too much. Between 2001 and 2003, the share of
total critical habitat reductions justified using cost-benefit analysis
had risen from less than 1 percent to 69 percent. By 2003, the Bush
administration had used economic analysis to deny over one million
acres of critical habitat protection.
The report documents how the administration has gone so far as to
delete portions of economic analyses that discuss the benefits of
critical habitat designation.
The report also illustrates how the administration has
systematically inflated the costs of critical habitat. When calculating
costs of a designation, the administration has tallied the entire
expense of implementing the Endangered Species Act for a given species
instead of just the added cost of the proposed critical habitat
protection. In one case involving 15 threatened crustaceans and plant
species in California, this approach, together with other flaws, led
the administration to overestimate the cost of critical habitat
tenfold.
The report cites several specific examples where improper cost-
benefit analyses led to skewed outcomes that favored reductions in
critical habitat. For example:
In March 2004, the U.S. Fish and Wildlife Service issued an
economic analysis of proposed critical habitat for threatened bull
trout in the Columbia, Klamath and Snake River Basins. Before issuing
the analysis, which had been written for the agency by a private
contractor, FWS deleted the entire 57-page section on the benefits of
this habitat protection.
Also unveiled in March 2004, a critical habitat proposal for the
Topeka shiner, a Midwestern fish, was based in part on an economic
analysis that had its entire benefits section deleted. The White
House's Office of Management and Budget called for the deletion,
asserting that ``the benefits accruing from designating the critical
habitat are not relevant to the policy decision at hand.''
The March 2004 economic analysis of critical habitat for the
Mexican spotted owl lacked a benefits section, in sharp contrast with
the extensive discussion of benefits of conservation of the same
species found in a November 2002 analysis. Whereas the earlier report
discussed both qualitative and quantitative benefits, the later one
discussed neither.
Additional information about how the Bush administration has
undermined critical habitat protection can be found in the article,
``Critical Habitat at the Crossroads,'' which I published with co-
authors Michael Senatore and Andrew Wetzler in the Spring 2003 edition
of Golden Gate Law Review.
Question 3. During Mr. Hopper's testimony, he offered several
examples of conflicts between the ESA and people. Can you offer your
perspective on these specific examples?
Response. Mr. Hopper makes numerous outrageous claims about how the
ESA has supposedly caused death and financial ruin, but he fails to
offer any authoritative sources. Rather than accepting these
allegations on their face, Congress should obtain articles and reports
prepared by reputable journalists at the time they were first made.
During the past decade, numerous allegations made by ESA opponents have
been shown to be false after an objective review of the facts has been
performed.
Although I have not been invited to provide a point-by-point
rebuttal of Mr. Hopper's testimony, I would like to offer some
perspective on his claims. First, it is true that developers are
sometimes inconvenienced by the delays associated with ESA permitting.
However, many of these delays are an inevitable part of the ESA's
crucial ``look before you leap'' function. Congress should reaffirm the
importance of this feature--it is the safety net that has enabled
wildlife agencies to develop ``win-win'' solutions and prevent wildlife
from disappearing into extinction.
Some delays are due to the fact that the wildlife agencies are
chronically under-funded and short-staffed. Congress can go a long way
toward addressing developers' concerns about the ESA by addressing this
funding shortfall.
Finally, in discussing the Klamath Basin controversy, Mr. Hopper
pretends that the farmers are the only group affected by the Federal
Government's water management policies. In fact, Native American
tribes, commercial fishermen, the recreational fishing industry and
many others have suffered mightily as a result of the Federal
Government's failure to protect the habitats of listed fish in the
Klamath Basin. A balanced solution to the Klamath controversy must
address their interests as well as those of the farmers. In evaluating
any proposed solution, and in evaluating the economic impacts of the
ESA more broadly, Congress should ensure that both the costs and
benefits of species conservation are considered.
______
Responses by John Kostyack to Questions from Senator Chafee
Question 1. Ms. Fontaine's statement mentioned National Wildlife
Federation testimony before Congress in 1973 that advocated for states
to have primary authority for endangered species, including managing
recovery plans for these species. What is NWF's position on this issue
today?
Response. NWF believes that the involvement of states in the
conservation of listed species can and should be greatly expanded.
Section 6 of the ESA already provides broad authority for the Secretary
of the Interior or Commerce to empower the states under the ESA with
cooperative agreements and funding. This existing authority could be
used more effectively. Moreover, as has been proposed by the Western
Governors Association, Congress could authorize states to prepare
Recovery Implementation Agreements in which they commit to carry out
various elements of the Federal recovery plan. Concurrence in such
agreements by the Secretary of the Interior or Commerce could qualify
the states for expanded funding support.
NWF does not support giving the states primary authority over
threatened and endangered species. To our knowledge, states are not
requesting such authority.
Question 2. One of the issues we hear a great deal about is the
large amount of litigation associated with the ESA. In your opinion,
does litigation harm efforts to move toward more collaborative
approaches for species protection, particularly innovative approaches
where private landowners are involved?
Response. Many if not most of the collaborative approaches for
protection of listed species on private lands have produced meaningful
results only because of actual or threatened ESA enforcement. For
example:
As noted in my answer to Senator Clinton's first question, a
major collaborative effort to save the whooping crane's private land
habitat along the Platte River was stimulated by ESA enforcement.
Multi-species conservation planning for private land habitats in
southern California was stalled until ESA enforcement led to the
listing of the California gnatcatcher. As a result of this listing and
threatened enforcement of the ESA's take prohibition, southern
California is now often cited as a model of collaborative conservation
in a rapidly developing landscape.
Safe harbor agreements and mitigation banks are viewed by many as
cutting-edge approaches to habitat conservation on private land. Both
of these incentives programs depend for their success on enforcement of
the ESA's take prohibition.
Litigation has indeed been heavy in two areas of ESA law: listings
and critical habitat designations. Much of this litigation could have
been avoided if the administration was motivated to comply with the law
and to request adequate funding from Congress. Instead, as noted above,
the current administration is extremely hostile to critical habitat
protection and will comply with the law only if forced to do so by a
court. The situation has been similar with regard to listings. The
current administration is the first one in history to list species only
when forced to do so by litigation. Its pace of listing, roughly 8 per
year, is far below all prior administrations. Congress could
substantially reduce ESA litigation by reaffirming the importance of
the listing and critical habitat programs, providing adequate funding
for these programs, and holding the administration accountable when it
undermines them.
______
Responses by John Kostyack to Questions from Senator Lautenberg
Question 1. As we heard at the hearing, the Endangered Species Act
is really an alarm system, suggesting that all other management
strategies for a species have failed. What other actions could be taken
before we get to the situation in which a species is on the brink of
extinction?
Response. The health of this nation's species and ecosystems is
affected by a vast array of decisions made every day by both public
agencies and private entities. Congress influences many of these
decisions with its policymaking and funding. When Congress considers
renewing a law or enacting a new one, it should consider whether
adjustments could be made to enhance the health of species and
ecosystems. This approach should be taken with respect to environmental
laws such as the Clean Water Act, conservation grant programs such as
Forest Legacy, and laws not primarily focused on the environment such
as the Farm Bill and the surface transportation bill. Congress should
also consider creating a dedicated source of funding for the states to
conserve wildlife, such as was proposed in the Conservation and
Reinvestment Act (CARA) of 2001.
__________
Statement of M. Reed Hopper, Principal Attorney, Pacific Legal
Foundation
Mr. Chairman, members of the committee, I wish to thank you for
this opportunity to express my views on the efficacy of the Endangered
Species Act.
In its 32-year history, the Act has been successful at
demonstrating our general lack of understanding of the physical and
biological needs of at risk species and the functions of diverse
ecosystems. Of the approximately 1,300 species listed as threatened or
endangered under the Act, only a few have warranted delisting and even
fewer have been recovered. According to the United States Fish and
Wildlife Service's online data base, http://endangered.fws.gov/, 16
species were delisted due to original data errors, 9 became extinct,
and 15 are deemed recovered.
Whether these 15 species recovered because of the ESA is a matter
of some controversy. Some experts argue that several species designated
as recovered should never have been listed as threatened or endangered
or were recovered because of independent action by states, private
foundations or other laws that affected the species. For example, a
global switch from the use of whale oil to kerosene likely saved the
gray whale while pesticide bans and vigorous conservation efforts by
private foundations are credited for the recovery of the American
peregrine falcon.
Even if the recovery of all these species is ascribed to the ESA
alone, it is still a dismal showing for more than 30 years of effort
and billions of dollars in expense. Clearly, our approach to species
protection must change.
The overriding problem with the ESA is that it doesn't balance
species protection with human needs.
As a people, we have a moral imperative to secure a meaningful
quality of life for present and future generations--society must both
protect the environment and provide for economic growth. It is the
obligation of elected officials to ensure these ends are achieved by
fair and orderly means. While protecting the environment and
maintaining a robust economy are not mutually exclusive, the Federal
Government has, for the most part, failed to provide a proper balance.
As a result, we live in a system that in some cases encourages the
destruction or overuse of our natural resources and in other cases
nurtures the pursuit of marginal environmental benefits at
disproportionate social costs. In its implementation, the ESA does not
strike a balance between competing economic and ecological values, nor
is it protective of human rights.
The ESA was adopted as crisis legislation to address extreme
circumstances. Shortly after Congress passed the ESA in 1973, the
United States Supreme Court declared the ESA the most comprehensive
legislation ever passed by any nation for the protection of species and
concluded Congress intended that enforcement of the statute must occur
``whatever the cost.'' See Tennessee Valley Authority v. Hill, 437 U.S.
153, 176-184 (1978). This type of ``species first, people last''
reading of the ESA gives more power to the Federal Government than any
other environmental law. To protect threatened and endangered species
under the ESA, Federal officials exert regulatory authority over land
and water resources all across the country where listed species exist
and dictate the use of these resources often without regard to state,
local, or private ownership or needs.
This approach pits people against species, environmentalists
against landowners, and urban communities against rural communities.
Further, strict application of the ESA has resulted in some
unfortunate, even frightening outcomes. For example, homeowners in
Texas have been threatened by the Fish and Wildlife Service with
criminal charges if they erect fences on their property in the habitat
areas of the Golden-cheeked warbler, a small bird. Likewise, homeowners
in California have been warned that clearing brush away from their
houses for fire protection in gnatcatcher habitat will subject them to
substantial fines or imprisonment.
In the Klamath River Basin, at the California-Oregon border,
Federal officials withheld water from farmers in a drought year to
increase river flows for protected fish. Although Klamath farmers
helped to pay for the water storage and delivery system, and the
Federal Government was obligated by contract to deliver irrigation
water to nearly 1,400 families to irrigate approximately 230,000
agricultural acres, water delivery was stopped. Nearly all crops were
lost, along with hundreds of families' income and their planting
capacity for the next season. Agricultural land dropped in value by ten
fold from $2,000 an acre to $200. As assets shrank, so did hopes for
college and retirement.
In New Mexico, the reintroduced Mexican Wolfpreys on cattle while
ranchers trying to protect their herds risk prosecution for harming the
protected species. In the Northwest, protected species of owls have
decimated the timber and lumber industries and the livelihoods of
thousands of employees. In a depressed neighborhood in southern
California, eight protected Delhi Sands flower-loving flies delayed for
a year a much-needed medical facility and cost local taxpayers $4.5
million to move the site.
Most tragically, a Federal Government report documents actual loss
of human life from concerns over ESA compliance. During a wildfire in
the Cascade Mountains of the State of Washington, confused Forest
Service officials, fearful of violating the ESA, delayed for hours
before allowing firefighting helicopters to scoop water from a river to
help trapped firefighters because the river was habitat to protected
fish. The government admits that this delay was an ``influencing
factor'' behind the death of four firefighters.
These examples underscore the problems created by an inflexible law
that fails to balance human needs and species protection.
Unfortunately, the societal costs of species protection under the
ESA are hidden and unknown to the public. But any meaningful discussion
of the effectiveness of the ESA must include a consideration of such
costs.
From time to time the Fish and Wildlife Service produces a report
summarizing expenditures for ESA implementation. One of these reports,
the Three-Year Summary of Federal and State Endangered Species
Expenditures, Fiscal Years 1998-2000, was reviewed by the nonprofit
Property and Environment Research Center (PERC). PERC's review revealed
that actual ESA expenditures were huge and grossly understated. See
Accounting for Species: The True Cost of the Endangered Species Act,
Randy T. Simmons and Kimberly Frost, http://www.perc.org/pdf/
esa_costs.pdf
Among other things PERC found the following errors and omissions in
the government's report:
Although the government estimated Federal expenditure for species
protection for fiscal year 2000 of $610.3 million, the actual cost was
probably four times that amount.
The estimated total cost to taxpayers for ESA-related activities
for the 11-year period from 1989 to 2000 of more than $3.5 billion is
closer to the actual cost taxpayers pay each year for these activities.
Not all agencies report ESA expenditures and many under report
those expenditures.
``Other costs absorbed by state and local governments and private
parties are not reported at all'' and run in the billions.
See Accounting for Species, at i-ii.
Examples of these ``other costs'' not reported include costs for
implementing species recovery (e.g., $650 million for a Habitat
Conservation Plan (HCP) in San Diego County, California); costs from
ESA-related interference with building schools, hospitals, roads, and
other infrastructure (e.g., delay of $55 million high school in Vista
Murrieta, California, at a cost of over $1 million); economic impacts
from Federal regulation of 38 million acres of private land (e.g.,
costs of critical habitat for the California gnatcatcher alone
estimated at an average $300 million a year); enormous private costs
such as development project denials, delays or changes (e.g. up to $120
million in project modifications for California vernal pool critical
habitat designation); social costs from regulatory burdens placed on
agriculture, water use, forest management, mineral extraction, and
recreation (e.g., crop losses in the Klamath Basin of Oregon in 2001
exceeding $50 million); loss of jobs (e.g., at least 130,000 jobs and
more than 900 forest product facilities closed since mid-1990 to
protect the northern spotted owl); and, reduction of business
activities, tax revenues, property valuation (e.g., ESA-mandated water
reductions in the Westlands Water District cost the California economy
more than $218 million and 4,500 jobs statewide and a loss of Federal
revenue of $2.3 million). Id. at 1-11. See also, The Economic Costs of
Critical Habitat Designation: Framework and Application to the Case of
California Vernal Pools, by David Sunding, Aaron Swoboda and David
Zilberman, February 20, 2003, at 25-35 (over 90 percent of total costs
of critical habitat designation for California vernal pool species are
due to project modifications, $118-$120M), http://www.calresources.org/
admin/files/crmichreport.pdf
The PERC authors conclude that the costs of implementing the ESA
are far greater than the government reports and that the ESA may waste
taxpayer dollars because only a few species benefit from government ESA
expenditures: ``Fifty percent of reported expenditures are for seven
species, just 0.6 percent of the ESA list.'' Accounting for Species at
v.
Bringing these costs of species protection to light is vital to an
intelligent debate about the efficacy of the ESA. Those who are not
aware of the social costs of species protection cannot make an informed
choice about how to expend our finite economic and natural resources.
Evidence shows that when people do know of the costs of environmental
protection their priorities often change. Notable events in New Mexico
and elsewhere illustrate the point.
The city of Albuquerque, New Mexico, has over 500,000 residents and
sits near the Rio Grande River. Since the 1960s the city has spent
millions of taxpayer dollars to secure water rights from the river to
ensure its needs are met well into the future. However, this future was
jeopardized when a suit was brought in Federal court claiming that
drought conditions reduced water flow in the river and put the silvery
minnow, a protected fish, at risk. When the district judge and then a
circuit court of appeal ruled the ESA required Albuquerque to
compensate by diverting its own limited water supply to increase river
flows for the fish, a huge public outcry was heard. New Mexico
officials, including Democrat Governor Bill Richardson, and Republican
United States Senator Pete Domenici, supporters of the ESA, were now
calling for intervention by the United States Supreme Court.
In the midst of this controversy over how limited water supplies
should be used, for people or fish, the Albuquerque Journal
commissioned a survey of New Mexicans' opinions of the ESA. The Journal
asked: ``Thinking of recent developments in New Mexico involving the
Endangered Species Act, such as efforts to protect the Rio Grande
silvery minnow, do you think the Act goes too far, does not go far
enough, or is working as it should?'' Sixty-nine percent said the Act
goes too far while 15 percent said it is working as it should, and only
6 percent said it does not go far enough. This was an abrupt change
from previous surveys.
Similar trends in public opinion were noted in an Associated Press
article published on April 4, 2005, by Jim Wasserman, which reported
increasing bipartisan concern in the California Legislature over the
impact of that state's environmental protection laws on home ownership.
According to the article, there is a growing momentum to change the law
to facilitate home building. ``A majority of Californians can no longer
afford to buy homes, prompting some lawmakers to lament that their
generation maybe the state's first unable to provide a better life for
its children.''
Species protection, ``whatever the cost,'' does not ensure a better
life for future generations. To many, there are other values of equal
or greater worth, like home ownership. Species protection, ``whatever
the cost,'' does not even ensure species protection. This is the
travesty of the ESA; it has not resulted in a significant improvement
in the condition of threatened and endangered plants and wildlife.
However one weighs the relative importance of environmental
protection and quality of life, all should agree that our finite
economic and natural resources should not be wasted. But that appears
to be happening under the ESA.
For years the Fish and Wildlife Service has argued that the
designation of critical habitat provides little or no additional
protection to listed species but involves great cost:
In 30 years of implementing the ESA . . . the designation of
statutory critical habitat provides little additional
protection to most listed species, while consuming significant
amounts of conservation resources. The Service's present system
for designating critical habitat is driven by litigation rather
than biology, limits our ability to fully evaluate the science
involved . . . and imposes huge social and economic costs. The
Service believes that additional agency discretion would allow
our focus to return to those actions that provide the greatest
benefit to the species most in need of protection.
68 Fed. Reg. 46684-01 (Aug. 6, 2003).
Because Congress has not responded to the Agency's repeated calls
for greater discretion in the use of critical habitat as a conservation
tool, continued litigation is likely to drive the Agency's critical
habitat program. The ESA requires the designation of critical habitat
for all listed species, with few exceptions, but this has been done for
only 25 percent of the 1,264 threatened and endangered species listed
nationwide. Activists have sued to compel the Fish and Wildlife Service
to designate critical habitat for literally hundreds of species. The
Agency complains, however, that these court actions leave the Service
with inadequate time and resources to properly identify critical
habitat, resulting in overly broad designations. This was the case with
the Alameda whipsnake.
When the Fish and Wildlife Service designated over 400,000 acres of
critical habitat for the Alameda whipsnake in four California counties,
in response to a court challenge, the Agency openly acknowledged it
included areas that were not essential to the conservation of the
species:
We recognize that not all parcels within the proposed critical
habitat designation will contain the primary constituent elements
needed by the whipsnake. Given the short period of time in which we
were required to complete this proposed rule, and the lack of fine
scale mapping data, we were unable to map critical habitat in
sufficient detail to exclude all such areas.
65 Fed. Reg. 58933, 58944 (Oct. 3, 2000).
The deficiencies did not stop there, however. The Agency also
failed to adequately consider the economic impacts of the critical
habitat designation. Although the critical habitat included highly
populated areas of the State of California in the midst of a housing
shortage and costs associated with critical habitat were estimated at
$100 million for the University of California, and a like amount for
the mining industry, and state and local agencies identified severe
limits that would flow from critical habitat affecting fire and flood
protection activities, the Service concluded the designation of
critical habitat for the Alameda whipsnake would have no significant
economic effect.
In response, Pacific Legal Foundation attorneys, representing home
builders, small businesses and local landowners, challenged the
critical habitat designation in court. In Home Builders Association of
Northern California v. United States Fish and Wildlife Service, 268 F.
Supp. 2d. 1197 (E.D. Cal. 2003), a Federal court invalidated the
critical habitat designation for the Alameda whipsnake and remanded the
matter to the agency to redesignate the critical habitat and redo the
economic analysis.
This has lead to further litigation. Recently, Pacific Legal
Foundation attorneys filed suits in Federal court challenging the
critical habitat designations of 42 species in 42 counties of the State
of California covering almost 1.5 million acres. Each of these
designations was promulgated as a result of a court action and suffers
from the same deficiencies as the critical habitat for the Alameda
whipsnake--the designations are over broad and the economic analyses
are inadequate.
Thus, the ESA critical habitat requirement is, at best,
inefficient, and, at worst, wasteful, on two fronts. First, according
to the very agency tasked with the responsibility for protecting listed
species, the designation of critical habitat provides no meaningful
protection to the species beyond the protections already provided by
other provisions of the Act, such as the Section 9 take provision which
prohibits anyone from harming a listed species. This was also the
conclusion of the district court in Home Builders. While the
environmental intervenors argued that the invalid critical habitat
designation should be left in place for the protection of the Alameda
whipsnake, the court found no evidence that setting aside the critical
habitat would have any harmful effect on the species.
And, second, the critical habitat requirement breeds endless
litigation that diverts limited resources from true conservation
efforts.
If Congress is committed to improving the ESA, it must consider a
resolution of the critical habitat controversy. Congress should
consider other aspects of the ESA as well.
For example, protection for land owners is essential to the
successful implementation of the Act. Approximately 75 percent of all
listed species have habitat on private property. See Accounting for
Species at 10. As a result, the use of that property is drastically
curtailed, if not prohibited altogether. But property owners are not
compensated for this loss of use. This is counterproductive because it
discourages landowner cooperation and voluntary conservation. See id.
Under the ESA, landowners can be ``prosecuted, fined, jailed, and
ordered to pay restitution'' if they harm a listed species without
Federal approval. Id. ``Harm'' is widely defined and may include
modification of species habitat. Id. In effect, the Federal Government
exercises a veto power over land use activities in species habitat. The
impact on landowners is severe. See Sunding, Swoboda & Zilberman. As
United States Supreme Court Justices Antonin Scalia and Clarence Thomas
argued in dissent in Babbitt v. Sweet Home Chapter of Communities for
Great Oregon, 515 U.S. 687,714 (1995), such restrictions ``impose
unfairness to the point of financial ruin--not just upon the rich, but
upon the simplest farmer who finds his land conscripted to national
zoological use.''
Providing landowners compensation or other economic incentives,
when their land is taken out of productive use and left in its natural
state, is not only fair but, constitutionally required. After the
Klamath tragedy, that resulted in such heavy loss of crops and
livelihoods, local farmers brought a $1 billion dollar suit in the
Court of Federal Claims seeking restitution under the Just Compensation
Clause of the Fifth Amendment. According to the United States Supreme
Court, ``[t]he Fifth Amendment's guarantee that private property shall
not be taken for a public use without just compensation was designed to
bar Government from forcing some people alone to bear public burdens
which, in all fairness and justice, should be borne by the public as a
whole.''--Like species protection.
Besides encouraging landowner cooperation and satisfying
fundamental notions of fairness, compensating landowners serves another
important societal purpose; it acts as a restriction on Federal power
by limiting the incentive of the government to take more land than it
needs for wildlife conservation. Under the ESA, the Federal Government
essentially ``acquires'' land at no cost. With the stroke of a pen
private property becomes protected habitat, with all its attendant
restrictions. The natural result of a government that regulates without
cost is a government that regulates without end.
Aside from these general observations that species protection
should involve a balance between economic growth and ecological goals,
between people and wildlife, I wish to point the committee to other
areas of concern within the ESA that merit consideration.
1. ``Best Available'' Scientific Evidence
The ESA requires the listing of threatened or endangered species,
and the designation of ``critical habitat,'' based only on the ``best
available'' scientific evidence. See 16 U.S.C. 1533. However, both the
implementing agencies and the courts have interpreted ``best
available'' to mean any evidence whatsoever. This has resulted in
unnecessary listings and overly broad ``critical habitat''
designations. For example, in a July 15, 1998, study entitled Babbitt's
Big Mistake: The Real Story Behind the Endangered Species Recovery
Announcement, the National Wilderness Institute documented the
following.
Historically data error has been the most common actual reason
for a species to be removed from the endangered species list.
Species officially removed because of data error include: the
Mexican duck, Santa Barbara song sparrow, Pine Barrens tree
frog, Indian flap-shelled turtle, Bahama swallowtail butterfly,
purple-spined hedgehog cactus, Tumamock globeberry, spineless
hedgehog cactus, McKittrick pennyroyal and cuneate bidens.
While officially termed `recovered,' the Rydberg milk-vetch and
three birds species from Palau owe their delisting to data
error (see Delisted Species Wrongly Termed Recovered by FWS, p.
16). Many other currently listed species have been determined
to be substantially more numerous and to occupy a much larger
habitat than believed at the time of listing (see Environment
International, Conservation Under the Endangered Species Act,
1997).
Publications, Studies, Reports, Legislative Briefs at http://
www.nwi.org
``Best available'' data is often not peer reviewed. Currently, the
agencies use peer review on an informal, ad hoc basis. This has proven
inadequate as events in the Klamath area have shown, In 2001, the
Biological Opinion for the Klamath Project concluded that any water
diversions for irrigation purposes would jeopardize listed salmon and
sucker fish, although numerous claims were made that the Biological
Opinion ignored more reliable data that showed that water diversions
would not jeopardize the fish. Based on this conclusion, the Bureau of
Reclamation prohibited all water diversions from the Klamath Project to
Klamath area farmers who depend on irrigation water from the project. A
firestorm of protests followed calling on the Administration to take a
closer look at the data for 2002. In response, the Administration
subjected the data to ``peer review'' by the National Academy of
Sciences. An expert scientific committee of that body subsequently
determined that the 2001 Biological Opinion was faulty because the
``best scientific and commercial data'' showed that water diversions
for irrigation would not jeopardize the listed fish.
2. Proof of Harm
Section 9 of the Endangered Species Act prohibits the ``taking'' of
any endangered or threatened species. 16 U.S.C. 1538(a)(l)(B).
However, the Act allows a ``taking,'' when authorized, if the
``taking'' is incidental to, and not the purpose of, carrying out an
otherwise lawful activity. See 16 U.S.C. 1539(a)(l)(B). The term
``take'' means to ``harass, harm, pursue, hunt, shoot, wound, kill,
trap, capture, or collect, or to attempt to engage in any such
conduct.'' 16 U.S.C. 1532(19). The term ``harm'' was interpreted by
regulation to mean:
an act which actually kills or injures wildlife. Such act may
include significant habitat modification or degradation where
it actually kills or injures wildlife by significantly
impairing essential behavioral patterns, including breeding,
feeding or sheltering.
50 C.F.R. 17.3 (emphasis added).
This interpretation was upheld by the United States Supreme Court
in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon, 515
U.S. 687 (1995), but the United States Fish and Wildlife Service has
attempted to ``read out'' the requirement of actual injury in its day-
to-day implementation of the Act. For example, in Arizona Cattle
Growers' Association v. United States Fish and Wildlife Service, 273
F.3d 1229 (9th Cir. 2001), the Service argued that it could prohibit
grazing on Federal land without any proof of harm to any species.
Although this argument was rejected by the court, the Service has not
embraced the court decision.
3. Private Lands v. Public Lands
Even when public lands alone will provide sufficient habitat to
conserve a threatened or endangered species, the government designates
vast amounts of private property as ``critical habitat''--primarily
because it has little incentive not to. The Alameda whipsnake is a
perfect example. When the whipsnake was listed as a threatened species,
the United States Fish and Wildlife Service reported that only 20
percent of the snake's known habitat was on private land and that this
land was not essential to the conservation of the species. 65 Fed. Reg.
58935. However, when it designated ``critical habitat,'' pursuant to
court order, the Service included not only occupied habitat but
``potential'' habitat that did not contain the physical or biological
features essential to the conservation of the species. This resulted in
the inclusion of 248,270 acres of private land, or 61 percent of the
total ``critical habitat'' area of 406,598 acres. Id. at 58937.
Numerous ``critical habitat'' designations have been successfully
challenged in court as overly broad.
This practice of regulating private property that is not essential
to the conservation of the species imposes unfair and unnecessary
regulatory burdens on private citizens. Millions of acres throughout
the Nation have already been designated ``critical habitat,'' and more
will follow.
4. Existing Federal Contracts
To protect listed salmon and sucker fish in California and Oregon,
in 2001 the Bureau of Reclamation breached its decades-old contract to
provide irrigation water to Klamath farmers from the Klamath Water
Project that was built to provide such water. This resulted in a
drastic loss of jobs and livelihoods when local farmers were unable to
water their crops on farms that had been productive for generations.
The harsh impacts on the local community and the ensuing demonstrations
(not to mention the tense standoff with Federal authorities at the main
pumping station) was widely publicized. A suit against the Federal
Government for up to $1 billion in damages was filed in Federal court.
Klamath Irrigation District v. U.S. (Fed Claims, No. 01-591 L). Thus,
Federal agencies have broken their contractual obligations, or violated
other laws, to comply with the ESA.
5. ``Reasonable and Prudent Alternatives''
Section 7 of the Act, 16 U.S.C. 1536, allows the ``taking'' of a
threatened or endangered species if ``reasonable and prudent
alternatives or measures'' are adopted to mitigate the impact of a
federally approved project. This means a project can go forward with
alterations designed to minimize impacts on protected species. However,
the terms ``reasonable and prudent alternatives or measures'' are not
defined in the Act. As a result, Federal agencies often impose
``alternatives'' or ``measures'' that simply nullify the proposed
project without rejecting it outright as the law requires.
For example, when the Bureau of Reclamation considered ``reasonable
and prudent alternatives'' for the Klamath Irrigation Project, the
Bureau did not consider alternative ways of providing irrigation water
to the Klamath farmers, the very purpose of the project, but rather co-
opted the project for the sole purpose of providing water for protected
fish. Likewise, Federal agencies often require ``reasonable and prudent
measures'' that are not economically feasible for the project
applicant, such as the use of expensive fish screens by a small water
irrigation district. Such ``alternatives'' or ``measures'' maybe
environmentally ``prudent,'' but they are not ``reasonable'' if they
cannot be carried out consistent with the purpose of the project.
If the project, as proposed, cannot be made sufficiently protective
of threatened and endangered species by the application of ``reasonable
and prudent alternatives or measures,'' then section 7 requires that
the agency deny approval of the project. But the agency may not
redefine the project under the guise of ``reasonable and prudent
alternatives or measures.'' The clear intent of section 7--to
facilitate otherwise legal projects that would not jeopardize a species
with sensible modifications--has been compromised.
6. Economic Impacts Analysis
The Act requires the government to designate ``critical habitat''
at the time of listing a species as threatened or endangered. 16 U.S.C.
1533(a)(3). The habitat designation must be based on the best
scientific data available, but--unlike the listing of a species--only
``after taking into consideration the economic impact,. . . and any
other relevant impact, of specifying any particular area as critical
habitat.'' 16 U.S.C. 1533(b)(2). According to the House Report on the
Endangered Species Act Amendments of 1982:
Whether a species has declined sufficiently to justify listing
is a biological, not an economic, question. For this reason,
the committee eliminated all economic considerations from the
species listing process. Desirous to restrict the Secretary's
decision on species listing to biology alone, the committee
nonetheless recognized that the critical habitat designation,
with its attendant economic analysis, offers some counter-point
to the listing of species without due consideration for the
effects on land use and other development interests. For this
reason, the committee elected to leave critical habitat as an
integral part of the listing process . . .
H.R. Rep. No. 567, 97th Cong., 2d Sess., reprinted in 1982 U.S.C.C.A.N.
2812 (emphasis added).
In its economic analyses of ``critical habitat,'' the United States
Fish and Wildlife Service has generally only considered the incremental
economic impacts on the regulated community that flow from the
designation itself. In such cases, the Service has concluded that these
impacts are either not significant or nonexistent. Thus, instead of
providing the ``counter-point'' that Congress intended, the Service has
reduced the economic analysis to a meaningless exercise. However, in a
case called New Mexico Cattle Growers Association v. United States Fish
and Wildlife Service, 248 F.3d 1277 (10th Cir. 2001), a Federal court
of appeals rejected the incremental impacts approach the Service
employed and concluded a meaningful analysis must also include the
economic impacts on land use caused by the listing. But, this precedent
is not followed by the Service in other circuits.
7. Essential Habitat
The Act defines ``critical habitat'' to include only those areas
actually occupied by the species that are essential to the conservation
of the species as well as those areas that are unoccupied by the
species, at the time of listing, that the Secretary determines are
essential for the conservation of the species. 16 U.S.C. 1532(5).
However, the United States Fish and Wildlife Service and NOAA Fisheries
have virtually never made such a finding. Rather, they tend to rely on
the species' historical range and routinely include potential or merely
possible habitat areas in the ``critical habitat'' designation. In
effect, they take the term ``essential'' to mean nothing more than
``desirable.'' This failure of the agencies to follow the statutory
criteria undermines the intent of the Act, to limit the scope of
``critical habitat,'' and imposes unnecessary burdens on the regulated
community.
8. Mitigation v. Recovery
Section 10 of the Act requires a permit applicant to provide a
``conservation plan'' that includes the steps that will be taken to
``minimize and mitigate'' the impacts of any incidental ``taking'' that
may result from the proposed project. 16 U.S.C. 1539(2)(A)(ii). This
conservation plan must also include ``such other measures that the
Secretary may require as being necessary or appropriate for purposes of
the plan.'' Id. Although the ``purposes of the plan'' clearly relate
back to the requirement to ``minimize and mitigate'' the impacts of the
incidental ``taking,'' the United States Fish and Wildlife Service and
NOAA Fisheries have taken this provision as carte blanche to impose any
and all measures these agencies desire. In addition to the required
mitigation, these agencies typically mandate through the conservation
plan that the applicant also pay fees or provide land for habitat
enhancements that go way beyond the remedial needs of the project. In
effect, these agencies distort the Act to push the cost of conservation
and recovery onto the private citizen. Under the Act and other laws,
the government itself, and not the applicant, has the responsibility to
provide for the general conservation and recovery of threatened and
endangered species. ``Mitigation'' measures that exceed the impact of a
project in type or extent violate the applicant's constitutional
protections. See Nollan v. California Coastal Commissio, 483 U.S. 825
(1987), and Dolan v. city of Tigard, 512 U.S. 374 (1994). Although
private applicants are required to ``minimize and mitigate'' the
effects of their conduct on listed species, they do not have a duty,
like the government, to provide resources for the general conservation
or recovery of the species.
9. ``Adverse Modification''
The designation of ``critical habitat'' has major repercussions for
private landowners, the States and the Nation: By way of example,
``critical habitat'' has been designated for only a portion of
California's more than 290 federally-listed threatened and endangered
species, but those habitat designations include large areas of the
State (i.e., probably between 12 and 15 million acres or 12 percent to
15 percent of the area of the state). By the time ``critical habitat''
is designated for all these listed species, the State of California
will likely have been blanketed many times over. ``Critical habitat''
for a single species, like the California red-legged frog, can include
millions of acres.
Under section 7 of the ESA, Federal agencies must ensure that any
activities they authorize, fund, or carry out are not likely to
``result in the destruction or adverse modification'' of ``critical
habitat.'' 16 U.S.C. 1536(a)(2). The term ``adverse modification'' is
not defined by the Act and is subject to varying interpretations. And
although Federal regulations require such modification to be
``substantial,'' even small changes have been challenged by
environmental litigants. As a result, the use of land, public or
private, that is designated ``critical habitat'' can be severely
limited, or prohibited altogether without affording significant
protections to listed species. Congress tried to avoid the onerous
impacts of ``critical habitat''--when it amended the ESA in 1978--by
limiting the scope of the designation to ``essential'' habitat areas.
However, Federal regulators continue to designate overbroad ``critical
habitat'' areas while environmental litigants argue that ``adverse
modification'' should preclude even minor changes to the land.
10. ``Distinct Population Segments''
The Act defines ``species'' to include ``any subspecies of fish or
wildlife or plants, and any distinct population segment of any species
of vertebrate fish or wildlife which interbreeds when mature.'' 16
U.S.C. 1532(16). The term ``distinct population segment'' has no
definite meaning and has allowed the United States Fish and Wildlife
Service and NOAA Fisheries to expand or contract a regulated population
by arbitrarily drawing either a large circle or a small circle around
the target species. This has resulted in inconsistent and arbitrary
designations of ``distinct population segments'' that have no relation
to generally accepted biological standards. For example, rather than
designating genetically identical Pacific Coast salmon as one species,
the government divided them up into separate geographic groups based on
a novel definition of distinct population segments called
``Evolutionarily Significant Units'' or ``ESU's.'' ESU's can be as
small as a specific stream or as large as several watersheds. In
contrast to the salmon, however, the agency decided that Puget Sound
orcas did not constitute a population segment distinct from their
cousins in Alaskan waters. In effect, these agencies are taking the
broad language of the Act and inventing their own biology that is both
uncertain and scientifically unjustified.
11. State and Local Enforcement
Lawsuits against local, state, and Federal agencies are
proliferating based on the premise that regulations or permits issued
by these agencies either ``take'' (16 U.S.C. 1538(a)(1)(B)) a listed
species or constitute a ``solicitation'' (16 U.S.C. 1538(g)) to
``take'' a listed species in violation of the Endangered Species Act.
For example, in April, 2002, the Center for Biological Diversity filed
suit against the Environmental Protection Agency claiming that the mere
registration of certain pesticides by that agency violates the ``take''
provision of the ESA because those pesticides could be used to harm
threatened and endangered species, notwithstanding the use of such
pesticides in an unlawful manner is prohibited. See Center for
Biological Diversity v. Whitman (N.D. Ca. No. C02-1580CW). Similar
suits have been filed around the country. See Strahan v. Coxe, 127 F.3d
155 (1st Cir. 1997) (finding state's commercial fishing regulations
exacted a ``taking:' of the Northern Right Whale under the ESA); Sierra
Club v. Yeutter, 926 F.2d 429 (5th Cir. 1991) (finding Forest Service's
management of timber stands was a ``taking'' of the red-cockaded
woodpecker in violation of the ESA); Defenders of Wildlife v. EPA, 882
F.2d 1294 (8th Cir. 1989) (holding that the EPA's registration of
pesticides containing strychnine violated the ESA); and Loggerhead
Turtle v. County Council of Volusia County, Florida, 896 F. Supp. 1170
(M.D. Fla. 1995) (holding that county's authorization of vehicular
beach access during turtle mating season exacted a ``taking'' of the
turtles in violation of the ESA).
None of the regulations or permits struck down in these cases were
designed to harm listed species. Nor did they actually authorize the
``taking'' of a listed species in violation of the ESA. Rather, they
were a legitimate exercise of agency power authorizing otherwise legal
activities. In each case, any harm would be caused by an act of
another. Congress could not have intended to hold government officials
civilly and criminally liable for the illegal acts of another. Under
these precedents, the Department of Motor Vehicles could be found in
violation of the Act because someone who has a drivers license issued
by that agency uses his car to harm a threatened or endangered species.
In our society individuals are presumed to know the law. It is common
knowledge that the receipt of a permit does not absolve one of the
responsibility of obtaining other necessary authorizations. Likewise,
regulations or permits that authorize otherwise legal conduct that
could result in the incidental ``taking'' of a listed species should
require the actor, and not the agency, to avoid violating the ESA.
12. Permit Streamlining
The Act allows the ``taking'' of a listed species, by permit, if it
is merely incidental to, and not for the purpose of, carrying out an
otherwise lawful activity. See 16 U.S.C. 1539(a)(1)(B). However, the
cost of applying for a permit is high and often prohibitive for small
landowners. For example, a permit application under section 10 of the
Act requires the applicant to submit a conservation plan. Even the
smallest conservation plan can exceed $50,000 in cost. This sum would
far exceed the value of many projects that are likely to have no
significant impacts on protected species. Consider the family in
Humboldt County, California, that owns a small ranch in marbled
murrelet territory. The family would like to cut a few trees on its
property to augment its modest income. Although the protected birds do
not nest in those trees, the family must first obtain an ``incidental
take permit'' from the United States Fish and Wildlife Service. But the
cost of the application is beyond the family's means and many times
more than the value of the trees. Thus, the Act places heavy burdens on
the regulated community without providing any meaningful protection to
listed species. And although the United States Fish and Wildlife
Service or NOAA Fisheries may provide some relief for small projects
through their own regulations or practices, the Act itself makes no
distinction between the level of detail required for an insignificant
project like laying bricks for a backyard patio or a major project like
the development of an entire subdivision.
13. Section 10 v. Section 7
The Act authorizes two separate means of obtaining Federal
authorization to ``take'' a protected species incidental to a lawful
activity--sections 10 and 7. Section 10 allows private citizens to
obtain ``take'' approval (Incidental Take Permit or ITP) by means of a
costly and lengthy application, review, and permit process. 16 U.S.C.
1539. Section 7 allows private citizens to obtain ``take'' approval
(Incidental Take Statement or ITS) by means of a less formal, but often
burdensome, consultation process. 16 U.S.C. 1536. By their terms,
section 10 only applies to projects that do not involve a Federal
agency whereas section 7 only applies to projects that do involve a
Federal agency. Both the Incidental Take Permit under section 10 and
the Incidental Take Statement under section 7 protect the applicant
from liability for the incidental ``take'' of a threatened or
endangered species and each may require substantial mitigation of
project impacts. But although these two sections are directed at
different types of project applicants, the United States Fish and
Wildlife Service and the NOAA Fisheries claim that private project
applicants who seek an Incidental Take Permit under section 10 are also
subject to the requirements of section 7. See Environmental Protection
Information Center v. Pacific Lumber Co., 67 F. Supp. 2d. 1090 (N. D.
Cal. 1999) (overruled on appeal at 257 F.3d 1071 (9th Cir. 2001)).
Subjecting applicants to redundant permitting requirements is
unnecessary and wasteful.
I wish to thank the committee for this opportunity to provide this
testimony and hope this analysis will help the committee as it
deliberates improvements to the ESA.
______
Responses by M. Reed Hopper to Questions from Senator Inhofe
Question 1. We heard from many witnesses today that there should be
increased landowner incentives and/or voluntary conservations programs
for protecting species on private land. What are you thoughts on this
idea and do you have any suggestions for the types of incentives that
would work for the individuals that you represent?
Response. Almost all listed species have all or a portion of their
habitat on private land. Therefore, landowner cooperation is essential
to species conservation. Positive incentives elicit landowner
cooperation and should be encouraged. One of the most important
incentives for the regulated community is regulatory certainty.
Landowners are often willing to commit resources to species
conservation beyond what is required by the law. But their incentive to
do so disappears if they cannot be certain that they will not be
required, time after time in the future, to provide additional
resources for species conservation. For this reason, the ``no
surprises'' rule should be codified in the Act.
Likewise, voluntary conservation efforts on private land should be
factored into the listing and critical habitat determinations. If such
efforts are sufficient to protect or recover a species, the agency
should be able to avoid listing the species or exclude the conservation
lands from critical habitat designation. Whether the agencies have the
authority to do this under the Act as currently written is the subject
of litigation. A clarification in the Act itself would provide positive
incentives for voluntary conservation efforts.
Compensation for landowners who have lost the productive use of
their land is also an important incentive for landowner cooperation. No
single landowner has driven a species to the brink of extinction by
himself, although the last remaining population of that species may be
present on his land. The plight of listed species is the result of
societal decisions made long ago and the natural result of a burgeoning
population. Therefore, we all have an obligation to shoulder the
economic burden of species conservation.
Some jurisdictions are experimenting with tax breaks and transfer
development rights for affected landowners. These types of incentives
should be assessed to determine their effectiveness in encouraging
landowner cooperation and participation in conservation planning.
More obvious incentives include permit streamlining with strict
time limits for responding to permit applications, limitations on
mitigation requirements (these should not exceed project impacts),
encouraging the use of safe harbor agreements, and express statutory
language that private parties do not have responsibility for species
recovery--that is a government obligation. In addition, the committee
should consider resolution of the 13 issues raised in my written
testimony.
Question 2. It is often stated that the Section 7 consultation
process and the designation of critical habitat has ``no effect'' or
``doesn't apply to'' private landowners except when Federal permits are
required. Is this nexus something that happens rarely or frequently?
Are there other ways in which Section 7 affects private landowners?
Response. The idea that critical habitat has no effect on private
landowners, except when a Federal permit is required, is a misnomer.
The Fish and Wildlife Service routinely warns landowners that any
unauthorized modification of critical habitat may cause harm to
protected species and subject the landowner to fine or imprisonment for
violation of the section 9 ``take'' prohibition. For example, the
Service sent warning letters to landowners in Texas that erecting
fences in the critical habitat area of the golden-cheeked warbler may
result in civil or criminal prosecution. Homeowners in California
gnatcatcher territory have been similarly warned if they try to clear
the brush from around their homes as a fire break without obtaining a
Federal permit.
The practical result of critical habitat designation is that
affected landowners are required to obtain Federal approval (e.g., an
Incidental Take Permit or Statement) to avoid prosecution before
modifying the habitat, either under section 10 or, if there is a
Federal nexus, under section 7. In effect, the designation of critical
habitat creates a presumption that anyone modifying the habitat has
harmed the species. This subjects landowners to risk of either a
government suit or a citizen suit. This threat imposes severe burdens
on landowners who must either attempt to prove a negative--that their
use of the land will not harm protected species--or they must go
through the lengthy and costly process of obtaining a Federal permit.
When critical habitat is designated, the Federal Government gains a
virtual veto power over local land use.
In addition to these impacts, once private land is designated as
critical habitat its value drops precipitously because it is uncertain
what, if any, uses will be allowed on the property. Such lands are
difficult, sometimes impossible, to sell on the open market. Loans are
also hard to acquire because of these uncertainties and local agencies
often refuse to approve a land use project unless the landowner can
show the project has Federal approval. Landowners know that critical
habitat designation will invariably cause increased burdens including,
but not limited to, project delays or denials, study costs, mitigation
fees, design changes, permit fees, and consulting costs.
Question 3. In your testimony, we have heard several references to
the lack of statutory definition of several key terms in the Act. In
your opinion, would clearer definitions from Congress alleviate some of
the litigation?
Response. Absolutely! Clearer definitions of any key terms may
alleviate some litigation. For example: Does ``critical habitat''
include only those areas actually necessary to protect the species or
does it include potential habitat and areas necessary for recovery?
Does ``adverse modification'' include any change to the land
whatsoever, no matter how small, or just significant change? Does the
term ``reasonable and prudent'' mean feasible for the project applicant
or simply theoretically possible? Does ``conservation'' include
recovery efforts and do private parties have an obligation to recover
species or just mitigate for their own impacts? Does ``best available
data'' mean any data at all or should it require substantial
information? Does ``take'' require actual harm to a species or is the
possibility of harm enough?
Question 4. What is your view about the role that compensation
should play when ESA regulations and listings diminish the value of
private property? What mechanisms would you suggest in assessing how
compensation be determined and paid?
Response. It should first be understood that a particular landowner
is not responsible for pushing the species to the brink of extinction.
That has occurred either because of natural ecological conditions or
because of larger societal pressures which have limited species
habitat. It is fundamentally unfair, therefore, to impose the entire
burden of species protection on the individual landowner. We all have
an interest in protecting species; therefore, we should all share in
the cost. One way to do this is to provide compensation to affected
landowners. How that should be done is a difficult question to answer.
Some states have considered or adopted laws (like Measure 37 in Oregon)
which require compensation for diminution in property values as a
result of land use regulation. Such laws are indicative of a growing
unrest with onerous regulatory provisions. And, presumably, government
officials are working out practical means of determining diminution and
compensation which could provide guidance for others.
Under the ESA, I believe it would be equitable to compensate
landowners when their property is required to be left essentially in
its natural state for species protection. The amount of compensation
can be determined using standard market indicators. The level of
deprivation may not be apparent when land is designated as critical
habitat. However, it should be clear when a habitat conservation plan
or recovery plan is prepared whether the property is so essential to
the conservation of the species that no practical use of the land will
be allowed. Some multi-species habitat conservation plans (such as the
Riverside Multi-Species HCP) call for purchasing lands necessary for
species conservation using mitigation fees or other contributions
collected from Federal, state, and local governments and other affected
landowners.
Question 5. Should the definition of critical habitat by the FWS
require that the area itself be essential to the conservation of the
species? Further, in the event that ``special management measures'' are
imposed, should such measures be required to be based on actual
verifiable field data rather than simply because FWS has found that the
species' ``Primary Constituent Elements'' (PCE's) are present?
Response. Yes, to both. It seems clear from the history and
language of the Act that Congress intended the area itself to be
essential to the conservation of the species. Some courts have recently
so held. See Home Builders Association of Northern California v. U.S.
Fish and Wildlife Service, 268 F.Supp. 2d 1197 (E.D. Cal. 2003) and
Cape Hatteras Access Preservation Alliance v. U.S. Department of
Interior, 344 F.Supp. 2d 108 (D.D.C. 2004). This limitation is
important to prevent the Service from designating areas larger than are
necessary to protect the species and to minimize undue impacts on the
regulated community. However, ambiguity in the term ``essential to the
conservation of the species'' has led the Service to include
``potential habitat'' which may include only a single PCE or none at
all. Also, because the Act authorizes the Service to rely on ``best
available data'' the agency is not required to collect actual
verifiable field data that the species or its PCE's are present or that
certain management measures are required or even helpful in conserving
the species.
Question 6. In how much detail should the ESA legislate so that
there is a level of distinction between the sizes of projects to allow
for more small landowners to attain incidental take permits?
Response. The cost for incidental take permits is prohibitive for
small landowners. Even a modest habitat conservation plan with field
surveys and biological assessments can cost $30,000 to $50,000 (in
addition to any mitigation) and require months of processing.
Unfortunately, the ESA does not distinguish between the impacts of a
large subdivision and a backyard BBQ. And although Fish and Wildlife
and NOAA Fisheries have their own regulations for small impact
projects, they are rarely and inconsistently applied. Clearly, this
needs to be addressed in the Act. At a minimum, the Act should define
small projects, set out streamlined information criteria, and establish
absolute deadlines for permit approvals.
______
Responses by M. Reed Hopper to Questions from Senator Vitter
Question 1. What reforms are necessary to strengthen and improve
the ESA to improve the recovery of endangered species?
Response. According to the Fish and Wildlife Service, litigation
over critical habitat has co-opted department resources that could be
used for species recovery. I have discussed the problem at some length
in my written testimony. It is essential that this issue of critical
habitat is resolved. The Service has determined that critical habitat
provides little or no added protection to species beyond other
provisions of the Act, such as the section 9 "take'' prohibition, but
litigation to compel the designation of critical habitat consumes
enormous resources. As a solution, the Service has suggested it should
be given the discretion to designate critical habitat when it is in the
interest of the species to do so.
To date, the most successful recovery efforts have been private and
voluntary as illustrated by the recovery of the American peregrine
falcon. It stands to reason that changes to the Act which encourage
voluntary conservation efforts are most likely to advance the Act's
goals. The landowner incentives discussed above address this issue more
fully.
Improving the science on which species decisions are made would
also improve recovery. More species have been delisted (16) due to
original data errors than have been deemed recovered (15). This diverts
resources from where they are needed most and limits recovery options
for other species.
Funding needs to be more widely distributed. Fifty percent of
reported Federal expenditures for species conservation are applied to 7
species, just 0.6 percent of the entire ESA list of species.
The establishment of recovery objectives for each species would
enhance species recovery by providing stakeholders with measurable
goals to which voluntary conservation measures could be tailored. If
delisting were mandated when the objectives are met, even if management
measures continued, it would likely accelerate species recovery be
encouraging more robust conservation efforts.
Question 2. Recovery plans are not required as part of the listing
process. They are required after a species is listed. Do you see any
barriers to requiring recovery as part of the original listing process?
If there are barriers identified, are the barriers a result of the ESA
law or part of problems identified in the implementing regulations? How
would you eliminate those barriers?
Response. The only barrier I see to creating a recovery plan at the
time of listing is that under current law listing determinations may be
made based on the ``best scientific data available.'' This standard
falls far short of providing the information that is needed to
establish meaningful recovery objectives and management measures. In
some cases, the agency has relied on data more than 20 years old, such
as when the Buena Vista Lake shrew was listed. At the time of listing,
the agency is not required to conduct actual field surveys to determine
historic and current habitat areas, migration paths, population counts,
species disbursement, and many other factors that should be considered
in developing a recovery plan. In effect, the Act authorizes the agency
to act on knowing ignorance. The solution would be to raise the level
of science on which biological determinations are made, including the
listing.
Question 3. Local input especially conservation efforts are not
considered in the listing decision. Voluntary conservations efforts
have been greatly expanded since the ESA was passed over 30 years ago.
Do you believe that local conservation efforts should be part of
recovery plans and considered as part of the listing decision? If not
why should they not be considered?
Response. Local conservation efforts, both private and public,
should definitely be considered in the listing decision and included in
recovery plans for the simple reason that such efforts are effective
and economical and should be encouraged. The recovery of the American
peregrine falcon is credited almost entirely with local conservation
efforts. As noted in my written testimony, experts dispute whether the
ESA had any impact on the recovery of this, and other, species
whatsoever. It would be tragic to discount the most effective
conservation efforts we know.
Moreover, local voluntary conservation efforts include local
stakeholders and reduce conflicts. The Act should be changed to
specifically allow the listing agencies to rely on voluntary
conservation efforts in their assessment of the risks to species
survival. The Act should also be changed to ensure that voluntary
conservation efforts are encouraged in recovery plans by codifying the
``no surprises'' rule.
Question 4. The term ``recovery'' under the Act to mean the same
thing as ``conservation.'' Recovery exists when the species no longer
needs to be listed. Even after ``recovery'' is achieved, conservation
measures should be in place to keep the species from regressing and
developing a new need for listing consideration. Should ESA and or the
regulations be revised to reflect conservation measure for listed
species rather than the concept of recovery?
Response. Equating ``recovery'' with ``conservation'' imposes
unfair burdens on landowners. It is one thing to ask landowners to
mitigate for their own impacts, but it is quite another to ask the same
landowners to assume the financial responsibility to recover species
that are at risk because of decisions we have made as society as a
whole. Both the ESA and its implementing regulations should be revised
to clearly define who is responsible for species recovery. This has
become a matter of urgency because some courts have interpreted the
term ``conservation'' to include ``recovery'' thereby expanding the
definition of critical habitat. Areas ``essential to the conservation
of the species'' may be read to mean areas ``essential to the
[recovery] of the species.'' See Gifford Pinchot Task Force v. U.S.
Fish and Wildlife Service, 378 F.3d 1059 (9th Cir. 2004)
Question 5. One of the key steps in recovery could be re-
introduction of the species on public and private land. Do you favor
reforms to include re-introduction considerations before a species is
listed and if not why? What assurances and assurance procedures are
appropriate for property owners so they can work cooperatively with
Federal, state and local entities to reintroduce candidate species? Are
these assurances in place today and can you provide specific examples
of such agreements?
Response. I do not favor re-introductions for three reasons: (1)
historic range (on which these re-introductions are typically based) is
not a good measure of suitable habitat for the species today; (2) re-
introductions can cause increased conflicts with humans, such as the
wolf and panther re-introductions that have resulted in mounting
livestock depredations; and, (3) reintroductions may cause adverse and
unexpected changes in the ecosystem such as grey wolves pushing out
coyotes in Yellowstone and upsetting the established food chain. The
fact is we don't know enough about biological systems to predict how
re-introduced species will affect other species in the same habitat.
Question 6. What reforms are necessary for effective use of the
critical habitat consideration in the ESA and regulations? Are the
economic considerations relevant for critical habitat considerations?
If not, what would you do to make them relevant?
Response. As discussed at length in my written testimony, and as
determined by the Fish and Wildlife Service itself, critical habitat
places enormous burdens on private citizens while providing little or
no additional benefit to species. This is the very definition of waste.
Additionally, critical habitat is virtually never limited to the actual
areas ``essential to the conservation'' of the species as required by
the Act, but almost always includes larger areas such as ``potential
habitat.'' The designation of overly broad critical habitat areas is
the result of litigation forcing designations in shortened timeframes
and expansive interpretation of the critical habitat standard. This
leads to further litigation. Two changes should occur to address these
problems: (1) the Act should more clearly define the limits of critical
habitat with an emphasis on designating public lands rather than
private lands and (2) the designation of critical habitat should be
discretionary rather than mandatory.
Congress included the economic analysis requirement specifically as
a counterpoint to the listing. This requirement is the only place in
the Act that provides a balance between species impacts and social
impacts. That balance is essential to protect individuals from the
onerous demands of the Act. However, the economic analysis has become
meaningless because the agencies have taken the position they need only
consider the incremental impacts of the critical habitat designation
and not the cumulative impacts of the listing and the designation. This
results in a customary finding that the designation will have no
significant economic impacts. Some courts have determined that this
approach nullifies the economic analysis requirement and is invalid.
See New Mexico Cattle Growers Association v. U.S. Fish and Wildlife
Service, 248 F.3d 1277 (10th Cir. 2001) and Home Builders Association
of Northern California v. U.S. Fish and Wildlife Service, 268 F.Supp.
2d 1197 (E.D. Cal. 2003). To make the economic analysis relevant,
therefore, the Act should clarify that it must include all related
impacts, both from listing and critical habitat designation.
Question 7. What are the biological factors for critical habitat
that should be considered before a species is listed and should those
factors be clearly identified as part of the listing decision?
Response. Before a species is listed, the agency should identify
all of the Primary Constituent Elements (PCEs) necessary for the
survival of the species and determine, based on actual field surveys,
where the PCEs are found. The agency should also identify actual
occupied habitat, not just look at the historic range, and determine
actual species population and distribution. These determinations should
be identified as part of the listing decision.
______
Responses by M. Reed Hopper to Questions from Senator Chafee
Question 1. You advocate for more incentives for private landowners
to protect species on their lands. How effective have the existing
voluntary conservation programs administered by the Federal agencies
been in reducing conflict between landowners, the government and non-
profit organizations.
Response. Based on anecdotal information, almost all efforts to
establish cooperative agreements for conservation programs have reduced
conflicts. However, such agreements are not a panacea. Landowners
complain that their interests are often not heard and small landowners
are often unable to make the same concessions as large land owners.
As noted above, one of the most important factors in reducing
conflicts relates to certainty in the process. If agreements are not
binding or stakeholders are not protected from future ``surprises,''
conflicts are inevitable. Unless stakeholders know what their long-term
commitment of resources will entail, they can't determine their short-
term commitment of resources.
Initial response from landowners to the Riverside Multi-Species HCP
in California has been favorable. Although that plan is administered by
the County, it involves Federal, state and private stakeholders. Among
other things, that plan sets forth a matrix, accessable online, that
shows at a glance the type of proposed uses that will be allowed on a
particular parcel and any associated mitigation fees. Also, money is
being provided by numerous stakeholders to purchase high value habitat
and landowner incentives are proposed in the way of tax breaks,
transfer development rights, and the like.
Question 2. In the Klamath River Basin, a great deal of focus has
been placed on endangered species being the indicator species that the
overall ecosystem in the area is unsustainable. What are your thoughts
on this?
Response. I am unaware of any scientific support for the position
that the Klamath ecosystem is unsustainable. The basin is rich with
wildlife and has been for more than a hundred years. Farmers and
wildlife not only live side-by-side, but they have a symbiotic
relationship. Ag crops provide foraging for fowl and irrigation runoff
supports a huge population of species, including the rapidly recovering
bald eagle.
Question 3. In your testimony, you supported a number of
significant changes to the Endangered Species Act that many would
consider a rollback. In light of this, do you believe the protection of
threatened and endangered species in this country is important?
Response. Absolutely! I think everyone believes that species
protection is important. The only questions is how to do it. Some
people will say that any change to the ESA is a ``rollback'' and
necessarily weakens species protection. This is a diversion. We should
all agree that if we are going to protect species we should do so in a
way that is both efficient and effective. We should not impose needless
burdens on the regulated public and any burdens that are imposed should
be successful in achieving their objective. We have heard testimony
that the Act is working, but it can be strengthened and improved. We
have also heard testimony that the Act is not working, and it should be
strengthened and improved. The goal is the same. It remains to bee seen
whether there can be a meeting of the minds. The issues raised in my
testimony all relate to improving the efficiency and effectiveness of
the Act and should be addressed.
__________
Statement of Jamie Rappaport Clark, Executive Vice President,
Defenders of Wildlife
the vital importance of the endangered species act
For more than 30 years, the Endangered Species Act has sounded the
alarm whenever wildlife faces extinction. Today, we have wolves in
Yellowstone, manatees in Florida, and sea otters in California, largely
because of the Act. We can still see bald eagles in the lower 48 states
and other magnificent creatures like the peregrine falcon, the American
alligator, and California condors, largely because of the Act.
Indeed, there can be no denying that, with the Endangered Species
Act's help, hundreds of species have been rescued from the catastrophic
permanence of extinction. Many have seen their populations stabilized;
some have actually seen their populations grow. Some have even
benefited from comprehensive recovery and habitat conservation efforts
to the point where they no longer need the protections of the Act.
In so many ways, Congress was prescient in the original
construction of the Endangered Species Act. First, it crafted an Act
that spoke specifically to the value--tangible and intangible--of
conserving species for future generations, a key point sometimes lost
in today's discussions.
Second, it addressed a problem that, at the time, was only just
beginning to be understood: our looming extinction crisis. Currently
there is little doubt left in the minds of professional biologists that
Earth is faced with a mounting loss of species that threatens to rival
the great mass extinctions of the geological record. Human activities
have brought the Earth to the brink of this crisis. Many biologists
today say that coming decades will see the loss of large numbers of
species. These extinctions will alter not only biological diversity but
also the evolutionary processes by which diversity is generated and
maintained. Extinction is now proceeding one thousand times faster than
the planet's historic rate.
Lastly, in passing the Act, Congress recognized another key fact
that subsequent scientific understanding has only confirmed: the best
way to protect species is to conserve their habitat. Today, loss of
habitat is widely considered by scientists to be the primary cause of
species endangerment and extinction.
Reduced to its core, the Act simply says the Federal Government
must identify species threatened with extinction, identify habitat they
need to survive, and help protect both accordingly. And it has worked.
Of the more than 1,800 species currently protected by the Act, only 9
have been declared extinct. That's an astonishing more than 99 percent
success rate.
But as important as what the Act does is what it does not do.
We must remember the Endangered Species Act was not written to
prevent species from becoming threatened or endangered--it was written
to prevent species from going extinct. And that is an important
difference.
Protecting wildlife from becoming endangered is the province of our
other conservation laws--those that protect our water, air, and land.
The Endangered Species Act is meant to prevent extinction when we have
failed at-risk species by not passing, not enforcing, not implementing,
or not funding those other measures.
To thrive, a species needs habitat. Species need to be free from
pollution, sprawl, and other pressures that affect food sources,
migration routes, and breeding patterns. If those pressures mount and a
species does become endangered, how is that the fault of the Endangered
Species Act? What about state and local land use laws and decisions? Or
farming and agriculture legislation? Or transportation bills? Or laws
governing public lands, forests, or rivers? These all have far more
impact on the habitat available to wildlife than the Endangered Species
Act ever will.
If a species becomes threatened or endangered and needs protection,
invariably we have only ourselves to blame. When a species goes on the
list, it is we who have failed.
These developments are no fault of the Endangered Species Act. The
Endangered Species Act is the alarm, not the cause of the emergency.
When the alarm sounds, it is we who are failing to live responsibly and
in a manner that prevents species extinction. Indeed, the same
pressures that cause a species to become endangered can keep a species
endangered. If a species continues to need the protections of the Act,
it is because we have acted insufficiently to remove the pressures that
put it on the list.
It is also way too convenient for some to blame the Act itself when
they run afoul of its provisions. It is akin to drivers blaming traffic
laws or law enforcement officials for that stack of speeding tickets in
their glove compartment, as if their behavior has nothing to do with
their predicament. Most collisions with the Act can be seen long before
they occur; it's not too much to ask that we all exercise a little
foresight and head off these incidents before they happen.
Unfortunately, opponents of the Act ignore these facts and call it
a failure. They say we should dismantle the Act because it does not
move enough species off the list to full recovery. They ignore the fact
that the Act is our nation's best tool to prevent extinction and they
ignore the hundreds of species still around today because of the Act's
protections. And they ignore the simple truth that unless we prevent
extinction first, there can never be any hope of recovery.
endangered species act legislation in the house
Efforts currently underway in the House of Representatives to alter
the Act should definitely undergo some serious scrutiny. Amid claims
that the Act is not adequately protecting wildlife, we have only seen
legislation that would weaken those protections. So far, we have seen
three bills. The first, introduced by Rep. Dennis Cardoza of California
this year, dramatically changes the way we protect habitat for species.
We are essentially hemorrhaging habitat in this country. Unfortunately,
the Congressman's solution totally misses the mark, ultimately
eliminating any effective habitat protection measure from the
Endangered Species Act. The bill does this primarily in two ways: by
making designation of critical habitat discretionary and by changing
the focus of critical habitat from recovery of species to accommodating
their mere survival. Even under the most optimistic interpretation of
this bill, there is no chance that its passage would lead to more
protected habitat, greater species conservation and more timely species
recovery and delisting.
Another bill, introduced last year by Rep. Greg Walden of Oregon,
undermines the Endangered Species Act from the science angle by
hamstringing agency decisionmaking with needless additional
bureaucracy. Currently, the Act requires the Fish and Wildlife Service
to use the best available science when making listing and habitat
designation decisions. There is also a strong peer review policy in
place for all scientific decisions made. But the Walden bill turns this
system on its head. Again, more discretion is given to political
appointees, in this case about what science--and indeed what
scientists--to use for species listing and habitat protection
decisions. In addition, the bill requires that greater weight be given
to certain types of scientific evidence, taking the decision on what
constitutes ``best available'' science in any given situation out of
the hands of the science professionals. Decisions to list species or
protect habitat would be required to receive special review while
decisions not to list species or not protect habitat--the very
decisions often sought by industry--need not be peer reviewed at all.
The third, introduced by Rep. Jeff Flake of Arizona, would prohibit
the designation of critical habitat along any rivers, streams, and
lakes affected by dams or waterways, a sweeping exemption in some of
the most vital habitat to endangered species, as well as allowing
destruction or degradation of critical habitat on other lands. The bill
also undermines other Endangered Species Act protections by lowering
the standards that must be met for Habitat Conservation Plans to
minimize and mitigate damage to species and habitat and by exempting
water projects from requirements to mitigate damage caused by invasive
species.
If any of the bills under consideration in the House were to pass
they would seriously cripple the Act's ability to fulfill its purpose
and only intensify an effort already underway by the current
administration to undermine the protections of the Endangered Species
Act.
current administration policy
Effective implementation of the Endangered Species Act has suffered
greatly in recent years.
Under this administration, the number of species being added to the
Endangered Species Act list has plummeted. Over the past 4 years, less
than 10 species per year have been added to the list, despite the fact
that approximately 286 candidates await protection under the Act. This
is in marked contrast to recent previous administrations: 32 species
per year under President Reagan, 58 per year under the first President
Bush, and 65 per year under President Clinton.
Recent policy reforms have resulted in a broad and damaging effort
to cut scientists out of the loop on key wildlife decisions. Contrary
to the advice of agency wildlife professionals, the Forest Service can
now implement logging, road building, and other harmful projects in
endangered species habitat without assessing their impact on endangered
species, a key requirement of the Endangered Species Act. And, in one
of the most significant rollbacks of Endangered Species Act protections
ever, the administration asked, and Congress agreed, to exempt the
Department of Defense from some Endangered Species Act requirements for
military training exercises, despite Government Accountability Office
studies showing that there is no documented evidence the Endangered
Species Act hampers military readiness or national security.
In recent years, the administration has also worked systematically
to undermine the Endangered Species Act in the Courts, employing a wide
variety of legal tactics to circumvent the clear language of the law
and to skew its function. Defenders of Wildlife research of more than
100 Endangered Species Act-related cases revealed an alarming pattern
of illegal acts, rigged science, settlement deals favoring industry,
and flagrant disregard of court orders that require one simple thing of
the Federal Government: obey the law. Interestingly, the administration
has been sternly rebuked by Federal court judges on more than one
occasion for their questionable legal approach to the Endangered
Species Act.
But most concerning has been the unbalanced intrusion of politics
into decisions that should remain the purview of scientists. I was a
long time career wildlife biologist with the U.S. Fish and Wildlife
Service and had the privilege of serving as the agency Director from
1997-2001. Never have I seen so many decisions overturned, so much
scientific advice ignored, and so much intrusion into the daily work of
rank and file Fish and Wildlife Service employees as I do today--all by
political appointees. The Union of Concerned Scientists surveyed Fish
and Wildlife Service employees about this very problem and an
astonishing 73 percent of respondents said they know of cases where
U.S. Department of Interior political appointees have injected
themselves into ecological services determinations. Interestingly, Fish
and Wildlife Service employees were ordered, again by political
appointees, not to participate in the survey. Thankfully many did
anyway, providing us with a startling and disconcerting look into a
scientific agency turned on its head and stymied from implementing its
mission by political meddling.
But I don't need a survey to shed light on this problem. I know
these people. I worked side-by-side with them for many years. I know
how dedicated they are and how professional and committed they are to
the mission of conserving our nation's natural resources legacy. I know
how strongly they feel about conserving wildlife in this country. And I
know how much they are struggling, how frustrated they are because they
can't do their jobs. I know because they tell me.
I get the frustrated, fear-filled phone calls. I get the dire
hushed accounts of bad politics trumping good science, of phone calls
from political appointees bypassing Service leadership and ordering
changes to documents to support outcomes they want to see. I talk with
these folks and a picture emerges of an agency under siege from within,
an agency, created and designed to protect our nation's national
wildlife heritage, now seemingly more concerned with protecting the
interests of those for whom wildlife and habitat are obstacles to be
overcome on the way to a bigger bottom line.
making the endangered species act work better
As we move forward, we should be mindful that we do have one
important and undeniable benchmark, a measurement against which all
efforts to alter the Act should be evaluated: Does it truly aid species
conservation? If the answer is no, then we have failed. If all
``reform'' does is make it easier to pave over or through the Act, then
we have failed. If all ``reform'' does is decrease habitat available to
wildlife, then we have failed.
So is it possible to strengthen the Endangered Species Act so that
is works better for all stakeholders, including species, without
sacrificing its purpose and intent? Yes. Although the Act is
fundamentally sound, like any law, it can be improved. The more
difficult question is whether the political process can accomplish that
without succumbing to ``false reforms'' that actually weaken and
undermine the law.
How can the Act be improved? Start by improving the protection and
conservation of habitat. That means both more effective regulatory
protection and more and better incentives to encourage voluntary
habitat management and restoration, with species recovery as the
overarching, governing standard. Incentives are especially important
for private landowners, many of whom have demonstrated a keen eagerness
to be true partners in species conservation. Let's also take the common
sense step of linking the protection and conservation of habitat to the
development and implementation of recovery plans. And yes, economic
consideration should play a role in determining how best to protect
habitat, but they should never be allowed to trump science or be used
to effectively block recovery.
We should also look for opportunities to enhance the role of the
states in helping to recover listed species where appropriate. States
that have the legal and financial capabilities and the political
commitment should be encouraged to help tackle species conservation
challenges within their borders in a much more engaged, transparent and
collaborative fashion.
The Endangered Species Act has been highly successful in preventing
extinction of species. But we need to do a better job of recovering
species too. Clearer standards for recovery and stronger, more
deliberate implementation of recovery plans will go a long way to
achieving this end.
We need to make sure the Federal Government does its job too. We
forget that it is not just the expert wildlife agencies that have a
role in protecting and recovering listed species. All departments and
agencies of the Federal Government have an affirmative obligation,
expressed in the Act, to conserve endangered and threatened species,
but this obligation is mostly ignored. If Federal agencies did their
job of helping to conserve imperiled and listed species, we would be
much farther down the road to recovery for many of these species and
their habitats.
Everyone knows the U.S. Fish and Wildlife Service and NOAA
Fisheries are chronically under funded to carry out their
responsibilities under the Endangered Species Act. Interestingly, it
wouldn't take much to change that. We're talking about a mere fraction
of the money the government spends on roads, mines, timber hauls and
other ``habitat-busting'' projects. Adequate funding would help address
the listing backlog and backlog of species awaiting habitat
designation, saving money in the long run by addressing situations
before they're on the border of being too late.
And the extent to which we can make the Endangered Species Act less
contentious and more effective will only help all parties concerned,
including species. We need to ensure that the Endangered Species Act is
not politicized through the abuse of discretion, especially by
political appointees; it just invites rancor and ultimately litigation.
Same thing with lackadaisical enforcement of listing and habitat
decisions. The vigorousness with which the government enforces the
Endangered Species Act can't wax and wane with each new administration.
Finally, we must remember that the Endangered Species Act has been
given too much of a burden to bear when so many other mechanisms should
have come into play far sooner to stop species declines. We need to do
a better job of using available upstream mechanisms for species
conservation and be more creative in developing new ones so that we
never even get to the point where the Act must be triggered.
Bottom line: The Endangered Species Act is one of our nation's most
critical and essential environmental laws. Its basic premise and intent
remain as sound today as when it was first crafted. And now, more than
ever, our nation needs a strong Endangered Species Act.
The Endangered Species Act was passed to address a looming crisis
of wildlife extinction that affects us all. It is simply naive to think
we wouldn't revert to crisis mode absent a strong Federal species
protection law. And it is the height of ignorance to think, even for a
minute, that weakening the Endangered Species Act wouldn't have
dramatic and tangible consequences that would affect our entire
ecosystem, and ultimately us.
When the Nation rejoiced last month at the return of the Ivory-
billed woodpecker, Secretary Norton said that we rarely have a second
chance to save wildlife from extinction. But the Endangered Species Act
is all about first chances to do the same thing, about preventing
wildlife extinction now, just in case nature is out of miracles.
______
Responses by Jamie Rappaport Clark to Questions from Senator Inhofe
Question 1. There have been allegations of political influence or
agenda-driven science on both sides of the issue. Does this problem of
science suggest that we need specific scientific criteria and review to
make the science more credible, easier to defend and harder to ignore?
Response. The Endangered Species Act's governing standard that
decisions are to be based on the ``best scientific data available'' is
sound and has worked extremely well and should not be weakened. The
problem we have seen in recent years is, in fact, not one of science at
all but instead one of political officials often ignoring available
scientific data and information and in some cases actually overruling
scientific conclusions. I would strongly advise against imposing overly
burdensome peer review requirements beyond what is currently done as
some have suggested. Instead, the focus should be on increasing the
Services' capacity to gather and apply scientific information in a
timely fashion and to increase the transparency and consistency of the
decisionmaking process. One specific idea that has been suggested is to
establish a science advisory board somewhat like the Environmental
Protection Agency for the U.S. Fish and Wildlife Service. Increased
funding is also absolutely essential.
Question 2. You put a lot of emphasis on the notion that the number
of listed species has been greatly declining. Could this be we are
doing a better job of conserving species before the act is needed and
are we to be using the number of species listed as the gauge for
success or the number of species recovered? What is the right metric
for measuring success of the Act?
Response. I believe the reference is to the portion of my testimony
where I note that the current administration has added far fewer
species to the list (less than 10 species per year) than other previous
administrations (32 species per year under President Reagan, 58 per
year under the first President Bush and 65 per year under President
Clinton.) Unfortunately, this is not because we are doing a better job
of conserving species before the Act is needed, as evidenced by the
fact that there are currently 286 candidates awaiting protection under
the Act--nearly 30 more than the 257 candidates that made up the
backlog in 2003. Moreover, even the number of current candidates is
deceptively small in indicating the number of species that likely
deserve protection under the Endangered Species Act. The Nature
Conservancy and NatureServe have reported that 6,700 U.S. species are
vulnerable to extinction--one third of the 20,897 plants and animals
reviewed. Only a little more than 1,300 of these species are currently
listed.\1\ What the numbers seem to show is that the current
administration seems to be reluctant to give vulnerable species the
Endangered Species Act protection they need.
---------------------------------------------------------------------------
\1\ B.A. Stein, L.S. Kutner, J.S. Adams (eds.) 2000. Precious
Heritage: The Status of Biodiversity in the United States. Oxford
University Press, New York.
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A good metric for measuring the Endangered Species Act's success
is, as I stated in my testimony, its effectiveness in preventing
extinction. Of more than 1,800 species currently protected by the Act,
only 9 have been declared extinct--a 99 percent success rate.
Remembering that the Endangered Species Act was written to prevent
species from becoming extinct, not to prevent species from becoming
threatened or endangered, a grade of 99 percent is excellent no matter
whose class it is.
It is important to note also that unless we first prevent
extinction there can never be any hope of recovery. Many of the species
on the list were declining for decades before they came under the Act's
protections. Absent a significant funding and staffing increase for
Federal species protection, it is naive to expect these species to
quickly recover. This fact only lends more weight, to and increases the
importance of, the Act as an extinction prevention mechanism.
Question 3. In 1999, you testified before this subcommittee when
you were Director of the Fish and Wildlife Service in the previous
Administration. You stated that that ``designation of ``official''
critical habitat provides little additional protection to most listed
species, while it consumes significant amounts of scarce conservation
resources. We believe that the critical habitat designation process
needs to be recast as the determination of habitat necessary for the
recovery of listed species.'' How would you go about defining what
habitat is ``necessary'' so that we can avoid more litigation on this
important topic.
Response. At that time, the Fish and Wildlife Service's listing
program was still recovering from the damage done by a 1995 moratorium
that had been imposed by Congress on all Endangered Species Act listing
activities in a rider to a defense supplemental appropriations bill.
That moratorium was in place for an entire year. No funding could be
spent on any activities funded through the listing account, which
included both actual species listings as well as critical habitat
designation, with the result that an extensive backlog developed of
more than 400 species in need of listing. Once the moratorium was
lifted and the FWS could again spend funding on activities under the
listing account, the Service found that it was ``not prudent'' to use
limited listing account dollars on critical habitat designation before
more of the backlogged species could be given at least the basic
protections of the Act. Thus, the overriding priority was getting
species onto the list, getting them under the Act's protection rather
than designating critical habitat which, while important, was
overshadowed by the need to provide the Act's protection to species in
great need.
As to the issue of defining what habitat is necessary for the
recovery of listed species, the basic guideline must always be the
amount and extent of habitat scientists believe is biologically needed
for the recovery of the species, i.e. improving the species status such
that it no longer requires the Act's protection and must be delineated
on a species by species basis. At this time, a more pertinent issue is
not really the means for defining what habitat is necessary for the
recovery of listed species, but rather the legal framework in place
under the Endangered Species Act to ensure that that habitat is
effectively conserved so that species can recover and be delisted. This
is why we applaud the leadership of Senators Chafee, Clinton, Inhofe,
Jeffords, Crapo, and Lincoln in requesting The Keystone Center to
convene and facilitate a cross-sector working group on the Act's
habitat provisions. The key questions are those that were highlighted
in the request to Keystone:
1. As currently written and implemented, is the ESA adequately
protecting and conserving the habitat listed species need to
recover?
2. If not, how can the ESA be improved to better conserve
habitat and help species recover?
3. What specific changes and recommendations can the regulated
and NGO communities jointly recommend, advocate for, and help
implement?
We look forward with great eagerness and hopeful support for to the
outcome and recommendations of the Keystone Dialogue.
__________
Statement of Monita Fontaine, Member, Board of Directors, National
Endangered Species Act Reform Coalition
The Endangered Species Act (ESA) was enacted in 1973 with the
promise that we can do better in the job of protecting and conserving
our nation's resident species and the ecosystems that support them.
Today, over 30 years later, I bring that same message back to this
committee--we can, and must, do better. We have learned many lessons
over the past three decades about how and what can be done to protect
endangered and threatened species, and it is time to update and improve
the ESA to reflect those lessons.
I am here before you today on behalf of the National Endangered
Species Act Reform Coalition (NESARC), an organization of 110 national
associations, businesses and individuals that are working to develop
bipartisan legislation that updates and improves the ESA. Personally,
my organization, the National Marine Manufacturers Association (NMMA),
joined NESARC in 2003 largely due to our members' experiences with
listed marine species such as the manatee population in Florida, as
well for as the opportunity to join a diverse group of interests
working on this matter. I have the pleasure of sitting on the NESARC
Board of Directors. On behalf of the NESARC Board of Directors and, all
of the NESARC members, I want to commend the efforts being undertaken
by members of this committee, other members of the Senate and in the
House of Representatives to develop a bipartisan bill that updates and
improves the ESA. We look forward to working with the committee, its
able staff, and other members of the Senate to find common ground.
NESARC members come from a wide range of backgrounds. Among our
ranks are farmers, ranchers, cities and counties, rural irrigators,
electric utilities, forest and paper operators, mining, homebuilders
and other businesses and individuals throughout the United States. What
our members have in common is that they have been impacted by the
operation of the ESA. Frankly speaking, the burdens and rewards of
protecting listed species are borne, in a very large part, by the
members of NESARC. NESARC members are actively involved in a broad
range of species conservation efforts including:
The development of State management plans for wolf populations in
the Rocky Mountains and in Minnesota, Michigan and Wisconsin.
Recovery implementation programs such as the Upper Colorado and
San Juan Rivers Endangered Fish Recovery Implementation Program and
Platte River Endangered Species Recovery Program;
Numerous habitat conservation plans ranging from county-wide HCPs
in Southern California to single parcel plans for covering agricultural
operations; and
Observation, research and monitoring programs for listed and
candidate species.
Many environmental groups (including some of those who are
testifying today) have recognized the need for on-the-ground
partnerships. The reality is that, without the support and active
commitment to the protection of listed species by the private
landowners, businesses and communities where the species reside, the
chances of success are slim. We need to learn from the experiences of
those who are faced with the real-world decisions on how to make a
living and still protect species if we are to make the Act work better.
If we are to do a better job protecting endangered and threatened
species, we need an ESA that can fully accommodate the range of efforts
that are necessary. As detailed later in my testimony, NESARC has
developed a number of recommendations for ways to improve the ESA.
These recommendations are the product of an extensive reassessment by
NESARC members as to what improvements to the ESA would be useful for
the future implementation of the Act.
At the end of 2003, NESARC decided to look inward, to reassess the
state of the ESA's implementation on the ground and to identify the
success stories of its members in protecting endangered and threatened
species as well as those roadblocks that had to be overcome. What we
learned was that, more often than not, our members have succeeded in
protecting endangered and threatened species in spite of, rather than
because of, the ESA.
When we asked our members to share their success stories and
positive experiences, what we received were very personal observations
from the ground reporting that success is occurring--but not easily.
``Our HCP process has had some very beneficial elements, but
it's been painfully slow and costly to get there. Given the
experience, [it is] hard to endorse it for others to pursue.
Yet an HCP embodies concepts for species protection which are
very good and could be more effective. [We] advocate moving to
a system with more incentives and much greater penalties for
abuses.'' Carol Rische, Humboldt Bay Metropolitan Water
District.
``Some of the regulators that we deal with are very results-
oriented. Their practical approach has been beneficial to our
operations and beneficial to species recovery. Working together
with practical regulators to the benefit of the species has
been a positive experience.'' Tom Squeri, Granite Rock Company.
The experience of my own members within NMMA is similar--with the
hope of cooperative efforts between Federal and state agencies limited
by the realities of working within an Act that was enacted more than 30
years ago and does not provide the necessary flexibility and tools to
effectively and efficiently develop workable solutions. As many of you
know, Florida has a long history of protecting its endangered manatee
population--in which NMMA members have actively participated. As a
result of efforts led by the State of Florida and stakeholders, the
manatee population has grown from an estimated 1,465 manatees in 1991
to at least 3,142 (as documented by a 2005 aerial survey)--more than a
doubling of the population in approximately 14 years. Further, the U.S.
Fish & Wildlife Service has joined with the Florida Fish & Wildlife
Conservation Commission to begin a ``manatee forum'' which is aimed at
developing a consensus, science-based approach to continuing to protect
and enhance manatee populations in balance with marine activities.
However, such cooperative efforts remain the exception, not the norm.
As I am here today representing NESARC, I do not wish to dwell on
the particular problems facing boaters, marina operators and other
marine services; however, to the extent that the committee wishes to
hear more about the personal experiences of any of our individual
NESARC members, including NMMA, we are happy to provide that
information and brief you or your staff on particular issues of
interest.
Drawing from our members' experiences and observations, NESARC
identified a series of guideposts from which to consider future
improvements to the ESA, which include the following:
Encourage Sound Decisionmaking
Promote Innovation
Promote Certainty
Increase Funding
Reduce Economic Impacts
Increase Roles for State, Local Governments
Provide Greater Public Participation
Limit Litigation
After developing these initial guideposts, over the latter half of
2004, NESARC worked to draft a white paper which was publicly released
in November 2004. This white paper is attached to my testimony and
provides an outline of a new approach to ESA legislation that we hope
the Members of this committee will take into consideration.
In sum, a new approach is needed to change the focus of the debate
from a clash over existing terms and programs to the development of new
tools that improve the Act. We need new provisions of the Act that
encourage recovery of listed species through voluntary species
conservation efforts and the active involvement of States. This new
approach can and should maintain the goal of species conservation.
Simultaneously, we must recognize that species conservation and
recovery will only be accomplished if we can find ways to provide
stakeholders the tools and flexibility to take action and, most
importantly, certainty that quantifiable success will be rewarded by
the lifting of the ESA restrictions.
As this committee reviews ways to improve the ESA, we would ask
that you take into consideration the following proposals:
Expand and Encourage Voluntary Conservation Efforts--A universal
concern with the Act is that it does not fully promote and accommodate
voluntary conservation efforts. Many landowners want to help listed
species, but the ESA doesn't let them. A critical element of updating
and improving the Act must be the development of additional voluntary
conservation programs. These efforts should include: (1) creating a
habitat reserve program, (2) tax incentives, (3) loan or grant programs
and (4) other initiatives that encourage landowners to voluntarily
participate in species conservation efforts. Further, existing programs
like the Safe Harbor Agreements should be codified.
Give the States the Option of Being On the Front Line of Species
Conservation--In 1973, the National Wildlife Federation testified
before Congress that ``[s]tates should continue to exercise the prime
responsibility for endangered species'' and ``should be given the
opportunity to prepare and manage recovery plans and retain
jurisdiction over resident species.'' Thirty-plus years later, the
Western Governors' Association, in a February 25, 2005 letter
(attached) noted that ``[t]he [ESA] can be effectively implemented only
through a full partnership between the states and the Federal
Government'' and asked Congress to ``give us the tools and authority to
make state and local conservation efforts meaningful.''
NESARC agrees that States should have a wider role in facilitating
landowner/operator compliance with the Act and, ultimately, the
recovery of species. States have significant resources, research
capabilities and coordination abilities that can allow for better
planning of species management activities. Further, States know their
lands and are often better situated to work with stakeholders to
protect and manage the local resources and species.
Increase Funding of Voluntary and State Programs for Species
Conservation--A significant amount of Federal funding for ESA
activities is presently tied up in addressing multiple lawsuits and the
review of existing and new listing and critical habitat proposals. In
contrast, actual funding for on-the ground projects that will recover
species is limited.
Federal funding priorities need to be re-focused to active
conservation measures that ultimately serve to achieve the objectives
of the Act. Further, we need to financially support the voluntary,
community-based programs that are critical to ensuring species
recovery.
Encourage Prelisting Measures.--Recently, a nationwide coalition
of state and local governments, stakeholders and conservation
organizations worked together to develop a comprehensive sage grouse
conservation program that has been able to stand in the place of a
listing of that species under the ESA. Those efforts were supported by
many members of this committee including Senator Harry Reid of Nevada
who stated that, ``. . . I have advocated using the Farm Security and
Rural Investment Act of 2002 (Farm Bill) conservation programs to help
local communities like Elko, Nevada, engage in voluntary conservation
efforts for species like sage grouse. In fact, the Farm Bill's Wildlife
Habitat Incentives Program (WHIP) encourages private and public
agencies to develop wildlife habitat on their properties, and
specifically has directed funds to enhance habitats for sage grouse. I
know more can be done, and I am committed to improving local
conservation efforts.'' Statement of Senator Harry Reid, September 24,
2004.
Private landowners, State and local governmental agencies should be
encouraged to develop and implement programs for species that are being
considered for listing. The protections afforded by all such programs
(including existing activities) should be considered in determining
whether a listing is warranted or whether such voluntary programs,
other Federal agency programs and State/local conservation efforts
already provide sufficient protections and enhance species populations
so that application of the ESA is not necessary.
Establish Recovery Objectives--We need to be able to identify and
establish recovery objectives. Knowing what ultimately must be achieved
is a critical first step in understanding what must be done. Since the
goal of the ESA is to assure recovery of endangered and threatened
species, implementation of the ESA should reward progress when it is
made toward recovery. There must be a determination of specific
recovery goals necessary to reach the point where a species can and
will be downlisted or delisted--and there must be certainty in such a
goal so that the goal is not continually shifted to perpetuate a
listing.
Strengthen the Critical Habitat Designation Process--We need to
strengthen the critical habitat designation process by ensuring that
these designations are supported by sound decisionmaking procedures, do
not overlap with existing habitat protection measures (such as habitat
conservation plans, safe harbor agreements or candidate conservation
agreements, and other state and Federal land conservation or species
management programs) and rely on timely field survey data.
Improve Habitat Conservation Planning Procedures and Codify ``No
Surprises''--The HCP process has the potential to be a success story,
but too often private property owners are stymied by the delays and
costs of getting HCP approval. HCP approval should be streamlined, and
the HCP process must be adapted so that it is practical for the smaller
landowner. Further, landowners involved in conservation efforts need to
be certain that a ``deal is a deal.'' The ``No Surprises'' policy must
be codified under the Act and cover all commitments by private parties
to voluntary protection and enhancement of species and habitat not just
HCPs.
Ensure an Open and Sound Decision-Making Process--The ESA must be
open to new ideas and data. A good example of this principle is the
emerging data regarding the effect of boat speeds on manatees and their
avoidance mechanisms. Because the principal threat to manatees is
impact from boat propellers, Federal and state manatee-protection
policies historically have focused on slowing boats passing through
manatee habitats. However, research by Dr. Edmund Gerstein of Florida
Atlantic University and Joseph E. Blue, retired director of the Naval
Undersea Warfare Center and the Naval Research Laboratory's Underwater
Sound Reference Detachment challenges some of the existing protection
measures. This new research shows that while manatees have good hearing
abilities at high frequencies, they have relatively poor sensitivity in
the low frequency ranges associated with boat noise, which means that
manatees may be least able to hear the propellers of boats that have
slowed down in compliance with boat speed regulations designed to
reduce collisions. My point is not to suggest that there should not be
speed limits in areas occupied by manatees, but rather that we need to
make sure that our policy decisions (like setting boat speed limits)
are informed by up-to-date research. By providing for better data
collection and independent scientific review, we can ensure that the
necessary and appropriate data is available.
In addition to making sure we have better information upon which to
act, we need a decisionmaking process that allows for full public
participation in the listing, critical habitat and recovery decisions.
It has been my experience that providing full and open access to the
decisionmaking processes beyond simply the submission of letter
comments through mechanisms like stakeholder representatives and data
collection programs provides a much more diverse and ultimately
stronger record from which to act.
For more than a decade, Congress has struggled with the question of
what, if any, changes to the ESA should be made. In the interim,
stakeholders like NESARC members, have had to take the existing Act and
make it work. It has been time-consuming, expensive and often
frustrating--and the successes have been limited. Today, less than 1
percent of all listed species in the United States have been recovered.
The congressional history on ESA legislation has had its ebbs and
flows over the past 13 years with at least two distinct sets of
legislative efforts both of which ultimately failed. NESARC is not
interested in going down that same path again where stakeholders (on
both sides) re-open old battles and try to right perceived wrongs from
past court decisions. NESARC urges this committee to take stock of the
lessons we have learned and successes that have been achieved in order
to identify the improvements that are necessary to make this Act work
better in the future.
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National Endangered Species Act Reform Coalition Membership List
American Agri-Women, Mission, Texas
American Farm Bureau Federation, Washington, D.C.
American Forest and Paper Association, Washington, D.C.
American Forest Resource Council, Portland, Oregon
American Public Power Association, Washington, D.C.
Animas-La Plata Water Conservancy District, La Plata, New Mexico
Anza Electric Cooperative, Inc., Anza, California
Apache County, St. Johns, Arizona
Arizona Municipal Power Users' Association, Phoenix, Arizona
Art Homes, San Antonio, Texas
Association of California Water Agencies, Sacramento, California
Bar Eight Cattle Co., Inc., Lyman, Nebraska
Basin Electric Power Cooperative, Bismark, North Dakota
Boise-Kuna Irrigation, Kuna, Idaho
Bridger Valley Electric, Mountain View, Wyoming
Buckeye Industrial Mining Company, Lisbon, Ohio
Carlsbad Irrigation District, Carlsbad, New Mexico
Central Arizona Water Conservation District, Phoenix, Arizona
Central Electric Cooperative, Mitchell, South Dakota
Central Nebraska Public Power & Irrigation District, Holdrege, Nebraska
Central Platte Natural Resources District, Grand Island, Nebraska
Charles Mix Electric Association, Lake Andes, South Dakota
Clay-Union Electric Cooperative, Inc., Watertown, South Dakota
Codington-Clark Electric Cooperative, Inc., Watertown, South Dakota
Colorado River Energy Distributors Association, Tempe, Arizona
Colorado River Water Conservation District, Glenwood Springs, Colorado
Colorado Rural Electric Association, Denver, Colorado
County of Boise, Idaho City, Idaho
County of Catron, Reserve, New Mexico
County of Eddy, Carlsbad, New Mexico
County of Sierra, Truth or Consequences, New Mexico
CropLife America, Washington, D.C.
Dakota Energy Cooperative, Inc., Huron, South Dakota
Dixie Escalante Rural Electric Association, Beryl, Utah
Dugan Production Corporation, Farmington, New Mexico
East River Electric Power Cooperative, Madison, South Dakota
Eastern Municipal Water District, San Jacinto, California
Edison Electric Institute, Washington, D.C.
Empire Electric Association, Inc., Cortez, Colorado
Exeter Irrigation District, Exeter, California
Flathead Electric Cooperative, Kalispell, Montana
Frank Raspo and Sons, Banta, California
Garkane Power Association, Inc., Richfield, Utah
Garrison Diversion Conservancy District, Carrington, North Dakota
Helix Water District, La Mesa, California
High Plains Power, Inc., Thermopolis, Wyoming
Holy Cross Electric Association, Inc., Glenwood Springs, Colorado
Idaho County Light and Power, Grangeville, Idaho
Idaho Mining Association, Boise, Idaho
Industrial Minerals Association-North America, Calverton, Maryland
Intercounty Electric Association, Mitchell, South Dakota
International Council of Shopping Centers, Alexandria, Virginia
Kern County Water Agency, Bakersfield, California
Lyon-Lincoln Electric Cooperative, Inc., Tyler, Minnesota
Marine Industries Association of South Florida, Fort Lauderdale,
Florida
Merced Irrigation District, Merced, California
Mid-West Electric Consumers Association, Denver, Colorado
Morgan County Rural Electric Association, Ft. Morgan, Colorado
National Association of Counties, Washington, D.C.
National Association of Home Builders, Washington, D.C.
National Association of Industrial & Office Properties, Herndon,
Virginia
National Association of Realtors, Washington, D.C.
National Grange, Washington, D.C.
National Marine Manufacturers Assn., Chicago, Illinois
National Mining Association, Washington, D.C.
National Rural Electric Cooperative Association, Washington, D.C.
National Rural Water Association Washington, D.C.
National Stone, Sand and Gravel Association, Washington, D.C.
National Water Resources Association, Arlington, Virginia
Nebraska Farm Bureau Federation, Lincoln, Nebraska
Niobara Electric Association, Lusk, Wyoming
Northern Electric Cooperative, Inc., Bath, South Dakota
Northwest Horticultural Council, Yakima, Washington
Northwest Marine Trade Association, Seattle, Washington
Otero Electric Cooperative, Inc., Cloudcroft, New Mexico
Panoche Water District, Firebaugh, California
Rancho California Water District, Temecula, California
Raspo Farms, Banta, California
Rawhide Outfitters, Salmon, Idaho
Renville-Sibley Cooperative Power Association, Danube, Minnesota
Rushmore Electric Power Cooperative, Inc., Rapid City, South Dakota
San Isabel Electric Association, Pueblo, Colorado
San Joaquin County Citizens Land Alliance, Tracy, California
San Joaquin River Exchange Contractors Water Authority, Los Banos,
California
San Luis Valley Rural Electric Cooperative, Inc., Monte Vista, Colorado
San Luis Water District, Los Banos, California
Sangre De Cristo Electric Association, Inc., Buena Vista, Colorado
Southwestern Power Resources Association, Edmond, Oklahoma
Southwestern Water Conservation District of Colorado, Durango, Colorado
Sulphur Springs Valley Electric Cooperative, Willcox, Arizona
Teel Irrigation District, Echo, Oregon
Texas Aggregates and Concrete Association, Austin, Texas
Texas Crushed Stone Company, Georgetown, Texas
Toll Brothers, Inc., Huntingdon Valley, Pennsylvania
TRICO Electric Cooperative, Tucson, Arizona
Tri-State Generation & Transmission Association, Inc., Denver, Colorado
Tulelake Irrigation District, Tulelake, California
Upper Yampa Water Conservancy District, Steamboat Springs, Colorado
Washington State Potato Commission, Moses Lake, Washington
Washington State Water Resources Association, Yakima, Washington
Weber River Water Users Association, Sunset, Utah
Wells Rural Electric Company, Wells, Nevada
Western Energy Supply and Transmission, Denver, Colorado
Western Montana Electric Generation and Transmission Cooperative, Inc.,
Missoula, Montana
West Side Irrigation District, Tracy, California
Wheat Belt Public Power District, Sidney, Nebraska
Whetstone Valley Electric Cooperative, Inc., Milbank, South Dakota
Wilder Irrigation District, Caldwell, Idaho
Williamson County, Georgetown, Texas
Wyoming Water Development Association, Inc., Laramie, Wyoming
Wyrulec Company, Lingle, Wyoming
Y-W Electric Association, Inc., Akron, Colorado
______
Improving the ESA: a Potential New Approach
background
A growing number of Federal, state and local government policy-
makers and private citizens recognize shortcomings in the current
version of the Endangered Species Act and are calling for Congress to
improve the Act. For example, the Washington Post editorialized that
improvements to the Act are needed stating that:
The key to the act's future is flexibility and a more
cooperative attitude. Rather than declaring the act ``broken,''
opponents would do better to heed the example of the Texas
ranchers who have agreed to encourage the growth of endangered
species' habitat in exchange for more control over their
property, or the regulators who have tried to introduce greater
clarity and certainty to the rules. Clearly, the act would
benefit from constructive congressional attention: The law
could be made simpler, the costs more predictable.
Unconstructive attention, however, will just lead to more
antagonism and lawsuits. (Washington Post Editorial, December
29, 2003).
Despite such calls for improving the Act, a legislative stalemate
exists. On one hand, the actual authorization for the Act expired in
October 1992 with Congress (for the past 10 years) carrying forward the
implementation of the Act solely through annual appropriations. On the
other, legislative reform efforts that also would reauthorize the Act
have failed to gain the necessary political support in both the House
and Senate to be enacted into law.
Over the years, those in the public and private sector that are
subject to the restrictions of the Act have pursued reform by calling
for a series of specific changes to the existing provisions of the Act
arguing that some standards and requirements are vague or overly
restrictive and inflexible. At the same time, those that support the
current Act argue that no changes are necessary other than an increase
in Federal funding of species recovery efforts and more aggressive
implementation and interpretation of the Act by the Federal agencies.
For over a decade, these two factions have clashed, finding little, if
any, common ground and resulting in the adoption of no improvements to
the Act. It is not likely that a continued clash over specific changes
to the current sections of the Act will result in an improved
Endangered Species Act in the foreseeable future.
a potential new approach
A new approach is needed to change the focus of the debate from a
clash over existing terms and programs to developing new tools that
improve the Act. One solution is to enact new provisions of the Act
that encourage recovery of listed species through voluntary species
conservation efforts and the active involvement of States. This new
approach would maintain and further the goal of species conservation.
Species conservation and recovery justifies the need for additional
flexibility to ensure that recovery and delisting of species can and
does occur.
Below is a description of a new proposal to update and improve the
Act that would focus on the goal of saving and enhancing species,
engaging private landowners, state departments of fish and wildlife and
local governmental agencies on the front lines of species conservation,
and ensuring that Federal funding for species conservation focuses on
these incentive-based programs. The potential new approach consists of
the following major elements:
(1) Giving the States the Option of Being On the Front Line of Species
Conservation
Issue: States should have a wider role in facilitating landowner/
operator compliance with the Act and, ultimately, the recovery of
species in order to remove the restrictions of the ESA. States have
significant financial resources, research capabilities, and
coordination abilities that can allow for better planning of species
management activities. Further, States are often better situated than
Federal agencies to develop and maintain cooperative efforts between
stakeholders to protect and manage the local resources and species.
Proposal: Create an alternative path for species and habitat
conservation efforts in lieu of the restrictive, and limited,
provisions of ESA Sections 7, 9 and 10. Allow state (or local)
governments to facilitate voluntary landowner/operator efforts to
protect and enhance species. Participants in an approved State program
would be granted incidental take authorization and activities
consistent with the State program would not be subject to any
additional reviews under Section 7. Several critical elements must be
considered:
(1) Voluntary participation by landowner/operators
(2) Eliminate duplicative reviews--A single Section 7
consultation review should occur regarding the overall State
program. Once that is complete, no additional Section 7
consultations should be required for participants as long as
activities are consistent with approved State program.
(3) Ensure certainty--Participants in the State programs must
receive incidental take authorization so that they are not
exposed to ``take'' enforcement under Section 9 for activities
consistent with the State program.
(4) Encourage use of non-regulatory mechanisms--If restrictions
are placed on a participant's activities, the Secretary must
demonstrate that no non-regulatory alternatives existed to
achieve the same effect for the species.
(5) Emphasize collaboration between the landowners/operators
and the State--Affected stakeholders must be afforded the right
to fully participate in the development of the State program.
(6) Appropriate Standards for Program Approval--Establish
specific standards for Secretarial review and approval of
program with review focused on the ability of the State's
program to contribute to achieving the established recovery
objectives for the listed species within that State's borders.
(7) Flexibility--Allow State programs to cover both listed and
candidate species and involve multi-State efforts.
(8) No Surprises--Provide ``No Surprises'' type assurance that
participation in the program will be sufficient for compliance
with ESA Sections 7 and 9.
(9) Recognize Common Interests and Avoid Conflicts--Programs
that minimize the social and economically adverse impacts on
communities are more likely to garner the public support
necessary to be effective.
The State program could take a range of forms--each with their own
unique characteristics and benefits. In each case, the elements noted
above should guide the development of the legislative proposal. Among
the options that exist are:
------------------------------------------------------------------------
Options Scope
------------------------------------------------------------------------
Modified Cooperative Agreement/Management Modify existing provisions
Agreements. of Section 6 to facilitate
development of State
cooperative agreements and
management agreements.
Allow for Federal grants or
other funding of state
efforts under the
cooperative agreements and/
or management agreements.
Authorize Programmatic Activities......... Allow Secretary to conduct
Section 7 consultation on a
set of state-wide
programmatic activities
(e.g. best practices for
timber management) that
would result in incidental
take authorization for
participants employing such
practices.
Voluntary Species and Habitat Enhancement Alternative path for
Program. voluntary species recovery
efforts within State
borders.
Voluntary participants not
subject to Section 7
consultation requirement
and receive incidental take
authorization for efforts
consistent with program.
Statewide HCP............................. Modify Section 10 to
specifically allow State to
develop and implement multi-
jurisdictional habitat
conservation plan.
------------------------------------------------------------------------
(2) Expanding and Encouraging Voluntary Conservation Efforts
Issue: A universal concern with the Act is that it does not fully
promote and accommodate voluntary conservation efforts. A critical
element of updating and improving the Act must be the development of
additional voluntary conservation programs.
Proposal: Voluntary conservation efforts should be promoted by: (i)
codifying the Administration's programs for Safe Harbor Agreements and
ESA Mitigation Banks; (ii) establishing a Critical Habitat Reserve
Program (similar to the Conservation Reserve Program established under
the Farm Bill); and (iii) enacting separate legislation providing tax
incentives to promote species conservation efforts on private property.
(3) Focused Funding of Voluntary and State Programs.
Issue: A significant amount of Federal funding for ESA activities
is presently tied up in addressing multiple lawsuits and the review of
existing and new listing and critical habitat proposals. In contrast,
actual funding for on-the ground projects that will recover species is
limited. Federal funding priorities need to be re-focused away from
bureaucratic decisions and to active conservation measures that
ultimately serve to achieve the objectives of the Act.
Proposal: Re-focus species conservation funding to support the
voluntary programs and State-led initiatives described above including
the establishment of dedicated funding streams supporting voluntary
conservation efforts and State/local initiatives. Other potential
improvements could include the development of a tax ``check off'' to
support species conservation efforts in the taxpayers' particular State
or the authorization of an ``ESA Stamp'' that is dedicated to
supporting local conservation efforts.
(4) Encouraging Prelisting Measures
Issue: Too often the ESA is hurriedly invoked without consideration
of other state, local and private efforts that can and will do a better
job of protecting and improving species populations. In determining
whether listing of a species is necessary, the existing Act only
provides for a limited consideration of State programs that protect
species and does not allow the Secretary to consider voluntary programs
implemented by private landowners that also protect and enhance species
and their habitat.
Proposal: State and local governmental agencies as well as private
landowners should be encouraged to develop and implement species and
habitat programs for species that are being considered for listing. The
protections afforded by all such programs (including existing
activities) should be considered in determining whether the listing is
warranted or whether such voluntary programs, other Federal agency
programs and State/local conservation efforts already provide
sufficient protections and enhancement species populations that
application of the ESA is not necessary. As part of such determination,
the Secretary also must consider whether the designation of a species
as threatened or endangered will hinder or damage existing voluntary
conservation efforts and/or State/local programs that protect such
species.
(5) Establishing Recovery Objectives
Issue: If a listing of a species is necessary, then we need to
identify what is actually required. The present Act does not require
the establishment of recovery objectives. Knowing what ultimately must
be achieved is a critical first step in understanding what must be
done. If the Act is to be successful, there must be a determination of
specific recovery goals necessary to reach the point where a species
can be downlisted or delisted.
Proposal: In order to enhance and improve efforts for species
conservation, the Secretary would be required to determine objective
and quantifiable recovery objectives that can serve as guideposts for
voluntary conservation efforts. Once the recovery objective is met, the
Secretary shall delist or downlist that species. The determination of a
recovery objective for a listed species should be based on the best
scientific and commercial data available. Further, the Secretary must
review and revise the recovery objective 5 years after listing. Any
significant changes to the recovery objective should be subject to
notice and comment.
(6) Improving Habitat Conservation Planning Procedures and Codifying
``No Surprises''
Issue: Habitat conservation plans (HCPs) have been one of the few
mechanisms of the Act that have allowed for private conservation
efforts. However, the authorization for HCPs is limited to a single
sentence in the Act that provides no guidelines, timelines or
standards. Further, the Administration's efforts to ensure a level of
regulatory certainty in the commitments required under HCPs has been
the subject of repeated lawsuits that disrupt and undermine the HCP
program.
Proposal: The Act should separately and more comprehensively
address HCPs to ensure that the program allows for timely and more
certain implementation of these voluntary programs. In addition to
streamlining the approval of HCPs (including any required interagency
consultations or communications), more consistency must be provided in
the development of mitigation standards and necessary elements of HCPs.
The mitigation standard for HCPs should be set at a level that meets
the HCP goals while providing for minimal interference with planned or
existing activities covered by the HCP. Moreover, the ``No Surprises''
policy must be codified under the Act and procedures established which
ensure that other Federal and state agencies do not inappropriately
preempt or interfere with the administration or implementation of an
approved HCP.
(7) Ensuring an Open and Sound Decisionmaking Process
Issue: A frequent criticism of the Act is that its implementation
is hindered by poor decisionmaking procedures that rely upon inadequate
scientific data. Further, affected stakeholders are often excluded from
key elements of the decisionmaking process, which creates a level of
distrust and uncertainty.
Proposal: Listing and critical habitat designations must be based
upon the best scientific and commercial data available, with an open
and deliberate process of collecting and analyzing such data. The
proposal would require that the compilation of scientific and
commercial data (including field surveys) on species and its habitat be
performed by a panel of qualified individuals including Federal and
state agency personnel as well as public volunteers. Further, such data
should meet the requirements of the Information Quality Act and its
guidelines. Public comment should be received on the data sources to be
used, collection methodology, criteria for determining data accuracy
and the ultimate data compilation. Where there has been little or no
public comment or participation in the data compilation efforts, then
peer review should be required to ensure the sufficiency of the data
developed for the listing determination.
(8) Removing the Litigation Bottleneck
Issue: The Act is hampered by a multiplicity of lawsuits
challenging agency decisions as well as allegations of inaction by the
Federal Government. Rather than spending Federal funds on recovering
species, Interior and Commerce ESA budgets are dominated by costs
related to litigation. Moreover, the Act is increasingly being ``run''
by the priorities established through litigation rather than a measured
establishment of priorities determined by the Secretary as most
effectively protecting and enhancing listed species.
Proposal: The programs established under this proposal would be
subject to a single ``challenge'' period in a United States District
Court located in the State where the subject species is located. These
review procedures would be similar to the provisions recently adopted
under the Healthy Forest Initiative (a new Federal law streamlining
forest thinning practices). In order to have standing to challenge an
agency action, the party would have had to (1) participated in all
necessary public proceedings and comment periods on the particular
decision; and (2) provided specific written comments raising its
concerns/objections to the Secretary during the decisionmaking process.
The courts would be directed to expedite consideration and review of
any such challenges.
applicability of core principles
The program discussed above envisions the enactment of new
provisions of the Act. However, a number of the elements embodied in
this proposal such as increasing stakeholder participation,
establishing sound decisionmaking procedures and removing litigation
bottlenecks can be applied on a broader basis as well. Expanding such
reforms to all actions under the Act would allow for comparable
treatment between the existing Act and the new programs envisioned
under this proposal.
______
Responses by Monita Fontaine to Questions from Senator Inhofe
Question 1. You testified that we need a ``decisionmaking process
that allows for full public participation in the listing, critical
habitat and recovery decisions.'' Currently, at what point and how can
the public play a role in each of these decisionmaking processes? What
is generally the reason that, unlike every other environmental law,
there is not a standard, Federal public access process?
Response 1a. The public should play a more significant and active
role throughout the ESA decisionmaking process-from the receipt of a
petition for action, to the conduct of a species status review and any
final promulgation of a Secretarial decision. Presently, the public is
primarily consigned to a role of a ``commenter'' in public hearings
and/or within an announced notice and comment proceeding initiated by
the Secretary. For example, the public input process for listing and
critical habitat decisions is primarily laid out in ESA Sections
4(a)(5) and (6). Under these procedures, the Secretary must publish a
notice of the proposed regulation in the Federal Register, provide
notice and invite comment from affected State agencies and counties or
equivalent jurisdictions where the species resides, publish a summary
in a newspaper of general circulation and hold one public hearing if
requested by a person within 45 days of the general notice. The flaw in
this process is that it only brings the public into the process after
the Secretary has undertaken a review and prepared a proposed decision.
With respect to recovery plans under Section 4(f), while the
Secretary ``may'' procure the services of appropriate public and
private agencies and institutions and other qualified persons for
purpose of developing a recovery plan, there is no absolute requirement
that the public have the opportunity to participate in the development
of a recovery plan. Rather, again, the public is consigned to the
public notice and comment period after a proposed plan is developed.
In its present form, the ESA does not actively seek out the
valuable data and insight that can be provided by the public. The Act
must ensure that there are clear mechanisms by which the public can
actively participate and contribute to the decisionmaking process-
rather than being limited to commenters on proposed decisions. Further,
especially with respect to the designation of critical habitat, there
must be a more structured process for involving potentially affected
localities and property owners.
Response 1b. The primary reason that ESA implementation does not
presently provide for a robust public interest process is that the Act
does not specifically encourage public input in all stages of the
decisionmaking process. The ESA's silence regarding public involvement
is in stark contrast to provisions of the Clean Water Act, for example,
which specifically provide for ``consultation with appropriate Federal
and State agencies and other interested persons'' as part of the
establishment of water quality criteria under Section 304 (See e.g. 33
U.S.C. Sec. 1314), requires nonpoint source reports and management
agreements under Section 319 to be developed in ``cooperation with
local, substate regional and interstate entities'' which are involved
in regional planning for water quality management of water bodies (See
33 U.S.C. Sec. 1329) and requires periodic public hearings to review
applicable water quality standards (See 33 U.S.C. Sec. 1313).
NESARC supports increasing the public role in the ESA
decisionmaking process. Moreover, we do not believe that role should be
limited to additional public notice or hearing requirements. Rather,
the Secretary should specifically establish programs to seek out and
incorporate public input into the data gathering process for ESA
decisions. In particular, the submission of data and field observations
from the public regarding the presence or absence of species must be
encouraged and accommodated under the Act. Further, there must be full
and adequate consultation between the Secretary and affected States and
local parties to ensure that all parties have the ability to fully
participate in the decisionmaking process.
Question 2. You talk about setting objectives for the recovery of
species. Where in the process would you put this requirement? At
listing? At critical habitat designation?
Response. The Secretary should be required to determine objective
and quantifiable recovery objectives that can serve as guideposts for
voluntary conservation efforts concurrent with the listing decision.
This recovery objective should then be reviewed no later than 5 years
after listing (or earlier upon completion of a recovery plan). Finally,
we believe any significant changes to the recovery objective (once
established) should be subject to notice and comment.
Question 3. You mentioned in your testimony that you believe the
states should be on the ``front lines.'' What do you think the specific
role of State, local and regional wildlife agencies should be in making
Critical Habitat and listing decisions? What value should be placed on
data that these agencies contribute to the decisionmaking process?
Response. We believe State, local and regional agencies should play
a more prominent role in both the ESA decisionmaking process and in
efforts to recover and protect species.
Roles in the Decisionmaking process: The Secretary must consult,
and receive input from, State, regional and local entities that are
affected by a particular listing or critical habitat designation.
Further, data from public agencies with expertise on wildlife matters--
i.e., State, regional or local wildlife management agencies-should be
fully considered as part of the listing or critical habitat
designation. We would note that the ``value'' of such data is in its
collection and synthesis by an entity that is often actively engaged in
monitoring and managing the species and/or its habitat. However, we
would caution that the source of the data should not grant a particular
set of data any presumption-rather, the methodology , level of rigor,
extent of data (scope and period of years) and whether it has been peer
reviewed provide the appropriate measures by which the Secretary can
weigh the sufficiency of such data. For example, NESARC believes that
field observations and data are critical to establishing a complete
administrative record for listing and critical habitat designations.
The fact that field observations are compiled by a group such as a
local Farm Bureau should not color the legitimacy of the data provided.
Rather the data must be judged on the merits and sufficiency of the
underlying work undertaken in development of the report or study.
State and Local Involvement in Implementation Efforts: NESARC
strongly believes that State, local and regional agencies have a key
ability to provide resources and programs that will further voluntary
conservation efforts for listed and candidate species. From the
establishment of research programs, technical assistance and
development of standard practices (such as the Safe Harbor Programs in
North Carolina and South Carolina for Red-Cockaded Woodpeckers) that
can be voluntarily adopted by private parties, the State and local
agencies can bring their unique management expertise and resources to
bear to help private property owners conserve and protect species. It
is important that we have an ESA that takes advantage of the unique
resources that State, local and regional agencies offer. Unfortunately,
the ESA, today, does not provide a meaningful mechanism by which State
and local agencies can step into the role.
Question 4. How important is it that critical habitat designations
be based on actual verified field data demonstrating the presence of
the species? Why is it insufficient to base such designations on
scientific ``hypotheses'' that the species may 1 day be present?
Response. NESARC believes that the critical habitat designation
process must incorporate, wherever possible, the consideration of
actual verified field observations and data. In this regard, NESARC
supports establishment of decisionmaking criteria that requires the
Secretary to specifically seek out field observations and data as part
of the critical habitat review and, if such information is not included
in the administrative record for the critical habitat decision, then
the Secretary must explain the reasons that such field data was not
developed or otherwise considered.
Computer analysis and modeling have an inherent limitation-they
remain the products of the assumptions, data and algorithms used to
produce the analytical results. A set of biased or incorrect
assumptions can significantly affect any such analyses. By developing
actual verified field data, the Secretary has an initial touchstone of
fact and data from which to base his or her decision. This data should
not only serve as a primary data source, but also can serve as a
checkpoint with respect to assessing the validity of hypothetical
species presence and range estimates. Using field data and observations
in the decisionmaking process will ultimately produce a better defined
and thought-out critical habitat designation. Merely relying upon
computer models or hypothetical analyses could tend to either over-
estimate or under-estimate the necessary critical habitat designation.
Field data on species behavior, population dispersal, population trends
and habitat needs fundamentally provides a better base from which to
determine what habitat can benefit from being designated as critical
habitat.
______
Responses by Monita Fontaine to Questons from Senator Chafee
Question 1. In your opinion, how do we move away from litigation
and toward consensus driven approaches such as the one you mentioned
for the manatee population in Florida?
Response. The most effective way of promoting consensus-driven
approaches is the passage of legislation to update and improve the ESA.
The ``culture of litigation'' that pervades the ESA today is a direct
result of the lack of Congressional action on ESA improvements. At
present, environmental groups and stakeholders see the courts as the
only means to redress flaws they see in the Act's implementation.
Further, special interests use the complicated set of ESA deadlines and
mandates to push their own specific agendas.
For consensus-driven approaches to win out over litigation, the
programs and procedures must be in place. Today, the ESA does not have
a single section that authorizes or encourages voluntary conservation
programs. Further, the role of State and local agencies-which have
traditionally been a key participant in finding consensus-driven
solutions-has been limited. Developing and funding voluntary
conservation programs such as a habitat reserve program and increasing
the role of State and local governments will help remove the impetus to
litigate.
Question 2. The Kempthorne-Chafee ESA bill from the 105th Congress
contained several of the proposals listed in your testimony, yet it was
objected to by many for not being comprehensive enough. What do you
believe was the ultimate downfall of that bill?
Response. It is hard to pinpoint a single reason for why the
Kempthorne-Chafee bill was not able to win final passage in the 105th
Congress. However, a key component was the lack of bicameral,
bipartisan cooperation on the final legislative package. That is one
reason that NESARC was excited about the February 2005 joint
announcement by Senators Lincoln Chafee and Michael Crapo, Chairman
Richard Pombo and Representative Greg Walden regarding bicameral effort
to update and improve the ESA. Likewise, NESARC has noted the
bipartisan coordination within the Senate EPW Committee on ESA matters
such as the recent request for establishment of a Keystone dialog on
the role of critical habitat under the ESA. NESARC strongly supports
these bicameral, bipartisan efforts to coordinate on ESA improvements
and believe that communication between the House and Senate as well as
bipartisan development of legislation is a key element of ensuring that
a legislative package can move forward.
Question 3. We have heard from several witnesses today that
incentives for private landowners is the key to ensuring the ESA
continues as a viable Federal law. From NESARC's perspective, how well
do Federal agencies work with private landowners to provide incentives
for species conservation today?
Response. As a general matter, we believe that most Federal
agencies want to work with private landowners. The problem is not with
respect to the willingness of Federal agencies to work with private
landowners, but rather the lack of authorization under the ESA to do
so. Without specific programs and funding, it is difficult to focus
Federal agency efforts and energies on voluntary conservation programs.
Moreover, the establishment of such programs will not only provide a
mechanism by which to encourage landowner conservation efforts, but
also it will send a clear message to other Federal agencies as to the
priority that should be placed on these efforts.
May 13, 2005
Hon. Lincoln Chafee,
Chairman, Subcommittee on Fisheries, Wildlife and Water,
Dirksen Senate Office Building, Washington, DC.
ATTN: Endangered Species Act Hearing--May 19, 2005
Dear Chairman Chafee: Associated Oregon Loggers, Inc. (AOL) urges
you to support extensive update & strengthening of the Endangered
Species Act. AOL supports legislative updates of the now-ineffective
ESA in the 109th Congress, which would add balance to species
protection and the Oregon economy.
I am writing on behalf of AOL, which represents more than 1,000
logging and allied forest member companies. These companies play a
major role in management of 28 million acres of private & public
forests throughout Oregon, as contractors, purchasers and vendors of
forest management services (operators). These Oregon forest
professionals employ approximately 10,000 workers in the continuous
improvement of operation technology for the sound management of
Oregon's abundant and renewable forest resources.
In supporting ESA updates, we emphasize that the ESA has failed
because it needlessly disrupts local communities and attacks the roots
of forest stewardship vital to Oregon's rural economy. Species listings
create a legal uncertainty about the future that is difficult to
mitigate or rebuild the economic harm to business, government and
society. Over the past two decades, species listings resulted in
significant & harmful costs to society due to legal gridlock, loss of
business & jobs, displaced communities, government waste, and
unintended degradation to species and their habitat.
We agree with ESA goals, but we can do better than its 99 percent
failure rate in recovering species:
It's time to recover endangered species without endangering
American jobs & livelihoods
Independent scientific review is needed in listings and
developing recovery plans
Recovery plans must be flexible and allow local input from
landowners & communities
Allow state and local authorities more flexibility in recovery
efforts--e.g. The Oregon Plan
We can and must protect endangered species, regional economies,
and livelihoods
ESA should require a plan to help a species recover before it is
listed
We want to help improve & measure species recovery, so they can
come off the list
Our goal is to strengthen the Act in ways which will help recover
more private habitat
Thank you for the opportunity to comment. Please don't hesitate to
contact me to further discuss this matter, at: 800-452-6023, or email:
rexstorm@oregonloggers.org
Sincerely,
Rex Storm, CF
Forest Policy Manager, Associated Oregon Loggers, Inc.