<DOC>
[109 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:35459.wais]
S. Hrg. 109-914
THE ENDANGERED SPECIES ACT AND INCENTIVES FOR PRIVATE LANDOWNERS
=======================================================================
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
__________
JULY 13, 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
U.S. GOVERNMENT PRINTING OFFICE
35-459 PDF WASHINGTON DC: 2007
---------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Printing
Office Internet: bookstore.gpo.gov Phone: toll free (866)512-1800
DC area (202)512-1800 Fax: (202) 512-2250 Mail Stop SSOP,
Washington, DC 20402-0001
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 JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island BARBARA BOXER, California
LISA MURKOWSKI, Alaska THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
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
JULY 13, 2005
OPENING STATEMENTS
Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island 4
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New
York........................................................... 7
DeMint, Hon. Jim, U.S. Senator from the State of South Carolina.. 13
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma... 1
Jeffords, Hon. James M., U.S. Senator from the State of Vermont.. 10
Murkowski, Hon. Lisa, U.S. Senator from the State of Alaska...... 11
Vitter, Hon. David, U.S. Senator from the State of Louisiana..... 8
WITNESSES
Bean, Michael, Senior Attorney, Wildlife Division, Environmental
Defense........................................................ 22
Prepared statement........................................... 45
Responses to additional questions from:
Senator Inhofe........................................... 65
Senator Jeffords......................................... 66
Senator Chafee........................................... 67
Senator Clinton.......................................... 68
Senator Lautenberg....................................... 68
Senator Murkowski........................................ 69
Braasch, Sara, Regional Assistant Chief for the West, Natural
Resources Conservation Service, USDA........................... 14
Prepared statement........................................... 37
Responses to additional questions from:
Senator Inhofe........................................... 69
Senator Jeffords......................................... 70
Senator Chafee........................................... 71
Senator Clinton.......................................... 72
Senator Murkowski........................................ 73
Campos, Paul, Vice President, Governmental Affairs and General
Counsel, Home Builders Association of Northern California,
National Association of Homebuilders........................... 24
Prepared statement........................................... 52
Responses to additional questions from:
Senator Inhofe........................................... 74
Senator Jeffords......................................... 76
Senator Chafee........................................... 78
Senator Murkowski........................................ 79
Foutz, Alan, President, Colorado Farm Bureau..................... 26
Prepared statement........................................... 58
Responses to additional questions from:
Senator Inhofe........................................... 81
Senator Jeffords......................................... 83
Senator Chafee........................................... 84
Senator Murkowski........................................ 86
Jones, Marshall P. Jr., Deputy Director, U.S. Fish and Wildlife
Service........................................................ 16
Prepared statement........................................... 39
Responses to additional questions from:
Senator Inhofe........................................... 90
Senator Jeffords......................................... 91
Senator Chafee........................................... 91
Senator Clinton.......................................... 93
Senator Lautenberg....................................... 93
Senator Murkowski........................................ 94
Olszewski, Robert J., Vice President, Environmental Affairs, Plum
Creek Timber Company........................................... 28
Prepared statement........................................... 60
Responses to additional questions from:
Senator Inhofe........................................... 94
Senator Jeffords......................................... 95
Senator Chafee........................................... 95
Senator Murkowski........................................ 96
Wiseman, Laurence D., President and CEO, American Forest
Foundation..................................................... 30
Prepared statement........................................... 62
Responses to additional questions from Senator Chafee........ 97
ADDITIONAL MATERIAL
Lautenberg, Hon. Frank R., U.S. Senator from the State of New
Jersey, prepared statement..................................... 37
Statement of The National Association of Realtors................ 64
HEARING ON THE ENDANGERED SPECIES ACT AND INCENTIVES FOR
PRIVATE LANDOWNERS
----------
WEDNESDAY, JULY 13, 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 9:30 a.m. in
room 406, Senate Dirksen Building, Hon. Lincoln Chafee
(chairman of the subcommittee) presiding.
Present: Senators Chafee, Clinton, Inhofe, Jeffords,
Murkowski, DeMint, and Vitter.
Senator Chafee. Good morning.
We will open the Senate Subcommittee on Fisheries, Wildlife
and Water of the Senate Committee on Environment and Public
Works.
I will turn to Chairman Inhofe for an opening statement.
OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
THE STATE OF OKLAHOMA
Senator Inhofe. I appreciate that very much.
We have a conflict in the Armed Services Committee that has
required attendance attached to it, so I first of all just
thank you for holding this important hearing on updating the
Endangered Species Act. I look forward to hearing from the
witnesses regarding the involvement of voluntary species
conservation and recovery program.
As Chairman of the Environment and Public Works Committee,
what the ESA has implemented is of keen interest to me as I
consistently hear from people in my State of Oklahoma and how
they struggle to balance the presence of species on their land
with their need to make a living. Sometimes we in Washington
forget people need to make a living to pay for all this fun we
are having here.
According to the Fish and Wildlife Service, nearly two-
thirds of the listed species reside on private lands. It is
clear then that the Government must work with landowners not in
spite of them if we want to make any meaningful strides at
species recovery, the primary goal of the Act.
President Bush recognized this issue in 2004 when he signed
Executive Order No. 13352 ensuring that Federal Agencies pursue
new cooperative conservation actions designed to involve
private landowners rather than make mandates they must fulfill.
The Fish and Wildlife Service has created some programs to
encourage landowner participation and provide them with
guarantees that their good deed will not be undone. The
Partners of Fish and Wildlife programs is an excellent example.
I had a hearing in my State of Oklahoma on this and we had
testimony from our landowners on how great it was to be working
with Fish and Wildlife, with the bureaucracy and accomplishing
things and this is something they were not doing for Federal
dollars because the match is very small; they were doing it to
be cooperative. That program needs to be enhanced and I think
we are planning to do that with other legislation.
As we begin considering legislative changes to the Act, I
will be seeking ways to address the perverse incentives for
landowners who find endangered and threatened species on their
land. The Endangered Species Act contains numerous prohibitions
but contains pitifully few incentives to actively create and
preserve habitat on private lands. As an unintended result,
landowners are encouraged to make their land as inhospitable as
possible in order to avoid overly burdensome and often
economically devastating regulation.
I am looking forward to recommendations from the witnesses
as to how to create a comprehensive incentive strategy that
addresses the needs of all kinds of private landowners. We must
be careful not to craft a one size fits all strategy. For
example, some of the current incentive programs work for one
time events like timber cutting and land development but not
for ongoing operations like ranching and farming. In addition,
many incentives programs are too expensive and time consuming
for the small landowner. I would want to ensure that we create
a full complement of landowner incentives to address site
specific needs.
Another critical component to meaningful landowner
incentives is the inclusion of assurances for landowners who
take action to conserve and recover species on his or her land.
They need to know a deal is a deal. When a private landowner
enters an agreement to actively manage their land for a
species, they should receive guarantees that the Government
cannot continually ask them to do more.
Finally, landowner incentive programs need to contain real
incentives and not simply be a way to avoid regulation. We need
to ensure a true benefit to the landowner.
There will be other priorities for me as we begin looking
at the legislation to update the Act. For example, the Fish and
Wildlife Service is currently being inundated with lawsuits. I
am concerned that resources that could be used in on-the-ground
conservation are being diverted to defend lawsuits. 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 sound science, so I will be
interested in incorporating the use of independent science in
decision-making.
Additionally, I have never believed that it makes sense
that the Service should be precluded from considering economic
costs when deciding whether or not to list a species as
endangered or threatened. The Service can and must consider
that when designating critical habitat, this requirement should
be extended to other decisions being made. This analysis should
also consider the impacts to landowners who would be directly
affected. The example I have often used is in my State of
Oklahoma is the Arkansas Shiner. We had testimony about two
years ago that the cost to landowners in that particular water
area was something like $700 per farm. These things that have
to be considered.Finally, I also believe that those affected
most by the Service's decisions should be directly involved in
making them. This includes States and local entities as they
have the closest knowledge of the species, its habitat and
local conditions.
I look forward to working with the members of the Committee
on legislation to update the Endangered Species Act so that it
creates positive incentives to protect and recover species
while at the same time safeguarding property rights and giving
landowners meaningful and lasting assurances.
Mr. Chairman, you have a tough job. We went through this
before, and there will be a lot of people pulling in all
directions. We want to get something constructive done that
will protect species and will protect homeowners' rights.
[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 hearing on
updating the Endangered Species Act (ESA). I look forward to hearing
from the witnesses regarding their involvement in voluntary species
conservation and recovery programs. As Chairman of the Environment and
Public Works Committee, the way the ESA has been implemented is of keen
interest to me as I consistently hear from people in Oklahoma and how
they struggle to balance the presence of species on their land with
their need to make a living.
According to the Fish and Wildlife Service, nearly two-thirds of
listed species reside on private lands. It is clear, then, that the
government must work with landowners, not in spite of them, if we want
to make any meaningful strides at species recovery, the primary goal of
the Act. President Bush recognized this issue in 2004 when he signed
Executive Order 13352 ensuring that Federal agencies pursue new
cooperative conservation actions designed to involve private landowners
rather than make mandates that they must fulfill. The Fish and Wildlife
Service has created some programs to encourage landowner participation
and provide them with guarantees that their good deeds will not be
undone. The Partners for Fish and Wildlife program is an excellent
example of this and why I was pleased to author the program's
authorizing legislation, which passed the Senate unanimously last
month. At a recent field hearing in Oklahoma on this program,
landowners, government and environmental groups all expressed
incredible enthusiasm for it. It is clear that, when done properly,
voluntary conservation agreements really can work.
As we begin considering legislative changes to the act, I will be
seeking ways to address the perverse incentives for landowners who find
endangered or threatened species on their land. The Endangered Species
Act contains numerous prohibitions but contains pitifully few
incentives to actively create and preserve habitat on private lands. As
an unintended result, landowners are encouraged to make their land as
inhospitable as possible in order to avoid overly burdensome and often
economically devastating regulation.
I am looking forward to recommendations from the witnesses as to
how to create a comprehensive incentive strategy that addresses the
needs of all kinds of private landowners. We must be careful not to
craft a one-size-fits all strategy. For example, some of the current
incentive programs work for one-time events, like timber cutting or
land development, but not for ongoing operations, like ranching and
farming. In addition, many incentive programs are too expensive and
time-consuming for the small landowner. I will want to ensure that we
create a full complement of landowner incentives to address site-
specific needs.
Another critical component to meaningful landowner incentives is
the inclusion of assurances for landowners who take action to conserve
and recover species on his or her land. They need to know that a ``deal
is a deal.'' When a private landowner enters into an agreement to
actively manage their land for species, they should receive guarantees
that the government cannot continually ask them to do more. Finally,
landowner incentive programs need to contain real incentives and not
simply be a way to avoid regulation. We need to ensure a true benefit
to the landowner.
There will be other priorities for me as we begin looking at
legislation to update the Act. For example, the Fish and Wildlife
Service is currently being inundated with lawsuits. I am concerned that
resources that could be used in on-the-ground conservation are being
diverted to defend lawsuits. 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 sound science so I
will be interested in incorporating the use of independent science in
decision-making.
Additionally, I have never believed that it makes sense that the
Services should be precluded from considering economic costs when
deciding whether or not to list a species as endangered or threatened.
The service can and must consider them when designating critical
habitat and this requirement should be extended to other decisions made
by the Services. This analysis should also consider the impacts to
landowners who may be indirectly affected. For example, when the Fish
and Wildlife Service first attempted to designate critical habitat for
the Arkansas Shiner, the U.S. District Court threw out their economic
assessment because they only considered the impact on the agencies
involved and did not consider the effects on downstream farmers and
ranchers, like the ones in Oklahoma.
Finally, I also believe that those affected most by the Services'
decisions should be directly involved in making them. This includes
States and local entities, as they have the closest knowledge of the
species, its habitat and local conditions.
I look forward to working with the members of the committee on
legislation to update the Endangered Species Act so that it creates
positive incentives to protect and recover species while at the same
time safeguarding property rights and giving landowners meaningful and
lasting assurances.
Thank you, Mr. Chairman, for holding this important hearing and I
look forward to hearing the testimony.
Senator Chafee. That is the goal. Thank you, Mr. Chairman.
OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE
STATE OF RHODE ISLAND
I welcome you today to the Subcommittee's second hearing on
the Endangered Species Act. In the 105th Congress, Senators
Dirk Kempthorn and John Chafee initiated a process to take a
hard look at improving the Endangered Species Act which
culminated in the introduction and Committee passage of S.
1180, the Endangered Species Recovery Act of 1997. One of the
consensus items included in this bipartisan bill was a package
of voluntary incentives for private landowners to protect
threatened and endangered species and their habitats.
As this Subcommittee gears up to review the Act nearly 8
years later, we are once again hearing a great deal of interest
from a variety of interested parties about the importance of
incentives for landowners to protect species on private lands.
According to the U.S. Fish and Wildlife Service, over 70
percent of the Nation's landscape is in private ownership and
nearly two-thirds of federally listed species are found on
private lands.
With many threatened and endangered species solely
dependent upon private lands for their survival, the goals of
the Endangered Species Act cannot be attained unless Federal
incentives are available for voluntary participation of the
private sector in species protection.
We have invited a range of witnesses to appear before us
today to discuss existing Federal programs to protect federally
listed species on private lands. In addition, we will also hear
from a number of witnesses on new and innovative partnerships
underway at the Federal, State and local levels to encourage
private landowners to provide needed habitat for species.
The U.S. Fish and Wildlife Service and the Natural
Resources Conservation Service both have hands-on experience
working with private landowners. Programs such as the Safe
Harbor agreements, habitat conservation plans, Partners for
Fish and Wildlife and the Wildlife Habitat Incentives Program
are just a few of the tools used by these Federal agencies.
Through these programs positive incentives are created to
reward landowners for protecting and conserving threatened and
endangered species and their habitats. Further, several of the
Fish and Wildlife Service's voluntary programs provide the
needed certainty, as Senator Inhofe mentioned, to landowners
that their day-to-day permitted activities will not result in
enforcement as long as the terms of their agreements are met.
One example of a successful voluntary program is an effort
by the Fish and Wildlife Service and Environmental Defense to
work with private landowners in North Carolina Sand Hills to
protect the Red Cockaded Woodpecker ranging in size from 8 to 9
inches, from beak to tail tip. The Red Cockaded Woodpeckers
were designated as endangered in 1970 throughout its entire
ranch which extends from Texas east to Florida and north into
Virginia. The species require a mature, pine forest with some
trees at least 60-80 years old. Once common throughout the
southeast, the bird declined precipitously along with its
habitat of approximately 60-90 million acres. Representing the
Nation's first Safe Harbor Agreement, landowners in North
Carolina agreed to manage long leaf pine forests to benefit the
Red Cockaded Woodpecker. We will hear more about this effort
from witnesses on our second panel.
Other species have been protected in similar fashion
including the California Red-Legged Frog known as Mark Twain's
legendary jumping frog of Calaveras County which was once found
throughout California from the State's coastal streams to the
Sierra foothills. The species now has disappeared from 70
percent of its historic range.
The Swallow Tail Butterfly, 1 of the first insects
protected under the Endangered Species Act and found only in
the hardwood hammocks of the Florida Keys is being focused on
by the Fish and Wildlife Service and the University of Florida
for development of agreements with private landowners to
promote conservation efforts.
The Klamath Basin in California and Oregon is another area
where private lands and species protection have clashed in
recent years, but renewed focus has been placed on incentives
for landowners. In 2001, the concern in the Klamath Basin was
over water for farmers versus endangered sucker fish. Today a
new problem has arisen with record low numbers of salmon
reaching the salmon fisheries along the coastline between Point
Sur in Central California and Cape Falcon in Oregon.
Efforts are underway in the Basin to resolve this problem
by providing incentives to the area landowners through a
Federal Government buy out of interests in water and farmlands
from willing sellers. Both the Fish and Wildlife Service and
RCS are involved in these efforts.
We will also hear from landowners themselves today and
environmental organizations that are on the ground providing
technical assistance and educational opportunities to
landowners about voluntary incentives for species protection.
The Colorado Farm Bureau, American Forest Foundation,
Environmental Defense, Plum Creek Timber Company and the
National Association of Homebuilders will touch on a wide range
of incentives for private landowners being utilized for species
conservation.
I also look forward to the recommendations these witnesses
might have for additional Federal programs and other Federal
incentives that deserve more careful consideration in the
months ahead. As this Subcommittee begins to look at
reauthorizing the Endangered Species Act, I appreciate the
willingness of today's witnesses to come before us and speak on
the subject of incentives for private landowners. This is a
topic that deserves special attention and an area where I
believe we may be able to find a great deal of consensus.
[The prepared statement of Senator Chafee follows:]
Statement of Hon. Lincoln Chafee, Senator from
the State of Rhode Island
The hearing will come to order. Good morning.
As Chairman of the Subcommittee on Fisheries, Wildlife, and Water,
I welcome you today to the Subcommittee's second hearing on the
Endangered Species Act.
In the 105th Congress, Senators Dirk Kempthorne and John Chafee
initiated a process to take a hard look at improving the Endangered
Species Act, which culminated in the introduction and Committee passage
of S. 1180, the Endangered Species Recovery Act of 1997. One of the
consensus items included in this bipartisan bill was a package of
voluntary incentives for private landowners to protect threatened and
endangered species and their habitats.
As this Subcommittee gears up to review the Act nearly 8 years
later, we are once again hearing a great deal of interest from a
variety of interested parties about the importance of incentives for
landowners to protect species on private lands.
According to the U.S. Fish and Wildlife Service, over 70 percent of
the nation's landscape is in private ownership and nearly two-thirds of
federally-listed species are found on private lands.
With many threatened and endangered species solely dependent upon
private lands for their survival, the goals of the Endangered Species
Act cannot be attained unless Federal incentives are available for
voluntary participation of the private sector in species protection.
We have invited a range of witnesses to appear before us today to
discuss existing Federal programs to protect federally-listed species
on private lands. In addition, we will also hear from a number of
witnesses on new and innovative partnerships underway at the Federal,
State and local levels to encourage private landowners to provide
needed habitat for species.
The U.S. Fish and Wildlife Service and Natural Resources
Conservation Service both have hands on experience working with private
landowners. Programs such as Safe Harbor Agreements, Habitat
Conservation Plans, Partners for Fish and Wildlife, and the Wildlife
Habitat Incentives Program are just a few of the tools used by these
Federal agencies.
Through these programs, positive incentives are created to reward
landowners for protecting and conserving threatened and endangered
species and their habitats. Further, several of the Fish and Wildlife
Service's voluntary programs provide the needed certainty to landowners
that their day-to-day permitted activities will not result in
enforcement as long as the terms of their agreements are met.
One example of a successful voluntary program is an effort by the
Fish and Wildlife Service and Environmental Defense to work with
private landowners in the North Carolina Sandhills to protect the Red-
cockaded Woodpecker. Ranging in size from about 8 to 9 inches from beak
to tail tip, the Red-cockaded Woodpecker were designated as endangered
in 1970 throughout its entire range which extends from Texas east to
Florida and north into Virginia. The species requires a mature pine
forest, with some trees at least 60 to 80 years old. Once common
throughout the Southeast, the bird declined precipitously along with
its habitat of approximately 60 to 90 million acres.
Representing the nation's first Safe Harbor Agreement, landowners
in North Carolina agreed to manage long-leaf pine forest lands to
benefit the Red-cockaded Woodpecker. We will hear more about this
effort from witnesses on our second panel.
Other species have been protected in a similar fashion, including
the California red-legged frog known as Mark Twain's Legendary Jumping
Frog of Calaveras County which was once found throughout California
from the State's coastal streams to the Sierra Nevada foothills. The
species has now disappeared from 70% of its historic range.
The Schaus Swallowtail Butterfly 1 of the first insects protected
under the Endangered Species Act and found only in the hardwood
hammocks of the Florida Keys is being focused on by the Fish and
Wildlife Service and University of Florida for the development of
agreements with private landowners to promote conservation efforts.
The Klamath Basin in California and Oregon is another area where
private lands and species protection have clashed in recent years, but
renewed focus has been placed on incentives for landowners. In 2001,
the concern in the Klamath Basin was over water for farmers versus the
endangered suckerfish. Today, a new problem has arisen with record low
numbers of salmon reaching the salmon fisheries along the coastline
between Point Sur in central California and Cape Falcon in northern
Oregon.
Efforts are underway in the Basin to resolve this problem by
providing incentives to area landowners through Federal government
buyouts of interests in water and farmlands from willing sellers. Both
the Fish and Wildlife Service and NRCS are involved in these efforts.
We will also hear from the landowners themselves today, and
environmental organizations that are on the ground providing technical
assistance and educational opportunities to landowners about voluntary
incentives for species protection.
The Colorado Farm Bureau, American Forest Foundation, Environmental
Defense, Plum Creek Timber Company, and the National Association of
Homebuilders will touch on a wide range of incentives for private
landowners that are being utilized for species conservation. I also
look forward to the recommendations these witnesses might have for
additional Federal programs and other financial incentives that deserve
more careful consideration in the months ahead.
As this Subcommittee begins to take a look at reauthorizing the
Endangered Species Act, I appreciate the willingness of today's
witnesses to come before us and speak on the subject of incentives for
private landowners. This is a topic that deserves special attention,
and an area where I believe we may be able to find a great deal of
consensus.
Thank you.
Thank you, and welcome, Ranking Member Senator Clinton.
Would you like to go next?
OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR
FROM THE STATE OF NEW YORK
Senator Clinton. Thank you, Mr. Chairman. Thank you for
holding this hearing. It is a pleasure to have your leadership
as we hold our second Subcommittee hearing on the Endangered
Species Act.
Our first hearing was a general look at the Act and I took
that opportunity to explain my basic views about the issue and
about the Act which I want to briefly reiterate.
First, I believe the goal of preserving our plant and
animal heritage is important for both practical and moral
reasons. Second, I think it is clear that the Act has been
successful in achieving its primary goal which is to prevent
the extinction of species that are in danger of disappearing
forever. Third, and this leads to our hearing today, this Act,
like anything in human activity, can be improved to better
achieve the goal of species recovery.
Like Senator Chafee, I am working hard to understand the
potential opportunities for improvement but it is clear to me
that 1 of the areas about which there is consensus is that we
need to provide additional incentives for private landowners to
take an active role in conserving rare plants and animals, both
those already listed as threatened and endangered and those on
their way towards being listed.
The reasons are clear. First, more than 70 percent of U.S.
land is in private hands and nearly two-thirds of our
threatened and endangered species are found on private lands.
Unless we can help species recover on private lands, we simply
are not going to be able to fully meet the goals of the
Endangered Species Act.
As Mr. Bean points out in his testimony, species recovery
often requires active habitat management which is neither
required by the Endangered Species Act nor free of charge. So
if we are going to get private landowners more involved, we do
need better incentives. There is nearly universal agreement on
the need to provide additional financial incentives to conserve
threatened and endangered species. I think all of our witnesses
in their prepared testimony have touched on this issue and I
think there are a range of things we should consider from tax
incentives to new grant programs to making better use of USDA
and other existing conservation funding programs to better
target Endangered Species Act goals. I look forward to
exploring what is the best mix of these potential financial
incentives.
In addition, I think there is general agreement that there
ought to be appropriate regulatory incentives to help
landowners promote conservation for both listed and candidate
species, but there is some controversy about what that means. I
think that is reflected in the testimony that will be presented
today.
As a general matter, I think it is important that any
regulatory incentives take into account and provide for the
uncertainty that is a fact of life when it comes to dealing
with life or with endangered species.
Mr. Chairman, I look forward to our witness testimony and
the work of the Subcommittee on this important issue.
Senator Chafee. Thank you, Senator Clinton.
Senator Vitter.
OPENING STATEMENT OF HON. DAVID VITTER, U.S. SENATOR FROM THE
STATE OF LOUISIANA
Senator Vitter. Thank you, Mr. Chairman.
I want to thank you for calling this very important
hearing. I also thank the witnesses for being here and
participating.
Certainly in Louisiana, as elsewhere, landowners play a
vital role in the conservation of endangered and threatened
species because, as noted, so much of the habitat, so many of
the species are found on private land. I think that providing
landowners with clear and compelling incentives to conserve
species is a much better way to encourage conservation rather
than discourage landowners with penalties and burdensome
regulations disrupting an endangered species residing on their
land.
Clearly, there is much room for improvement. Only 10 of the
1,264 species listed in North America have been recovered in
the 30 years since the Endangered Species Act was enacted. That
is a recovery rate of less than 1 percent. Clearly, the time
has come to strengthen and improve this Act to do a better job
of proactively recovering endangered species.
I want to touch on a few species important to Louisiana and
a few ongoing concerns important to Louisiana. Louisiana is
home to a threatened species, the Louisiana Black Bear, and the
Black Bear Conservation Committee is a really good example of a
landowner incentive assistance program. The Louisiana Black
Bear relies on the bottom land forest for its habitat and 90
percent of such forests are on private land. Therefore it is
clearly necessary to proactively involve and incentivize
private landowners in the recovery efforts.
Another concern is the Red Cockaded Woodpecker, something
that has been mentioned. There is a Safe Harbor Agreement
between the Louisiana Department of Wildlife and the U.S. Fish
and Wildlife Service. The agreement gives both agencies
flexibility to provide landowners protection when they agree to
voluntarily manage their property for the conservation of that
woodpecker. That is another good model we can build on.
Another important concern is the Ivory Bill Woodpecker.
There has been recent reappearance in Arkansas of the Ivory
Bill Woodpecker. Until that recent rediscovery, the River
National Wildlife Refuge in Louisiana was the last documented
home of that species which was thought to be extinct. I look
forward to working on this recovery toward the goal of full
recovery.
Finally, I would be remiss if I didn't touch on the Eastern
Oyster and this is a very different concern in terms of
endangered species. In January 2005, a petition was filed as
part of an effort to place the Eastern Oyster, native to the
Gulf of Mexico and the Chesapeake Bay, on the Endangered
Species List. While the supply of the Eastern Oyster may be
dwindling in the Chesapeake Bay, nothing could be further from
the truth in the Gulf of Mexico. That oyster is plentiful,
abundant and flourishing in the Gulf of Mexico. The problem is
that if the Eastern Oyster is put on the Endangered Species
List for all geographic locations including the Gulf, it is a
huge threat to our vibrant oyster industry. This is an economic
impact of $286 million, the State harvests 250 million pounds
of the 750 million pounds of oysters harvested nationally. In
2003, Louisiana ranked number one in the Nation according to
the National Marine Fisheries Service. It is a very specific
concern I have with regard to this issue.
I am not sure there is proper allowance in the law to
distinguish between different geographic locations of the same
species and I am going to be filing a very narrowly tailored
bill in the Senate on this particular oyster issue, a companion
bill to a House bill already filed by Bobby Jindal in the
House.
I look forward to follow up on all of these issues.
Thank you, Mr. Chairman.
[The prepared statement of Senator Vitter follows:]
Statement of Hon. David Vitter, U.S. Senator from
the State of Louisiana
Mr. Chairman, thank you for holding this hearing today on the
Endangered Species Act and landowner incentive-based approaches for
protecting listed species. I also want to thank our witnesses for
coming to testify about this very important issue. I am interested in
hearing what the witnesses have to say about improving the use of
incentives to recover endangered species.
In Louisiana, landowners play a vital role in the conservation of
endangered and threatened species because much of the habitat is found
on private land. Landowners should not have to pay all the expenses of
species recovery. Most landowners who are willing can not always afford
to pay the costs associated with managing their land to improve
protection of endangered species. Providing landowners with incentives
is a better way to encourage conservation rather than discourage
landowners with penalties and burdensome regulations for disrupting an
endangered species residing on their land.
Only 10 of the 1,264 species listed in North America have been
recovered in the 30 years since the Endangered Species Act was enacted.
That is a recovery rate of less than 1%. The time has come to
strengthen and improve the Endangered Species Act to do a better job of
recovering endangered species.
Louisiana is home to the threatened Louisiana black bear and the
endangered red-cockaded woodpecker. The Black Bear Conservation
Committee is a good example of a Landowner Incentive Assistance
Program. The Louisiana Black Bear relies on the bottomland forests for
its habitat. Ninety percent of bottomland forests are on private lands.
Therefore, it is necessary to involve private landowners in recovery
efforts.
Another good example of a landowner incentive program working in
Louisiana to conserve the endangered red-cockaded woodpecker is a Safe
Harbor agreement between the Louisiana Department of Wildlife and U.S.
Fish and Wildlife Service. The agreement gives both agencies
flexibility to provide landowners protection when they agree to
voluntarily manage their property to conserve red-cockaded woodpecker.
I am excited by the recent reappearance in Arkansas of the Ivory-
billed woodpecker. Until the recent rediscovery, the Tensas River
National Wildlife Refuge in Louisiana was the last documented home of
the ivory-billed woodpecker that was thought to be extinct. I look
forward to its full recovery.
The key to achieving success in recovering endangered and
threatened species is through incentive-based programs and building
partnerships. We should continue to examine ways to improve incentives
for species recovery at the local and private landholder levels.
Landowners need the encouragement, financing and support of the
government to work to restore endangered species.
Another concern I have about the Endangered Species Act is species
can be listed based solely on a single petition if it is deemed to be
the best scientific data available. In January 2005, a petition was
filed as an effort to place the Eastern Oyster, native to the Gulf of
Mexico and the Chesapeake Bay, on the endangered species list. While
supplies of the Eastern Oyster may be dwindling in the Chesapeake Bay,
those in the Gulf of Mexico are plentiful. If listed as endangered, it
could halt oyster harvesting and cause great harm to Louisiana's oyster
industry, fishermen and Louisiana's economy. The listing of endangered
or threatened species needs to be based on real science.
The Louisiana oyster industry has an economic impact of $286
million, according to the Louisiana Department of Wildlife and
Fisheries. The State harvests 250 million pounds of the 750 million
pounds of oysters harvested nationally each year. In 2003, Louisiana
ranked number 1 in the nation, according to the National Marine
Fisheries Service.
I look forward to hearing from our witnesses about the use of
landowner incentive programs to protect and prevent the extinction of
species. Once again, thank you, Mr. Chairman for your efforts to
organize this hearing.
Senator Chafee. Thank you, Senator Vitter.
I don't believe you are supposed to eat oysters within a
month without an ``R,'' is that right? We will have to wait
until September.
Senator Jeffords.
OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM
THE STATE OF VERMONT
Senator Jeffords. With the help of the Fish and Wildlife
Service, my State of Vermont is currently developing a
landowners incentive program to provide technical and financial
assistance to private landowners on 115 at risk species of
plants and animals in Vermont.
The incentives program developed by the Fish and Wildlife
Service and the Natural Resources Conservation Service provide
both financial and legal incentives to private landowners and
valuable conservation tools. The success of the Partners for
Fish and Wildlife Program promoted this Subcommittee to pass S.
260 authorizing the program.
The Lake Champlain Fish and Wildlife Resources Office,
Partners for Fish and Wildlife Program, has completed 30
projects that restore or enhance the streams, wetlands, upland
forest habitats in Vermont and the Lake Champlain Watershed of
New York.
I look forward to hearing more about safe harbor
agreements, habitat conservation plans and the other landowner
incentive programs and their successes and your views on the
innovative partnership that can provide additional species
protections while giving private landowners needed assurances.
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, Mr. Chairman, for holding this second in a series of
hearings on the Endangered Species Act.
I also want to thank all of the witnesses for taking the time to
share their views with the Subcommittee today.
Because almost three-quarters of federally listed threatened and
endangered species are found on private lands, providing incentives to
private landowners to protect species from extinction is extremely
important.
With help from the Fish and Wildlife Service, my State of Vermont
is currently developing a landowners incentive program to provide
technical and financial assistance to private landowners directed at
115 at-risk species of plants and animals in Vermont.
The incentives programs developed by the Fish and Wildlife Service
and the Natural Resources Conservation Service provide both financial
and legal incentives to private landowners and are a valuable
conservation tool.
The success of the Partners for Fish and Wildlife program, prompted
this Committee to pass S. 260, authorizing the program.
The Lake Champlain Fish and Wildlife Resources Office's Partners
for Fish and Wildlife Program has completed 30 projects that restored
or enhanced streams, wetlands upland forest habitats in Vermont and the
Lake Champlain watershed of New York.
I look forward to hearing more about safe harbor agreements,
habitat conservation plans, and the other landowner incentive programs,
their successes, and your views on other innovative partnerships that
can provide additional species protections, while giving private
landowners needed assurances.
Thank you, Mr. Chairman.
Senator Chafee. Thank you, Senator Jeffords.
Senator Murkowski.
OPENING STATEMENT OF HON. LISA MURKOWSKI, U.S. SENATOR FROM THE
STATE OF ALASKA
Senator Murkowski. Thank you for the hearing this morning
and for your effort in pursuing the issue of the Endangered
Species Act reauthorization and reform. It is critical that we
find ways to make the Act function more effectively by building
on its strengths rather than compounding its weaknesses.
With the majority of lands in the United States in private
hands, as you mentioned in your opening remarks, and with those
lands holding significant numbers of the species currently
listed as threatened or endangered, it is timely to address the
issues of incentives. It is difficult to understand the reasons
that incentives are so important without also reviewing some of
the serious shortcomings of the current laws.
There are 2 aspects of the law that have very serious
implications for property owners. First is the definition of
taking as an activity that may occur on private land. It is
extremely broad and the punishment for a taking is extremely
serious. Not every interaction with a species or its habitat is
detrimental, yet there are some advocacy groups that appear to
take the view that any change from status quo, no matter how
slight or accidental, does indeed constitute a punishable
offense. This creates a situation in which private owners are
under constant threat where even everyday activities may be
viewed with alarm by 1 group or another, with dire consequences
for the landowner.
Second, there is the judicial issue. Any private party,
including the most radical environmental rights advocacy
groups, can force a landowner into a position of having to
defend himself or herself in court against charges that the
landowner's activities lead to a taking, potentially at great
cost even if the landowner is eventually exonerated.
I believe we must come to grips with these 2 issues before
any incentives for species-conscious land management can truly
be successful. As our witnesses will speak to this morning,
there have been a number of efforts to craft the equivalent of
``hold harmless'' provisions conditioned on landowners taking
certain pre-approved steps. While these efforts are laudable,
we recognize the problems I just mentioned continue to exist,
providing evidence that those efforts appear to be less than
fully successful. If they were enough by themselves, perhaps we
wouldn't have to be here this morning discussing how we might
be looking to reform or make better the Endangered Species Act.
In my State of Alaska, we are fortunate to be 1 of those
States that has relatively few of the species listed under the
Endangered Species Act. We work hard to keep it that way by
being good stewards of our resources. However, we also have the
lowest percentage of private lands of any State in the Nation,
I believe. We have just 10 percent of our State that is private
land, so we are in a different situation than many of the other
States represented here today.
Despite that, even in Alaska landowners have reason to fear
lawsuits alleging an ESA taking. The concern is real. So I look
forward to hearing the remarks from the witnesses this morning
about the incentives and how they might work to better enhance
the Endangered Species Act by building on the strengths of the
Act rather than focusing on the weaknesses.
Thank you.
[The prepared statement of Senator Murkowski follows:]
Statement of Hon. Lisa Murkowski, U.S. Senator from
the State of Alaska
Mr. Chairman, I want to thank you for continuing to pursue the
issue of Endangered Species Act reauthorization and reform. It is
critical that we find ways to make the Act function more effectively by
building on its strengths rather than compounding its weaknesses.
With the majority of the lands in the United States in private
hands, and those lands holding significant numbers of the species
currently listed as threatened or endangered, it is timely to address
the issue of incentives.
However, I think it is difficult to understand the reasons that
incentives are so important without also reviewing some of the current
law's serious shortcomings.
There are 2 aspects of the law that have very serious implications
for property owners. First, the definition of ``taking'' as an activity
that may occur on private lands under is extremely broad and the
punishment for a taking is extremely serious. Not every interaction
with a species or its habitat is detrimental, yet there are some
advocacy groups that appear to take the view that any change from
status quo, no matter how slight or accidental, does indeed constitute
a punishable offense. This creates a situation in which private
landowners are under constant threat that even everyday activities may
be viewed with alarm by 1 group or another, with dire consequences for
the landowner.
Second, there is the judicial issue. Any private ``citizen''
including the most radical animal rights advocacy groups can force a
private landowner into a position of having to defend himself in court
against charges that the landowner's activities lead to a ``taking''
potentially at great cost even if the landowner eventually is
exonerated.
Mr. Chairman, I believe we must come to grips with these 2 issues
before any incentives for species-conscious land management can be
truly successful. As our witnesses will attest, there have been a
number of efforts to craft the equivalent of ``hold-harmless''
provisions conditioned on landowners taking certain pre-approved steps.
Those efforts are laudable, but since the problems I cited a moment
ago continue to exist, those same efforts appear to be less than fully
successful. If they were enough by themselves, we would not be here
today.
At just 10% private land, my home State of Alaska has, I believe,
the very lowest percentage of private land of any State in the nation.
My State of Alaska is home to relatively few of the species listed
under the ESA. We consider that a blessing. We also have very little
private land--just 10 percent of our State. (We do NOT consider that to
be a blessing.)
But even in Alaska, private landowners that tomorrow any tomorrow
could bring disaster in the form of a lawsuit alleging an ESA taking.
That is just flat wrong.
Innocent parties engaged in their day to day business, with no
intent to harm listed species, should be treated as innocent unless
there is conclusive scientific evidence to the contrary. Under American
standards, no innocent party should have to go in fear, as the saying
goes, that ``something might be gaining on him.''
An Endangered Species Act that sets up the latter situation is
doomed to failure. We need an Act that focuses on the positive, not on
the negative.
That, Mr. Chairman, is precisely why this hearing is important and
why I thank you for calling it.
Senator Chafee. Thank you, Senator Murkowski.
Senator DeMint.
OPENING STATEMENT OF HON. JIM DEMINT, U.S. SENATOR FROM THE
STATE OF SOUTH CAROLINA
Senator DeMint. Thank you and I appreciate the witnesses
being here as well.
I am very supportive of your effort to take a hard look at
the Endangered Species Act and try to determine what is
working, what is not and try to come up with some creative
solutions to make this law work better.
I am glad to hear this morning that I think everyone has
mentioned the importance of incentives for landowners as
opposed to hitting them with negative regulatory sanctions or
making it more difficult for them to develop their property in
a way that would be good for the environment.
In my home State of South Carolina where tourism is the no.
1 industry, I was told of a situation where some folks had a
terrible time trying to get permits to build a golf course.
They had problems getting permits to build a golf course
because of an apparently very popular Red Cockaded Woodpecker.
From what I understand about the Red Cockaded Woodpecker, they
like to have their young in mature pine trees, they don't fly
real well and need a clear under story to thrive and expand. In
fact, golf courses with their wide open spaces are the perfect
habitat for them.
Once the permits were obtained for this golf course and it
was built, the 7 colonies of woodpeckers that were there prior
to construction more than doubled to 20 colonies and the golf
course has since been recognized by the Audubon Society as a
model for environmentally sound development.
This is a perfect example of how development can coexist
and even enhance our endangered species. We need to think
outside the box and be creative and not be so rigid in how we
enforce regulations and not cut off our noses to spite our
faces when we are trying to really help endangered species. We
should make it easier for people to do the right thing, not
more difficult.
I look forward to the testimony this morning and will work
together to make this Act work better.
Senator Chafee. Thank you, Senator DeMint. It is good to
hear a success story.
Today we have on our first panel: Mr. Marshall P. Jones,
Jr., Deputy Director, U.S. Fish and Wildlife Service; and Ms.
Sara Braasch, Regional Assistant Chief for the West, Natural
Resources Conservation Service, USDA.
I would like to remind our witnesses their entire statement
will be submitted to the record and we have 5 minutes each for
your testimony. We will start with Ms. Braasch.
STATEMENT OF SARA BRAASCH, REGIONAL ASSISTANT CHIEF FOR THE
WEST, NATURAL RESOURCES CONSERVATION SERVICE, USDA
Ms. Braasch. Thank you.
I appreciate the opportunity to be before you today to
discuss the Department of Agriculture's perspective on private
land, habitat conservation and restoration. My name is Sara
Braasch. I am with the Natural Resources Conservation Service
where I serve as the Regional Assistant Chief for the 13
western States including Alaska and the Pacific Basin.
Earlier this week, I celebrated my 1 year anniversary with
NRCS. It has been an honor for me to serve with an Agency on
the move that is making such an incredible difference on the
land. Speaking of service, Mr. Chairman, I would like to
mention that we hired a new State Conservationist in your home
State of Rhode Island earlier this week. Her name is Roylene
Rioes at the Door and I know you will be impressed with her
impressive credentials that she brings to you.
The topic of today's hearing gets to the heart of the
concept of cooperative conservation. As wildlife conservation
serves as an excellent example of how voluntary conservation
efforts on private lands can make a difference. I would like to
take just a moment to highlight the background of NRCS to place
our involvement into context.
For the last 70 years, our Agency has assisted owners of
America's private lands who voluntarily want to conserve their
natural resources. We deliver technical assistance that is
economically feasible, based on sound science and is suited to
a farmer or rancher's site specific needs. In addition, NRCS
offers voluntary assistance to landowners in the form of
financial assistance, cost share for projects and conservation
easements.
In 2002, President Bush signed into law the most
conservation oriented farm bill in history providing a $17.1
billion increase in conservation funding. In addition,
direction was provided to assist agricultural producers to meet
the regulatory burdens they face. Conservation programs can and
do help reduce the burden of regulation. Here are just a few
examples of actions and assistance the Department of
Agriculture has recently offered with respect to habitat
enhancement for targeted species.
On May 16, 2006, Secretary Johanns announced the
availability of $4 million in financial assistance for the
Wetland Reserve Enhancement Program. These partnership
proposals will restore and protect habitat for migratory birds
and other wetland dependent wildlife. The new enhancement
option with in this program allows NRCS to match resources and
leverage the efforts of States and local governments to provide
even greater assistance for private landowners. Of this
funding, a minimum of $500,000 is offered for partnership
proposals that address Bog Turtle habitat in the eastern United
States. Also included in our wetland reserve enhancement
announcement is a minimum of $500,000 to assist with the Ivory
Bill Woodpecker habitat. We believe that excellent
opportunities exist for developing bottom land, hard wood,
wetland habitat projects that will provide long term benefits
for the species.
In February, Secretary Johanns announced $2.8 million in
the Wildlife Habitat Incentives Program for salmon habitat
restoration. Through this initiative, NRCS helps landowners
with projects that restore habitat for both Pacific and
Atlantic salmon. We are pleased with the gains being made to
improve salmon habitat and believe that we can continue to
build upon this success in the future.
Habitat conservation for the Greater Sage Grouse in the
western United States also serves as a prime illustration of
the role farm bill programs and conservation planning
assistance can provide. NRCS estimates that in fiscal year (FY)
2004, more than 80,000 acres of Sage Grouse habitat befitted
directly from private lands conservation with an additional
million acres receiving a secondary benefit. As a result, the
U.S. Fish and Wildlife Service made a decision not to list the
Greater Sage Grouse as a threatened or endangered species.
Partially in response to those gains made on private lands
habitat for Sage Grouse and in that decision, the Service
emphasized the importance of ongoing and future conservation
efforts to the long term health of the species.
With that in mind, I am pleased to report that earlier this
morning, Secretary Johanns announced an additional $5 million
for Sage Grouse special projects in 11 western States. That
will double USDA's commitment to Sage Grouse compared to fiscal
year (FY) 2004.
In other assistance, the Health Forest Restoration Act of
2003 authorized the Healthy Forest Reserve Program to make
payments to private forest land owners who agree to protect
forested acreage to promote the recovery of threatened and
endangered species. This Act contains innovative provisions
relating to safe harbor or similar assurances to landowners who
enroll land in the program and whose conservation activities
result in a net conservation benefit for listed and candidate
species. Work is well underway on establishing programmatic
rules and procedures for the Healthy Forest Program.
My statement highlights just a few of the many programs
available to private landowners and provides a sense of the
species and work that private landowners are accomplishing, but
there are numerous other species that benefit every day from
conservation efforts on farms and ranches across the country.
To provide an idea of the magnitude of that, we will provide
over $1 billion in funding through the Environmental Quality
and Incentives Program this year. Couple that with the Farm and
Ranchlands Protection Program and the Conservation Security
Program, and it becomes clear that wildlife habitat is
receiving major benefits.
Rural America has an excellent story to tell. If we
continue to provide the technical assistance and financial
resources, we can achieve a win-win for American agriculture as
well as wildlife conservation.
Thank you and I would be happy to entertain questions you
might have.
Senator Chafee. Thank you, Ms. Braasch.
Mr. Jones, welcome.
STATEMENT OF MARSHALL P. JONES, JR., DEPUTY DIRECTOR, U.S. FISH
AND WILDLIFE SERVICE
Mr. Jones. Thank you.
I appreciate the opportunity to be here today with my
colleague from the Natural Resources Conservation Service to
talk to you about incentives for private landowners to be
involved in conservation of endangered, threatened candidate
species.
As already noted, more than two-thirds of federally listed
endangered species depend on private land for their
conservation. However, the Endangered Species Act has no legal
requirement for private landowners to improve or restore
habitat or undertake other programs that will benefit the
listed species that occur in those lands. So incentive-based
conservation is crucial to our ability to recover those
species.
Unfortunately, as also noted, many landowners are fearful
of the Endangered Species Act and have been reluctant to engage
in activities that would attract imperiled species for fear of
increased regulation or restrictions on their use of the land.
We in the Fish and Wildlife Service are committed to the
principle that the Federal Government cannot do everything that
is needed to recover endangered species and even if we had
unlimited resources, we could not and would not do it as well
as it would be done if we have a partnership with State
governments, with non-governmental organizations, with the
business community and with private landowners. Thus, I am
pleased that you have initiated this review of what can be done
to support and improve these programs. I am also pleased that
you have invited other organizations like the ones on the
second panel because the organizations that are here,
Environmental Defense, the Farm Bureau, the Homebuilders
Association, Plum Creek and other timber companies and the
American Forest Foundation are all organizations that we want
and need to work closely with. They help make our programs
better, they educate us and working together we believe we can
have a stronger conservation program.
The Fish and Wildlife Service has a number of cooperative
conservation tools which are detailed in my written statement.
Let me briefly highlight a few of these programs and what they
have done and can do.
The first Safe Harbor agreement for Endangered Species was
signed in 1995 and provided a mechanism for landowners to feel
confident that if they improved their habitat and attract more
endangered species, they will not later be penalized if they
have a need to restore that land to the baseline condition.
Working closely with Environmental Defense, the Fish and
Wildlife Service recently celebrated the 10th anniversary of
that first Safe Harbor agreement. Today, there are more than
325 private and other Federal landowners enrolled in 32
agreements which conserve 36 endangered and threatened species.
Another program is the Candidate Conservation Agreement
with assurances. This addresses species that are not listed
under the Endangered Species Act but might need to be listed in
the future and provides a mechanism for landowners to undertake
voluntary, cooperative conservation measures and then receive
an assurance that if in spite of those efforts, the species
must still be listed as endangered or threatened, so that
landowner will not be asked to do anything more or different
than what they have already agreed to.
We have 10 such agreements in place covering 24 candidate
or declining species and encompassing approximately 300,000
acres. These programs are relatively new but we are committed
to improving them because we know that there are always things
that can be done better. So we have been working with
Environmental Defense, for example, on training and on ways to
improve the way we can expedite processing of new Safe Harbor
and candidate conservation with assurance agreements.
We also are looking at ways that we can use programmatic or
umbrella agreements that may be undertaken with the State which
then enable private landowners to quickly qualify under that
umbrella agreement.
Another program is the Private Stewardship Grant Program, a
relatively new program which provides an opportunity for the
Fish and Wildlife Service to work directly with private
landowners to conserve imperiled species through on the ground
habitat management.
The Cooperative Endangered Species Fund is another program.
Through this program we provide grants to States which will
support State programs and will also support the development of
habitat conservation plans, the implementation of habitat
conservation plans and recovery of endangered species through
land acquisitions.
The Landowner Incentive Program is another State focused
program where we provide funds, as Senator Jeffords has
mentioned, to the State of Vermont for the development of a
program to work with private landowners and then for
competitive grants to work with those private landowners to
restore listed, proposed, candidate or other at risk species on
private and tribal lands.
Finally, the Partners for Fish and Wildlife Program, we
greatly appreciate the efforts of this Committee and the Senate
to pass S. 260 which authorizes the program we have had for
many years but now will provide a firm legislative basis for
that program which provides for technical assistance and
financial assistance for on the ground projects with private
landowners. Under that program, I would note that we work very
closely with the National Resource Conservation Service and try
to complement the programs that the NRCS is undertaking all
around the country.
Over the past 16 years, we have agreements with 35,000
landowners covering more than 2 million acres under the
Partners for Fish and Wildlife Program.
We appreciate your interest in holding this hearing,
bringing us all together, and we look forward to working with
you as you consider what else can be done to improve and
enhance these programs. I am prepared to answer any question
you may have.
Senator Chafee. Thank you, Mr. Jones, and I look forward to
working with you also as we go forward.
We will have a round of questions of 5 minutes each. I
would like to start with Ms. Braasch and 1 of the hot issues,
the Klamath Basin issue in the last few years. I would like to
know if you can elaborate on what NRCS' role has been in
resolving the ongoing conflicts between the fish and farmers in
the Klamath Basin and how has NRCS utilized its range of
conservation programs to resolve some of the disputes and
relieve pressure in this tense situation?
Ms. Braasch. The Klamath Basin happens to be part of my
region with the region both on the Oregon and California side
of the border. As part of that responsibility, I knew early on
I had to spend some time on the ground with the people
affected. I am pleased to report that the direction you gave us
in the farm bill and the $50 million of funding for the Klamath
Basin has been well spent and is making a lot of progress.
Some examples in the Klamath include converting irrigation
systems so that agricultural producers are able to stay in
production on the land but at the same time they reduce their
water use so there is more water available for the fish flows.
That is done primarily through our Environmental Quality
Incentives Program. In addition, we have taken advantage of our
Grasslands Reserve Program and our Farm and Ranch Lands
Protection Program to look at these farming and ranching
operations and how they can stay viable but in the most
efficient way possible.
Senator Chafee. Have you worked with the Fish and Wildlife
for this process?
Ms. Braasch. We have. In fact, across the region and at
headquarters we have had strong relationships with Fish and
Wildlife Service. Specific to the Klamath Basin, there are
regular meetings between our folks and the Service. We also
have tremendous examples, in the State of Utah with the recent
flooding that occurred this winter on consultation in addition
to a strong relationship at headquarters with the Service's
Chief and many others.
Senator Chafee. Thank you.
Mr. Jones, any comment on your role, the Service's role in
the Klamath Basin dispute?
Mr. Jones. We certainly appreciate the efforts that NRCS
has made and we think that is an invaluable contribution. I
spent time on the ground in the Klamath Basin in 2001 when
things were at much more difficult situation than they are
today. We think we have made a lot of progress because of
efforts to work with landowners in the Basin. For fiscal year
(FY) 2006, the President's budget includes a more than $5
million increase for the Partners of the Fish and Wildlife
Program specifically directed at the Klamath Basin which builds
on a base of about $2 million that have been applying to that
program.
We think it is essential that we find ways to work with
landowners and the Klamath Basin, I think we haven't solved all
the problems but I think we have made a lot of progress and it
takes this kind of cooperative effort that Ms. Braasch has
mentioned and that we firmly believe in.
Senator Chafee. How would these funds be spent as we
allocate our resources, acquisition of willing sellers? Where
does the money go?
Mr. Jones. No, Mr. Chairman, we do have a separate request
for acquisition of a key tract of land on Klamath Lake but the
increase in the Partners for Fish and Wildlife Program would be
designed to work with landowners, for example to work with the
cattle ranchers in the upper Klamath Basin whose land adjoins
the river as it flows down into Klamath Lake. We think we can
work there to help them reduce impacts from cattle ranching on
the stream, increase both the quantity and quality of water
which moves down which will benefit the suckers in Klamath Lake
and we believe the salmon which are spawning farther
downstream.
Senator Chafee. Thank you.
Senator Clinton.
Senator Clinton. I would like to ask each of you for any
thoughts you might have on how we could better integrate
delivery of State, local and various Federal programs to
provide one stop shopping for landowners who are seeking
incentives to protect and restore important habitats for
wildlife?
Mr. Jones. I think that is a very good question. We are
thinking about that right now ourselves. The Fish and Wildlife
Service has a multiplicity of small grant programs, relatively
small in comparison to some of the very large programs that
NRCS has. One thing we think we can do is cooperate more
closely with NRCS, participating on the State technical
committees, for example, and making sure that every landowner
who has access to a county extension agent not only has
information about NRCS programs but also about Fish and
Wildlife Service programs that may complement those and be
available to landowners.
We are also undertaking an internal review right now. I
have just received in the last couple of days a draft report on
how we can make our programs better, how can we do a better job
of expediting the delivery of funds and resources to
landowners. One of the things we are going to look at is how
can we make sure all of our materials are clear, user friendly,
that our website is something anyone can go to and understand.
I will use myself as 1 of the guinea pigs on that because if I
can find things on the website probably other people can too.
We certainly agree there is a need for us to have programs be
both user friendly and accessible to the public or else we are
not going to be serving them.
Senator Clinton. Ms. Braasch.
Ms. Braasch. In terms of finding that one stop shop which I
know landowners and producers across the country greatly
appreciate, I have a couple of ideas. First, finalization of
the rules we are working on for the Healthy Forest Reserve
Program and the Safe Harbor provisions that are in that program
will be beneficial and beyond that, we would like to work with
the Service when it comes to programmatic consultation rather
than going practice by practice on projects we want to put in
place on the ground. We would like to find ways to expedite
that delivery so that the landowner only has one stop to make
when it comes to implementing a project that is valuable to all
wildlife.
Senator Clinton. As a specific follow up, in Mr. Wiseman's
testimony, he notes that individuals own more than half of our
Nation's forest land and about half of our rural land is
forested. Although I don't know what percentage of endangered
or threatened species occur on forested land versus other
landscapes, I imagine it is substantial, in all likelihood
greater than the small fraction of current conservation funding
that is targeted and devoted to tree farmers and other owners
of forested land.
Could you each give me your opinion about whether you
believe we need to target more conservation funding to tree
farmers and their lands to achieve our ESA goals and if so, how
can we accomplish that?
Mr. Jones. You are right that a substantial proportion of
listed and candidate endangered species and other imperiled
species would occur on forest lands and we have I think some
very good programs right now as several have mentioned this
morning, Safe Harbor programs that involve Red Cockaded
Woodpeckers which occur in mature forests. We want to find ways
that people can use their land and get a sustainable, economic
benefit from that land and at the same time, also provide for
the needs of wildlife that can coexist with them.
We have in the northeast a number of candidate species that
use forests and it is very important to us that we have ways of
working closely with private landowners. I can't give you
specific statistics this morning on how much of any 1 of our
grant programs has been devoted to forests but we would be
pleased to provide you with some information for the record. We
certainly can give you the commitment that we want to work
closely with family farmers and with the business community,
everyone who is involved in forestry to make sure that forests
can sustain livelihoods for people but also provide for the
needs of wildlife, especially imperiled species.
Senator Clinton. Ms. Braasch, do you have anything to add?
Ms. Braasch. A couple of our programs right now, the
Environmental Quality Incentives Program, the Wildlife Habitat
Incentives Program, are doing good work with private forest
land owners. Our Chief, Bruce Knight, has clearly set a
national priority that we need to do at risk species work. In
New York, Rhode Island or Vermont, what happens is we have
local working groups that best know the conditions in your
State whether timber or anything else and they recommend
priorities and ranking criteria under which those applications
are reviewed and at the advice of the State Technical Committee
including the Fish and Wildlife Service in many cases,
decisions are made to fund those projects that will do the most
good on the ground and in many cases that has included timber
ground.
Senator Clinton. Thank you.
Senator Chafee. Senator Jeffords.
Senator Jeffords. Mr. Jones, I have a three part question
for you. First, how is the Administration shifted volunteer
conservation work?
Mr. Jones. Let me say I think even in the previous
Administration, there was a recognition that you cannot recover
endangered species without the involvement of private
landowners. Those programs have been growing and in the last
several years have been very much enhanced. We think those
programs are working well. We think we still can make
improvements and make them better.
Reaching out to States, the non-governmental community, the
business community and private landowners, especially we think
is essential because without their cooperation, we just can't
achieve the goals of the Endangered Species Act to recover
species already listed and prevent other species from ever
needing to be listed.
Senator Jeffords. Second, which species are benefitting
from the various grant programs?
Mr. Jones. I can provide you a detailed answer for the
record but we have had several species that certainly have been
mentioned this morning that stand out like the Red Cockaded
Woodpecker in the southeast; we have a number of species in
California benefitting from conservation banks; we have around
the country an increasing number of candidate conservation
agreement with assurances where landowners get the benefit of
knowing that if they undertake activities now and a species
gets listed later, they won't be required to do more than they
are already doing. It is a deal. It is not just a handshake,
they actually get a permit which covers them for that.
It is a broad range of species. In some cases, it is States
which are choosing which species to be addressed through the
Landowner Incentive Program, which as you mentioned, is active
in Vermont, it is the State of Vermont choosing which species,
which landowners they should be working with. Similarly under
our State Wildlife Grants Program, we now have every State and
territory working on a State wildlife conservation strategy.
Those are due to be submitted to the Fish and Wildlife Service
by the end of this fiscal year. We already have 5 and those 5
we believe are indicative of an excellent effort by States as a
whole. So the States will be choosing the species most in
conservation need to work on. In the meantime, they have been
getting the benefit of that grant program that provides
substantial benefits for the States to be working with the
broad variety of species.
My point is the Fish and Wildlife Service is not always the
best 1 to choose what should be done. We want to provide the
program that also enables private landowners, non-governmental
organizations, States to choose what they think is most
important in the State or the local community and then we work
together to help them.
Senator Jeffords. I think you may have answered this but
how can these programs be improved to better integrate with the
Endangered Species Act?
Mr. Jones. We certainly believe that one, we need to
practice adaptive management. That is, we undertake things and
then we monitor. How well did this work, what are the lessons
learned so that we can do it better the next time. Whether that
is specific to the biology of a particular species or whether
it involves how we can have a more effective program, how we
can get the word out to landowners, how we can work with
organizations like those on your second panel as well as with
NRCS and other Federal agencies and State agencies to make the
programs more accessible to them. How can we use more broad
programmatic approaches so we only have to do an environmental
impact statement 1 time for a whole State that enables
landowners all the around the State who qualify to participate
under that umbrella program.
We also believe these programs are solid but we believe
they could benefit from being codified in law in some way so
that everyone could be sure these programs will last, that they
will be there and they can count on the Federal Government
giving its word and sticking to it.
Senator Jeffords. Thank you.
Senator Chafee. Thank you first panel. I didn't hear any
super harsh criticism from this panel for the ESA. I am sure
that will continue on the next panel.
[Laughter.]
Senator Chafee. Ms. Braasch, I look forward to meeting Ms.
Rioes at the Door in Rhode Island. From what I understand, she
went to Montana State University. I did some schooling there
myself, so we have something in common.
Thank you for your testimony.
We will now proceed to our second panel. We have Mr.
Michael Bean with Environmental Defense; Mr. Paul Campos with
the Home Builders Association of Northern California; Mr. Alan
Foutz with the Colorado Farm Bureau; Mr. Robert Olszewski with
Plum Creek Timber Company; and Mr. Larry Wiseman with the
American Forest Foundation. Welcome to all of you here today.
As mentioned for the previous panel, I want to remind the
witnesses that their entire statement will be submitted for the
record and please keep your presentation to 5 minutes.
We will start with Mr. Bean. Welcome.
STATEMENT OF MICHAEL BEAN, SENIOR ATTORNEY, WILDLIFE DIVISION,
ENVIRONMENTAL DEFENSE
Mr. Bean. Thank you.
Let me begin by saying that it was my pleasure for the last
20 years or more to testify on a number of occasions before
this Committee about the Endangered Species Act when your
father was a member and later Chairman of this committee. He
was, I think, singularly devoted to this issue and interested
in it. If you will allow me, I will describe 1 little thing
that made a memorable impression upon me.
In the early 1990s, the Smithsonian hosted a 2 day
conference on endangered species conservation and it began with
a Friday evening dinner followed by a day of presentations on
Saturday. Your father gave the dinner speech on Friday evening,
which was a very nice speech, but frankly, it was the last we
expected to see of him. We didn't expect him to show up at 9:00
a.m. to sit through the boring part of the conference which was
a day of technical presentations but he was there at 9:00 a.m.
with his notebook in hand and he stayed throughout the day. I
think that was a testament to his very strong interest in this
issue. I wanted to share that recollection with you.
May I also say it is a pleasure to be here with Senator
Clinton as the Ranking Minority Member. As a fellow graduate of
Yale Law School in 1973, it is a real honor to be here with you
in this position today.
I have been working on the Endangered Species Act for most
of my professional career and for the last decade or more I
have been singularly focused on the challenge of conserving
rare species on privately owned land. It is increasingly
apparent to me that incentives are necessary for that and the
reasons are pretty straightforward.
First, many species have most of their habitat on privately
owned land and some species have all of their habitat on
privately owned land. As others have commented, there is
nothing in the existing law that compels landowners to manage
their lands positively or beneficially for endangered species
and yet for many endangered species some form of active
management is clearly necessary.
I give an example in my testimony from Senator Clinton's
State of New York of the Bog Turtle which occupies wetlands
habitats that have been maintained at least in recent years by
the presence of livestock grazing that reduces the shrubbery or
woody overstory. As animal agriculture has declined in the
northeast, many of those early successional wetlands have
secceeded into forested wetlands of no real value for the Bog
Turtle. So the only way to maintain those that still exist or
to restore those that recently existed is to go out there and
remove some of that hard wood and shrubbery understory.
There is no particular reason for landowners to do that if
they are no longer engaged in livestock agriculture. So the
steps necessary on private land to restore the habitat for that
species are steps that can only be taken by or with permission
of landowners and somebody has to pay for that. In the State of
New York, the Natural Resources Conservation Service has been
very helpful in providing funding for many of those projects
but without that sort of incentive funding, that sort of
habitat restoration is not likely to take place.
Let me say that there are a number of existing incentive
programs. By far the most generously funded of those and those
with the greatest potential to help endangered species are the
various farm bill conservation programs. However, much of their
potential to help endangered species has not been realized and
there are a variety of reasons for that.
One thing I would urge this Subcommittee to do, perhaps in
conjunction with Mr. Crapo's subcommittee of the Agriculture
Committee, is to look at how those existing farm bill programs
might be tweaked or adapted to achieve their original farm bill
objectives and simultaneously achieve more endangered species
conservation benefits. I think there is a wealth of potential
progress that could be made there.
Mr. Jones and others have talked about some of the more
recent Fish and Wildlife Service initiatives like Safe Harbor
agreements, the Landowner Incentive Program, the Private
Stewardship Grants Program. These are all good initiatives.
They all, however, in my opinion, are handicapped by rather
clumsy administration of these new programs. It seems to me
there are a number of efficiencies that could be achieved to
make each of those programs more easily delivered and more
effective on the ground.
Certainly in the work we do with private landowners, when
we find a landowner who is willing to do something on his land
that is beneficial to an endangered species, that landowner
often asks can they get started next week. It is very difficult
to explain no, you really can't because there is a process of
approval that may take 18 months to complete before we can get
started. That just doesn't make sense to most landowners.
I would encourage you in addition to looking at the farm
bill programs to take a look at the manner in which the Fish
and Wildlife Service is administering some of the good programs
it has but programs that are not achieving their potential
because of unnecessary internal obstacles to efficient
administration.
Thank you and I look forward to answering your questions.
Senator Chafee. Thank you, Mr. Bean, especially for your
kind words about my dad.
Mr. Campos.
STATEMENT OF PAUL CAMPOS, VICE PRESIDENT, GOVERNMENTAL AFFAIRS
AND GENERAL COUNSEL, HOME BUILDERS ASSOCIATION OF NORTHERN
CALIFORNIA, NATIONAL ASSOCIATION OF HOMEBUILDERS
Mr. Campos. Thank you.
I am pleased to share with you the views of the 220,000
members of the National Association of Home Builders on
landowner incentives under the Endangered Species Act. I thank
you for the opportunity to appear before the Subcommittee
today.
My name is Paul Campos and I am the Vice President and
General Counsel for the Home Builders Association of Northern
California. HBANC covers the 9 San Francisco Bay area counties
as well as Santa Cruz, Monterey and San Benito Counties.
The San Francisco Bay area has some of the most expensive
land and housing in the Nation as well as a steadily expanding
number of listed species and extensive critical habitat
designations. In California and across the country, the ESA as
currently written and implemented is often in conflict with the
goals of housing availability and affordability.
Job and population growth are creating a tremendous need
for new housing but because of regulatory restrictions on what
land can be developed and how, housing availability and
affordability are growing problems across the country. In the
Bay area for example, only 42 percent of the approximately 110
cities and counties in the region have met their fair share
housing obligations for families of all income levels and only
12 percent of the region's households can afford the median
priced home which now exceeds $500,000. Clearly we must find
improved ways to balance the needs of our growing communities
with the need to protect and conserve species and their
habitats.
One of the most promising mechanisms for balancing
development and species needs is the Habitat Conservation Plan.
These voluntary plans often carried out on a regional level
seek to reconcile community needs for jobs and housing with the
desire to protect large blocks of contiguous wildlife habitat.
In my home State of California, currently approved and
pending HCPs will preserve over 1 million acres of habitat for
over 100 species and provide necessary funding for active, long
term management of those species which as Senator Clinton noted
in her opening statement is a very important part of species
recovery and conservation but is not mandated by the Act and is
not funded.
Importantly, many of the species covered and protected by
these HCPs in California are currently not listed under ESA.
This is a significant but often under appreciated aspect of
many HCPs. Not only do they provide an incentive for landowners
to go above and beyond the minimum requirements of the ESA,
they bestow significant regulatory protection on a substantial
number of unlisted species with the specific aim of preventing
the need for listing in the first place.
Unfortunately, HCPs past, present and future are now at
risk and it is here that Congress can act to great effect with
respect to landowner incentives. The defining benefit to home
builders of HCPs is regulatory certainty: The notion, in former
Secretary Babbitt's words ``that a deal is a deal.'' But
uncertainty now clouds HCPs and their promise that a deal is a
deal. The ``No Surprise'' Rule is under continued legal attack
and areas identified in HCPs as appropriate for housing
development now face the specter of being designated as
critical habitat ``no touch'' zones.
One of the most important incentives that Congress can
provide home builders for continuing to commit to the
significant time, resources and energy to develop innovative
HCPs is statutory certainty. The East Contra County HCP which
my organization and its members have worked on since 2000
provides a vivid illustration. Having been negotiated over the
last 5 years and covering 176,000 acres, this HCP is heavily
balanced towards species conservation. It will result in the
creation, permanent protection and active management of a
30,000 acre preserve while authorizing development of no more
than 15,000 acres. Home builders will pay an anticipated fee of
more than $20,000 per acre for habitat acquisition and
maintenance for the benefit of 28 listed and unlisted species,
including the California Red Legged Frog made famous by Mark
Twain.
My members' support for this very aggressive and expensive
conservation plan is directly tied to the HCPs promise of
regulatory certainty. Builders are being told where to build
and where not to build. They are being informed of their
obligations up front and are being offered the hope of permit
streamlining. Yet this certainty is now being undermined. With
good reason, home builders fear the legal uncertainty
surrounding the ``No Surprises'' Rule and the relationship of
critical habitat designation to HCPs calls into serious
question the ability of the Federal Government to deliver on
the principle that a deal is a deal. Congress can and should
address these clouds of uncertainty by statutorily codifying
the ``No Surprises'' Rule, thereby giving private property
owners, State and local governments, tribes and community and
environmental organizations the necessary certainty to rely on
HCPs.
Congress can further promote voluntary incentives by
exempting HCPs from critical habitat designations. The
incentive to develop and fund an HCP is significantly
diminished if a critical habitat designation is superimposed
over the plan area, thereby resulting in duplicative and
unnecessary regulation and red tape. The exemption of HCPs from
critical habitat is more important than ever in light of the
9th Circuit's recent Gifford-Pinchot decision.
While NHAB applauds the recent efforts by the Federal
wildlife agencies to exclude existing and proposed HCPs from
specific critical habitat designations, these exclusions are
subject to legal challenge. It is imperative that Congress
provide a clear statutory exclusion of HCPs from critical
habitat if it wants to maintain and further promote this
important incentive for landowners.
I thank you for your consideration of NHB's views on this
matter and hope that endangered species conservation continues
to develop in the direction of incentive based partnerships
such as HCPs rather than further litigation gridlock. Congress
can go a long way toward ensuring that goal by providing
certainty and further incentives to landowners.
Thank you.
Senator Chafee. Thank you, Mr. Campos.
Mr. Foutz, welcome.
STATEMENT OF ALAN FOUTZ, PRESIDENT, COLORADO
FARM BUREAU
Mr. Foutz. Thank you.
My name is Alan Foutz. I am a farmer from Akron, CO on the
northeast corner of the State. I serve as President of the
Colorado Farm Bureau and serve on the board of directors of the
American Farm Bureau Federation and I came here today to
testify on behalf of both of those organizations.
Farmers and ranchers have been adversely impacted by the
Endangered Species Act for a number of years. We have 33
species listed in Colorado ranging from two distinct
populations of the Grey Wolf and the Canadian Lynx to the Boney
Tailed Chub. I won't dwell on the problems however but instead
will try to focus on a process that has worked for us and one
that I think we should consider as part of the solution to the
Endangered Species Act.
The Mountain Plover is a small bird found on the western
Great Plains. It was proposed for listing by ESA in 1999. As
with many of such species, little was known scientifically
about the bird and about its habitat and it was believed the
conversion from short grass prairie to agricultural land was
destroying the habitat for the bird and the listing would have
created a considerable issue for many of us in the farming
operations in that particular part of the State.
Scientists didn't know a lot about the bird because it was
believed to be living on private range and therefore private
landowners were very reluctant to allow State and Federal
officers onto their land to look for the bird, but private
landowners also did not want to see the Plover listed without
scientific justification for listing.
The Colorado Farm Bureau Board of Directors determined that
it was important to find out the status of this bird and that
meant identifying and studying Plovers on private lands. We had
to convince our members to open their lands to researchers so
we could study the bird and I have to tell you quite frankly
that was an extremely difficult sell to do. It wasn't because
our members weren't interested in trying to protect the bird on
their lands but it was because of the restrictions they knew
would be placed on the lands if that species were found and
listed and we would have to provide critical habitat.
To our members' credit they recognized the need for good
scientific information, therefore, Colorado Farm Bureau entered
an agreement with the Colorado Division of Wildlife, with the
U.S. Fish and Wildlife Service, Rocky Mountain Bird
Observatory, Nature Conservancy and Colorado State University
and we agreed to open our lands so we could inventory this bird
and study the ecology of the Mountain Plover.
The result of that was a 3 year study of the movements,
locations, and nesting behavior of the Mountain Plovers on
agricultural lands. Colorado Farm Bureau members provided
access to over 300,000 acres of their private land for this
study. Participation was strictly voluntary and Farm Bureau
members then donated access to the land as well as time. There
was a lot of time put in by individuals as field volunteers
went onto their property to search for these birds.
Some of the results that were found were very surprising to
the scientists. Researchers found that the agricultural lands
rather than destroying habitat were actually providing habitat
for these nesting birds during their prime nesting time and
many of the agricultural practices we were employing was
providing the habitat already for that bird. If we had
restricted some of those activities, we may have in fact
created a greater problem than we were trying to solve.
One of the aspects of the study found that in our
cultivated grounds, there was a higher success of nesting than
there was actually under what was considered to be their
principal habitat, short grass prairie. Mountain Plovers were
still at risk from farm machinery, plowing in the fields where
they were. Farmers were more than willing to avoid those nests
if they could see them, they are very difficult to see. So part
of the remedy was that the Farm Bureau and the Rocky Mountain
Bird Observatory developed a unique program which allows our
members, whoever wants, to call a toll free number 72 hours in
advance of working in those fields, having the Rocky Mountain
Bird Observatory send someone to that location. They will then
locate and mark those nests and our members and farmers then
simply work around those nesting sites and help protect that
bird.
As a result of these and other conservation efforts, the
Fish and Wildlife Service determined that listing of the
Mountain Plover was not going to be warranted and they withdrew
the proposal. The farmers benefitted, the bird benefitted,
society benefitted. Colorado farmers and ranchers and the
Colorado Farm Bureau learned some valuable lessons from this
positive experience. First, we demonstrated that farmers and
ranchers will work to protect species and that they were
willing to meet government half way in that if allowed to do
so.
There was a lot of flexibility in this particular program
between the landowners and the various services involved. That
made this particular program work. The solution to this program
would not have been available to us if the Mountain Plover had
been listed. Under the ESA, once that species had been listed,
Section 9, the takings prohibition and Section 7, all of the
consultation requirements, simply would have imposed
restrictions that would have been insurmountable for us to ever
have gotten together and solved this problem.
The Endangered Species Act needs to be amended to provide a
tremendous amount of flexibility for farmers and ranchers,
those on private lands and government to work together so we
can come together and come up with voluntary agreements that do
protect the species and still allow me to provide for my family
in a farming operation and provide food and fiber for the
world.
Those incentives may be direct payments, may be tax
incentives or simply removing the disincentives that come under
the restrictions right now that we see in ESA. We do know that
our members want to protect these species, we want to work with
government agencies, and so if we can do something to provide a
wide range of incentives, be very flexible so that we can work
through the programs we have and the different species, I think
we can do what we need to do in this area.
I thank you for your time.
Senator Chafee. Mr. Olszewski, welcome.
STATEMENT OF ROBERT J. OLSZEWSKI, VICE PRESIDENT, ENVIRONMENTAL
AFFAIRS, PLUM CREEK TIMBER COMPANY
Mr. Olszewski. Good morning.
Plum Creek Timber is the largest private land owner in the
United States with nearly 8 million acres of property in 19
States. I have personally worked with State government,
industry and trade associations and private industry on
forestry and environmental issues over the last 25 years.
Today, I would like to talk to you about Plum Creek's
experiences working with the Endangered Species Act to develop
a variety of conservation agreements and plans to address both
biology and the business of managing forest habitat for
endangered species. Habitat for more than a dozen species
currently protected under the ESA can be found on Plum Creek's
lands including Northern Spotted Owls, Marbled Murrelets,
Grizzly Bears, Gray Wolves, Red Cockaded Woodpeckers and a
number of others.
Plum Creek is no stranger to conservation planning under
the ESA. Over 2 million acres, nearly a quarter of our
corporate ownership nationwide, is under 4 habitat conservation
plans and a conservation agreement for grizzly bears in
Montana. Plum Creek's Central Cascades HCP, a 50 year plan
covering 315 species on 121,000 acres in Washington State was
approved in 1996 and is now in its ninth year of
implementation.
Our Native Fish HCP in the northwest covers 1.4 million
acres of property. We are the largest private timberland owner
in a very unique Wisconsin statewide HCP for the protection of
the Karner Blue Butterfly. In 2001, we completed a 30-year HCP
for the Red Cockaded Woodpecker in Arkansas covering 261,000
acres. Plum Creek manages 75,000 acres of land in Montana's
Swan Valley under a very unique grizzly bear conservation
agreement under Section 7 with the Service.
These agreements are not easy to complete. The commitment
is expensive, time consuming and requires us to open our
operations to public scrutiny in an unprecedented fashion. They
worked successfully for Plum Creek because of our location and
characteristics of our land ownership and unique circumstances
to each of the species. We don't have a habitat conservation
agreement around each of our species. These foster a logical
approach.
These voluntary conservation agreements under the ESA have
indeed solved problems. The listing of the Northern Spotted Owl
alone in 1990 and subsequent Federal guidelines trapped over 77
percent of Plum Creek's Cascades regional ownership and 108 owl
circles. Indeed with every new listing, Plum Creek was getting
closer to becoming a poster child for the taking of private
lands. For us, the answer was the advent of HCPs and other
agreement tools combined with incentives such as the no
surprises policy.
Plum Creek and the Federal Government have accomplished
concrete contributions to the conservation of endangered
species. With the assistance of Federal funds from the
Cooperative Endangered Conservation Fund, under Section 6 of
the ESA, the State of Montana has purchased the largest
conservation easement west of the Mississippi River on 142,000
acres of Plum Creek's property. Fisher and Thompson Rivers are
within our Native Fish HCP. These Section 6 funds which are
granted for land acquisition within HCPs have also been
instrumental in the recent purchase of another 1,100 acres of
Plum Creek's property in northwestern Montana.
In the Ouchita River of Arkansas and Louisiana, Plum Creek
and the U.S. Fish and Wildlife Service are currently engaging
in the development of a Safe Harbor agreement or some variation
thereof for Red Cockaded Woodpeckers on property adjacent to
our HCP. The planning and habitat work now occurring on this
12,000 acre important area could take the populations of Red
Cockaded Woodpeckers from over 20 to 50 territories.
The potential acquisition of this area by the adjacent
Upper Ouchita Wildlife Refuge is really the greatest incentive
driving this ESA conservation project forward. There is
tremendous science that goes into development and tremendous
work. A lot of people are critical that these things don't
involve much science but let me assure you that you do. Our
Cascades project alone, we authored 13 technical reports, we
sought peer reviews from 47 outside scientists, conducted over
50 briefings with outside groups and agencies for additional
advice and input. All this material is available for other
landowners and agencies developing their own conservation
plans.
We do have some recommendations. First and foremost, we do
believe as another speaker has recommended, that the no
surprise policy be codified. These are major long term
commitments of landowners and their properties and they really
need the security and assurance of having the knowledge of what
kind of agreements they are entering.
The kinds of incentive that I have mentioned with regard to
Section 6, other types of incentives that other panelists have
mentioned are very critical to enabling these programs to move
forward.
There are some roadblocks to entering into these
conservation agreements. As an example, I give you the fact
that the National Historic Preservation Act gets triggered when
you enter into some of these conservation agreements. These can
result in some very lengthy and detailed processes of looking
for historic sites or endangered species often where there is
nothing to be found. It is very bureaucratic and really takes a
long time. All these things add up to being a very awkward
situation for private landowners with these conservation
agreements.
There are some provisions that are triggered under NEPA
that also result in some issues and some difficulties probably
too detailed to get into but they are included in my testimony.
I want to thank you for the opportunity to testify before
you today. The testimony you hear today should provide the
Committee with a better understanding of a variety of ESA
voluntary agreements and how they have been applied on our
properties. I hope it gives you an appreciation of the
strategic value that these voluntary agreements can have, both
for the conservation of species and the protection of resource
economies.
Senator Chafee. Thank you.
Welcome, Mr. Wiseman.
STATEMENT OF LARRY WISEMAN, PRESIDENT AND CEO, AMERICAN FOREST
FOUNDATION
Mr. Wiseman. Thank you, Mr. Chairman and Senator Clinton,
especially for pointing out 1 inescapable fact and that is that
most of the forest land in this country is not owned by
companies, it is not owned by the Federal Government but is
owned by 10 million individuals and families, most in small
tracts of less than 100 acres. Imagine someone who owns 100
acres of land dealing with the kinds of regulatory issues, the
kinds of processes, practices and procedures that a 7-million
acre owner deals with their staff of lawyers, biologists and
accountants--and you get some sense of the dimensions of the
problem that our members face when they deal with the
Endangered Species Act.
Our 51,000 members are very diverse. Many have owned their
land for generations, some have owned their land since before
this Nation was founded and have remained on the land and
remained as good stewards. They almost all recognize that the
decisions you make in these rooms in Washington are going to
have a heck of a lot more impact on their properties than the
decisions they make around their kitchen table.
As you can imagine, representing 51,000 members who in turn
represent 10 million forest owners is quite a responsibility. I
am both honored and humbled to have the opportunity to share
what you might hear if you had the privilege, as I have had, of
sitting around some of those kitchen tables.
First, 1 of the things that would emerge is most of those
folks are not farmers. Most of the forest land that they own is
not connected to an agricultural operation. That is important
to note because many of the programs that exist for endangered
species protection in the farm bill for a variety of reasons--
some cultural, some historic, some institutional--are tilted
toward farmers.
The second thing you might find is that these folks are
volunteers. They choose to be good stewards, they choose to own
forest land. There is absolutely no way in the world that you
could construct an incentive program that would fully
compensate them for all of the tribulations, for all the
difficulties that they encounter in managing their land. They
want to do it.
Some would perhaps, because of family circumstance or
community circumstance, choose to sell their property as
development pressures increase, but many others would prefer to
stay on the land and continue their heritage of stewardship
through multiple generations. An overarching goal for them is
policy that makes it easier, not harder for these families to
stay on the land and to exercise an almost innate compulsion to
conserve property, species and provide environmental services.
In the end, it has to make economic sense. If owning land
doesn't make economic sense, the fact is many might find it
difficult to say no when those developers come calling, and
they come calling very often. The Forest Service estimates we
are losing 2,000 acres a day to development. You wouldn't learn
about this on television. Every July and August, you get the
media reports about fires, the wild fire stories, sort of the
ecological equivalent of summer reruns. The crisis we see on
these family owned forest lands is in the main an invisible
forest health crisis and we urge you to take a close look at
that.
Incentive programs are indeed one way to compensate owners
for the environmental services they provide but it is
important, as Senator Clinton indicated, to consider just how
those incentive programs deal with individual owners. Some $4
billion in applications for all conservation programs in 2004
were unfunded, all NRCS programs. Those that were funded, under
EQUIP, for example, the largest one, less than 2 percent of
expenditures nationwide were directed at forest practices, a
big mismatch here, half the rural landscape, 2 percent of
expenditures. As you consider incentive programs, consider ways
they can be made more accessible to family forest owners.
Three final points: No. 1, consistency. Politically fragile
programs can actually de-motivate owners. The brief and sad
history of the Forest land Enhancement Program illustrates the
point very well. It was the first substantial incentive program
in the Farm Bill aimed solely at family forest owners. It
wasn't 18 months after enactment that the President zeroed out
funding for FLEP in his budget. Frankly, that doesn't leave
people with confidence that Federal programs will provide a
stable platform for their investments in stewardship.
No. 2, regulatory certainty. All of the folks here have
talked about it. Understand from the family forest perspective
that these folks are making decisions for generations to come,
for their grandchildren and their grandchildren's
grandchildren. They are hesitant to make those decisions if
they can't have some certainty that the rules of the game
aren't going to change a few years later.
No. 3, program simplicity. One close friend, a man who owns
some land in Georgia pointed out to me that he owns land for
three reasons: pride, pleasure and profit. He went on to say,
if the profit isn't there, he can go on but when the pride and
pleasure disappear, when there are too many hoops to jump
through, he will disappear too.
I urge you to keep that in mind as you consider changes to
the Endangered Species Act.
Senator Chafee. Thank you, sir. Thank all of you gentlemen.
We try and solicit criticism as we have these hearings to
have testimony come in that is going to give an adverse point
of view, if you will. From what I have heard from the 5 of you,
the ESA is doing fairly well. Mr. Foutz, you talked about the
Mountain Plover and working with the landowners. Am I correct
in the assumption that as we look at reauthorizing ESA, maybe
looking at the certainty issue many of you have raised, the no
surprises, a deal is a deal, but other than that, the ESA is
working.
Mr. Bean, I will start with you. Am I correct in that
assumption?
Mr. Bean. I think the Endangered Species Act is doing well
for many species. I think it needs to do better for others. In
particular, it needs to offer greater incentives than it
currently does. I have talked about the various incentive
programs and others have as well. They are often not being well
targeted and well delivered for the benefits they could
potentially provide.
My suggestion would be to give a careful focus on
opportunities to improve the targeting and delivery of those
existing programs and to investigate new programs. For example,
the S. 1180, I believe, in 1997 that the Senate worked on had a
provision in it to establish what was known as a habitat
reserve program, a voluntary program whereby landowners could
enroll land that was useful for endangered species
conservation, agree to manage it in ways beneficial to
endangered species and receive payment for doing so. These sort
of ideas and others like it are worthy of investigation.
Senator Chafee. Mr. Wiseman.
Mr. Wiseman. As Mr. Bean has pointed out, the concept of
endangered species protection is embedded in many different
pieces of legislation. Understanding the guts of the ESA is one
important step in reforming our public policy toward endangered
species, but there are a variety of other steps that must be
considered, including, as Michael pointed out, funding for
incentive programs that support species conservation. I would
add, from the perspective of the voluntary stewards who own
most of our forest land, we need a great deal of attention paid
to information and education. Accountability is important and I
know there is a big drive in the Congress on the agencies and
from the White House to demonstrate concrete results. This can
have some perverse effects.
For example, the Private Stewardship Grants Program that
the Fish and Wildlife Service discussed today is only accepting
applications in this current round for on the ground
activities--that is, some specific management change that would
benefit species. In the past, they have also funded outreach
and education programs, programs that can have the multiple
impact that one single construction project would have.
We recently, with Environmental Defense, undertook a
partnership where we had a demonstration day and a field day
and dozens of landowners, including President Jimmy Carter,
signed up based on that information to manage for bird habitat,
11,000 acres for the price of management, for the price of a
field day, and some educational materials. So as you look
forward, you have to consider not just ESA but extension, the
NGO work that is being done in outreach and education, the
whole panoply of policies.
Senator Chafee. Mr. Foutz.
Mr. Foutz. You made a comment that referenced me in
particular. Don't let me confuse the Committee by assuming the
positive outcome we had with this one species is characteristic
of all the issues in ESA. We can look at many endangered
species issues in Colorado and find all kinds of problems.
The wolf issue is a huge issue in Colorado. We have not
come to any conclusion or resolution of that issue. We are
working on the Western Sage Grouse issue. We think we may have
come to some resolution on how we will deal with that as
individuals on private property. That is still out there a
little bit but certainly there is a whole number of those
issues and those species that are listed out there that are
simply not workable under the present guidelines and present
constrictions that are placed under endangered species.
So there has to be some significant changes in the
Endangered Species Act, I think, if private landowners are
going to be a part of saving our Nation's species, that has to
be more workable, there has to be some ideas of how it may
impact economically those of us on private lands.
I can go back to the Mountain Plover issue, there is only
one reason I got involved. This is a real personal issue for me
because I was one of the farms that had to go out of business
under the listing language that was there for the listing of
this bird. I literally would have to have gone out of business
and my farm would have been set up for nothing but raising
Mountain Plover had that listing language gone through.
That may sound pretty drastic but that is what the language
said. The language said, you will do nothing in your fields
from March 15 until July 15. If you live in eastern Colorado,
every activity on my farming operation takes place between
March 15 and July 15. I would have quit. So would have everyone
else in eastern Colorado.
We were forced because of the threat of that listing to do
something, so we did do something and it worked. I don't want
you to misconstrue the fact that this one thing worked here,
that all of the Endangered Species Act is working for everyone.
It is not.
Senator Chafee. Do you have personal experience with the
wolf issue?
Mr. Foutz. I haven't found it personally on my place. I
shouldn't say it that way. I have seen wolves on my place but
it is more of an issue on the western slope right now than it
is on the eastern side of Colorado. It is an issue for our
members who have private property on the western slope who are
trying to raise cattle and sheep. It is a big issue.
Senator Chafee. Senator Clinton.
Senator Clinton. I don't have any specific questions. I
want to thank all of the witnesses. I think as you pointed out
they have been very productive. We understand there are issues
and problems. That is why we are holding these hearings so that
we can hear from various stakeholders about what they believe
would help us to achieve the goals of the ESA in a more
creative, flexible way that really brings private landowners to
the table and has them involved in the process.
I am going to have to excuse myself to go to an Armed
Services Committee hearing but I really want to commend you,
Mr. Chairman, for this kind of hearing. It was very productive
and useful.
Senator Chafee. Thank you, Senator Clinton. I imagine we
have a hearing so we can actually listen.
Senator Jeffords.
Senator Jeffords. Mr. Bean, could you elaborate on your
concern that the existing regulatory policies not interfere
with economic incentives for landowners?
Mr. Bean. The Act has a number of regulatory requirements
that I believe are important and really quite essential to deal
with certain types of threats to the well being of endangered
species. Development activities represent a stark choice
typically between sacrificing all habitat value to development
or salvaging some habitat value and allowing some development
in some localities.
Those same regulatory requirements that try to secure some
conservation concessions from development interests when they
are developing habitat I think are necessary but when those
same regulatory restrictions are applied in the working
landscape context of farmers, ranchers, forest land owners,
they don't really serve quite the same purpose. Further, some
of the incentive programs that the Fish and Wildlife Service
and NRCS developed are programs that have to jump through the
same procedural hoops as development projects even though the
purpose of those programs is to promote conservation on the
ground.
That, I think tends to slow and reduce and ultimately
frustrate the ability of those incentive programs to deliver as
much as possible. Let me give you a concrete example. You
mentioned the Landowner Incentive Program in your State. In the
State of New Jersey, the State originally proposed with its
landowner incentive program to do a number of projects, some of
which were for the Bog Turtle which is a listed species, others
of which were for unlisted species. Some of the paperwork
requirements for doing those projects for the Bog Turtle,
however, were sufficiently onerous for the State that the State
decided to abandon the Bog Turtle projects and just do the non-
endangered species projects with its Landowner Incentive
Program money.
That is unfortunate because it means that a program, the
Landowner Incentive Program, that could have had major benefits
for endangered species conservation was in that example
redirected towards species not endangered because of regulatory
requirements that made it more complex for the State to develop
projects that affected endangered species. That is the concern
I have about the need for the agencies to tailor or adjust the
regulatory requirements so those don't get in the way of
delivering incentives to landowners for on the ground
conservation.
Senator Jeffords. Mr. Bean, could you elaborate on your
statement that many landowners would rather see the removal of
land use restrictions from the Endangered Species Act than any
other economic incentives?
Mr. Bean. I think what I was referring to there was there
has been some reference to Safe Harbor agreements. These are
agreements by which landowners can voluntarily enhance habitat
on their land. These got started a decade ago as a result of
work that I and colleagues did in North Carolina for the Red
Cockaded Woodpecker. At that time, we were exploring with
landowners what it would take to get them to begin managing
their forest land in order to produce greater benefits for that
endangered bird.
Our expectation was that the landowners would tell us that
they wanted economic incentives, that they wanted to be paid,
they wanted tax incentives or some other tangible economic
incentive but to our surprise, many of the landowners we talked
to said to us that they would be willing to manage their land
differently, manage it in ways that would benefit that species
if only the threat of additional regulation were removed from
them through an agreement that made it possible for them to
manage without incurring new regulatory liabilities.
In that example, it was more important to those landowners
to have the certainty, if you will, that beneficial management
would not translate into additional regulatory restrictions
than it was to be paid for doing what we would like them to do.
That isn't always going to be the case, I am sure, but there
are many examples like that where if you can just address
landowner anxieties about the regulatory consequences of good
stewardship, they will gladly be good stewards without economic
incentives, though I would hasten to add if we can provide
economic incentives too, we will get even more out of the
landowners.
Senator Jeffords. Mr. Wiseman, could you elaborate on why
you think State or regional HCPs would be more productive than
individual HCPs?
Mr. Wiseman. I know of a couple of cases where our members
have attempted to secure individual HCPs. In 1 case, it is
still pending and in another case, after 7 years and an
expenditure of $28,000 in professional and legal fees, that
individual has received the HCP.
The kind of certainty that Michael is talking about can be
achieved in other ways. We have found in working with
Environmental Defense that schemes that aggregate landowners
and give them an opportunity to subscribe to a set of
management practices that can be set down, once they are
informed, once they are given the assistance and the knowledge
they need to implement those practices, they will do it. The
key is to do it en bloc with a number of owners. That is the
model that we have been helping to develop with Environmental
Defense. It is a model I think bears considerable study.
Regulatory certainty for someone who has to sit at his
kitchen table and make a decision that is going to have effects
for 100 to 200 years is important, it is vital to the
confidence they need to commit themselves and their
grandchildren's grandchildren to a course of action.
Senator Jeffords. Mr. Foutz, could you elaborate on your
statement that many landowners would rather see the removal of
land use restrictions from the Endangered Species Act than any
economic incentives?
Mr. Foutz. I kind of go back to what was said a few minutes
ago. I think many of our landowners are more concerned with the
restrictions and the governmental regulations that are
associated with the Endangered Species Act than they are in
terms of any kind of economic incentive. What we find in most
cases, at least in my part of the country, is that the things
we are already doing on our agricultural lands are generally
conducive to the species.
If we find that species there, then the only recourse we
have to try to survive in a farming operation is not to let
anybody know it is there or to do whatever you need to do to
take care of the issue so you don't have to deal with the
regulatory issues. They are costly. This Mountain Plover issue
not only did it cost individuals like me and the other members
who provided the 300,000 acres, it cost a lot of money to be
involved in that study. It cost Colorado Farm Bureau a
considerable sum to provide funds to do that kind of study and
that goes with each of the species. If you find them or they
are there, the regulatory overhead is just too prohibitive to
deal with.
If we can get away from that, I am not sure most of our
members would worry about the economic incentives as long as
they can do some farming on their place. The economics are
always important but if all you want is a bird or prairie dog
or a sage grouse and you ask me to provide that, obviously I am
going to have some incentive but if you allow me to do the
business I know how to do, the economic incentive is not nearly
as great and not nearly the issue as the regulatory environment
we typically are placed under when a species is found and
listed.
Senator Jeffords. Thank you.
Senator Chafee. Thank you, Senator Jeffords and thank you,
gentlemen for good testimony. Some of you came a long way,
California, Colorado, Plum Creek. Where is Plum Creek?
Mr. Olszewski. Actually, I came from Georgia.
Senator Chafee. Georgia, still a long distance. Thank you
very much.
If there are further questions, we will submit them in
writing and hopefully you can respond in writing as we go
forward with reauthorization of the Endangered Species Act.
The hearing is adjourned.
[Whereupon, at 4:45 p.m., the subcommittee was adjourned.]
[Additional statements submitted for the record follow:]
Statement of the Hon. Frank R. Lautenberg Senator from
the State New Jersey
Mr. Chairman, thank you for giving our committee an opportunity to
discuss this landmark piece of legislation--the Endangered Species Act.
I believe it is our duty to future generations--our children and
grandchildren to not only protect the environment, but prevent species
of animals from extinction. The Endangered Species Act has done that.
The bald eagle--the symbol of our nation--is 1 of the 17 animals on
the endangered species list that are found in my State on New Jersey.
We also have a bird in New Jersey called the Red Knot. This bird stops
in New Jersey for a few weeks every year, on its way to Canada from
South America. It used to be that 100 thousand Red Knots would stop in
the Delaware Bay--and bird watchers would spend millions of dollars
coming to witness the spectacle. Today, only about 13,000 Red Knots
visit our State.
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--or the Red Knot no longer visited the
Delaware Bay. One of the main purposes of the Endangered Species Act is
to protect the remaining individuals of these species and their
habitats.
Today we are talking about habitat--specifically, the private lands
that are crucial to the survival of these species. More than 70 percent
of the land in our country is privately owned. So it is no surprise
that 80 percent of endangered species rely on private lands for all or
part of their habitat.
I believe strongly in the rights of landowners to use their
property as they see fit. I also believe that when a specific habitat
holds the key to survival for an entire species, we all have a
responsibility to future generations. I fully support the concept of
providing incentives for private landowners to protect the habitat of
endangered species.
This is an area of general agreement, and I hope we can build upon
this consensus and will always be able to appreciate the majesty of the
bald eagle and other endangered species. Thank you Mr. Chairman.
__________
Statement of Sara Braasch Regional Assistant Chief, Natural Resources
Conservation Service United States Department of Agriculture
Mr. Chairman and Members of the Subcommittee, I am pleased to
appear before you today to present the U.S. Department of Agriculture's
(USDA) perspective on habitat restoration and preservation on America's
private lands. My name is Sara Braasch, and I serve as the Regional
Assistant Chief of the Natural Resources Conservation Service (NRCS)
for 13 western States, as well as the Pacific Basin. I thank the
Members of the Subcommittee for the opportunity to appear, and I
express gratitude to the Chairman and members for your interest in
USDA's roles in helping farmers, ranchers, and other private landowners
improve wildlife habitat. The topic of today's hearing gets to the
heart of the concept of Cooperative Conservation, as wildlife
conservation serves as an excellent example of how voluntary
conservation efforts on private lands can make a difference.
I would like to take a moment to highlight the background of the
NRCS to place our involvement into context. NRCS assists owners of
America's private land to conserve their soil, water, and related
natural resources. Local, State and Federal agencies and policymakers
also rely on our expertise. We deliver technical assistance based on
sound science, that is suited to a farmer's or rancher's specific
needs. In addition, NRCS also offers voluntary assistance to landowners
in the form of financial incentives, cost share projects, and
conservation easements. In 2002, President Bush signed into law the
most conservation oriented Farm Bill in history, which reauthorized and
greatly enhanced conservation programs. In total, the new Farm Bill
enacted by the President provided a $17.1 billion increase in
conservation funding over a ten-year period. In addition, direction was
provided to assist agricultural producers meet regulatory challenges
that they face.
Conservation programs can and do help reduce the burden of
regulation. In the case of the Endangered Species Act (ESA), USDA is
working proactively to help producers address the habitat needs of
species protected under the ESA, and at-risk species. Conservation
programs such as the Wetlands Reserve Program (WRP), the Wetlands
Reserve Enhancement Program (WREP), the Wildlife Habitat Incentives
Program (WHIP), the Grassland Reserve Program (GRP), and the
Conservation Reserve Program (CRP) addresses the needs of these
species.
The Environmental Quality Incentives Program (EQIP) rule includes
the requirement for NRCS State offices to include in their Ranking
Criteria, ``Compliance with Federal, State, local or tribal regulatory
requirements concerning soil, water and air quality; wildlife habitat;
and ground and surface water conservation.'' In addition, 1 of the 4
national conservation priorities for EQIP addresses wildlife by seeking
the ``promotion of at-risk species habitat recovery.'' This national
conservation priority provides additional emphasis in allocation of
program funding; direction is also provided to States to include
national priorities in ranking individual applications.
NRCS has worked to ensure that our programs are helping landowners
address species concerns and providing incentives to not only protect
Threatened and Endangered Species habitat, but also to develop and
enhance new habitat for the future. Here are just a few examples of
actions and assistance that USDA recently has offered with respect to
habitat enhancement for targeted species.
the wetlands reserve enhancement program
On May 16, 2005, Secretary Johanns announced the availability of $4
million in financial assistance for the Wetlands Reserve Enhancement
Program (WREP) partnership proposals that restore and protect habitat
for migratory birds and other wetland dependent wildlife. The Wetlands
Reserve Program (WRP) provides restoration assistance and easements of
30 years or permanent in duration to protect wetlands. Through WRP,
USDA's goal is to restore and protect more than 2 million acres of
wetlands. The new enhancement option within WRP allows NRCS to match
resources and leverage the efforts of State and local governments to
provide even greater assistance to landowners.
eastern bog turtle and ivory billed woodpecker
Of the $4 million recently made available for WREP, a minimum of
$500,000 is offered for partnership proposals that address Bog Turtle
Habitat in the eastern United States. The Bog Turtle is a threatened
species that has a potential range from New York and Massachusetts
south to Tennessee and Georgia. Population declines are due mainly to
loss of habitat, which consists of wet meadows and other shallow sunny
wetlands, and encroachment of vegetation. Bog Turtle-related proposals
will compete only with other Bog Turtle proposals under our recent
announcement.
Also included in our WREP announcement is a minimum of $500,000 to
assist with Ivory-billed woodpecker habitat in Arkansas. We believe
that excellent opportunities exist for developing bottomland hardwood
wetland habitat projects that will provide long-term benefits. In
addition to WREP, NRCS is providing an additional $1 million in WRP
funds, and $1 million in Wildlife Habitat Incentives Program (WHIP)
cost-share funds, to private landowners for practices that improve and
restore native Ivory-billed woodpecker habitat. This includes restoring
previously logged areas near deciduous forest swamps to improve and
protect critical habitat. We will be announcing successful recipients
of funding under this program soon, and feel that the excellent
response and applications that have been submitted underscore the
opportunities for increased private lands conservation of wildlife
habitat. In addition, the Farm Service Agency through the Conservation
Reserve Program will provide $2.7 million for Ivory-billed woodpecker
habitat.
salmon
In February, Secretary Johanns announced $2.8 million in the WHIP
to help restore and conserve salmon habitat in Alaska, California,
Idaho, Maine, Oregon, and Washington. These funds are part of the WHIP
Salmon Habitat Restoration Initiative, which NRCS initiated in March of
2004. Through the initiative, NRCS helps landowners with projects that
restore habitat for Pacific and Atlantic salmon and include increasing
vegetative shade along streams, restoring gravel spawning beds,
removing barriers to fish passages and reducing nutrient runoff from
farming and ranching operations. In addition to this year's funding,
NRCS signed 47 contracts and agreements with landowners, tribes, and
municipalities in fiscal year (FY) 2004. These projects totaled more
than $3.3 million and improved nearly 900 acres of riparian habitat and
opened hundreds of miles of streams for fish passage. We are pleased
with the gains being made to improve salmon habitat, and believe that
NRCS can continue to build upon this success for the future.
sage grouse
Habitat conservation for the Greater sage grouse in the western
United States serves as a prime illustration of the role of Farm Bill
programs and conservation planning assistance. Accelerated assistance
provided through NRCS had a positive impact on improving sage grouse
habitat. NRCS has provided more than $2.5 million in incentives for
sage grouse habitat conservation, primarily through the Grassland
Reserve Program (GRP) and WHIP in fiscal year (FY) 2004. NRCS estimates
that in fiscal year (FY) 2004 more than 80,000 acres of sage grouse
habitat benefited directly from private lands conservation efforts,
with more than 1 million acres experiencing a secondary benefit. For
fiscal year (FY) 2005, we estimate that roughly 1.5 million acres of
sage grouse habitat will benefit from primary and secondary effects
combined. As a result, the U.S. Fish and Wildlife Service made a
decision not to list the Greater sage grouse as Threatened and
Endangered under the ESA. In that decision, they emphasized the
importance of ongoing and future conservation efforts to the long-term
health of this species.
other assistance
The Healthy Forests Restoration Act of 2003 authorized the Healthy
Forests Reserve Program (HFRP). The Act authorizes HFRP to make
payments for private forest landowners who agree to protect forested
acreage to promote the recovery of threatened and endangered species.
This program has an authorization of appropriations of $5 million from
fiscal year (FY) 2004 through fiscal year (FY) 2008, and can enroll up
to 2 million acres. Program contracts can take the form of 10-year
cost-share agreements and easements of 30-years or up to 99-years in
duration. The Healthy Forests Restoration Act also contains innovative
provisions relating to safe harbor or similar assurances to landowners
who enroll land in HFRP and whose conservation activities result in a
net conservation benefit for listed, candidate, or other species. USDA
is working collaboratively with the Department of Interior U.S. Fish
and Wildlife Service on establishing these procedures for HFRP.
summary
In a broad sense, the Administration's commitment toward
Cooperative Conservation will mean greater emphasis on assisting
producers to identify opportunities for improved and increased fish and
wildlife habitat. Mr. Chairman, my statement has highlighted just a few
of the programs and provided a general sense of the kinds of species
targeted and work that private lands conservation is accomplishing.
There are numerous other species that are benefiting everyday from
conservation efforts on farms and ranches across America. To provide an
idea of the scope and magnitude of our efforts, NRCS will provide over
$1 billion in funding through the EQIP program this year. Couple these
funds with the additional half billion dollars dedicated through our
other conservation programs including the Farm and Ranch Lands
Protection Program (FRPP) and Conservation Security Program (CSP) this
year, and it becomes clear that wildlife habitat is receiving major
benefits. I note that under the CSP, wildlife habitat plays a major
part in that program, as any farmer or rancher with wildlife habitat
issues on their property must fully address those needs in order to
qualify for participation at the highest levels.
We will continue to seek innovative means of protecting and
restoring fish and wildlife habitat by offering farmers and ranchers
incentive-based programs and planning assistance. We also will continue
to seek out opportunities to best target our resources and assistance
when special opportunities or circumstances necessitate. Rural America
has an excellent story to tell. If we provide solid information,
financial resources, and technical assistance, we can achieve a win-win
for American agriculture as well as for wildlife conservation.
I would be happy to respond to any questions that Members of the
Subcommittee might have.
Statement of Marshall P. Jones Jr., Deputy Director, U.S. Fish and
Wildlife Service, U.S. Department of the Interior
Mr. Chairman and Members of the Subcommittee, I appreciate the
opportunity to testify today regarding the Endangered Species Act (ESA)
and incentives for private landowners.
Passed in 1973, the ESA is intended to conserve plant and animal
species that, despite other conservation laws, are in danger of
extinction. Two key purposes of the ESA are 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 and
to provide a means whereby threatened and endangered species ecosystems
may be conserved. The ESA provides significant policy direction and
tools to accomplish species conservation and protection. In the past,
the way the ESA was implemented placed legal and regulatory burdens on
landowners and other members of the regulated community. As a result,
many landowners do not want listed species on their property and have
been unwilling to engage in activities that would attract species that
are or could be listed in the future for fear of increased regulation
and negative impacts on their property.
Because more than 70 percent of federally-listed species depend on
private lands, our ability to recover species requires the assistance
of private landowners and the regulated community. With no legal
requirements for private landowners to improve or restore habitat and
conditions on their land for the benefit of listed species, incentive-
based conservation is crucial to our ability to recover these species.
Incentive-based conservation efforts are also important if we are to
encourage reluctant landowners to work with the Federal Government in
the future.
At the Department of the Interior, the ESA is administered by the
U.S. Fish and Wildlife Service (Service). The Service is the lead
Federal Agency responsible for conserving and protecting the Nation's
fish and wildlife resources. Throughout the United States, the Service
strives to fulfill this responsibility through the establishment of
innovative programs that implement the Secretary of the Interior's four
C's initiative--Conservation through communication, consultation, and
cooperation.
cooperative approaches to conservation
The Administration has long recognized that successful protection
of many fish and wildlife species depends significantly on the
protection and management of habitat, much of which is in private
ownership. One of the most promising developments for habitat
protection is the advance of cooperative conservation. This fosters
innovative approaches to land use and involves local citizens, whose
first hand understanding of the challenges facing specific places
provides added benefits to conservation efforts. Cooperative
conservation also promotes a more broad-based and integrated approach
to addressing environmental concerns.
Such an approach is already yielding tangible results. Over the
past 5 years, the Federal Government has provided over $1.7 billion in
grants to States, tribes, local governments, and private landowners
through programs that preserve open space, restore habitat for
wildlife, and protect endangered species. These partnerships are
achieving substantial conservation benefits. Through partnerships the
government has restored millions of acres of habitat; removed invasive
exotic species; replanted native grasses; improved riparian habitat
along thousands of miles of streams; conserved limited water resources;
and developed conservation plans for endangered species and their
habitat. In part as a result of these accomplishments, in August 2004,
President Bush signed an Executive Order on Cooperative Conservation,
asking all agencies to strengthen their efforts to work together and
with States, tribes, local governments, and landowners to achieve
conservation goals.
The Service firmly supports the philosophy that, by working
together, the Federal Government and private landowners can achieve
tremendous success in habitat conservation. As such, it is imperative
that the Service looks for opportunities to partner with private
landowners to protect species and enhance their habitat on private
lands. Such cooperative conservation provides opportunities to enhance
habitat while maintaining private property rights; it also engages the
public in private stewardship. Because restored habitats provide
important food, cover, and water, this strategy can contribute to the
Service's mission to conserve trust species--such as migratory birds,
inter-jurisdictional native fish, and threatened and endangered
species--and to control and reduce the spread of invasive species.
We are committed to implementing a cooperative approach through the
development of partnerships with others and we are focused on
identifying new and better means of encouraging voluntary conservation
initiatives. Indeed, many conservation tools are available to
facilitate species conservation, including Candidate Conservation
Agreements, Candidate Conservation Agreements with Assurances, Safe
Harbor Agreements, Habitat Conservation Plans, Conservation Banking,
the Partners for Fish and Wildlife Program, and grants through the
Landowner Incentive Program, Private Stewardship Grants, and the
Cooperative Endangered Species Conservation fund. Each of these tools
is described below in more detail with examples of their on-the-ground
implementation.
safe harbor agreements and candidate conservation agreements with
assurances
Safe Harbor Agreements and Candidate Conservation Agreements with
Assurances are 2 of many landowner tools coordinated and administered
by the Service's Endangered Species Program. Under Safe Harbor
Agreements, the focus is on species already listed as threatened or
endangered. Under these agreements, non-federal property owners
voluntarily commit to implement conservation measures that will result
in a net conservation benefit that contributes to the recovery of a
listed species, and in return receive assurances from the Service 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. The first Safe Harbor agreement was signed
in 1995 and the Service issued a Safe Harbor Policy and regulations in
1999.
For example, under the programmatic Safe Harbor Agreement between
the Service and the South Carolina Department of Natural Resources, 104
non-federal landowners have signed up through certificates of
inclusion. The total property enrolled in this agreement to date is
almost 400,000 acres with 278 groups of the endangered red-cockaded
woodpecker covered under the baseline conditions. Through the
management of the enrolled lands, the number of woodpecker groups has
been increasing above the baseline, and we expect continued expansion
of the species in South Carolina.
Together with Environmental Defense, an organization that was
instrumental in launching the Safe Harbor concept, the Service recently
celebrated the 10th anniversary of the first Safe Harbor Agreement, at
Pinehurst, NC. Today, thanks largely to the continuing support of
Environmental Defense and numerous State agencies across the country,
more than 325 private and other non-federal landowners have signed up
under 32 Safe Harbor Agreements to conserve 36 endangered and
threatened species, with more than 3.6 million acres of non-federal
land and 16 linear miles of stream enrolled. Work on new Safe Harbor
Agreements is underway in many areas, and the Service, Environmental
Defense, and the involved States continue to encourage additional
landowners to sign up under the existing programmatic agreements.
Similar to Safe Harbor Agreements, Candidate Conservation
Agreements with Assurances (CCAAs) are designed to provide incentives
to landowners willing to make a voluntary commitment to aid imperiled
species. CCAAs are available to any non-federal landowner, such as a
private landowner, a local or State Agency, a tribal government or a
non-governmental organization. These agreements target species that the
Service has identified as candidates for listing or species likely to
become candidates. The CCAA policy and associated regulations were
issued in 1999. To date, we have 10 CCAAs in place covering 24
candidate or declining species, and encompassing approximately 300,000
acres. Several CCAAs are under preparation with individual landowners,
as well as programmatic agreements with States under which multiple
landowners can voluntarily participate through certificates of
inclusion. For many candidate and declining species, we believe that
more widespread use of CCAAs can substantially reduce the need for
listing.
For example, in 2002, Soulen Livestock, a family-owned sheep and
cattle operation in western Idaho and the Service signed a Candidate
Conservation Agreement with Assurances for the southern Idaho ground
squirrel, a species identified by the Service as a candidate for
listing. In return for allowing nearly 200 squirrels to be relocated to
their property from nearby sites where habitat and the squirrels were
not protected, and maintaining suitable habitat for them, the agreement
specifies that Soulen Livestock 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. Earlier this year, due largely to
the example set by Soulen Livestock, a ``programmatic'' Candidate
Conservation Agreement with Assurances was signed with the Idaho
Department of Fish and Game and the Governor's Office of Species
Conservation covering the 4 counties thought to be the historic range
of this endemic ground squirrel. We refer to this type of
``programmatic'' CCAA as an ``umbrella'' agreement because it can cover
multiple landowners. Landowners who have ground squirrels or are
willing to allow them to be relocated to their property will be
enrolled in this CCAA through certificates of inclusion and thus will
receive regulatory assurance that no ESA restrictions will be required
beyond those in the agreement if listing is necessary.
Although the CCAA and Safe Harbor programs are still relatively new
and growing, we are committed to updating and improving them based on
the lessons learned from private landowners and partners participating
in them. For instance, the Service is encouraging greater use of
programmatic agreements to cover a species across all or a relatively
large segment of its range. Under such agreements, the State wildlife
Agency, local governmental entity, or a non-governmental organization
signs the agreement and holds the associated permit, and individual
landowners can voluntary enroll in a CCAA or Safe Harbor through
certificates of inclusion and thus receive the regulatory assurances
they seek.
habitat conservation plans
In 1982, Congress amended the ESA to allow incidental take permits
for landowners who establish ``conservation plans.'' Since that time,
the Service has approved more than 400 HCPs nationwide. 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 2005, 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
current 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 for 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.
conservation banks
Conservation banks are lands already owned or acquired by third
parties, managed for specific threatened or endangered species, and
protected permanently by conservation easements. Banks may sell a fixed
number of mitigation credits to developers to offset adverse effects on
a species elsewhere. Targeting conservation bank sites and other large
mitigation sites to include needed habitat for listed species may
reduce the amount of designated critical habitat required for those
species. 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.
In December 2003, the Dove Ridge Conservation Bank, a privately-
owned, 2,400-acre site located in Butte County, CA, was approved to
sell vernal pool preservation credits for the vernal pool fairy shrimp,
tadpole shrimp, and Butte County meadowfoam (a plant). It is one of the
largest conservation banks 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 that more habitat within this watershed will be
acquired for similar conservation purposes.
cooperative endangered species conservation fund and private
stewardship grants
The Cooperative Endangered Species Conservation Fund (CESCF)
provides grant funding to States and territories for species and
habitat conservation actions on non-federal lands and can include
habitat acquisition, conservation planning, habitat restoration, status
surveys, captive propagation and reintroduction, research and
education. Grants from the Cooperative Endangered Species Conservation
Fund allow us to support our State Agency partners in conserving
endangered species through wildlife and habitat management, land
acquisition, and the development of Habitat Conservation Plans. In
addition, these grants have assisted States and territories in building
partnerships with private landowners.
In May 2005, nearly 1,800 acres, including wetlands, grasslands,
and forests, were dedicated in Northwestern Montana as the Bull River
Wildlife Management Area, in part through a Cooperative Endangered
Species Conservation Fund Grant to the Montana Department of Fish,
Wildlife, and Parks. Montana's newest public lands are home to bull
trout, grizzly bears, and bald eagles. They provide spawning and
rearing habitat for bull trout and an important migratory corridor for
many wildlife species.
A $1 million Endangered Species Act Recovery Land Acquisition Grant
to the State of Hawaii helped the Maui Coastal Land Trust buy 277 acres
of the largest undeveloped coastal dunes on the island. The property
features 7,000 feet of shoreline paralleled by the Waihe's Reef, a
noted traditional fishing and scuba-diving site. The habitat will
benefit the endangered Hawaiian stilt, Hawaiian coot, Hawaiian duck,
Hawaiian gallinule, Blackburn's sphinx moth, a damselfly, and native
plant species such as creeping naupaka, Carter's panic grass, ohai, and
awiwi.
private stewardship grants
The Private Stewardship Grant program works directly with
landowners to fund conservation actions for listed species, proposed
and candidate species and at risk species on private lands. The program
provides grants on a competitive basis to individuals and groups
involved in voluntary conservation efforts. To complement the CESCF
grant to the State of Hawaii, a $107,000 Private Stewardship Grant was
awarded to the Maui Coastal Land Trust to improve habitat. Volunteers
are removing invasive plants from coastal spring-fed wetlands and
restoring the dunes with native plants such as Hawaiian bulrush, bacopa
(`ae`ae), cyperus (makaloa), the ``fish-poison plant'' (a`kia), and
pandanus to provide sites for water birds to forage, breed, and rest.
``The goal,'' says Dale Bonar, Executive Director of the Maui Coastal
Land Trust, ``is to restore as much native vegetation as we can for
endangered species.'' Hawaiian stilts are already nesting in the
wetlands. The Private Stewardship Grants Program provides a unique
opportunity for the Service to work directly with private landowners to
conserve imperiled species through on-the-ground habitat management on
their lands.
partners for fish and wildlife
In 1987, the Service established the Partners for Fish and Wildlife
Program under the broad authority of the Fish and Wildlife Coordination
Act and the Fish and Wildlife Act of 1956. The Partners Program is a
voluntary habitat restoration program that recognizes the long-standing
and strong natural resources stewardship ethic present in many private
landowners. The Partners Program helps landowners restore wetlands,
native grasslands, streams and other important habitat on their lands.
Through the program, the Service is able to provide landowners with
one-on-one customer service and funding assistance for on-the-ground
projects that enhance or restore priority fish and wildlife habitat.
The Program is conducting hundreds of voluntary habitat restoration
projects, specifically focused on restoring habitat for threatened and
endangered species and candidate species, including the lesser prairie-
chicken, Arkansas River shiner, swift fox, mountain plover, and the
Interior least tern.
The program also leverages funds, working to maximize the benefits
and minimize the costs for projects. On average, the Service succeeds
in leveraging Service resources against non-Service resources by a 2-
to-1 match ratio. Over the past 16 years, almost 35,000 agreements with
landowners have been completed. The resulting partnerships between the
Service and private landowners have resulted in the protection,
restoration, and enhancement of nearly 2.5 million acres of private and
tribal habitat nationwide.
In Oklahoma, the Partners Program has experienced tremendous
success. Since 1990, the Service has initiated 684 projects on over
128,000 acres of private land. This includes 14,400 wetland acres,
82,600 grassland acres, 1,300 woodland and shrubland acres, 25,100
acres of other habitat, and 236 riparian stream miles. Furthermore,
Partners Program funds have created over 100 outdoor education
classrooms on school campuses that will provide future generations of
Americans with hands-on experience working with the land and wildlife.
The Senate recently passed S. 260, the Partners for Fish and
Wildlife Act, that would codify the Partners for Fish and Wildlife
Program. Because of the tremendous success of the program in working
with private landowners to conduct cost-effective habitat projects for
the benefit of fish and wildlife resources in the United States, the
Administration supports this legislation and appreciates this
Committee's support for the program.
landowner incentive program
Begun in fiscal year (FY) 2002, the Landowner Incentive Program is
funded from the Land and Water Conservation Fund. This program provides
grants to State and tribal conservation agencies to help landowners
restore habitat for listed, proposed, candidate, or other at-risk
species on private and tribal lands. The competitively-awarded grants
leverage Federal funds through cost-sharing provisions with State,
territorial, and tribal fish and wildlife agencies. The Service
requires a 25-percent non-federal share of project costs for this
program.
In fiscal year (FY) 2004, the New Jersey Division of Fish and
Wildlife was awarded $1.12 million from the Landowner Incentive
Program. With these Federal funds and more than $360,000 in private
matching funds, the State is implementing approximately 25 projects on
private lands throughout its jurisdiction. These projects will result
in the conservation and restoration of forests, grasslands, and wetland
habitats and protection of endangered bog turtles, declining grassland
bird species, rare plant communities and other at-risk species in New
Jersey. The State is partnering with private landowners, farmers, and
non-governmental organizations including The Nature Conservancy to
implement these projects. In addition, New Jersey has developed strong
partnerships with other agencies and organizations administering
incentive programs, including the Natural Resource Conservation
Service, the Service's Partners Program, and Environmental Defense, to
ensure that these conservation efforts are coordinated and to share
administrative oversight and monitoring of projects.
state wildlife grants
The State Wildlife Grant (SWG) program is designed to assist States
by providing Federal funds for the development and implementation of
programs that benefit wildlife in greatest conservation need and their
habitat. Since many issues related to wildlife conservation are not
contained by jurisdictional borders, the Service and States are working
together to coordinate efforts to conserve endangered and threatened
species, manage migratory birds, and lay foundation for good wildlife
management.
To establish eligibility for these funds, States and territories
had to commit to develop by October 1, 2005, a Comprehensive Wildlife
Conservation Strategy or Plan (CWCS). The goal of the State Wildlife
Conservation Strategies is to provide a foundation for the future of
wildlife conservation and an opportunity for the States, Federal
Agencies, and other conservation partners to think strategically about
their individual and coordinated roles in conservation efforts across
the Nation. As of June 30, the Service had received official
submissions from North Carolina, U.S. Virgin Islands, Michigan, Utah,
and Arizona. Most other States and territories have put draft
strategies out for public review and input. Based on a preliminary
review of the strategies submitted, the Service remains confident that
high-quality strategies are going to be the ``norm.''
Congress began appropriating funds for SWGs in fiscal year (FY)
2002. The initial funding provided by the State and Tribal Wildlife
Grants Program has already allowed many States and territories to begin
implementing conservation actions. For example, in Illinois, the
Illinois Department of Natural Resources is partnering with the City of
Chicago to purchase 102 acres at Hegewisch marsh. The new acquisition
provides optimum nesting habitat for the State-listed little blue
heron, yellow-headed blackbird, pied-billed grebe and common moorhen.
conclusion
We appreciate the Subcommittee's interest in incentives for private
landowners to conserve and protect species, and we recognize that our
ability to make progress is tied to our ability to work with others,
including private landowners. As previously stated, with such a high
percentage of federally-listed species dependent on private lands, our
ability to recover species requires the assistance of private
landowners and the regulated community The Service's emphasis on
incentive programs like the Land Owner Incentive Program and programs
that provide certainty and assurances to private land owners such as
Safe Harbor agreements demonstrate how Cooperative Conservation can
help more fully achieve the purposes of the ESA. We realize that local
involvement will be critical to ensuring the successful, effective, and
long-lasting conservation of these species.
I would like to reiterate the 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.
Statement of Michael J. Bean Environmental Defense Washington, DC
The goals of the Endangered Species Act are among the Nation's most
noble and most important. If we attain them, we will leave our children
and succeeding generations a rich legacy of diverse and abundant
wildlife and the habitats that sustain it. As one who has devoted most
of his professional life since graduating from Yale Law School in 1973
to the pursuit of these goals, I firmly believe that they are
attainable. Yet, I must acknowledge that they will not be attained--
indeed, almost certainly cannot be attained--without offering
meaningful incentives to private landowners and others to enlist them
more effectively in the task of conservation. In the testimony that
follows, I will explain why incentives are essential, examine some of
the experience to date with incentive mechanisms, and finally offer
some recommendations for this subcommittee to consider.
why incentives for conserving endangered species are essential
Four unavoidable facts underscore the conclusion that incentives to
private landowners are essential to achieving the goals of the
Endangered Species Act. The first of these is that much of the
remaining habitat, and much of the potentially restorable habitat, for
endangered species is found on private land. Indeed, many endangered
species have most of their habitat on private land, and some have all
of it there. Take, for example, North America's smallest turtle, the
bog turtle, a threatened species that occurs in at least 3 of the
States represented on this subcommittee: Mrs. Clinton's State of New
York, Mr. Lautenberg's State of New Jersey, and Mr. Lieberman's State
of Connecticut. Almost all the sites where this species occurs are on
private land; virtually none are on public land, particularly Federal
land. Thus, if we are to conserve this species (and many others like
it), we will need to do so on land that is largely in private
ownership.
The second unavoidable fact is that many endangered species cannot
be conserved simply by putting a fence around their habitats and
declaring them off limits to disturbance. Instead, those species--and
their habitats--need to be actively managed to sustain them over time.
The example of the bog turtle illustrates this point as well. It occurs
in early successional, grass- and sedge-dominated wet meadow habitats
that are generally sunny and have few trees or other tall vegetation.
Historically, these were likely created and sustained by the herds of
large native grazing animals that formerly occurred in the Northeast,
including elk and bison. More recently, grazing by cows and other
domestic livestock has kept many of these sites in the open, sunny
condition needed by the bog turtle. Remove the grazing animals,
however, and these sites are quickly invaded by red maples and by
aggressive exotic species such as purple loosestrife and multiflora
rose. These invaders transform sunny grass- and sedge-dominated wet
meadow habitats hospitable to bog turtles into heavily shaded wetlands
that are inhospitable to bog turtles. Thus, without purposeful
management to control invasive plants, the habitats that support bog
turtles today will soon cease to do so, as many have done in recent
decades--not due to development, but to lack of management.
Let me offer as another example the red-cockaded woodpecker, which
also occurs in at least 3 of the States represented on this
subcommittee: Mr. DeMint's State of South Carolina, Mr. Vitter's State
of Louisiana, and Mr. Warner's State of Virginia. Its habitat is
characterized by older pine forests of the Southeast with little or no
hardwood understory. Historically, the hardwood understory in these
forests was kept to a minimum by frequent lightening-caused fires that
would burn quickly through the grassy understory. Those fires would
kill most of the hardwoods, but were actually good for the fire-
tolerant longleaf pine trees, which not only typically survived the
fires, but actually needed fire to aid the germination of their seeds.
This natural cycle of frequent low-intensity fires has been
dramatically altered as a result of the network of roads and other
developments that act as barriers to the movement of fire across the
landscape. Now, without prescribed burning or other purposeful
management to control the hardwood understory, the relatively open and
savanna-like pine forests that support red-cockaded woodpeckers
inevitably become dense, mixed pine and hardwood forests inhospitable
to red-cockaded woodpeckers. Thus, without prescribed fire or other
purposeful management, the forest habitats that support this emblematic
species of the Southeast will cease to do so, as many have done in
recent decades--not due to development, but to lack of management.
The third unavoidable fact is that although purposeful management
is clearly needed to maintain and improve the status of not just the
bog turtle and the red-cockaded woodpecker, but of a great many other
endangered or threatened species, there is nothing in the Endangered
Species Act that compels it. The focus of the Act is on prohibiting
harmful activities, backed up by the threat of severe penalties, not on
eliciting beneficial activities that could improve upon the status quo.
Thus, the developer in New York or New Jersey who fills a wetland
occupied by bog turtles potentially faces a large fine and a jail
sentence for doing so. The landowner who stands passively by while the
bog turtle wetland on his property is overtaken by invasive trees and
shrubs does nothing that the law prohibits. Yet, in both cases, the end
result is the same--bog turtles will cease to occupy the site. Thus, to
secure the needed active management, not only is the carrot better than
the stick, but in reality there is no stick.
The final unavoidable fact is quite simple: the purposeful
management needed to sustain and improve species like the bog turtle
and the red-cockaded woodpecker is virtually never free. Controlling
hardwood understory in Southeastern pine forests through prescribed
burning is the least costly method of doing so. However, in many
formerly rural areas that are now part of the rural-urban interface,
the proximity of development precludes the use of fire. The
alternatives of mechanical or chemical control of hardwoods are much
more expensive. In the Northeast, as a result of the decline of animal
agriculture, people with chain saws, shears, and herbicides often have
to do the job that cows or goats formerly did. Further, there is often
no reason for landowners to engage in such management practices other
than to create or maintain habitat for rare species. Thus, unless one
expects that landowners will incur costs to carry out management
activities that are neither compelled by law nor necessitated by other
land use objectives, there is no reason to believe that the goal of
recovering rare species that occur largely on private land and require
active management will ever be achieved without incentives to do so.
I said earlier that there were 4 unavoidable facts that underlie
the need for incentives. There is a fifth fact that needs discussion as
well, though it is no longer an unavoidable one. It is simply this. The
landowner who, despite the cost and despite the lack of any legal
compulsion to do so, voluntarily restores or improves habitat for
endangered species on his land once faced an unfortunate dilemma. The
landowner who undertook such voluntary measures was likely to incur
additional regulatory restrictions on the use of his land once
endangered species began to use the restored or improved habitat. That
dilemma can now be avoided through the use of Safe Harbor Agreements,
under which landowners undertake voluntary restoration actions without
incurring added regulatory liabilities. These agreements were an
innovation begun during the tenure of Bruce Babbitt at the Interior
Department, and they have embraced by his successor, Gale Norton, as
well. In Mr. DeMint's State of South Carolina, over a hundred
landowners who together own some 400,000 acres of forest land are
participating in Safe Harbor Agreements for the red-cockaded
woodpecker. There are also Safe Harbor Agreements for this species in
several other States, including Virginia and Louisiana. In New York,
The Nature Conservancy has been working to develop a Safe Harbor
Agreement for private landowners in the Albany area for an endangered
butterfly, the Karner blue butterfly. In the ten years since the first
Safe Harbor Agreement was developed, these agreements have shown
themselves to be an effective way of overcoming an unintended
regulatory disincentive to conservation, one that many landowners have
embraced and one that has produced clear benefits for species. As I
will note in the recommendations appended to this testimony, however,
much more needs to be done to realize the full potential of this
promising new conservation tool.
how to improve the use of incentives in the federal endangered species
program
What the Endangered Species Act says about incentives is
practically nothing. It uses the word only once, and then only in the
statement of congressional findings in Section 2. There Congress finds
that ``a system of incentives'' is ``key to meeting the Nation's
international commitments'' and safeguarding its living natural
heritage. That is the only mention of incentives anywhere in the Act,
and its meaning is decidedly opaque. Unfortunately, after finding that
incentives were important, Congress did almost nothing in the Act to
create them. Thus, the incentives for conserving endangered species
that currently exist are either administratively created (such as Safe
Harbor Agreements, the Private Stewardship Grants Program, and the
Landowner Incentives Program), or have their basis in other laws that
serve broader environmental purposes.
In thinking about how to improve the use of incentives in the
Federal endangered species program, there are at least 3 questions that
are worth asking. First, can existing, broad purpose landowner
incentive programs be administered to produce greater benefits for
imperiled species? Second, are new incentive programs needed
specifically for endangered species purposes? Finally, what needs to be
done to ensure that regulatory policies do not undermine economic
incentive policies?
The good news is that there already exist a number of programs that
offer economic incentives to landowners for land stewardship purposes
broad enough to encompass endangered species conservation. Most of
those programs--and the most generously funded of these programs--are
administered by the Department of Agriculture, however, rather than the
Department of Interior, and the potential of these programs to be
administered so as to achieve endangered species benefits has been
largely unrealized. There is clear need for the USDA agencies that
administer these Farm Bill programs and for the Interior and Commerce
Department agencies that administer the endangered species program to
work together much more closely. By doing so, it should be possible to
accomplish the broad environmental goals of the Farm Bill programs
while simultaneously furthering the more specific goals of the
endangered species program.
Let me illustrate the need for greater coordination with an example
from Committee Chairman Inhofe's State of Oklahoma. The Conservation
Reserve Program pays farmers to take cropland out of annual crop
production and to plant it with perennial grass or tree cover so as to
reduce soil erosion and achieve other environmental benefits. In
Oklahoma, thousands of acres of former cropland have been planted in
grasses under this program. The soil erosion benefits have been
substantial. However, most of the initial plantings were of non-native
grasses, which are of little or no habitat value for the lesser prairie
chicken, a species that is now a candidate for addition to the
endangered species list. Had the same acres been planted in native
grasses, the same soil erosion benefits would have been achieved, and
the lesser prairie chicken would have benefited as well, possibly to
the extent that it would no longer be a candidate for endangered
listing.
Missed conservation opportunities like the prairie chicken example
are all too common. There are also occasional examples of Farm Bill
conservation programs working at cross purposes with the endangered
species program. In Pennsylvania, for example, Farm Bill dollars have
gone to encourage tree planting in riparian corridors. That is
generally a good thing, but some of the areas planted have been
potential bog turtle habitat. As discussed earlier, trees should not be
planted in bog turtle habitat, but instead need to be removed from it.
Better coordination among the agencies is clearly needed, both to
ensure that important conservation opportunities are not missed, and to
ensure that Agency efforts are not working at cross purposes.
There are also some very encouraging examples of what can happen
when efforts are made to align Farm Bill and endangered species program
objectives. This is particularly true where Natural Resource
Conservation Service State biologists have taken the initiative and
focused resources on rare species. In New York, for example, the NRCS
has provided critical funding for a number of bog turtle restoration
efforts. NRCS State Biologist Mike Townsend deserves recognition for
his enthusiastic support of this initiative. In neighboring New Jersey,
NRCS's Tim Dunne has provided cost-share assistance for many bog turtle
restoration projects through the Wildlife Habitat Incentives Program.
Recently, NRCS announced the availability of a half million dollars
each of Wetlands Reserve Enhancement Program funds for restoration
efforts targeting habitat of the bog turtle and the recently
rediscovered ivory billed woodpecker. These examples illustrate the
potential for real synergy between Farm Bill conservation programs and
the endangered species program--if only the responsible agencies will
make a concerted effort to find these opportunities.
This subcommittee can, I think, play a very useful role in bringing
that about. Working in concert with the Forestry, Conservation and
Rural Revitalization Subcommittee of the Senate Agriculture Committee,
whose Chairman, Senator Crapo, has a strong interest in improving the
performance of the endangered species program, you can ask the agencies
involved to provide you with what they see as the best opportunities to
work together to further the conservation of endangered and other
imperiled species--what species, in what locations, using what
programs? Their answer will go a long way toward answering the first
question posed above: can existing, broad purpose landowner incentive
programs be administered to produce greater benefits for imperiled
species?
Only with a clear answer to that question can one begin to assess
the second question, whether new incentive programs are needed
specifically for endangered species. Even if one could fully harness
the potential of existing broader-purpose incentive programs to serve
endangered species objectives, it is likely that new authority will be
desirable. This is in part because existing programs have eligibility
requirements that limit their applicability but especially because most
existing incentive programs are simply cost-sharing programs, in which
the program pays for a portion of the cost of implementing a
conservation practice, and the landowner pays the remaining portion.
The rationale behind such cost-sharing programs is that there are
certain conservation practices that produce both public and private
benefits, but the private benefits to the landowner are frequently too
small to justify the full expense of implementing the practice. By
sharing the cost of implementing these practices, these programs make
possible practices, the expense of which would not otherwise be
justifiable to the landowner. However, as noted earlier, often the
conservation practices needed for endangered species have no
independent value to the landowner; they do not increase production,
reduce the costs of production, or otherwise further landowner
objectives. In such cases, payments that equal the costs of
implementing the conservation practice are likely to be needed, not
partial cost-share. Real incentive payments that go above and beyond
restoration costs are needed as well, at least if the goal is to engage
more than the most ardent conservationists among landowners.
There is at least one existing program that offers incentive
payments above and beyond cost-sharing assistance, USDA's Environmental
Quality Incentives Program (EQIP). Moreover, 1 of the 4 National
priorities for EQIP is the conservation of at-risk species. To date,
however, EQIP has done little to address this National priority, for at
least 3 reasons. First, in most States the criteria for ranking
competing projects give a higher priority to run-of-the-mill wildlife
conservation projects that are appended to large projects with other
purposes, such as construction of waste storage facilities, than to
truly ambitious--but freestanding--conservation projects for imperiled
species. In a few States, including North Carolina and Utah, a portion
of EQIP funds have been allocated specifically for conservation
projects for at-risk species. This approach ensures that the merits of
wildlife conservation projects are compared directly with those of
other wildlife conservation projects, regardless of whether they are
appended to a waste storage facility or not.
The second reason that EQIP has thus far done little to address its
stated National priority of conserving at-risk species is that little
use has been made of the authority to provide incentive payments, above
and beyond cost-share assistance. Finally, there has thus far been no
real effort to integrate Safe Harbor assurances into EQIP (or, for that
matter, other conservation assistance programs). Without that
integration of assurances, landowner demand for conservation assistance
dollars to carry out projects benefiting endangered species will be
modest.
The failure to integrate landowner assurances into EQIP and other
conservation assistance programs illustrates how regulatory policies
can undermine economic incentive policies. The problem, however, is
broader than simply the failure to integrate regulatory assurances into
conservation assistance programs. Two years ago, I wrote a highly
critical paper in which, after acknowledging some encouraging results
from initial implementation of a new set of incentive-based
conservation tools, I said the following:
``Despite these impressive initial indications, it is hard to avoid
the conclusion that the record of accomplishment with these new
conservation tools may be no more inspiring than the record with the
old tools unless a number of self-imposed obstacles to success are
removed. Those obstacles are self-imposed because they do not inhere in
the law itself, but are instead the product of an unimaginative,
process-preoccupied, and ultimately self-defeating implementation that
discourages and deters opportunities for tangible, on-the-ground
improvement. These debilitating constraints have no partisan or
ideological provenance; they have stifled effective conservation
efforts for endangered species in both Democratic and Republican
administrations, and will continue to do so until they are overcome.''
That paper attracted the attention of many in the Fish and Wildlife
Service, and led to a series of efforts within that Agency to explore
these problems and their potential solutions. It has not, however,
produced any significant changes. While I would enthusiastically
support any new measure this subcommittee might propose to create
incentives for conserving endangered species, I would also urge the
subcommittee to put its influence behind efforts to prod the Service
and NOAA Fisheries to make a series of administrative changes that
would remove some of the self-imposed obstacles to success that hinder
the incentive-based tools that already exist. Appended to this
testimony is a list of some of the problems that can be overcome
administratively, and some suggestions for how to overcome them. The
subcommittee could perform a very useful service by pressing the
agencies either to implement these suggestions or to devise better
solutions to the problems identified.
conclusion
In conclusion, incentives work. They help rare species and they
appeal to landowners. By utilizing them, we can make more conservation
progress more quickly and with less conflict than we can without them.
They are not a substitute for regulatory controls, which remain
essential in some situations, particularly where strong development
pressures threaten to eliminate all habitat values. In the working
landscape of farms, ranches, and forest lands, however, incentives
offer a highly useful means of engaging landowners as allies of
conservation rather than its adversaries. Congress can and should
expand the toolbox of incentive programs to further the recovery of
endangered species. No less important, however, it should make every
effort to ensure that existing incentive programs are used as
effectively as possible to achieve that goal.
Appendix
Recommended Administrative Action to Improve the Effectiveness of the
Federal Endangered Species Program
integrate safe harbor assurances into the partners for fish and
wildlife program
The Problem.--On June 17, 1999, FWS announced its Safe Harbor
Policy. When it did so, it stated that it was ``developing an
appropriate process to provide assurances on a programmatic basis to
the landowners'' who participate in the Partners for Fish and Wildlife
Program. A programmatic approach was desirable because it would avoid
the complexity and delay of issuing permits for individual landowners.
Six years later, the promised action has not yet happened. As a result,
the Partners Program has contributed far less to the conservation of
endangered species than it could. Without a quick and easy way for
participating landowners to gain the assurance that they will not be
burdened with new ESA responsibilities at the end of their Partners
contract terms, many landowners are reluctant to undertake projects
that could benefit these species.
The Solution.--In response to letters from Environmental Defense,
then FWS Director Steve Williams stated in a letter dated August 14,
2002, that he would be ``recommending intra-Service consultation
[pursuant to Section 7 of the ESA] as the primary process for the Act's
compliance with the Partners program.'' Director Williams made clear
that he envisioned proceeding in this manner at the State or other sub-
national level through several different consultations. He promised
that there would be forthcoming ``new guidance to help prepare in-house
training through Partners program workshops and other avenues to
implement that guidance.'' Director Williams' letter outlined a quite
satisfactory solution to the problem. However, nothing has been done to
implement it.
facilitate farm bill conservation program contributions to endangered
species recovery
The Problem.--Farm Bill Conservation Programs have significant
untapped potential to contribute to the recovery of endangered species.
These programs are comparatively well funded, their delivery mechanisms
are in place, and landowner interest in them is high. They have not,
however, often been used to advance the conservation of endangered
species, even though all of them could do so, and one--the
Environmental Quality Incentives Program--has as one of its four
national priorities the conservation of at-risk species. Landowner
reluctance to utilize these programs for endangered species
conservation purposes is owning to at least two reasons: (1) concerns
about potential future land use restrictions if endangered species are
attracted to the property; and (2) cost-share requirements discourage
participation when the activity undertaken does not have independent
value to the landowner.
The Solution.--A much closer working relationship needs to be
developed between FWS and the USDA agencies that administer Farm Bill
conservation programs. As part of this relationship, FWS needs to
provide programmatic assurances that address landowner concerns that
their participation will result in new land use restrictions after
their contract terms expire. These assurances could be provided in the
same manner as discussed above for the Partners Program (i.e., through
programmatic Section 7 consultations at the State or other appropriate
geographic scale). Greater flexibility with regard to landowner cost-
share requirements, or use of incentive payments in programs that allow
them (e.g., EQIP) could facilitate projects that do not otherwise
contribute to landowner income.
get the framework for the healthy forest reserve program in place
The Problem.--The Healthy Forest Reserve Program was authorized as
part of the Healthy Forest Restoration Act. It contemplates the
enrollment of privately owned forest land on which landowners agree to
implement restoration plans that will benefit federally listed and
certain other at-risk species. The legislation specifies that the
Secretary of Agriculture is to make available to participating
landowners Safe Harbor or similar assurances under either Section 7 or
Section 10 of the ESA. To do this, however, the Secretary of
Agriculture needs the cooperation of the FWS, which issues permits
under Section 10 and biological opinions under Section 7. This is the
only Federal legislation that specifically calls for Safe Harbor
assurances for landowners and the only legislation to offer incentives
for managing forests to help endangered species. To date, however, FWS
and USDA have been unable to agree on how the statutorily promised
assurances are to be provided, and the program has yet to get off the
ground. Once launched, the program could contribute to the conservation
of forest-dwelling endangered species, such as the ivory-billed
woodpecker, red-cockaded woodpecker, Delmarva fox squirrel, and others.
The Solution.--Programmatic section 7 consultations, either for
particular forest ecosystems (e.g., longleaf pine forests of the
Southeast, bottomland hardwood forests of the lower Mississippi River
valley, etc.) or particular States offer a relatively easy and
straightforward way of providing the statutory assurances specified. It
may be advisable to develop these assurances for 1 such forest system
or State on a pilot basis.
streamline safe harbor review and approval
The Problem.--Since the first Safe Harbor Agreement was completed a
decade ago, more than 300 landowners with over 3 million acres of land
have enrolled in Safe Harbor Agreements. While significant, these
figures represent only a tiny fraction of the potential to use this
tool for conserving many different types of rare species. The full
potential to use this conservation tool has not been realized because
the process of developing, reviewing and approving agreements is
unnecessarily slow, cumbersome, and complex.
The Solution.--Safe Harbor Agreements could be made simpler and
speedier with a few procedural changes. These include eliminating
multiple layers of review by delegating approval of most such
agreements to the field office level, eliminating the need to prepare
biological opinions in most instances, and clarifying what information
needs to be included in an agreement.
revise the consultation handbook to eliminate the need for formal
consultation on projects having predominantly beneficial effects
The Problem.--Under the FWS's consultation handbook, a full scale,
formal consultation is required for any Federal action that causes any
amount of incidental taking of a listed species. Thus, even projects
whose effects are predominantly beneficial (such as projects to restore
habitat for, or otherwise improve the well being of, a listed species)
must undergo formal Section 7 consultation. The results of such
consultations are foreordained, particularly for projects (such as Safe
Harbor Agreements) that are required to meet a net conservation benefit
or enhancement of survival test. Yet, FWS routinely prepares biological
opinions for such projects, diverting Agency resources from other,
truly necessary activities.
The Solution.--Relatively minor changes in the language of the
consultation handbook would clarify that formal biological opinions are
not needed for Federal actions having predominantly beneficial effects,
particularly those that are already determined to meet a ``net
conservation benefit'' or similar standard.
streamline procedures for the landowner incentive program
The Problem.--The Landowner Incentive Program competes most closely
in function with FWS's Partners for Fish and Wildlife and Private
Stewardship Grant Program, and with USDA's Wildlife Habitat Incentive
Program. However, it fills two unique roles. First, despite the mantra
that State wildlife agencies have the ``boots on the ground,'' many
States actually have few field biologists to work with private
landowners and limited ability to fund work on private land. LIP is
creating that capacity all around the country. Second, unlike WHIP and
Partners, LIP is uniquely focused on very rare species and this allows
State agencies to focus on small acreage projects that have a big
impact for species. However, the program has been slow to achieve on
the ground benefits because ESA and National Historic Preservation Act
compliance processes have slowed projects by 6 to 18 months and
provided perverse incentives for States to work with unlisted species
and to duplicate what USDA programs can do, rather than work in more
sensitive habitats.
The Solution.--Some States have developed programmatic Section 7
consultation documents that cover broad sets of habitat improvement
practices and describe a set of best management practices that ensure
States can avoid any take of listed species. This approach allows
States to initiate any project covered by a programmatic consultation
without the project-by-project review that continues to plague many
States. Proposed changes to the consultation handbook (above) or new
solutions using Section 6 cooperative agreements are also needed to
cover LIP practices that have a predominantly beneficial effect on the
species, but for which some taking of species cannot be avoided.
complete the rulemaking to expand the use of enhancement of survival
permits
The Problem.--On September 10, 2003, FWS published proposed
revisions to its regulations pertaining to ``enhancement of survival''
permits. These revisions were proposed, in large part, to make clear
the availability of enhancement of survival permits for privately
undertaken habitat enhancement projects that may cause some short term
incidental taking of listed species. Without this clarification,
proponents of such projects are sometimes made to seek incidental take
permits under Section 10(a)(1)(B) of the ESA, which have proven to be
more costly, time-consuming, and complex than necessary.
The Solution.--Complete the outstanding rulemaking. Controversy
arose over this rulemaking because it was proposed concurrently with
the proposal of a policy to allow the importation of endangered species
from foreign nations as sport hunting trophies. Many reviewers saw the
proposed rulemaking as the vehicle for implementing that highly
controversial policy. The result was a flood of adverse comments and
the suspension of any forward progress on the rulemaking. The proposed
rulemaking serves an important purpose unrelated to the importation
policy. Preferably, the 2 ought to be clearly separated, and the
rulemaking completed.
expand the use of priority rankings in funding allocation to ensure
funding for species likely to benefit most
The Problem.--The resources needed to recover endangered and
threatened species far exceed available recovery funding. To maximize
the return on available funding, it makes sense to prioritize species
and actions for which funding will make the biggest difference in
reducing the likelihood of extinction or achieving recovery. The
Endangered Species Act directs the USFWS and NOAA to ``give priority to
those endangered species or threatened species, without regard to
taxonomic classification, that are most likely to benefit from
[recovery] plans, particularly those species that are, or may be, in
conflict with construction or other development projects or other forms
of economic activity.'' However, numerous GAO reports and scientific
studies provide little evidence that agencies are allocating resources
to maximize species benefits.
The Solution.--1982 Recovery Priority Ranking Guidelines should be
revised to allow agencies to more easily distinguish which species are
priorities by creating more threat and recovery potential ranks.
Further, the existing system combines extinction prevention and
recovery priorities, automatically giving high recovery potential but
low threat species a low ranking. Setting up separate ranking systems
and giving each species 2 ranks--1 that identifies extinction
prevention priority and 1 to identify its recovery potential would fix
this problem. However, the revised ranking systems are meaningless
unless they are used to guide resource allocation. The FWS should
incorporate its rankings into funding allocation among regions, within
regions, and through competitive grant programs. To minimize disruption
to existing program functions it may be advisable to implement this
through a pilot such as significant expansion of the FWS's ``Preventing
Extinction, Showing Success'' initiative.
create greater incentives for states to work toward recovery by using
the esa's authority to reward successful states
The Problem.--At present, a State that works hard and successfully
to achieve its share of the recovery goals for a species that occurs in
several States gets no reward for that effort. Nothing changes until
all the other States accomplish their share of recovery goals. As a
result, States have less incentive to work toward recovery than they
could have.
The Solution.--States need clear incentives to work toward
endangered species down-listing to threatened status and to prevent
increased endangerment of already threatened species. These incentives
should be provided through the creative use of the flexibility in
Section 4(d) of the ESA (pertaining to threatened species) to relax
Section 9 take prohibitions within a State (or some portion thereof)
when recovery objectives for that area have been achieved. By
consulting with States over what take prohibitions will continue to
apply in which areas, States would also play a greater role in ESA
implementation. FWS could signal its intention to this by promulgating
a clear policy of using its authority under Section 4(d) in this
manner.
rejuvenate the section 6 state cooperative agreement mechanism and give
substance to the ``adequate and active'' standard for approval of state
programs
The Problem.--When the ESA was enacted, Congress envisioned a close
cooperative partnership between the States and the Federal Government
through the mechanism of Section 6. In practice, Section 6 has not
worked as intended. Review of State programs to determine if they
qualify for Federal financial assistance (which has generally been both
inadequate and unpredictable) has been perfunctory. Cooperative
agreements under Section 6 are boilerplate agreements that contain
nothing pertaining to strategies or actions to be carried out. As a
result, there has been no use of the authority of Section 6 to develop
a conservation strategy that integrates State resources and
competencies with Federal resources and competencies.
The Solution.--Rethink the whole approach to Section 6, starting
with the development of rules and policies that ask interested States
to articulate clear conservation strategies and actions to carry them
out. The Federal review of State programs that carry out those
strategies should be searching, not perfunctory. The consequence of
approval of State programs should be a shared commitment by the 2
levels of government to work cooperatively toward agreed upon goals.
__________
Statement Paul Campos General Counsel and Vice President of Government
Affairs for the Home Builders Association of Northern California On
Behalf of the National Association of Home Builders
Chairman Chafee, Ranking Member Clinton, and members of the
subcommittee, the National Association of Home Builders (NAHB)
appreciates the opportunity to share our views with the Senate
Environment and Public Works Committee, Subcommittee on Fisheries,
Wildlife, and Water, on Incentives for Private Landowners under the
Endangered Species Act (ESA).
NAHB represents over 220,000 member firms involved in home
building, remodeling, multifamily construction, property management,
housing finance, building product manufacturing and other aspects of
residential and light commercial construction. Nationwide, our members
are committed to environmental protection and species conservation,
however, oftentimes well-intentioned policies and actions by regulatory
agencies result in plans and programs that fail to strike a proper
balance between conservation goals and needed economic growth. In these
instances, our members are faced with significantly increased costs
attributed to project mitigation, delay, modification, or even
termination.
Importantly, NAHB's members are citizens of the communities in
which they build. They seek to support the economy while providing
shelter and jobs, partner to preserve important historical, cultural
and natural resources, and protect the environment, all while creating
and developing our nation's communities. As such, home builders support
the U.S. Fish and Wildlife Service's and NOAA Fisheries' (collectively,
the Services) efforts to protect and conserve species that are truly in
need of protection. A vital component of any conservation effort,
however, is to ensure the proper balance of each species' needs with
the needs of the States and communities in which it is located. One
element necessary to consider in evaluating this balance is whether or
not the ESA is meeting its goal of species restoration and recovery.
What's more, has it worked well? Has it been an efficient and effective
means by which to address the myriad of threats that endangered and
threatened species face?
As of July 6, 2005, there were 1,264 U.S. species listed as
endangered or threatened under the ESA. Since the Act's inception in
1973, a total of 40 species or subpopulations have been removed from
the list. Of those 40, only 10 are U.S. species that have been
sufficiently nursed back to health to qualify as ``recovered.'' 9 have
gone extinct. The rest of the species are a mixture of U.S. and
international creatures that for one reason or another, be it the
availability of new information or an amendment to the Act itself, no
longer qualify for listing under the ESA. Unfortunately, species are
added to the list much, much easier than they are removed.
NAHB believes that unfortunately, even after all these years, the
mechanisms employed by the ESA to protect endangered and threatened
species are oftentimes awkward and rudimentary. For private landowners
and developers, they involve a certain set of prohibited acts and
regulated actions that are disproportionately burdensome and onerous.
Further, individual landowners often lack the funding and relevant
expertise to best protect the species under their particular care. For
the majority of the ESA's history, however, there was little if
anything under the Act to actively encourage landowner cooperation,
those proactive steps needed to aid the recovery of listed species or
pre-empt a species from being listed in the first place. These glaring
shortfalls threaten to hamstring the ESA in the coming years. NAHB
believes that only by addressing these concerns now, proactively, will
species conservation efforts be successful.
In evaluating strategies to update and strengthen the ESA, NAHB
believes that 2 key components or strategies within the Act warrant
particular attention, the awkwardness of outdated regulatory provisions
and the success of conservation incentives. While the ESA harbors
several unnecessarily burdensome and duplicative regulatory provisions
badly in need of modernization, such as the designation of critical
habitat, it has also given rise to resounding conservation success
through the use of incentives like Habitat Conservation Plans (HCP).
Only by taking stock of the ESA's successes and failures, those
provisions that should be updated or revised and those that should be
retained as well as expanded, can implementation of the Act be made
more effective.
i. regulatory provisions under the esa must be updated
In the regulatory arena, the ESA continues to remain much more of a
proverbial stick than a carrot. Despite its disproportionate reliance
on a relative few private landowners to maintain the extraordinary
public good that is biodiversity conservation in this country, there
remain very few incentives to encourage active landowner cooperation.
Especially in areas where land costs and land values are high and where
species conservation and economic growth and development are
intertwined, there is a virtual dearth of programs that allow
landowners and businesses to even begin to recoup or recapture the
costs of voluntary conservation actions. Complicating issues further is
the unfortunate reality that the ESA is burdened by a number of
disincentives that actively discourage landowner cooperation. Such is
plainly not a recipe for continued success. Although many aspects of
the ESA warrant reexamination, the provisions below are of particular
concern to the nation's home builders.
A. The designation and regulation of critical habitat
Of all programs implemented under the ESA, critical habitat has
emerged as 1 of the most controversial and litigation-prone. While NAHB
believes that habitat conservation is an important component of species
conservation, the question remains as to whether the regulatory
provisions outlined in the critical habitat designation process can
effectively manage the lands and waters on and in which listed species
reside. The Services have stated that the critical habitat designation
process is broken, and that the designation of critical habitat
consumes precious Agency resources while providing limited benefits to
listed species.\1\ NAHB agrees.
---------------------------------------------------------------------------
\1\ ``In 30 years of implementing the ESA, the Service has found
that 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, consumes enormous Agency resources, 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 benefits to the species most in need of
protection.'' (Final Designation of Critical Habitat for 4 Vernal Pool
Crustaceans and 11 Vernal Pool Plants in California and Southern
Oregon. 68 Fed. Reg. 46684 (August 6, 2003)).
---------------------------------------------------------------------------
Furthermore, litigation has skewed the Service's long-held
interpretation for evaluating the impact of activities occurring within
designated critical habitat. Lawsuits in the 5th and 9th Circuits\2\
have challenged the regulatory definition of adverse modification, the
standard by which the Services review activities taking place in
critical habitat. In the absence of a clear definition of this term,
the true role of critical habitat, and indeed the true impact of
critical habitat on private landowners, is unclear. Congress should
consider whether legislation is required to fully remove any and all
confusion.
---------------------------------------------------------------------------
\2\ See Sierra Club v. U.S. Fish and Wildlife Service, 245 F.3d 434
(5th Cir. 2001), Gifford Pinchot Task Force v. U.S. Fish and Wildlife
Service, 378 F. 3d 1059 (9th Cir. 2004).
---------------------------------------------------------------------------
Several other elements of critical habitat likewise warrant
attention and review. One particularly troublesome aspect is the
potential duplicative overlay of critical habitat over Habitat
Conservation Plans (HCPs) and other voluntary management agreements. If
an approved HCP falls within critical habitat, it may be subject to
additional regulatory requirements and red tape (or ``overlay'') of
critical habitat that have little or no benefit to listed species. Any
incentive to enter into an HCP is lost if the area at issue is also
subject to regulation under the critical habitat provisions of the ESA.
While NAHB applauds the recent efforts by the Servicesto exclude
existing HCPs from specific critical habitat designations, critical
habitat ``overlay'' must be consistently and continually eliminated
from land areas already subject to government--approved or pending
plans in order to further encourage stewardship through the HCP
process. Provisions to achieve this goal have been included in H.R.
1299, the Critical Habitat Enhancement Act, sponsored by Congressman
Dennis Cardoza (D-CA). NAHB fully supports this important legislation.
NAHB also believes that the common sense designation of critical
habitat depends on the availability of full and complete economic
analyses, as well as the full involvement of local landowners and
stakeholders. In the past, the Services have incorrectly assumed that
critical habitat added no additional costs over species listing, and
dismissed the statutory requirement under Section 4(b)(2) of the ESA to
conduct an economic analysis of designating lands as critical
habitat.\3\ The failure of the Services to document the impact of their
regulatory actions, as required by the ESA, represents a crucial
shortfall in the implementation of the Act. While the last few years
have seen an improvement in the process by which the Services conduct
these required economic analyses, H.R. 1299 includes specific language
which would ensure that economic analyses are sound and complete by
requiring that the direct, indirect, and cumulative economic effects of
critical habitat designations are considered.
---------------------------------------------------------------------------
\3\ See, e.g., New Mexico Cattle Growers Ass'n v. U.S. Fish &
Wildlife Serv., 248 F.3d 1277 (10th Cir. 2001), National Ass'n of Home
Builders v. Evans, No. 00-CV-279, 2002 WL 1205743 (D. D.C.).
---------------------------------------------------------------------------
B. Use of sound science
Private landowners, who have been burdened with carrying out many
of the responsibilities of the ESA, have repeatedly questioned the
science behind the decisions made by the Federal agencies implementing
the Act. The aggregate results of erroneous ESA decisions are broad,
negatively affect the housing market and the national economy, and at
times damage the very species we are trying to protect.
Listing a species and designating critical habitat under the ESA
requires the use of the ``best scientific and commercial data
available.'' However, there is no definition for this phrase in the
ESA, or in the regulations implementing the Act. Consequently, species
can be listed based solely on a single petition if it is deemed to be
the best scientific data available. Critical habitat can likewise be
designated without truly knowing which areas are essential to
conservation and with incomplete datasets somehow qualifying for best
available data. Additionally, once a species is listed, the Services
often ignore additional or new science that supports the de-listing of
species. For example, the Bald Eagle, at home across the entire lower
48, is widely viewed as being recovered. Still, it remains on the ESA,
some 6 years after initially being proposed for delisting.\4\
---------------------------------------------------------------------------
\4\ 64 Fed. Reg. 36453 (July 5, 1999).
---------------------------------------------------------------------------
The listing of species under the ESA and the subsequent designation
of critical habitat for those species must be based on reliable,
accurate and solid biological and scientific data. For these reasons
and more, NAHB support the passage of legislation that would ensure
that sound science is used in ESA decisions.
ii. incentive-based programs under the esa must be preserved
The most important incentive that Congress can give home builders
is regulatory certainty. At some point in the regulatory process,
builders need to know that there will be no more ``bites at the apple''
from either the Services or, just as importantly, private litigants.
Indeed, the concept of certainty is a virtual prerequisite to encourage
the cooperation of home builders, developers, and other private
landowners in conservation activities under the ESA.
It goes without saying that private landowners and developers
represent a vital component to ensuring species conservation--over 70%
of the land in this country, excluding Alaska, is privately owned.
Compound this fact with the simple observation that 95% of all ESA-
listed species have at least a portion of their habitat occurring on
non-federal lands, with 19% occurring only on non-federal lands, and
the role of the private landowner in species conservation becomes all
the more apparent.\5\ In 1982, Congress recognized that private
property owners were instrumental to long-term species conservation
efforts, but that many regulatory uncertainties posed challenges to
their participation. Congress also recognized that the level of
certainty regarding the costs and terms of an HCP should be honored by
the Federal Government throughout the HCPs implementation. More than a
decade later, the ``No Surprises'' policy was implemented. However,
HCPs remain the subject of litigation by groups seeking to overturn the
policy. To ensure that the courts do not undermine ``No Surprises'',
Congress should confirm its original intent and codify the existing
policy as part of the ESA to give private property owners, State and
local governments, and community organizations the necessary certainty
to continue their species conservation efforts.
---------------------------------------------------------------------------
\5\ Wilcox, D., M. Bean, R. Bonnie, and M. McMillian. 1996.
Rebuilding the ark: toward a more effective Endangered Species Act for
private land. Environmental Defense Fund, Washington, D.C. cited in
Hitly, J and A.M. Merenlender. 2003. Studying biodiversity on private
lands. Condervstion Biology 17: 132-137.
---------------------------------------------------------------------------
HCPs can help to bridge the gap between two often competing public
policy objectives--housing and community growth and protecting and
conserving habitat. Indeed, a NAHB analysis of the U.S. Fish and
Wildlife Service HCP database indicates that, as of 2003, the three
fastest growing regions in the country, the Southeast, the Southwest,
and the Pacific regions, combined have over 61% of the nation's housing
starts and nearly 94% of the nation's HCPs.\6\ While the following
examples provide tangible, specific insights into the conservation
benefits of several HCPs in the State of California, they are but a
snapshot of the substantial environmental benefits of the hundreds of
HCP planning efforts found across the country:
---------------------------------------------------------------------------
\6\ http://www.nahb.org/hcp
East Contra Costa County Habitat Conservation Plan (Contra
Costa County, California). Although it has yet to be finalized,
the 175,804 acre East Contra Costa County Habitat Conservation
Plan has been in development since 2000, and is slated to cover
28 listed and unlisted species. The Home Builders Association
of Northern California (HBANC) has been actively involved
throughout the planning process, despite an anticipated $20,000
or higher per acre habitat acquisition and maintenance fee
(levied in addition to other impact fees that exceed $75,000
per house). The builders' support, despite such a hefty fee, is
directly tied to the HCP's promise of regulatory certainty--
builders are being told where to build and where not to build,
are being informed of their obligations up front, and are even
---------------------------------------------------------------------------
being offered the hope of permit streamlining.
Central/Coastal Natural Community Conservation Plan (Orange
County, CA). This plan, approved in July 1996, establishes a
37,000-acre habitat reserve system encompassing a large
percentage of the coastal sage scrub system in a portion of
Orange County, thus providing for the protection of California
gnatcatcher and other sage scrub -dependent species. This HCP
also created a ten million dollar endowment for the purposes of
ongoing management of the reserve area. This HCP illustrates
the unique ability of HCPs to protect and conserve habitat that
would otherwise remain unregulated under the taking
prohibitions as many thousands of acres preserved in the
Central/Coastal Natural Community Conservation Planning Program
(NCCP) reserve system are beyond the regulatory reach of
Section 9 of the ESA.\7\ A similar plan is in development for
the southern portion of the County.
---------------------------------------------------------------------------
\7\ For a more comprehensive discussion of the NCCP effort in
southern California, see Committee on Scientific Issues in the
Endangered Species Act, Science and the Endangered Species Act,
(NATIONAL ACADAMY OF SCIENCES 1995), at 84-89.
San Diego County Multi-Species Conservation Plan (San Diego,
CA). This plan was approved by the Service in June 1997. It
establishes a 165,000 acre reserve system in southern San Diego
County. The reserve is established and funded principally
through contributions by the development community. The plan is
implemented through detailed ``sub-area'' plans within the
---------------------------------------------------------------------------
various land-use jurisdictions in San Diego County.
Western Riverside Multi Species Habitat Conservation Plan
(Riverside County, CA). The Western Riverside Multi Species
Habitat Conservation Plan is a multi-jurisdictional planning
program that includes the County of Riverside and 14 local
jurisdictions. The plan covers 146 species. State and Federal
funds, as well as development impact fees, will help purchase
153,000 acres to supplement 350,000 acres already publicly
owned or protected. The resulting 500,000 acre reserve will
provide habitat areas, as well as corridors allowing animals to
travel throughout their ranges.
Importantly, all of the above HCPs include voluntary commitments by
private landowners to accept significant restrictions on the use of
their land and to make other contributions to habitat conservation. In
the Central/Coastal NCCP, for example, the major landowner agreed to
dedicate for permanent protection 21,000 acres of land to habitat
conservation purposes. These dedications are occurring well in advance
of the development that is authorized under the NCCP. Thus, the
conservation benefits of the plan will be realized in advance of the
impacts of the development authorized by the plan.
iii. incentives must be broadened in scope and availability
Recent realization of the vital role that private landowners play
in endangered species conservation has led to an associated increase in
the number of tools available to encourage their cooperation.
Unfortunately, the availability of these few tools barely scratch the
surface of what is truly needed to both fully encourage private
landowner cooperation and sufficiently protect species under the care
of the ESA.
A. Increase the Availability of Incentives
Proactive, incentive-based conservation tools help to integrate
species needs into long-range individual and community development
plans, a process that lends itself to more flexible, efficient, and
effective conservation strategies than the traditional species-by-
species approach. In particular, HCPs, Safe Harbor Agreements, and
Conservation Banking initiatives have all emerged as possible avenues
by which to conserve endangered and threatened species while working
with or alongside private landowners. From the home builders'
perspective, HCPs have become integral components of species
conservation efforts nationwide, and despite ongoing legal challenges
to components of the HCP program, are one of the few regulatory
mechanisms under the ESA that are supported by a wide-variety of
environmental and industrial interests. Conservation Banking has
likewise gained in popularity over the last few years and, with it, the
presence of endangered species in some areas has been transformed from
a liability into an asset. Across the country, interested parties have
set up conservation banks to protect the red-cockaded woodpecker, the
gopher tortoise, and several species of vernal pool plants and animals,
just to name a few.
Unfortunately, participation in these programs is by no means an
inexpensive undertaking, especially when dealing with regional, multi-
species plans. Because the benefits of species protection accrue to the
public at large as well as the property owner, there is no reason why
the costs of conservation should not be shared. Recognizing this, there
are currently funding opportunities for States and territories under
the Habitat Conservation Planning Assistance and HCP Land Acquisition
Grant programs. Unfortunately, very few options exist to provide
funding assistance for small property owners. To encourage private
landowner participation in the HCP program, as well as other voluntary
programs and agreements, and garner the greatest possible benefits,
financial options must be considerably improved and expanded.
While providing extensive conservation benefits, other incentive-
based programs such as Safe Harbors and Candidate Conservation
Agreements remain difficult or unwieldy undertakings for builders and
developers. Although their use by other industries and interests
provide very real and tangible success stories, efforts need to be made
toward creating and implementing additional tools and programs that can
be used by the development community. Oftentimes working in areas of
high land values and with smaller parcels under a patchwork of
ownerships, home builders face different ``real-world'' requirements
and pressures than other private landowners or industries. Crafting
policies to meet these unique needs, emphasizing flexibility in
development and certainty in implementation, can only further
conservation efforts under the ESA.
The few aforementioned programs offer some avenues for cooperation
under the ESA, but there remains a critical need for expanded
incentive-based species conservation policies and programs. Streamlined
permitting processes, regulatory certainty, and financial incentives
all deserve serious consideration if the ESA is ever to be truly
successful in meeting its goals of protecting this nation's biological
heritage. Under the onerous weight of inflexible outdated command-and-
control regulations and requirements, the ESA will continue to be more
about controversy than conservation from the private landowner
perspective.
B. Decrease the Number of Disincentives
The availability of incentives under the ESA is but 1 component
needed to promote increased cooperation amongst private landowners and
developers. The removal of disincentives under the Act remains an
equally important aspect of commonsense conservation policy. By
minimizing the threat of litigation, streamlining the permitting
process, and decreasing the risk of increased future liability for
proactive conservation efforts, incredible headway can be made into
lowering the ``cost of doing business'' under the ESA.
First and foremost, the specter of critical habitat threatens the
viability of individual HCP efforts and endangers the larger program as
a whole. Using the East Contra Costa County HCP as an example, the HCP
planning area overlaps with proposed critical habitat for the
California red-legged frog, the California tiger salamander, the
Alameda whipsnake, and already designated fairy shrimp habitat.
Although several environmental groups have taken an active role as
stakeholders in the HCP development process, other, litigation-driven
organizations have not. Following the aforementioned Gifford Pinchot
case that called the conservation obligation of critical habitat into
question, home builders are loathe to commit to the HCP process knowing
that a lawsuit will almost certainly be filed over the regulatory
review and protection requirements of critical habitat by non-
participants to the plan.
To compound matters even otherwise-interested landowners and
developers are at times discouraged from participating in species
conservation programs when faced with uncertain permit approval
timelines, unacceptable associated permitting costs, or inflexible
regulations. For example, analysis of the FWS database indicates that,
on average, the HCP approval process takes nearly 2 years (642 days or
1.76 years) from HCP development to FWS permit issuance. More than half
of this time (399 days) occurs during the informal review and
discussion stages surrounding development of the HCP prior to its
submittal. In fact, for some NAHB members in Alabama, approval times
for half-acre HCPs extended well beyond 3 years. For small builders,
such delays are not just costly, but can be crippling to a business.
The development of an HCP is clearly a significant undertaking. Without
certainty or predictability in the approval process, or enforceable
review deadlines, costs can be driven so high as to discourage their
widespread use.
One possible solution to reduce the number of disincentives is to
ensure that recovery obligations are not transferred to private
landowners. H.R. 1299 takes a step in this direction by clearly stating
that recovery plans are non-binding guidance. Serious consideration
should also be given to reforming and revising programs such that
interested parties are not flat-out penalized for their proactive
conservation efforts. Although a mere beginning, exempting voluntary
conservation actions, including HCPs and Safe Harbor Agreements, from
the onerous restrictions of critical habitat is one such reform that
would do well to quell remnant fears of future regulation and encourage
further enrollment in these important programs. Again, H.R. 1299 takes
great strides in this direction, and NAHB strongly reiterates its
support of the bill. With specific regard to the HCP program, including
hard and fast deadlines would help to encourage landowner
participation. Such mandated time frames would provide property owners
with predictability and a greater understanding of the time and
expenses required under the HCP permitting process, thereby encouraging
further participation in the program.
C. Adopt a Cost-Effective Approach to Regulation
Beyond increasing the number of incentives available to private
landowners and decreasing the number of disincentives, enforcement of
ESA regulations and provisions should fully incorporate a cost-
effectiveness approach. By weighing the economic costs and biological
benefits of ESA actions and their alternatives, least-cost solutions
can be reached. This will minimize costs and distribute burdens most
fairly across the spectrum of affected communities, industries, firms,
and landowners, all the while meeting species conservation goals.
Whether pertaining to critical habitat designation, mitigation
requirements, or recovery planning, determining the least-cost approach
would conserve precious human and financial resources while reducing
the impact to both the regulated community and the Services alike.
One clear mechanism to reduce redundancies and increase
efficiencies is to increase coordination and consolidate the various
non-ESA programs that both regulate land use and help to promote and
fund proactive species conservation programs. Incorporating other
regulatory programs into the HCP planning process, upfront, such as
U.S. Army Corps of Engineers Section 404 wetlands permits, would
streamline the permitting process and vastly increase the tangible
incentives available to participating landowners and developers.
Furthermore, although there is a universal body of work to benefit and
conserve endangered and threatened species being done under the rubric
of other State and Federal laws, plans, and programs, tying these
actions back to the day-to-day regulatory requirements of the ESA
remains a murky undertaking. To use the U.S. Fish and Wildlife
Service's Partners program as an example, coordinating Partners-funded
restoration projects with individual Section 7 consultations or HCPs
could expand the reach and scope of any mitigation undertaken as a
result of the ESA's regulatory requirements. As a result of such
coordination, an increased availability of Agency expertise and funding
could allow the landowner to make increased contributions to species
conservation over minimum requirements.
conclusion
Mr. Chairman, in conclusion, NAHB believes the time is right to
update and modernize the ESA so that it can work better for species and
landowners. Landowner incentives can, and should, be a vital component
of any legislation to improve the Act. For the majority of the ESA's
history there has been little if anything under the Act to actively
encourage landowner cooperation. These glaring shortfalls threaten to
hamstring the ESA in the coming years. NAHB accordingly believes that
only by addressing these concerns now, proactively, will species
conservation efforts be successful.
Chairman Chafee, and members of the Committee, I thank you for your
consideration of NAHB's views on this matter, and hope that as a result
of your efforts, and that of this Congress, endangered species
conservation in this country becomes less about litigation and gridlock
and more about common-sense conservation policies and programs.
__________
Statement of Alan Foutz, President, Colorado Farm Bureau
My name is Alan Foutz. I am a farmer from Akron, CO. I serve as
President of the Colorado Farm Bureau and serve on the Board of
Directors of the American Farm Bureau Federation. I am here today to
testify on behalf of both organizations.
Farmers and ranchers have been adversely impacted by the Endangered
Species Act (ESA) for a number of years. We have 33 listed species in
Colorado, ranging from 2 distinct population segments of gray wolves
and the Canadian lynx to the boneytail chub. I won't dwell on the
problems, however, but will focus instead on a process that has worked
for us and that we consider a possible solution to Endangered Species
Act issues.
The mountain plover is a small shorebird found in the western Great
Plains. It was proposed for listing under the ESA in 1999. As with many
such species, little was known scientifically about the bird. It was
believed that conversion to agricultural lands destroyed plover
habitat, and it was feared that a listing would have severe impacts on
agriculture. Scientists really didn't know much about the bird,
however, because it was believed that many lived on private lands and
private landowners were reluctant to let State or Federal officers onto
their land.
But private landowners also did not want to see the plover listed
without scientific justification for listing. The Colorado Farm Bureau
Board of Directors determined that it was important to find out the
status of the bird, and that meant identifying and studying plovers on
private lands.
Convincing our members to open their lands to researchers to study
plovers was a tough sell. Not because our members did not want to
protect and enjoy plovers on their lands, but because of the
restrictions that would be placed on their lands if the species were
listed and their land identified as habitat. To our members' credit,
they recognized the need for good scientific information. Colorado Farm
Bureau entered into an agreement with the Colorado Division of
Wildlife, the Fish & Wildlife Service, the Rocky Mountain Bird
Observatory and the Nature Conservancy to open their lands to the
inventory and study of mountain plovers.
The result was a three-year study of movements, locations and
nesting behavior of mountain plovers on agricultural lands. Colorado
Farm Bureau members provided access to over 300,000 acres of their
private lands for the study. Participation was strictly voluntary. Farm
Bureau members donated access to their land as well as their time as
field volunteers to the research effort.
Some of the results were surprising. Researchers found that rather
than agricultural lands destroying habitat, they actually provided
important nesting habitat for the species, and that many of the
agricultural practices that would have been restricted under a listing
were actually beneficial for the plovers. One aspect of the study found
higher nesting success on cultivated agricultural lands than on native
rangelands.
Mountain plovers were still at risk from farm machinery plowing
inhabited fields. Farmers are more than willing to avoid nests, but
they often cannot see nests while operating large machinery. To remedy
that situation, the Farm Bureau and the Rocky Mountain Bird Observatory
developed a unique program to allow farmers to call a toll-free number
72 hours before plowing. The Observatory would send someone to survey
the field and flag plover nests, allowing farmers to avoid flagged
nests.
As a result of these and other conservation efforts, the Fish &
Wildlife Service determined that listing the mountain plover was not
warranted, and they withdrew the proposal. Farmers benefit because they
can continue their operations. The mountain plover benefits because its
nesting habitat is enhanced by certain agricultural practices.
Colorado farmers and the Colorado Farm Bureau learned some valuable
lessons from this positive experience. First, we demonstrated that
farmers and ranchers will work to protect species and are willing to
meet halfway if government officials are also willing to meet halfway.
Second, flexible cooperation between landowners and the services is the
best way to make the ESA work for landowners and promote species
recovery. Third, we all learned that practical solutions to potential
conflicts do not need to cost a fortune, but might be as simple as a
toll-free phone call. Lastly, we all learned the value of obtaining
good scientific data to combat real problems, not hypothetical ones.
Based on our experience with the mountain plover, Colorado farmers
who were once reluctant to open their lands are now enthusiastically
participating in local working groups to help conserve the greater sage
grouse.
This solution would not have been available to us if the mountain
plover had already been listed. Under the ESA, once a species is
listed, Section 9--taking prohibitions--and Section 7--consultation
requirements--impose restrictions that stifle the kind of creative
solutions that we employed to assist the mountain plover. Furthermore,
had the mountain plover already been listed, we would not have been
able to develop the scientific knowledge about the plover that could
guide in its recovery. The same stereotype about agricultural lands
encroaching on plover habitat would have been perpetuated upon listing,
to the detriment of farmers and plovers alike.
The ESA needs to be amended to provide flexibility to farmers,
ranchers and the government to enter into voluntary agreements to
protect and enhance already listed species on private lands in return
for some incentive for the landowner. That incentive might be direct
payments, tax credits, or simply the removal of disincentives and
restrictions under the ESA. Our experience in Colorado has shown that
farmers and ranchers want to protect species.
Almost 80 percent of all listed species occur to some extent on
privately-owned lands. Nearly 35 percent of listed species occur
exclusively on privately-owned lands. This indicates that farmers and
ranchers are doing a good job in protecting species on their lands.
They need the tools to be able to do it better.
Farm Bureau has long supported the use of cooperative conservation
as a way to implement the Endangered Species Act. We are convinced that
cooperative conservation is the way to make ESA work for both
landowners and for species, producing a ``win-win'' situation for both.
It has certainly worked for us in Colorado with the mountain plover
and, we hope, with the greater sage grouse.
in general, any esa cooperative program should
<bullet> Be voluntary with the landowner.
<bullet> Focus on providing active species management. Projects
should emphasize innovative active improvements or active management
activities, instead of just passive management through restrictions on
land use.
<bullet> Not focus on sales of lands or purchases of easements.
<bullet> Incorporate removal of existing regulatory disincentives,
such as land use restrictions. Many landowners would more readily
accept removal of ESA restrictions instead of incentive payments.
``Safe Harbor'' and ``No Surprises'' agreements and incidental take
agreements should be explored whenever appropriate.
<bullet> Recognize plans that are locally developed. People at the
local level have better knowledge of the landscape, needs of species
that inhabit the landscape and needs of landowners. They are also more
focused on developing practical solutions to ESA problems.
<bullet> Be flexible with the landowner and the Agency. Landowners
can develop creative solutions for ESA situations that should be
recognized. In addition, different landowners have different needs that
could be addressed through different types of incentives. The landowner
should have a wide array of incentives from which to choose.
<bullet> Be exempt from critical habitat designation. Critical
habitat is designed to encompass lands ``that may need special
management'' protections, such as provided by cooperative conservation
agreements. To include land covered under cooperative conservation
agreements in critical habitat would be redundant and
counterproductive.
<bullet> Provide certainty to the landowner that once an agreement
is in place, no further management obligations or restrictions will be
imposed. The same ``No Surprises'' policy that applies to habitat
conservation plans should be applied as well to all cooperative
conservation agreements.
We have some specific ideas for possible legislation that we would
be happy to discuss further with the committee. Thank you for inviting
me to testify before the subcommittee on this important topic.
Statement of Robert J. Olszewski, Vice-President Environmental Affairs
Good morning Mr. Chairman and members of the Committee.
I am Robert Olszewski, Vice-President of Environmental Affairs for
Plum Creek Timber Company, Inc. Plum Creek is the largest private
timberland owner in the United States with nearly 8 million acres in 19
States. Owning this vast resource base of some of the world's most
productive timberlands allows our 2,000 employees to produce and sell
forest products for a variety of markets. I have worked for State
Government, industry trade associations and private industry on
forestry and environmental issues for the last 25 years.
I am here today to talk about Plum Creek's experiences working
within the Endangered Species Act to develop a variety of conservation
agreements and plans to address both the biology and business of
managing forest habitat for endangered species. The Nature Conservancy
estimates that half of the country's 1,263 federally listed species
have at least 80 percent of their habitat on private lands. Habitat for
more than a dozen species currently protected under the Endangered
Species Act can be found on Plum Creek lands including northern spotted
owls, marbled murrelets, grizzly bears, gray wolves, bald eagles, red-
cockaded woodpeckers, bull trout and pacific salmon.
Plum Creek is no stranger to conservation planning under the
Endangered Species Act. Over 2 million acres, nearly a quarter of our
corporate ownership nationwide, is under four Habitat Conservation
Plans and a conservation agreement for grizzly bears in Montana.
Plum Creek's Central Cascades HCP, a 50-year plan covering 315
species on 121,000 acres in Washington State, was approved in 1996 and
is now in its 9th year of implementation.
The Native Fish HCP, covering 1.4 million acres in 2 northwestern
States, is a 30-year plan that addresses the needs of 8 species of
native trout and salmon and is now in its 5th year of operation. This
HCP was the first one in the country to incorporate the Services'
``Five Points Policy''.
Plum Creek is the largest private landowner in the Wisconsin
statewide HCP for the karner blue butterfly.
In 2001, the company completed a 30-year HCP for the red-cockaded
woodpecker in Arkansas covering 261,000 acres.
Plum Creek manages 75,000 acres of our land in Montana's Swan
Valley under a grizzly bear conservation agreement with the U.S. Fish
and Wildlife Service, the U.S. Forest Service and Montana Dept. of
State Lands. This agreement was completed under Section 7 of the ESA
and has been in place since 1995.
These agreements were not easy to complete. The commitment is
expensive, time-consuming and requires us to open our operations to
public scrutiny in an unprecedented fashion. They have worked
successfully for Plum Creek because of the location and characteristics
of our land ownership.
But these voluntary conservation agreements under the ESA have
indeed solved problems. The listing of the northern spotted owl in 1990
and subsequent Federal ``guidelines'' trapped over 77% of Plum Creek's
Cascade Region in 108 owl ``circles.'' Indeed, with every new listing,
Plum Creek was skidding closer to becoming the ``poster child'' for the
taking of private lands. For us, the answer was the advent of HCPs and
other agreement tools combined with incentives such as the ``No
Surprises'' Policy. Plum Creek and the Federal Government have
accomplished concrete contributions to the conservation of endangered
species.
Our HCP's and conservation agreements have been in place long
enough to see the progress made on the ground. In our Native Fish HCP,
over 5600 miles of logging roads have been ``reconditioned'' with
surfacing and drainage to reduce sediment leading to fish-bearing
streams and improved fish passage with use of ``fish-friendly''
culverts and bridges. Conservation commitments in the Arkansas red-
cockaded woodpecker plan have been completed years ahead of schedule
and breeding pairs have been increased from 9 to 17 in Plum Creek's
3,000 acre RCW conservation area.
Mr. Chairman, with proper incentives, these voluntary agreements
can lead to even greater conservation outcomes. The Central Cascades
HCP provided the stimulus to complete the largest land exchange in
Washington since the 1940's, with 39,000 acres transferred between Plum
Creek and the U.S. Forest Service. This exchange allowed the Federal
Government to acquire more property for backcountry recreation while
Plum Creek achieved more efficient operations by consolidating our
ownership. The HCP allowed Plum Creek to fully value its land for the
exchange without the uncertainty related to the presence and future
regulation of endangered species on our property.
With the assistance of Federal funds from the Cooperative
Endangered Species Conservation Fund authorized under Section 6 of the
ESA, the State of Montana has purchased the largest conservation
easement west of the Mississippi River on 142,000 acres of Plum Creek
property in the Fisher and Thompson Rivers within the Native Fish HCP.
These Section 6 funds, which are granted for land acquisition within
HCPs, have also been instrumental in the recent purchase of 1,100 acres
of Plum Creek property in northwestern Montana by the Montana
Department of Fish, Wildlife and Parks. In the Ouchita River of
Arkansas, Plum Creek and the U.S. Fish and Wildlife Service are
engaging in the development of a Safe Harbor Agreement for the red-
cockaded woodpecker on property adjacent to our HCP. The planning and
habitat improvement work now occurring on this 12,000-acre ecologically
important area of mixed pine savanna and intermingled bottom land
hardwood has the potential to more than double the red-cockaded
woodpecker population from 20 to over 50 territories. The potential
acquisition of the area by the Upper Ouchita Wildlife Refuge is the
greatest incentive driving this ESA conservation project.
Some academics and conservation organizations have been critical of
HCPs, citing the lack of ``good science'' and public involvement in
their development. We would like to dispel this myth and offer this
example. When Plum Creek created its first HCP in the Washington
Cascades, we assembled a team of scientists representing company staff,
independent consultants and academic experts. We authored 13 technical
reports covering every scientific aspect from spotted owl biology to
watershed analysis. We sought the peer reviews of 47 outside scientists
as well as State and Federal Agency inputs. We conducted over 50
briefings with outside groups and agencies to discuss our findings and
obtain additional advice and input. During the public comment period,
all HCP documents and scientific reports were placed in 8 public
libraries across the planning area. It is important to note, Mr.
Chairman, that all of the science and planning completed in our HCPs
and conservation agreements has been made available to other landowners
and agencies developing their own conservation plans.
recommendations
As confident as we are in the value and success of voluntary
agreements under the ESA, there are several recommendations we think
would make the ESA conservation planning process more ``user-friendly''
and effective.
First and foremost, more incentives are needed because they fuel
the innovation and commitment for private landowner participation. We
believe the ``No Surprises Policy'' should be codified in law. This
policy was an important incentive for Plum Creek to embark on the
development of its first HCP. These agreements provide more predictable
outcomes for the government and the ``No Surprises'' policy balances
the bargain by making it a more secure deal for the landowner.
Codifying the ``No Surprises Policy'' will induce more landowners to
work with the Services to develop more voluntary agreements.
Congress must authorize appropriate funding of the Department of
Interior's HCP program to continue the important work discussed here.
We recommend increased support for Section 6 of the ESA, which includes
the Cooperative Endangered Species Conservation Fund to support
development of HCPs and land acquisition within functioning HCPs and
other conservation agreements. The support of Congress for voluntary
endangered species conservation also includes support for the U.S. Fish
and Wildlife Service and National Marine Fisheries Service to acquire,
train and retain the skilled and seasoned personnel needed to craft and
monitor these agreements with private landowners. Mr. Chairman, HCPs
and other ESA conservation agreements are not only science plans but
also business plans, which commit millions of dollars of a company's
assets in a binding agreement with the Federal Government. The stakes
are high for both conservation and shareholder value in private
timberlands. The substantial commitment made by private landowners to
develop and implement these voluntary agreements must be matched by a
commensurate investment from the Federal Government.
With regards to regulatory and policy issues, we would like to make
the committee aware of two areas of conflicting regulation that
significantly complicate and delay the completion of conservation
agreements under the ESA. The first is the National Historic
Preservation Act, which requires the Federal Government to ``authorize
and permit'' any activity which may adversely affect existing or
potential historic sites. When permitting the incidental ``take'' of
habitat under the ESA, the Federal Government believes it is compelled
to evaluate the potential of ESA-permitted activities to conflict with
NHPA. This sets in motion a process, which can require private
landowners to commission expensive surveys of potential cultural and
archeological resources on their land, often with extensive delay and
no benefit to the conservation of either historic sites or endangered
species. Congress should pass statutory language, or include in the
legislative history to make clear Congress' intent to exempt ESA
conservation agreements from NHPA review.
Moreover, the National Environmental Policy Act is triggered by the
development of Habitat Conservation Plans, Safe Harbor Agreements and
other ESA agreements. We have found the generation of environmental
impact statements and assessments under NEPA to be an expensive and
redundant process, since the ``preferred alternative'' is the HCP or
other agreement that is already well documented and described as a
result of work with the Services. Combined with the complexities of
working with 2 Federal agencies like the U.S. Fish and Wildlife Service
and National Marine Fisheries Service, NEPA compliance becomes an
unnecessary and powerful disincentive for large and small landowners to
engage in the ESA voluntary agreement process. Regulatory language
should be developed which can require adequate public review and input
to ESA voluntary agreements without engaging the landowner and agencies
in the parallel and redundant NEPA process.
Mr. Chairman, I thank you for the opportunity to testify before you
today. The testimony you will hear today should provide the committee
with a better understanding of the variety of ESA voluntary agreements
and how they have been applied on our property. I hope my testimony has
given you an appreciation of the strategic value of these voluntary
agreements for both the conservation of species and protection of
resource economies.
__________
Statement of Mr. Laurence D. Wiseman on behalf of American Tree Farm
System, a program of American Forest Foundation
I am testifying on behalf of the American Forest Foundation, and
our American Tree Farm System. The Tree Farm System, founded in 1941,
is the nation's oldest and largest community of forest landowners who
have each pledged to practice environmentally-sound, sustainable and
productive forestry.
Together the 51,000 members of the Tree Farm System own more than
33 million acres of some of the finest, richest forested habitats in
the U.S. They are showplaces for what can be accomplished by willing,
committed and enthusiastic stewards. For that reason, we welcome the
opportunity to appear before this Committee.
In an era when most media attention is focused on National Forests,
it is vital that Congress consider both the challenges and
opportunities that confront the ``majority owners'' of America's
forests the 10 million individuals and families who own half of our
forests, most in small plots of less than 100 acres. While recurrent
wildfire on National Forests is a media staple the ecological
equivalent of summer reruns few people grasp the ominous consequences
of another, much less visible forest health crisis that spreads under
the media radar. I refer to the loss of some 2,000 acres of forestland
a day to development. That's every day with no time off for weekends.
These forests are critical to our environment, our economy, and our
communities. Some 70 percent of our Eastern watersheds flow through
these family-owned forests. Two-thirds of the fiber grown for wood and
paper products are harvested by these families. Some 90 percent of
endangered species find some or all of their habitat on their forests.
All the family forest owners I know recognize that decisions you
make in Washington will affect their lands as much or more as the
decisions they make around the kitchen table. Let me share some of what
we've heard ``around the kitchen table'' as family forest owners
consider endangered species and the laws that protect them.
policy should respect the power of private stewardship.
Most family owners rank wildlife, recreation and aesthetics as the
primary reason for owning land; most will take steps to leave their
land better than they found it. Many would welcome the chance to manage
for endangered species. What's lacking, too often, are the knowledge,
technical skills and the means to implement practices.
Where knowledge and assistance are provided, and clear pathways for
protection marked, owners will respond. Voluntary efforts for the red-
cockaded woodpecker have protected 509 groups on 347,000 acres some 40
percent of the known groups on private lands.
public officials should recognize family forest owners are volunteers.
They choose to own forestland; they choose to be good stewards. Our
first--and biggest--challenge is keeping them on the land. Some, of
course, will choose to sell their property as their family and
community circumstances dictate. Many others would prefer to stay on
the land, and continue to pass on their family's heritage of
stewardship. The key fact to remember is that it's their choice. Not
ours. Not yours. The goal of endangered species policy, therefore,
should be to make it easier not harder for families to stay on the
land, and to exercise their innate impulse for conservation. Family
forest owners give back to their communities. Without cash, there's
little opportunity for conservation.
Whatever their motives for owning forests, owners need income for
taxes and insurance, and to invest in their land. To the extent they
believe endangered species conservation may constitute a potential
drain on their expected future income, some owners may choose another
land use. It's important, therefore, to view species conservation not
just as a stewardship responsibility owners willingly accept, but also
as an environmental service they provide to their communities a service
worthy of public support.
Sadly, incentive programs for forest and species conservation are
so meager that many families don't even bother to apply. Last year,
more than $4 billion in applications for all conservation incentives
went unfunded. Of those that were funded, a tiny fraction supported
forest protection. Under EQIP, for example, the largest Federal
incentive program, less than 2 percent of expenditures nationwide in
2004 were directed at forest conservation practices. Given that about
half the rural land in the U.S. is forested [and not connected to a
working farm or ranch], the nation's needs are nowhere near being met.
At the same time, Federal incentive programs are just one tool
available to policymakers. As part of a comprehensive endangered
species policy, other avenues for compensating owners for environmental
services should be explored, including tax policy, extending the
Conservation Security Program to forest owners, and the creation of
private markets. We should reward family owners for species
conservation, not punish them for creating the habitat where these
species can thrive. Consistency and certainty breed confidence.
Family forest owners must make decisions that will affect their
forests and their families for decades, even generations. Consistent
policies and regulatory certainty make it easier for owners to choose
conservation. In fact, enacting short-term fixes, or politically-
fragile programs may actually de-motivate owners, rather than encourage
their commitment to long-term stewardship. The brief, sad history of
the Forest Land Enhancement Program the nation's first substantial
incentive program aimed solely at family forest owners left many with
little confidence that Federal policy would provide a stable foundation
for their investments in stewardship.
Likewise, exposing owners to regulatory uncertainty the fear that
steps taken to protect species today might not suffice in the future
magnifies risk and leaves many owners wary of agreements that might
further limit management choices open to their heirs.
Several attempts have been made to remove these uncertainties.
Early efforts to set individual Habitat Conservation Plans for small
owners have stalled. Few have been accepted, and some owners have spent
tens of thousands of dollars and the better part of a decade
negotiating their plans an unappetizing prospect for their peers.
More promising [and more appealing to owners] is the emergence of
statewide or region-and species-specific HCPs, and Safe Harbor
Agreements which ease entry, set clear goals and landowner
responsibilities, as well as mutually-agreed to limits on restriction
of future use.
Program simplicity is a virtue.
As one Tree Farmer put, ``We own this land for three reasons:
pride, pleasure and profit. Often, the profit isn't there, but we've
gone on. When the pride and pleasure disappear when there's one too
many hoops to jump through we'll disappear too.''
Right now, funded Federal incentive programs accessible to forest
owners for species conservation number about half-a-dozen spread over
at least three different agencies. Some are administered through State
agencies; others through Federal offices. Most require separate
application and operate under different rules.
Simply knowing on which door to knock is a challenge for the vast
majority of forest owners. Even more vexing, once you're inside, is the
maze of committees, requirements, priorities and application
procedures. Alongside well-funded incentive programs, we need simpler
procedures and transparent processes perhaps even harmonized programs
so that family forest owners can readily find the programs that work
for them.
lack of funds isn't the only barrier to species conservation.
Very often, family owners will implement management practices that
protect species simply because they want to because it feeds the pride
and pleasure they take in caring for their forests. For them, a primary
barrier to action is lack of knowledge about a particular species, its
range, and the practices they might implement to support its
conservation.
For that reason, we have urged both agencies and the Congress not
to shortchange outreach and education programs by counting success only
in acres treated through cost-share grants. We understand and support
the push for programs that produce real results on the ground. The
drive toward easily-measured outcomes as we've seen with the Fish &
Wildlife Service's Private Stewardship Grants program may actually
reduce the return we can earn on Federal investment in species
protection.
Our 6 decades of experience--affirmed by our recent work with
Environmental Defense and the Nature Conservancy--leave no doubt that
well-informed, well-motivated family forest owners will implement new
practices, once they learn how.
Two projects supported in part through recent Private Stewardship
Grants demonstrate the power of outreach and education. In Mississippi,
Alabama and Louisiana, forest owners who attended field days and
received publications now manage more than 10,000 acres to conserve
gopher tortoise habitat, while maintaining the productivity of their
forests. On average, they plan to share what they have learned with an
average of 14 of their neighbors. After a single field day in South
Carolina, owners reported using prescribed fire and other practices to
conserve at-risk species on 15,210 acres.
In Summary
Incentives are a vital component of a comprehensive endangered
species policy because they recognize and respect the power of private
stewardship. They provide one avenue--but not the only one--for
achieving some level of public support for environmental services
provided by family owners.
Owners in general want to be good stewards, within the boundaries
of economic reality. Without adequate cash flow from either forest
products or environmental services, it becomes increasingly difficult
to sustain forests in the face of burgeoning development.
Current incentive programs, as now organized and administered, are
not well-designed for family forest owners. Access is difficult, and
funds available for forest conservation are dwarfed by the potential
need. Without solid evidence that programs will remain adequately
funded--and that rules won't change over time--many owners lack the
confidence needed to make decisions that will affect their families,
and their forests for generations.
Tying Federal investment to on-the-ground outcomes is vital. The
most effective policy will combine incentives with a broad range of
information, outreach, education and technical assistance programs.
__________
Statment of the NATIONAL ASSOCIATION OF REALTORS
Thank you for the opportunity to submit the comments of THE
NATIONAL ASSOCIATION OF REALTORS for the record of the Senate
Fisheries, Wildlife and Water Subcommittee oversight hearing on the
Federal Endangered Species Act and incentives for private landowners.
THE NATIONAL ASSOCIATION OF REALTORS, ``The Voice for Real Estate,''
is America's largest trade association, representing 1.2 million
members involved in all aspects of the residential and commercial real
estate industries.
REALTORS, are concerned and active members of their communities.
They care about a healthy quality of life as well as a vibrant economy,
and they are willing to do their part to maintain that important
balance. They understand that species protection is a critical element
in a community's quality of life.
REALTORS also understand the importance of a strong economy and
the critical role played by the estate industry. A healthy real estate
market increases the tax base, creates jobs and provides new housing.
In 2005, real estate continues to be on of the bright spots in our
nation's economy.
Consequently, NRA supports a balanced Endangered Species Act that
accommodates both species protection and economic vitality. The current
imbalance in species protection is highlighted by a recent NAR study.
Our study of three counties in the western part of the State of
Washington found that the location of properties in areas subject to
significant ESA regulation typically results in lower sales prices to
significant ESA regulation typically results in lower sales prices for
those properties. The study found these lower prices to be
statistically significant and observed in virtually all property types
in rural, suburban and urban communities. Of other importance, the
study also found a significant negative impact on government revenue
from taxes.
NAR policy supports the following amendments to the ESA:
<bullet> Use of incentives to private property owners for species
protection rather than relying solely on restrictions and penalties.
<bullet> Listing of threatened or endangered species and the
designation of critical habitat based on verifiable, scientific
evidence.
<bullet> Notification to private property owners of potential
listings, and the proposed designation of critical habitat, which
impact their property.
<bullet> Increased local involvement in creating and implementing
recovery plans.
<bullet> Independent peer review of both the scientific evidence
and economic impacts of all proposed listings and critical habitat
designations.
<bullet> Periodic review and expedited delisting of species, and
removal of land from critical habitat designation, when supported by
verifiable scientific evidence.
Since its enactment in 1973, the Endangered Species Act's list of
species in need of protection has continued to grow. However, very
little progress in recovering species has been achieved. Only a few
species have actually been recovered.
In order to maximize the ESA's potential to protect and recover
threatened and endangered species, the focus of the Act must shift to
create a partnership between government and its citizens. To that end,
the ESA must partner with State and local governments and focus less on
top-down regulation and more on bottom-up incentives to property
owners. The Act should consider whether private landowner voluntary
programs, State/local conservation efforts, and other Federal Agency
programs already provide sufficient protections before deciding that a
listing is war rented. It should strengthen the authorization for
Habitat Conservation Plans (HCPs) by providing a greater level of
regulatory certainty, streamlining HCP approvals, and codifying the
``No Surprises'' policy. Finally, the ESA should encourage State/local
government facilitation of voluntary species conservation efforts
through new authorization and funding.
Thank you for allowing THE NATIONAL ASSOCIATION OF REALTORS the
opportunity to share our views on the Endangered Species Act. We urge
the Subcommittee to undertake a bi-partisam effort and pursue
improvements to the ESA that will achieve protection and recovery of
threatened and endangered species through a cooperative effort between
government and its citizens. We look forward to working with you in
support of this effort.
__________
Responses by Michael J. Bean to additional Questions
from Senator Inhofe
Question 1. In your testimony, you mention that nothing in the ESA
compels active land management versus passive ``natural state'' land
use restriction. Would it not be a disincentive to compel private
landowners to undertake active land management and also compel them to
restrict the use of their property. Would you support removing
landowner restrictions on private property if active land management
were occurring?
Response. Often the active management needed to sustain or enhance
habitats for the long-term benefit of a rare species can have short-
term negative impacts on individual members of that species. An example
would be the prescribed fires useful in maintaining or enhancing
habitats for species such as scrub-associated rare species of Florida
or the Karner blue butterfly in New York. Such fires, though
practically indispensable to the long-term well-being of these species,
may nevertheless injure or kill some individuals of those species. I
believe the Fish and Wildlife Service can and should facilitate these
sorts of management actions by exercising the authority it already has
to relax the regulatory impediments that have discouraged or slowed
needed active management. Further, needed active management should be
encouraged through positive incentives. The alternative of compelling
it through regulatory commands is unlikely to work.
Question 2. In your testimony, you express support for voluntary
conservation agreements and landowner agreements with assurances. What
about critical habitat designation, would you support excluding land
included under an incentive program from critical habitat designations?
Response. I think that greater flexibility in the designation of
critical habitat is desirable. The goal should be to ensure that those
areas of special significance to the conservation of an imperiled
species will be appropriately managed to meet the needs of the species.
If there are adequate mechanisms in place, including those that might
be provided by well-designed incentive program to encourage and reward
long-term beneficial management, that is likely to be ultimately more
important than whether any particular area is designated as critical
habitat or not.
Question 3. In your testimony you discuss the need for more inter-
Agency coordination of efforts to recover species. How would you
suggest Congress act in order to facilitate increased coordination?
Response. I think Congress--and specifically this Committee--needs
to demonstrate clearly to the Federal agencies whose actions most
frequently or most significantly affect imperiled species that it wants
and expects increased coordination and cooperation in the conservation
of those species. It can do that most effectively, I believe, by
beginning with a series of briefings or hearings focused quite
intensively on what is being done well or poorly at present. A result
of those briefings or hearings should be a set of specific commitments
that the agencies involved agree to undertake within specified time
periods. This Committee should then bring the agencies back before it
periodically to assess the progress--or lack of it--in meeting those
commitments. Failure to meet those commitments should not be
disregarded; Agency leaders and Agency budgets should be held
accountable.
Question 4. Mr. Bean, in your testimony you refer to the efforts of
Oklahoma farmers in planning non-native grasses to control soil
erosion. This was certainly a noble goal as cities like Magnum, OK were
having dust storms so severe that street lamps came on during the day.
You suggest it was a mistake for the farmers to plant non-native
grasses in 1985, even though they spread more quickly than native
grasses and the cities were in a crisis over soil erosion. Were you
aware that, since 1996, farmer in Oklahoma have been planting native
grasses as the focus has shifted from the crisis of soil erosion to
wildlife conservation?
Response. The planting of native grasses offers both soil erosion
and wildlife habitat benefits, whereas the planting of non-native
grasses offers soil erosion, but no significant wildlife habitat
benefits. The extensive planting of non-native grasses in the initial
implementation of the CRP program in Oklahoma represented a missed
opportunity to achieve both important soil conservation and wildlife
habitat benefits. It is my understanding that native grasses are being
more commonly planted today, though non-native grasses are also still
being planted. Greater attention to the opportunities to use CRP and
other Farm Bill conservation programs so as to achieve both broad
environmental purposes and more targeted endangered species
conservation purposes is one of the most promising strategies for
avoiding conflicts over endangered species conservation efforts.
Question 5. If multiple grants and agencies were to be involved at
a single property (i.e., applying for a USDA CRP and FWS Partners
grant at the same site for different activities) would you suggest a
single streamlined process for both grants?
Response. Yes, I believe that is an idea that should be seriously
explored. The agencies certainly have the authority to do that now and
should be encouraged to experiment with a variety of ways of
accomplishing this objective.
__________
Responses by Michael J. Bean to additional Questions
from Senator Jeffords
Question 1. You express a need for greater coordination amongst
Federal agencies in implementing land stewardship programs that could
assist in protecting listed species and you provided recommendations on
how to incorporate species protection into existing programs. In your
opinion, which land stewardship programs have the greatest impact
conservation of listed species?
Response. The programs that currently have the greatest potential
for beneficial impact on the conservation of listed species are
probably the Farm Bill conservation programs, simply because they have,
by far, the most resources and can reach the most landowners.
Question 2. Would you support revising any Department of the
Interior or Department of Agriculture grant programs to give priority
for conservation actions carried out pursuant to recovery plans
approved under the Endangered Species Act?
Response. Yes.
Question 3. Do you think the Administration could do more to
encourage private landowner incentives for conservation of listed
species, without legislative changes to the Endangered Species Act. If
so, what would you propose?
Response. Absolutely. For some species, see the answer to question
no. 5 from Senator Chafee, as well as the recommendations of my
colleague, Robert Bonnie, in his paper, ``Building on Success:
Improving the Endangered Species Act,'' which can be found at http://
www.environmentaldefense.org/documents /3366--Building%20on
%20Success.pdf.
Responses by Michael J. Bean to additional Questions
from Senator Chafee
Question 1. In your testimony, you mention the untapped or under-
utilized resources contain within the Farm Bill for conserving at-risk
species. What are some of the changed that could be made to the
existing Farm Bill conservation to provide the necessary incentives for
agricultural landowners to protect species on their properties?
Response. Changes that could be made to existing Farm Bill
conservation programs to improve the conservation of at-risk species on
agricultural and other private lands were described at length in
testimony given by my colleague Timothy D. Searchinger in testimony to
the Subcommittee on Forestry, Conservation, and Forestry, Conservation,
and Rural Revitalization of the Senate Committee on Agriculture,
Nutrition, and Forestry on July 26, 2005. I refer the subcommittee to
that testimony for a detailed answer to this question.
Question 2. To what extent is Environmental Defense focusing on
preventive measures to ensure that species are not placed on the ESA
list in the first places opposed to directing limited funding and
resources toward recovery of species currently on the list?
Response. We are focused on both of these issues. However, before a
species is placed on the ESA list, the responsibility for its
consecration and management rests with the States (except in the case
of migratory birds and marine mammals). As a result, there are
relatively few opportunities available under Federal law to address
directly the conservation needs of unlisted species. One thing Congress
can do to encourage more attention to this issue on the part of States
is to fund adequately the development and implementation by the States
of State comprehensive wildlife conservation plans.
Question 3. Why is the recovery of species so difficult? What are
the ongoing hurdles to recovery?
Response. Most species are not added to the ESA list until they
have been reduced to extremely low numbers and very limited
distribution. Often, most of their habitat has been eliminated or
severely degraded. Reversing these processes, which have often been
ongoing for many decades, cannot be done easily or quickly. For many of
these species, basic information about how to effectively manage them
is sorely lacking, which may require years of research to elucidate.
For a more extended discussion of this issue, see the Environmental
Defense paper, The Endangered Species Act: Success or Failure, posted
on our web site at www.environmentaldefense.org/documents/4465--ESA--
Success%20or%20Failure.
pdf.
Question 4. What are your thoughts on ensuring that Habitat
Conservation Plans benefit listed species?
Response The single most helpful measure would be to ensure that
the duty now found in the ESA that requires agencies to ensure that
their actions not jeapordize the continued existence of listed species
be clearly understood to bar approval of any habitat conservation plan
that would make recovery of the species significantly less likely.
Question 5. In your opinion, is there more that the Administration
could be doing right now on private landowner incentives for
conservation of listed species without waiting for Congress to make
changes to the Endangered Species Act?
Response. Yes, there is much more. Some of the actions it could
undertake are described in the testimony referenced in my answer to the
first question above. Other ideas are set forth in my 2003 paper, The
ESA--Second Generation Approaches to Species Conservation:
Challenges to Making Second Generation Approaches Work, which is
available upon request.
Question 6. Would Environmental Defense support the concept of
creating a fund to pay for adaptive management to save a species from
extinction in the case of an HCP failure to mitigate habitat loss?
Let's assume that revocation of the incidental take permit would not be
enough to prevent the species extinction, and the no surprises policy
would prevent securing funds from the developer. Further, how would a
fund of this nature be generated?
Response. In general, we would support that concept, and suggest
that the source of the funds be appropriated dollars. One could put the
burden of underwriting the fund on HCP applicants, but the disadvantage
of doing that is that dollars spent on a fund of this sort are likely
to be dollars not spent on up--front conservation efforts in HCPs.
__________
Responses by Michael J. Bean to additional Questions
from Senator Clinton
Question 1. Would you support revising any DOI and USDA grant
programs to give priority to conservation actions carried out pursuant
to recovery plans approved under the ESA?
Response. Yes.
Question 2. Is there more that the Administration could be doing
right now on private landowner incentives for conservation of listed
species, without waiting for Congress to change the ESA?
Response. Yes. For some specifics, see the answer to question no. 5
from Senator Chafee, as well as the recommendations of my colleague,
Robert Bonnie, in his paper, ``Building on Success: Improving the
Endangered Species Act,'' which can be found at http://
www.environmentaldefense.org/documents /3366--Building%20on
%20Success.pdf.
Question 3. How is the Administration's shift to voluntary
conservation working? Which species are benefiting from the various
grant programs? How can these programs be improved and better
integrated with the ESA?
Reponse. The Administration's creation of new voluntary
conservation programs, such as the Private Stewardship Grants Program
and the Landowner Incentives Program, is a commendable, though still
quite small, step. Also welcome is its continued support for the use of
safe harbor agreements as an inducement for voluntary conservation
efforts. Safe harbor programs are clearly helping the red-cocked
woodpecker, northern aplomado falcon, Hawaiian goose, black-capped
vireo, and other species. These programs can be improved and better
integrated with the ESA by expanding them, Streamlining their
successful implementation a higher priority. The Administration could
make significant advances in voluntary conservation efforts for rare
species conservation while simultaneously advancing other goals such as
reducing soil erosion, improving water quality. etc.
__________
Responses by Michael J. Bean to additional Questions
from Senator Lautneberg
Question 1. Some complain that the private sector is bearing too
much of the burden for implementing the ESA. Does that burden compare
to the burden on society when we lose a species of animal?
Response. The loss of species deprives society--and future
generations--of myriad benefits, potentially including new discoveries
useful to medicine, science, or industry, the free ``services''
provided by healthy, intact ecosystems, as well as aesthetic,
recreational, and other values. The loss of species forecloses
opportunities to benefit from interstate commerce in as-yet-
undiscovered products derived directly from wild species or indirectly
from insights gained through the study of such species. Inasmuch as
possible, Environmental Defense believes that we ought to try to
achieve these myriad benefits to society without unduly burdening the
private sector. Accordingly, the principles that have guided our
efforts are that we seek to make the Endangered Species Act both more
effective in conserving species, and less burdensome for those whom it
affects. We encourage Congress to apply the same principles in
evaluating proposals for change to the ESA.
Question 2. You mention the endangered bog turtle from my home
State of New Jersey, and point out the importance of links between
species. How much of our endangered species problem in this country is
due to a similar loss of species up the chain?
Response. The bog turtle, like virtually every other imperiled
species, is at risk primarily because of one reason: the loss or
degradation of its habitat. The only strategies that will successfully
conserve imperiled species are to maintain and appropriately manage
sufficient habitat to support them into the future.
Responses by Michael J. Bean to additional Questions
from Senator Murkowski
Question 1. Mr. Bean, you have a commendable history of working
with private landowners to develop voluntary conservation measures for
endangered species. Would you agree that one of the key elements in
making voluntary conservation efforts work is that, in the end, the
deal that is struck must make good business sense? How could the Act be
improved to understand and accommodate the economics associated with
voluntary conservation commitments by private landowners?
Response. Certainly for much privately owned land (e.g., corporate
timber land), business considerations are likely to predominate in the
determination of whether to enter into a voluntary conservation
agreement. For many, if not most, individual or family landowners,
however, the reason for owning a parcel of land are often many. They
commonly include motivations (such as recreation, aesthetics, family
tradition, conservation, etc.) having little or nothing to do with
economic return, though few landowners can be indifferent to economic
return. In the end, therefore, key to making voluntary conservation
efforts work is that they be consistent with the landowner's objectives
for the land, which may or may not be primarily economic. That said,
however, even for those landowners for which economic considerations
are not the overriding concerns, it will almost always be useful to
assist the landowner with meeting the costs of management for
conservation purposes. Doing so makes more conservation effort possible
and demonstrates that the landowner's contribution is recognized as
important. The Act could be improved by expanding the range of
incentive-based mechanisms it offers, without foregoing regulatory
controls where are needed.
__________
Responses by Sara Braasch to additional Questions
from Senator Inhofe
Question 1. I have heard from some farmers and ranchers that on
some occasions their request for technical assistance from your service
triggers the evaluation of a possible section 7 consultation because
you are part of a Federal Agency/department. What effect does this have
on voluntary conservation efforts, as section 7 consultations, even
informal consultation, are notoriously lengthy and contentious
processes? Is there a way to avoid this trigger?
Response. NRCS is not required to consult with the FWS or NMFS when
NRCS provides technical assistance only, but if that technical
assistance is provided so the farmer or rancher can obtain Federal
financial assistance, consultation is required if the funded action may
affect an endangered or threatened species. If technical assistance
alone is provided, NRCS conducts an environmental evaluation to ensure
we are providing advice that does not result in unintended adverse
effects on any resource. In the case of ESA-protected species, the
Agency ensures that when a farmer or rancher carries out the
recommendations provided, they will not inadvertently take a listed
species or destroy or adversely modify designated critical habitat in
violation of the ESA. There may be some instances in which an NRCS
State Conservationist may want to seek assistance from FWS or NMFS to
better understand the potential impacts of a recommendation, but it is
not required.
Question 2. USDA programs appear to be very effective. Are there
any regulatory hurdles in using USDA money to conserve species under an
act implemented by the DOI?
Response. Many conservation programs that are administered by NRCS
have a beneficial impact upon the conservation of endangered species.
This beneficial impact is often considered a may affect determination
under the ESA consultation regulations found at 50 CFR part 402.
Pursuant to 50 CFR 402.14 of the ESA consultation regulations, NRCS
must enter into informal consultation on activities that may affect
listed species and obtain FWS or NMFS concurrence that the funded
activity is not likely to adversely affect any listed species or
designated critical habitat. In some circumstances, the requirement to
obtain FWS or NMFS concurrence on these activities causes delays in
their implementation.
Additionally, because NRCS conservation programs encourage the
voluntary adoption of conservation measures that benefit listed
species, some landowners have expressed concern that their voluntarily-
adopted practices will result in future restrictions on the property's
use under ESA. While these landowners can obtain safe harbor assurances
from FWS through a Safe Harbor Agreement and associated permit, these
assurances involve a lengthy process and do not always correspond well
with the program time frames for obligating funds.
Question 3. In your testimony you stated that wildlife is one of
the four national priorities in the Environmental Quality Incentives
Program? How high is wildlife in the priorities and how much is
annually distributed for wildlife conservation?
Response. Natural resource issues relating to wildlife are 1 of the
4 national priorities for EQIP and are addressed primarily under the
priority for the promotion of at-risk species habitat conservation. The
term at-risk species means any plant or animal species as determined by
the State Technical Committee to need direct intervention to halt its
population decline. The priority of wildlife among other resource
concerns is largely determined by the flexibility afforded to States
and local decision makers to utilize EQIP resources to address locally
identified priorities and optimize environmental benefits. In fiscal
year (FY) 2004, $26,404,293 in cost share assistance was approved to
help address wildlife-related resource concerns. Wildlife also benefits
from technical and financial assistance that addresses other EQIP
national priorities such as water quality and water conservation.
Question 4. I know that the Conservation Reserve Program and the
Conservation Reserve Enhancement Program are under the Farm Service
Agency but you mentioned them in your testimony. A lot of land is
coming out of agricultural production due to these two programs and
seemingly lying fallow for periods of 10-15 years. Is this land that
could be converted to habitat for the benefit of species?
Response. The Conservation Reserve Program (CRP) requires that land
enrolled in the program be protected with vegetative cover. The CRP has
enrolled over 35 million acres of land. The program has restored over
1.9 million acres of wetlands, planted over 500,000 acres of hardwoods,
and protected over 1.7 million acres of floodplains. These lands
provide substantial benefits to many game and non-game species. The
U.S. Fish and Wildlife Service estimates that an additional 2.3 million
ducks per year are produced from CRP land. CRP acreage is being used to
restore Salmon habitat, protect the Lesser Prairie Chicken, enhance
Northern Bobwhite Quail and restore the habitat for many other species
of wildlife. Wildlife groups and State Fish and Wildlife Agencies have
commented that CRP is the most important conservation program for the
restoration of wildlife on private lands.
__________
Responses by Sara Braasch to additional Questions
from Senator Jeffords
Question 1. NRCS is doing quite a bit to help preserve habitat
through incentives provided in the Farm Bill. How does the NRCS manage
these programs in order not to duplicate incentives provided by the
Fish and Wildlife Service?
Response. NRCS fully supports the President's initiatives on
cooperative conservation, and therefore works closely with the FWS,
NMFS, and State, Tribal and local agencies to coordinate delivery of
its conservation programs. NRCS invites each of these agencies to
participate with it on the NRCS State Technical Committee. This
Committee provides a forum for development of cooperative efforts to
foster the conservation of our Nation's resources, and is a mechanism
to ensure the NRCS State Conservationist receives advice that will
allow NRCS programs to complement, but not to duplicate, other
agencies' efforts.
There are several other mechanisms NRCS uses to ensure that the
programs the Agency administers, such as the Farm and Ranch Lands
Protection Program (FRPP), GRP, WRP and WHIP, do not duplicate efforts
and incentives provided by the FWS, as well. For FRPP, lands enrolled
in FWS easements are not eligible to be enrolled in FRPP. Likewise, in
the case of GRP, lands enrolled in FWS contracts are not eligible for
GRP.
For WRP, the authorizing language contains provisions that require
the Secretary of Agriculture to work with the Department of the
Interior in implementing the program. In addition, NRCS and the FWS
leverage resources to implement projects that are considered high
priority by both agencies. Under WRP easement projects, NRCS is
considered the landowner for the restoration portion of the project.
Therefore, contributions from both agencies may be used to benefit the
Federal governments' restoration efforts. However, under no
circumstances will the restoration funds expended exceed the cost of
the project. In addition, the agencies leverage resources in the
management aspects of the program. For example, the Secretary of
Agriculture and the Secretary of Interior may agree to the transfer of
administrative jurisdiction on certain easement projects around the
country. For example, earlier this year, Secretary Johanns and
Secretary Norton agreed to transfer administrative jurisdiction of the
Glacial Ridge project in Minnesota from NRCS over to the FWS. FWS will
now be responsible for managing easement lands as part of the Glacial
Ridge National Wildlife Refuge.
WHIP generally caps cost-share at 75 percent. However, in order to
capitalize on cooperative efforts, current WHIP policy allows State
Conservationists to waive this cost-share limit on a case-by-case
basis, where circumstances merit additional cost-share assistance to
achieve the intended goals of the project. In these cases, direct
Federal sources may contribute to the cost of the practice above the 75
percent cost-share level, up to 100 percent.
__________
Responses by Sara Braasch to additional Questions
from Senator Chafee
Question 1. In your opinion, where are Natural Resources
Conservation Service (NRCS) funds better spent--to prevent species from
being listed as threatened or endangered in the first place, such as
the case of the Greater Sage Frouse in the western United States where
Federal funds were used to improve sage frouse habitat and prevent an
ESA-listing, or does NRCS prefer funds to go directly toward the
recovery of already listed species, such as salmon in the Northwest?
Response. As the saying goes, ``An ounce of prevention is worth a
pound of cure.'' That is true for declining species, as well.
Substantial Federal resources are expended during the listing process
and to comply with the Endangered Species Act (ESA) after species are
listed. Less resources are required to protect and restore habitat
before species decline to the level at which their continued existence
is in jeopardy. Of course, we cannot ignore the species that are
already listed, but both goals are important to address, and NRCS is
committed to contributing to the achievement of both goals. Here are
some examples of how NRCS does this.
While the Wetlands Reserve Program (WRP) does not have statutory
language that requires a focus on ESA-listed species, NRCS considers
habitat for threatened and endangered species a priority in the
application ranking process. In addition to this focus at the field
level, NRCS nationally also focused for the first time in fiscal year
(FY) 2005 on enhancement of protected species' habitat. For Example,
$500,000 of WRP funding, made available through the Wetlands Reserve
Enhancement Program, was specifically provided to enhance Bog Turtle
habitat in the Northwestern States, while an additional $500,000 of WRP
finding was woodpecker population. The WRP focus on ESA-protected
species complements the statutory requirement to focus on migratory
birds and other wildlife, which includes declining species.
The Grassland Reserve Program (GRP) emphasized habitat protection
to prevent species from being listed as threatened and endangered. As a
matter of policy, NRCS considers habitat for ``declining populations''
of grassland-dependent birds and animals a priority in the application
ranking process at the State level, as well as targeting species
directly at the national level. For example, in fiscal year (FY) 2004
and 2005, over $5.1 million of GRP financial and technical assistance
funds were awarded to seven Western States to acquire easements for the
purpose of restoring and protecting Sage Grouse habitat.
Question 2. How closely does the NRCS coordinate with the Fish and
Wildlife Service in resolving species conflicts on privately-owned
agricultural lands?
Response. NRCS has a positive working relationship with the Fish
and Wildlife Service (FWS). The Agency coordinates with the FWS in
resolving species conflicts on privately-owned agricultural lands when
the landowner has applied for NRCS financial assistance and NRCS has
determined there may be an effect on federally-protected species or
habitat. In these cases, consultation with FWS is required. Because
NRCS programs address private land conservation needs, and because NRCS
policy is to avoid or minimize effects on endangered, threatened, or
declining species, conflicts arising from NRCS programs often do not
occur. NRCS is also sensitive to landowners' interests in maintaining
their privacy and the confidentiality provisions of the Farm Bill. NRCS
is respectful of landowners' responsibilities to work with FWS or
National Marine Fisheries Service (NMFS), as appropriate, on the
decisions they make regarding the use of their land as it relates to
ESA-listed species.
Question 3. Do any of the NRCS conservation programs authorized by
the 2002 Farm Bill or other similar statutes specifically require that
the NRCS focus on ESA-listed species?
Respose. The Wildlife Habitat Incentives Program (WHIP) (16 USC
3836a) requires NRCS to focus on ESA-listed species. In addition, the
Healthy Forests Reserve Program (HFRP) (16 USC Sec. Sec. 6571-6578),
authorized by Title V of the Healthy Forests Reserve Act of 2003,
Public Law 108-148, also focuses potential conservation efforts on ESA-
listed species. However, the Administration has not requested, and
Congress has not provided, funding for HFRP. The HFRP's statutory
purpose is to assist landowners in restoring and enhancing forest
ecosystems to 1) promote the recovery of threatened and endangered
species; 2) improve biodiversity; and 3) enhance carbon sequestration.
The WHIP statute specifically requires that NRCS focus on endangered
species. Excerpts from the WHIP statutes under cost-share payments
state:
(1) In General.-Under the program, the Secretary shall make cost-
share payments to landowners to develop:
(A) upland wildlife habitat;
(B) wetland wildlife habitat;
(C) habitat for threatened and endangered species;
(D) fish habitat; and
(E) other types of wildlife habitat approved by the Secretary.
While the Conservation Security Program (CSP), Environmental
Quality Incentives Program (EQIP), GRP, and WRP authorizing statutes do
not directly require NRCS to focus on ESA-listed species, all programs,
as a matter of policy, consider habitat for threatened or endangered
species or any declining species a priority in the application ranking
and conservation planning processes consistent with Section 7(a)(1) of
the ESA. Specifically, WRP legislation requires NRCS to focus on
migratory birds and other wildlife, whereas GRP's authorizing
legislation emphasizes support for plant and animal biodiversity and
makes eligible for GRP lands which have potential to serve as habitat
for animal or plant populations of significant ecological value--'' (16
USC Sec. 3838n)
__________
Responses by Sara Braasch to additional Questions
from Senator Clinton
Question 1. Incentive programs at the State and local level, and
also national programs like the Farm Bill conservation title programs,
can take some of the pressure off the Endangered Species Act, both in a
targeted way by providing funds to landowners to protect and restore
habitat for listed species on private lands, and more broadly, by
helping to keep species from declining to the point where they need to
be listed. As the States complete their comprehensive wildlife
conservation strategies required under the State Wildlife Grants
Program that was established in the fiscal year (FY) 2001 Interior
Appropriations bill, wildlife managers should have a better idea of how
to target incentives to habitats with listed species, and also to help
species avoid being listed. How will you integrate existing incentive
programs to accomplish these aims?
Response. The FWS, NMFS, and State Fish and Wildlife Agencies all
serve on the NRCS State Technical Committee, where advice is provided
to the State Conservationist on how NRCS conservation programs will be
delivered within the State and what priorities will be addressed. State
Technical Committees: serve as a forum to educate members about NRCS
programs; identify ways in which NRCS programs can be implemented to
help achieve the goals set forth in States' comprehensive wildlife
conservation strategies; and are a place where partnerships can be
formed.
Question 2. The demand for conservation incentives is so great
that virtually every one of the conservation title programs from the
2002 Farm Bill has a backlog of qualified applicants whose projects
cannot be funded in a given year. In 2004, funding constraints
prevented the protection of 6.2 million acres of grasslands,
restoration of over 530,000 acres of wetlands, and over $10 million
worth of projects to improve wildlife habitats. Yet budget proposals
continue to fund these important incentive programs at less than was
authorized by the Farm Bill. How can this situation be remedied?
Response. Private landowners have been increasingly drawn to the
voluntary, locally-led, site-specific conservation assistance delivered
by NRCS and its partners. The demand for cost-share, easement and
incentive funds provided through NRCS conservation programs currently
exceeds available funding. NRCS works to address this high demand for
assistance in a number of ways, including, but not limited to,
increased leveraging of partnership dollars where authorized, increased
technical assistance to landowners, and streamlining measures to reduce
technical assistance costs.
Increased leveraging of Federal dollars and lowering the Federal
cost-share percentage for conservation practices installed with NRCS
assistance allow Federal funds to reach additional landowners and
achieve greater conservation benefits per Federal dollar. In addition
to increased leveraging of non-Federal dollars, ensuring that
landowners whose contracts are not accepted receive sufficient
technical assistance is another technique that is critical to improving
landowners' chances of receiving funding in the future. Finally,
streamlining and efficiency measures identified and undertaken by the
Agency will reduce technical assistance costs. Through improved funding
allocation and application ranking procedures, NRCS is committed to
funding the highest quality contracts and ensuring that Federal dollars
are invested wisely and effectively.
Question 3. How best can we integrate delivery of State, local and
the various Federal programs to provide one-stop shopping for
landowners who are seeking incentives to protect or restore important
habitats for wildlife?
Response. As a full participant in the President's Cooperative
Conservation Initiative, USDA works in partnership with States, Tribes,
local governments, and individuals to promote conservation efforts.
USDA Service Centers, through which NRCS operates in partnership with
the Farm Service Agency, Rural Development, Conservation Districts, and
often Resource Conservation and Development Councils, are the one-stop-
shop for landowners who are seeking program information and assistance
to restore wildlife habitat. The locally led process and NRCS State
Technical Committees are two mechanisms through which Federal Tribal,
State, and local agencies learn about the programs each organization
has that contribute to the achievement of wildlife goals. This
information can then be shared through pamphlets and brochures,
available at USDA Service Centers.
Local work groups, made up of local, State and Federal governmental
representatives, assist NRCS in identifying natural resource
priorities, leveraging other programs, and recommending ranking and
evaluation criteria for applications. This locally led process enables
NRCS and its partners to achieve the desired environmental benefits and
ensure consistent program delivery to the customer.
The State Technical Committee is a technical advisory committee
made up of representatives from other Federal agencies, Tribal and
State governments, agricultural, natural resource and environmental
organizations. The Committee provides technical advice to NRCS on
wildlife protection strategies, and input on streamlined program
delivery and effectiveness at the field level.
NRCS's use of Technical Service Providers (TSP) also affords
opportunities to integrate delivery and leverage other programs to more
effectively and efficiently provide assistance to landowners. To
maximize landowners' incentives to hire them, a TSP must be able to
provide landowners with information about both public and private
sector programs that will assist them in accomplishing their
conservation goals, regardless of the source.
In addition to these mechanisms, landowners and other customers can
also obtain information and assistance from NRCS' national Web site at:
http://www.nrcs.usda.gov. This Web site includes information on program
assistance with links to NRCS State Office Web sites and Web sites of
NRCS' conservation partners.
__________
Responses by Sara Braasch to additional Questions
from Senator Murkowski
Question 1. Section 9 of the ESA, along with implementing
regulations promulgated by the Agency, use an expansive definition of a
taking of a listed species to include harm, harassment, and activities
that change essential behavior or disrupt behavior. If a landowner
discovers a listed species on his property, what assurances can the
Federal agencies provide the landowner that he or she is free to engage
in ordinary uses of the land without being exposed to taking claims and
possible prosecution?
Response. When NRCS formally consults with the FWS or National
Marine Fisheries Service (NMFS), as required by Section 7 of the ESA,
NRCS receives a biological opinion and incidental take statement. Any
incidental take of listed wildlife that is in compliance with the terms
and conditions of a section 7 incidental take statement is exempt from
the section 9 or regulatory prohibitions on take (16 U.S.C. 1536(o)(2))
and would be an important component of any legal defense should third
parties seek enforcement of the ESA's take prohibitions. Safe Harbor
Agreements with Assurances and Candidate Conservation Agreements
(Agreements) are 2 other tools FWS uses to provide assurances to NRCS
program participants that they will be free to continue to use their
land for farming and ranching. Under these agreements, the Fish and
Wildlife Service provides participants with regulatory assurances that
they will not be required to provide any additional commitments of
money or natural resources if they conduct their activities in
accordance with the terms of the agreement. However, these Agreements
do not apply retroactively to cover the actions farmers and ranchers
have already taken to benefit ESA-protected and declining species. For
example, if a listed species were attracted to a farmer's or rancher's
land, and that land turned into part of that listed species habitat,
there is a greater chance that restrictions are already imposed on the
farmer's or rancher's land use.
Question 2. It is my understanding that efforts to provide
administrative mechanisms designed to offer such assurances have been
struck down by Federal courts as being inconsistent with the ESA what
changes are needed in the statute so that needed landowner assurances
can be provided?
Response. As the Federal agencies charged with implementing the
ESA, NRCS respectfully defers to the FWS and NMFS to respond to this
question.
Question 3. The NRCS has been a key resource for resources
conservation activities on private lands. What are the biggest
obstacles that the NRCS and Department of Agriculture face in bringing
private landowners into resource conservation programs?
Response. NRCS believes there would be positive benefits for
incentive-based wildlife conservation from development of programmatic
ESA consultation for all Farm Bill conservation programs. Currently,
NRCS field staff performs ESA consultation on many activities at the
local level, including individual conservation practices. This occurs
even in circumstances where there is virtually no potential for adverse
effect determination. Consultation requirements greatly increase the
amount of time needed to implement even basic conservation practices on
farms and ranches, and result in escalated technical assistance costs.
Programmatic consultation has the potential to generate significant
cost savings for NRCS, as well as other agencies, because of the
reduced workload relative to site-by-site consultation. We believe
opportunities exist to provide more broadly applicable consultation and
look forward to working with our colleagues with the FWS and NMFS on
this issue.
Question 4. In your experience, when endangered and threatened
species are found on private property, do the take prohibitions of the
ESA and potential requirement for Section 7 consultations for Federal
Agency actions hinder the ability or willingness of farmers to enter
into resources conservation programs?
Response. Sometimes the take prohibitions of the ESA and potential
requirement for Section 7 consultations do hinder farmers' willingness
to apply for financial assistance through NRCS conservation programs.
It is our experience that many landowners are concerned about the
possibility they will be restricted in how they can use their land if
it becomes known that endangered or threatened species are on their
property. They don't want to take the chance, even if the conservation
practice they currently intend to install will benefit those species.
The concern is that if they want to take some other action in the
future, the Federal agencies will know about the presence of the
species, and they will be prohibited from doing what they want to do.
__________
Responses by Campos to additional Questions
from Senator Inhofe
Question 1. In your testimony, you mention that the ``most
important incentive that Congress can give home builders is regulatory
certainty'' and you go on to express concern about third party lawsuits
undermining the administrative practice of ``no surprises.'' What
specific steps can we take to ensure that assurances given to
landowners are meaningful and concrete so that there are not multiple
bites at the apple?
Response. I would suggest three specific steps Congress can take to
provide certainty to the regulated community.
First, quite simply, Congress can codify the bipartisan ``No
Surprises'' policy which would help ensure that a deal is a deal. When
you negotiate an agreed upon plan for species or habitat management and
protection, you need to know that deal is final. Property owners
implementing an approved Habitat Conservation Plan (HCP) need to know
that they will incur no additional costs or responsibilities in the
event that something that is unforeseen occurs. With this degree of
regulatory certainty, property owners, builders and developers can
undertake long-range planning and development operations confident that
the time, money, and effort devoted to creating and implementing HCPs
will not be lost because a Federal Agency changes its mind about what a
species may need for recovery. Of course, nothing in this policy
prevents the Federal Government from addressing the changing needs of a
species with its own resources.
Second, Congress can exclude HCPs and other species management and
conservation plans from critical habitat designations and thereby
provide powerful incentives to private landowners to continue entering
into such agreements.
Under the ESA, the Services are obligated to consider whether
``special management considerations'' in the form of critical habitat
are warranted for these specific areas. To demonstrate compliance with
this mandate and determine whether any such additional management
considerations are needed, NAHB believes that the Services are
obligated to consider and review all private, local, State, regional,
and Federal protections, including all applicable management plans and
conservation agreements to assess the conservation benefits they
provide. If a specific area is already managed for the conservation of
a particular species, that area is clearly not in need of additional
protections or management considerations, and therefore fails to meet
the very definition of critical habitat and must be excluded from the
designation.
Unfortunately, recent litigation has challenged this logical
progression, and threatens to undercut the attractiveness and
usefulness of the full range of conservation tools and management
options available to land managers, private landowners, and developers,
resulting in a far-more onerous and far-less effective ESA.
Ultimately, in areas covered by HCPs, Safe Harbor Agreements, and
other management plans and conservation programs, the designation of
critical habitat only serves to add another layer of review and
bureaucracy while failing to afford any additional protections for
listed species. It also serves as a disincentive in those instances
where voluntary measures are underway. Needless red tape is not a
substitute for common sense conservation policy, and may even result in
detrimental impacts to threatened and endangered species.
Accordingly, NAHB appreciates the Services recognition of landowner
contributions in this regard, and I would note as a matter of reference
that the Fish and Wildlife Service for one has exempted approved HCPs
from critical habitat designations. In conjunction with Sec. 49(b)(2)
of the Act, the Fish and Wildlife Service has cited this very logic in
its exclusion of HCPs and other properly managed lands in, amongst
others, the proposed designation of critical habitat in Arizona for the
Cactus Ferruginous Pygmy-Owl. In that proposal, the Service even went
so far as to ``encourage landowners to develop and submit management
plans and actions that are consistent with pygmy-owl conservation that
[the Fish and Wildlife Service] can evaluate and that may remove the
necessity of critical habitat regulation.''
As these exemptions are more a matter of administration policy and
interpretation, and therefore subject to change, NAHB supports the
codification of HCP exemptions from critical habitat.
Finally, as I mention in my testimony, a third important reform
would be for Congress to reduce redundancies and increase efficiencies
by increasing coordination, and consolidating the various non-ESA
programs that regulate land use and help to promote species
conservation and habitat protection. Incorporating other regulatory
programs into the HCP planning process, upfront, such as U.S. Army
Corps of Engineers Section 404 wetlands permits, would streamline the
permitting process and vastly increase the tangible incentives
available to participating landowners and developers. This point--
integrating Section 404 permits into the HCP process--is worth
repeating: providing for ``one stop permitting'' in the ESA and Clean
Water Act context would be of tremendous benefit for builders. By
encouraging advance planning and an ecosystem approach to resource
conservation, it would be equally beneficial for species and aquatic
resources.
Question 2. In your testimony, you discuss the expense and time
consuming nature of participating in voluntary conservation efforts,
particularly for small landowners? What suggestions do you have for
changes Congress can make that would speed up the process and lower the
cost to allow more individuals to participate?
In my response to an earlier question from Senator Chafee, I
mentioned that smaller-scale HCPs are underutilized because there is no
firm timeline; for their approval and completion. A vast improvement
could be made by ensuring a stricter timeline; similar to the Section 7
timeline. This would provide additional certainty for builders and make
these HCPs more attractive to smaller builders and landowners.
Question 3. In several places of your testimony, you mention the
need for a flexible ESA? Is the current structure a one-size-fits-all
construction and what changes can Congress make to allow the tailoring
of ESA to site specific concerns?
Response. Flexibility is a somewhat difficult issue to address. As
I mentioned in my testimony, builders and developers require certainty.
Furthermore, knowing the ``rules of the game,'' the kind of mitigation
requirements generally required, etc., can help private landowners plan
for future activities. Unfortunately, these guidelines can also pigeon-
hole both the landowners and the Services into pre-set courses of
action that may or may not be compatible with the on-the-ground
requirements at hand. On the flip side, however, broad and unending
Agency discretion leaves landowners with little or no idea of the ESA's
requirements and can facilitate abuse by agenda-driven staffers. What
is necessary is an approach that allows for long-term regulatory
certainty combined with the flexibility to create projects and programs
that meet the needs of all involved stakeholders. While this approach
has been utilized in the past, most notably in a few large regional
HCPs in my home State of California, the process is still more of the
exception than the rule.
__________
Responses by Paul Campos to additional Questions
from Senator Jeffords
Question 1. In your testimony, you state that the existing
Endangered Species Act is burdened by a number of disincentives that
discourage landowner cooperation. Could you elaborate on these
disincentives and how you would recommend addressing them?
Response. In essence, the disincentives center on two key problems:
First, the time and expense required to not only cooperate with the
ESA, but especially to voluntarily conserve and protect species.
Second, the regulatory uncertainty which burdens the ESA discourages
landowner cooperation.
Especially in areas where land costs and land values are high and
where species conservation and economic growth and development are
intertwined, there is a virtual dearth of programs that allow
landowners and businesses to even begin to recoup or recapture the
costs of voluntary conservation actions. Complicating issues further is
the unfortunate reality that the ESA is burdened by a number of
disincentives that actively discourage landowner cooperation. All this
lies in the simple fact that, for most private landowners, the presence
of an endangered or threatened species on their land is still much more
of a liability than anything else. Even well-intentioned actions to
help protect the species or its habitat may take months or years in
Agency review and limit future management activities or land-use
options. From the builder's perspective, site surveys are often a large
source of the Services' information on species distributions. This
often creates a sort of self-fulfilling prophecy, whereby species
appear to be focused in areas where growth is occurring simply because
this where people are actually looking for the species. Consequently,
projects in these areas become disproportionately burdened with species
protection requirements.
To address these concerns, Congress should consider acknowledging
that every interaction with the ESA is not created equal. Some
activities, small project-specific HCPs for example, should require
less intensive review than larger programs. Also, landowners willing to
undertake voluntary conservation actions should be spared form long
permitting delays and project uncertainty. While these are not new
concepts, as I suggested in my response to question posed by Chairman
Inhofe, they are still more of the exception than the rule.
Question 2. Can you provide a total number of housing developments
that have been stopped by restrictions under the Endangered Species Act
in Northern California?
Response. I can't provide you with a number of housing developments
that have been stopped, if by ``stopped'' you mean regulated out of
existence. I would point out that it is not just developments being
stopped that should be of concern to all of us. Just as important are
the number of projects that have been delayed and the increased costs
associated with those delays--including the substantial delays caused
by litigation brought by project opponents that allege impact to
species or habitat. Also, I would raise the point that the significant
mitigation costs that builder and developers face can significantly
reduce the number of housing units available, while also driving up
costs. All of these factors not only reduce the number of available
units, but also significantly impact affordable housing in this
country.
Congress needs to set policies and support programs that increase
affordable housing in this country, not raise price for the most
vulnerable first time home buyers. With respect to these points, I
would urge the Subcommittee to review the recent economic impact
analysis released by the Service in connection with its designation of
over 800,000 acres of critical habitat for 15 vernal pool species in
California. The Service's analysis demonstrates that California's
housing market is in severe disequilibrium--demand for housing far
outstrips supply--and that the regulatory impact of the ESA is very
substantial in terms of causing delays in housing projects, causing
housing units to be removed from proposed projects as a direct result
of species' habitat needs, and imposing substantial mitigation costs
that are passed on to consumers in the form of higher house prices.
Question 3. In your testimony, you cite a need under the
Endangered Species Act for monetary assistance to small private
landowners to encourage their voluntary participation in the protection
of listed species. Are there any specific proposals that you would like
the Congress to consider to address this need?
Response. Monetary incentives would certainly help to offset the
costs associated with voluntary conservation efforts that landowners
undertake, and would encourage further participation. As I mention in
my written testimony, proactive, incentive-based conservation tools
help to integrate species needs into long-range individual and
community development plans, a process that lends itself to more
flexible, efficient, and effective conservation strategies than the
traditional species-by-species approach. Unfortunately, coordination
between ESA and non-ESA conservation programs is lacking, as are
approaches specifically tailored to address the needs of small builders
and developers. Furthermore, there remains a critical need for expanded
non-monetary, incentive-based species conservation policies and
programs. Streamlined permitting processes, regulatory certainty, and
financial incentives all deserve serious consideration if the ESA is
ever to be truly successful in meeting its goals of protecting this
nation's biological heritage.
Question 4. In your testimony, you state that Endangered Species
Act decisions should be based on ``sound science.'' Given the permanent
nature of extinction, do you think that damaging activity on a piece of
potentially critical habitat should be deferred until scientifically
valid, peer reviewed studies are available, even if this takes many
years? If not, should decisions be made on the best available science?
Response. Not knowing what ``damaging activity'' you are referring
to on potentially critically habitat, it is difficult to comment on
your hypothetical. With regard to the important issue of sound science
however, as you know, the ESA calls for the use of the ``best
scientific data available'', however there is no definition of this
phrase within the Act or in implementing regulations. Therefore, NAHB
believes that reforms are necessary to define what constitutes the
phrase ``best scientific data'' and to ensure that ESA decisions are
made stronger and more defensible, while providing protection to our
threatened and endangered species.
Currently under the ESA, a species can be listed as endangered or
threatened based on one letter from a landowner claiming that ``there
are less of the species than there used to be.'' The golden-checked
warbler was listed on the basis of one letter from a private
individual. This is unacceptable. Although this type of information may
constitute ``best science available'' under the current ESA, the
agencies should not be allowed to continue to make such fundamental and
important decisions based upon such a blatant lack of information about
the species. Petitions to list a species should be founded on clear and
convincing evidence that a listing is warranted.
There are other important decisions made by the Federal agencies
that are based on flawed or absent data. For example, as a result of a
lawsuit brought by NAHB and 17 other organizations and municipalities,
the National Marine Fisheries Service agreed to rescind its critical
habitat designations for 19 salmon and steelhead species in the Pacific
Northwest due to the lack of science and proper economic
considerations. In 2000, NMFS designated critical habitat for these
populations covering 150 watersheds over the States of Washington,
Oregon, Idaho, and California. Thousands of our members within this
four-state area were encompassed by this over-broad and expansive
designation. Many of their projects were prevented or were subjected to
expensive mitigation requirements.
NAHB strongly believes that sound science reform is overdue and
that Congress should act now to prevent these grievous errors from
happening again. ESA decisions have far-reaching consequences for the
public. Therefore, the Federal agencies must be able to support these
decisions with sound and defensible science to justify that the
hardships inflicted on the public are absolutely necessary to protect
and conserve these species.
Furthermore, it is extremely important that peer review of science
take place outside and independent from the Agency making the policy
decision. Additionally, it is vital that the review encompasses the
materials used to support the decision. For example, review of an ESA
jeopardy determination will not reveal the fundamental problems with
the science unless all documentation used to reach that jeopardy
determination can also be examined and reviewed. Likewise, not only
should a proposal to list a species be reviewed, but also the
underlying biological data, including any species counts, population
models, and other relevant information used in that listing decision.
Responses by Paul Campos to additional Questions
from Senator Chafee
Question 1. One of the concerns you expressed was the overlaying
of critical habitat designations with Habitat Conservation Plans? Would
you go into more detail as to your concerns in relation to the overlay
problem and how this is impacting housing development on the ground?
Response. Yes, Mr. Chairman, this issue is of significant concern
for our industry, especially in light of the substantial uncertainty
caused by the Gifford Pinchot decision in the 9th Circuit. If an
approved or pending HCP falls within existing critical habitat, or
subsequently has critical habitat overlaid over the area it covers, it
will be subject to the additional regulatory requirements and red tape
of critical habitat that have little or no benefit to listed species.
Any incentive to enter into an HCP is lost if the area at issue is also
subject to regulation under the critical habitat provisions of the ESA.
In the wake of the Gifford Pinchot decision, many developers and
builders are now asking themselves if the significant time and expense
that is required to undertake an HCP is worth it given the considerable
uncertainty the decision has caused.
For instance, as I stated in my testimony, using the East Contra
Costa County HCP as an example, the HCP planning area overlaps with
proposed critical habitat for the California red-legged frog, the
California tiger salamander, the Alameda whipsnake, and already
designated fairy shrimp habitat. Although several environmental groups
have taken an active role as stakeholders in the HCP development
process, other, litigation-driven organizations have not. Following the
aforementioned Gifford Pinchot case that called the conservation
obligation of critical habitat into question, home builders are loathe
to commit to the HCP process knowing that a lawsuit will almost
certainly be filed over the regulatory review and protection
requirements of critical habitat by non-participants to the plan.
It is thus imperative for Congress to authorize explicitly in
statute the Service's practice of excluding pending and approved HCP's
from critical habitat. That practice is now being challenged head on by
the Center for Biological Diversity, which has filed a 60-day notice of
intent to sue over the Service's exclusion of HCPs from critical
habitat.
Question 2. You mentioned that the timing of the HCP permit
process is a disincentive for builders and developers to participate in
conservation programs. In light of this, are there changes that could
be made to the permit process to make it easier for developers to work
within their unique timelines?
Response. Yes, especially for project specific HCPs. These smaller-
scale HCPs are underutilized because there is no firm timeline for
their approval and completion. A vast improvement could be made by
ensuring a stricter timeline; similar to the Section 7 timeline. This
would provide additional certainty for builders and make these HCPs
more attractive to builders.
Question 3. You cited Safe Harbor and Candidate Conservation
Agreements as programs where there is room for improvement in relation
to encouraging builders and developers to buy into the process. Would
you speak further about the types of additional tools that could
facilitate their participation, particularly in areas where high land
values pose additional challenges?
Response. Safe Harbor Agreements are testaments to the common-sense
conservation approaches that the ESA is capable of generating. However,
given the specific nature of the home building industry, the particular
approach, requiring sustained on-going management, is oftentimes
unworkable to builders and developers. Furthermore, non-ESA programs
such as the USDA's Conservation Reserve Program provide interesting
models on how to encourage private landowner conservation, but do not
possess sufficient funding levels to offset the costs of voluntary set
asides in competitive housing markets like those found in Northern
California.
In order to be useful to builders and developers, any additional
tools or incentives under the ESA would need to help to recoup the
costs of doing business under the Act. Given high land values in
competitive and growing areas around the country, however, this need
not always be through direct compensation. Thought should be given to
providing incentives through certainty and streamlined permit approval
processes.
That said, I would also like to reiterate the point I made in my
testimony that most regional HCPs act as a sort of candidate
conservation agreement because they treat covered but unlisted species
as if they were listed and thus provide all of the regulatory
protections of the act and resources for long term active management.
Responses by Campos to additional Questions
from Senator Murkowski
Question 1. The prohibitions on taking and the related threat of
criminal or civil prosecution are the big sticks'' in the ESA with
respect to the treatment of issues that occur on private lands. Many
property owners view them with understandable apprehension. Do you see
a need or benefit to amending the law to better define the situations
in which these sticks should actually be used?
Response. Definitely. The ESA is a powerful and far-reaching
statute. Unfortunately, all-to-often, builders and developers have
witnessed what can only be called abuse of power by individual staff
members and offices. Often coming in the form of presumed take letters,
builders, developers, and even local and county governments have
received general notices that they are in danger of taking a species.
These letters imply an air of guilty until proven innocent, and seem
plainly intended to intimidate landowners and local officials into
conceding to the Services' demands. In order to help reduce the
flaunting of the ESA's big sticks, one suggestion would to be a formal
system for vetting such letters and notices through the Services' chain
of command, so that individual staffers or offices do not improperly
wield the Act.
Question 2. In your view, would it improve the ESA to include
incentives for landowners to manage their lands and activities in ways
that are more hospitable to listed species? If so, what kind of
incentives do you think might be appropriate?
Response. As mentioned above in my response to a similar question
from Senator Chafee, thought should be given to other, non-financial
incentives such as permit streamlining and regulatory certainty. In
competitive housing markets, these can be powerful incentives, and
potentially more practical than direct funding.
Question 3. Current law allows anyone, even the most radical
animal rights or environmental group, to take individual citizens to
court for alleged ``taking'' even where the rationale is extremely
flimsy. In your view, has this practice been abused?
Response. I do see litigation abuses in under the ESA. The Services
do not have the resources, both in terms of time or dollars, to do
everything they must under the Act exactly when they are supposed to
it. There are many groups that take advantage of this by litigating
simply for attorney's fees. Oftentimes, these are slam-dunk lawsuits
the ESA says do X, the Services did not do X by an arbitrary date,
court order issued and attorney's fees awarded. Unfortunately, the
Services do not have adequate resources to complete all of these
statutorily-required obligations, so the litigation mill continues.
While there are differences between this type of litigation and those
brought by private citizens in cases where the Services have gone
through the motions of meeting their ESA responsibilities but failed in
substance (i.e., the conducting of proper economic analyses), Congress
must at least be sure that the Services have the necessary resources to
meet their responsibilities lest the downward spiral of litigation
continue.
Question 4. What suggestions do you have for providing landowners
with an assurance that they are not going to become a victim of this
practice sometime in the future?
Response. I'm not sure I have any specific suggestions at this
time, although so-called Loser Pays provisions have been somewhat
effective at discouraging frivolous lawsuits in other areas.
Question 5. Some outside parties have suggested that we don't need
to update or improve the ESA but just need to comply with the existing
law and fully fund ESA programs. As representatives of landowners and
companies who have to comply with the ESA on a day to day basis, do you
agree that the ESA, in its present form, is sufficient?
Response. No, the ESA in its present form is not sufficient. Less
that 1 percent of species listed for protection under the Act have
actually been recovered. In the mean time, landowners and others who
are responsible for complying with the Act face significant economic
and other hardships, many of which transfer throughout the economy.
Clearly the Act is not working for species or landowners. The Act must
be updated and improved to better balance the needs of species and the
communities in which we live and work.
Updating and improving the Act's critical habitat provisions would
go a long way toward improving the situation for both species and
landowners. Under the ESA, at the time a species is listed, the FWS or
the NMFS is required to designate critical habitat for the species in
an effort to protect habitat essential for conservation. Critical
habitat designations subsequently place a variety of regulatory
requirements on landowners, and result in project prohibitions, delays
or mitigation constraints. Ironically, the FWS has conceded that the
system governing the implementation of critical habitat under the ESA
has forced it to expend significant resources and resulted in little or
no conservation benefits to listed species.
NAHB supports the passage of legislation that would update and
modernize the ESA by improving critical habitat designations and other
decisions made under the Act. H.R. 1299, the Critical Habitat
Enhancement Act of 2005, was introduced in the House on March 15, 2005
by Rep. Dennis Cardoza (D-CA) and 16 bipartisan cosponsors. The bill
would make significant improvements to the critical habitat designation
process and has received the strong backing of NAHB. This common-sense
legislation passed the House Resources Committee during the 108th
Congress with bipartisan support, and would benefit species, landowners
and the Federal agencies charged with enforcing the ESA.
Question 6. Last year, the 9th Circuit issued the so-called
Gifford Pinchot decision that invalidated the current definition of
destruction or adverse modification under Interior's implementing
regulations for the ESA. What impact has the 9th Circuit's Gifford
Pinchot decision had on the ability or willingness of private
landowners to take voluntary actions to protect species such as
developing HCPs?
Response. Simply put, the impact of this decision has been that
private landowners are much more wary of investing the time and expense
of developing and moving forward with HCPs given the uncertainty
developers now face. Let me briefly go into more detail about why this
decision is resulting in more uncertainty.
This uncertainty is a result of the fact that Gifford Pinchot
wrongly equated ``conservation'' with ``recovery.'' In Gifford Pinchot,
the 9th Circuit equated the term ``conservation'' in the definition of
critical habitat with the goal of achieving recovery. ``Conservation''
however, is defined in the ESA to mean ``all methods and procedures
which are necessary to bring any [listed species] to the point at which
[the Act's protections] are no longer necessary.''
Thus, Congress clearly did not limit ``conservation'' to
``recovery.'' Rather, Congress intended ``conservation'' to reference
all levels of protection in the Act--ranging from the most narrow, such
as ``take'' (Section 9) and ``jeopardy'' (Section 7), up to and
including full-blown ``recovery.'' ``Adverse modification of critical
habitat'' falls somewhere along this continuum of ESA protection but it
is not synonymous with ``recovery.''
It is appropriate to protect critical habitat to maintain stable
species populations to ensure that a species survives which, in turn,
is an ``essential'' component of ``recovery.'' However, it is a far
different matter to do what the 9th Circuit did in Gifford Pinchot, and
rule that Congress intended sweep into ``critical habitat'' a vast land
mass that could, potentially, be used to allow the species to multiply
and ``recover.''
Congress did not intend to accomplish recovery in the ESA through
critical habitat. This is not to say that Congress made no provision
for the recovery of species. Section 4 prescribes the requirements for
``recovery plans'' that FWS must develop and implement (after a
species' listing) for the conservation and survival of endangered and
threatened species. Recovery plans assist FWS in achieving its
``principal goal,'' which is to ``return listed species to a point at
which protection under the Act is no longer required.''
Recovery plans are not regulatory in nature, i.e., they do not
impose new restrictions on private parties. Rather, they establish
criteria that are used to define ``recovery'' for a particular species,
and use a variety of mechanisms, such as propagation, land acquisition,
research, and agreements with Federal agencies or States, to achieve
their recovery goal.
Recovery plans place the financial and management burdens of
recovery on society as a whole, as opposed to the regulatory burdens of
species survival which are placed on landowners through critical
habitat designations and the prohibitions of Sections 7 and 9 of the
Act. Thus, ``a species [sic] long-term protection is properly addressed
by a `recovery plan' developed for the `conservation and survival' of
the species listed as endangered.'' However, it is clear from the
structure of the ESA that recovery plans were never intended to have
regulatory effect.
If the terms ``adverse modification of critical habitat'' or
``essential to conservation'' are the same as ``recovery,'' then
recovery planning will have been transformed into a regulatory program
``with the force of law''--in clear contravention of the ESA. So,
following this decision, which has called the conservation obligation
of critical habitat into question, home builders are loathe to commit
to the HCP process knowing that a lawsuit will almost certainly be
filed over the regulatory review and protection requirements of
critical habitat.
Question 7. What impact, as a whole, has the Gifford Pinchot
decision had on private property owners and their ability to complete
Section 7 consultations on pending Federal permit or license
applications?
Response. One problem here has been that projects that have already
undergone a rigorous approval process and subsequently received project
approval are now being subject to separate lawsuits that threaten to
undue the already agreed upon and approved plan. As I have mentioned
previously, there is now tremendous uncertainty regarding pending
permits, and their subsequent approval and validity.
__________
Responses by Alan Foutz to additional Questions
from Inhofe
Question 1. In your testimony you mention that getting your members
to participate in the program was a ``tough sell.'' What was the main
impediment to having your members participate, and how did you get them
to buy into the program? What can we in Congress do to provide willing
farmers and ranchers the tools to help listed species recover on
private lands?
Response. If the mountain plover had been listed, producers would
have been required to maintain critical habitat and drastically change
farming practices. With this type of approach, producers would not be
willing volunteers. One of the major impediments when it comes to
endangered species is that producers do not trust the agencies for a
fear of the ``big sticks.''
The primary need for farmers and ranchers and other small
landowners is greater flexibility to be able to help species recover on
private lands.
There is no viable program in the ESA for farmers and ranchers to
engage in actions that help species or habitat. The only statutory
``incentive'' program is habitat conservation planning, which is too
costly and time consuming for farmers and ranchers, and is designed for
one-time development projects rather than ongoing activities like
farming and ranching.
Statutory authorization for cooperative conservation programs is
important to us, because it provides a shield against citizen suits.
Administrative programs such as safe harbors are popular with many of
our members, but because they are not authorized by law they are
vulnerable to citizen lawsuits.
An effective cooperative conservation program should provide a
broad array of incentives for farmers, ranchers and other landowners to
choose from. In the case of farmers and ranchers, there are many
different types of concerns that they have with respect to their
operations. Some are concerned about having to sell the farm or ranch
to pay estate taxes: an estate tax credit for having a cooperative
conservation agreement in place would be attractive to them. Some have
cash flow problems; a cash payment or cost sharing would be attractive.
Many others would be satisfied with removal of some ESA restrictions or
streamlining ESA procedures. The broader array, the less the aggregate
financial cost it is likely to be. One size program does not fit all.
``Jeopardy'' standards must also be adjusted for cooperative
conservation programs. Currently they focus on short-term ``jeopardy,''
where landowners taking actions to improve habitat may create ``harm''
in the short term, so that there will be benefits in the long term.
Consultations need to see past any short term harm and focus on long
term benefits.
Cooperative conservation programs need to be voluntary, provide for
``incidental take'' like HCPs, provide assurances to the landowners
that they will not be required to do more than they agreed to (no
surprises), and they also need to insulate landowners from citizen
lawsuits when they are acting in accordance with their agreement. Land
that is part of an approved cooperative conservation agreement should
also be excluded from critical habitat designation, because the
``special management'' required for critical habitat is being provided
by the conservation agreement.
Question 2. Mr. Bean spoke about the need for closer coordination
between Department of Agriculture Farm bill programs and endangered
species programs in Commerce and Interior. Since you represent the
farmers, could you provide some feedback on the idea of using
agricultural-related financial incentives specifically to recover and
conserve species?
Response. Farm Bureau believes there are a multitude of current
working lands programs within USDA that are already supporting species
conservation. These programs include the: Environmental Quality
Incentives Program (EQIP), Conservation Security Program (CSP),
Grasslands Reserve Program (GRP), Farm and Ranch Land Protection
Program (FRPP), Wildlife Habitat Incentive Program (WHIP) and Technical
Assistance (TA).
In fact, all of these programs have specific eligibility criteria
included in the application process aimed at addressing wildlife
related concerns.
These programs are benefiting a variety of wildlife species by
primarily incorporating the best conservation and management practices
on lands under production, while improving water quality and creating
or maintaining habitat in or around productive agricultural lands.
While Farm Bureau is more focused on developing working lands
programs, we also believe there is an important and integral role for
targeted land retirement programs, such as the: Conservation Reserve
Program (CRP), Continuous Conservation Reserve Program (CCRP),
Conservation Reserve Enhancement Program (CREP), Farmable Wetlands
Program (FWP) and Wetlands Reserve Program (WRP).
We believe the current land retirement programs are creating,
restoring and protecting several species; however, we believe with
additional refinement the programs could do even better and produce
even greater environmental benefits. Farm Bureau believes the first
goal of Congress, the Department of the Interior and USDA should be to
encourage the adoption of best management and conservation practices
(e.g., residue management, riparian areas, terraces, etc.) to address
the specific and identified resource concern(s). Only when those
practices are deemed inadequate in addressing the identified concern(s)
should lands be targeted for retirement.
In looking at the CRP and wildlife habitat, we would urge the
committee to consider the following:
1) Targeting lands for enrollment where there is wildlife of
critical local concern, particularly in circumstances that could lead
to regulatory pressures. Landowners should also have assurances that
temporary CRP enrollments will not lead to enhanced risk of regulation.
2) A renewed focus on CCRP, which targets smaller parcels of lands,
primarily adjacent to waterways.
3) Encouraging and rewarding good management of lands once under
enrollment. USDA should work with contract holders on ``maintenance
management strategies'' that collaboratively benefit wildlife and the
agricultural community, such as controlled burns, haying and grazing,
noxious weed control and establishing adequate food plots. We must
reinforce that ``enroll and abandon'' strategies are unacceptable.
The question should be what financial investment Congress is
willing to make in the future and how a focused, reasonable and
performance-based strategy should be developed to address specific
species concerns on a local and regional basis.
In these times of tight budgets, we all must strive to narrow our
focus and direct limited dollars to our highest priorities for
wildlife. We would encourage the committee to further discuss:
1) What the proper balance of funding should be for areas
addressing endangered/rare/declining species issues versus areas
wishing to establish general wildlife habitat?
2) How will USDA better engage local and regional partners in
identifying the greatest concerns and priorities, and getting ``the
biggest environmental bang for the buck?''
3) How can USDA conservation programs and DOI-imperiled species
programs better coordinate with each other to achieve common wildlife
objectives?
Question 3. It is great to see farmers and others taking steps on
their own, outside of financial incentives, to conserve a species,
succeed in preventing its listing, and maintain free use of their land.
That is a great success story. What would be some legislative steps we
could take in reviewing this law that would encourage more proactive
conservation practices such as these?
Response. As stated above in response to question no. 1, farmers
and ranchers need to have greater flexibility to be able to address
species needs through conservation agreements. As currently written,
the ESA is too rigid to allow private landowners to take actions to
disturb species habitat that are necessary to enhance that habitat. The
ESA provides flexibility to address needs of candidate species, like
the mountain plover, but once a species is listed, the flexibility is
lost.
We believe that a broad array of incentives should be available
that allow landowners to choose the one that best fits their need and
goals. Such incentives might include direct payments, tax credits or
other tax incentives, or the removal of disincentives and restrictions.
Incentives might include working landscapes programs that allow a
producer to provide habitat enhancements while continuing to conduct
agricultural operations, or they might also include a set aside program
similar to the Conservation Reserve Program.
That does not mean that Congress would have to enact a lot of new
programs. The landowner agreement program could be crafted broadly to
provide the flexibility and innovation necessary to allow private
landowners to recover species on their lands. We believe two basic
types of programs could be legislated:
Voluntary Landowner Recovery Agreements: This would be a program
for listed species similar to the current EQIP or WHIP programs. Rather
than legislating a number of new programs, we believe that a simple,
broad authorization that provides flexibility to the Secretary and the
landowner would be the least complicated way to proceed.
Agreements would be voluntary with landowners and would have to
benefit species. The program and agreements would be flexible for both
Agency and landowner to allow both to accomplish recovery goals for the
species and land management goals for the landowner. Landowners could
receive cost share money for habitat improvements, and might also be
given assurances that if their actions in furtherance of the program
might accidentally harm a listed species, there would be no liability
(``incidental take''). ``Incentives'' could either be direct payments,
cost share, tax or other incentives, or the removal of disincentives,
such as providing incidental take protection or limiting consultation
for actions in furtherance of an agreement. There is a current Interior
program for Candidate Conservation Agreements with Assurances that
could be extended to cover listed species as well.
Voluntary Critical Habitat Reserve Program: The Critical Habitat
Reserve Program would be a voluntary program, similar to the current
Conservation Reserve Program. It would establish partnerships with
willing landowners or operators either to set aside land (similar to
CRP) for species habitat, or to actually manage enrolled lands for
species habitat. The latter would be better, because it would benefit
the species more as well as allow the landowner to achieve operational
goals. There would be annual payments, other incentives such as removal
of red tape or lessening restrictions, or possibly cost share for
habitat improvements. The legislation would describe contract terms and
conditions, provide length of contracts, etc. The program would be
limited to privately owned lands designated as critical habitat, simply
in order to draw some boundaries and limits on the program. The program
would be administered by the Secretary of Interior.
Question 4. Cooperative conservation certainly produces great
results and Congress should encourage this type of behavior. In your
opinion, does the ESA need an entirely new conservation mechanism or
should the administrative programs put in place over the years simply
be codified?
Response. We believe that the administrative programs that have
been put in place during the past several years deserve to be continued
and should be codified. Safe Harbor agreements, Candidate Conservation
agreements with Assurances and No Surprises are all very innovative
programs. If for no other reason, they should be continued to provide
certainty for the people who already use them. They should be codified
to give them the explicit authorization and approval to insulate them
from lawsuits.
But we also believe that additional authorization is necessary. As
innovative as these administrative programs are, they were still
cobbled together to fit within the strictures of the current ESA.
Congress should not be bound by the current law in fashioning
conservation mechanisms. The law should be changed to fit the programs,
not the other way around.
As mentioned above, Congress should explicitly authorize a broad
array of landowner incentives that include payments, tax credits and
incentives, and removal of disincentives and red tape. It should then
authorize a simple program of allowing for voluntary recovery contracts
with the Fish & Wildlife Service and National Marine Fisheries Service
to accomplish recovery goals and objectives for the different species,
using any or all of the incentives that have been authorized.
__________
Responses by Alan Foutz to additional Questions
from Senator Jeffords
Question 1. Given your support for short-term voluntary agreements
to protect critical habitat, can you explain how such agreements would
ensure the long-term survival of an endangered species?
Response. The Endangered Species Act now requires that the status
of listed species be reviewed every 5 years to determine whether the
species should be re-classified or de-listed. The 5 year term we
suggest for recovery agreements is consistent with that five year
status requirement.
One of the problems with the current Act is that once listed,
species rarely are de-listed, even if they have met recovery goals.
Bald eagles were declared by President Clinton to have been recovered
in the late 1990's, but the species has not yet been de-listed.
Question 2. Are there any specific incentives for private
landowners that you would like to see included in the Endangered
Species Act?
Response. We believe that a broad array of incentives should be
available that allow landowners to choose the one that best fits their
need and goals. Such incentives might include direct payments, tax
credits or other tax incentives, or the removal of disincentives and
restrictions. Incentives might include working landscapes programs that
allow a producer to provide habitat enhancements while continuing to
conduct agricultural operations, or they might also include a set aside
program similar to the Conservation Reserve Program.
That does not mean that Congress would have to enact a lot of new
programs. The landowner agreement program could be crafted broadly to
provide the flexibility and innovation necessary to allow private
landowners to recover species on their lands. We believe two basic
types of programs could be legislated:
Voluntary Landowner Recovery Agreements: This would be a program
for listed species similar to the current EQIP or WHIP programs. Rather
than legislating a number of new programs, we believe that a simple,
broad authorization that provides flexibility to the Secretary and the
landowner would be the least complicated way to proceed.
Agreements would be voluntary with landowners and would have to
benefit species. The program and agreements would be flexible for both
Agency and landowner to allow both to accomplish recovery goals for the
species and land management goals for the landowner. Landowners could
receive cost share money for habitat improvements, and might also be
given assurances that if their actions in furtherance of the program
might accidentally harm a listed species, there would be no liability
(``incidental take''). ``Incentives'' could either be direct payments,
cost share, tax or other incentives, or the removal of disincentives,
such as providing incidental take protection or limiting consultation
for actions in furtherance of an agreement. There is a current Interior
program for Candidate Conservation Agreements with Assurances that
could be extended to cover listed species as well.
Voluntary Critical Habitat Reserve Program: The Critical Habitat
Reserve Program would be a voluntary program, similar to the current
Conservation Reserve Program. It would establish partnerships with
willing landowners or operators either to set aside land (similar to
CRP) for species habitat, or to actually manage enrolled lands for
species habitat. The latter would be better, because it would benefit
the species more as well as allow the landowner to achieve operational
goals. There would be annual payments, other incentives such as removal
of red tape or lessening restrictions, or possibly cost share for
habitat improvements. The legislation would describe contract terms and
conditions, provide length of contracts, etc. The program would be
limited to privately owned lands designated as critical habitat, simply
in order to draw some boundaries and limits on the program. The program
would be administered by the Secretary of Interior.
__________
Responses by Alan Foutz to additional Questions
from Senator Chafee
Question 1. I understand that Habitat Conservation Plans (HCPs) are
difficult for farmers, ranchers, and other small landowners to utilize
for a number of reasons including cost, length of time to complete, and
rigidity in terms of being more ideal for one time development or tree-
cutting as opposed to ongoing activities such as ranching and farming.
In your experience, have any farmers attempted to utilize the HCP
concept for their lands?
Response. I am not personally aware of any farmers that have used
HCPs on their private lands, but I am told that there are a handful of
individual farm HCPs in California and Florida. In some cases, these
individual HCPs may have been used because there were no other tools
available, or other tools such as Safe Harbor were not known to the
farmer.
There is a group of landowners in southern Colorado that has been
working on a HCP for the willow flycatcher, but I do not know where
their effort stands.
Question 2. What could be done to ensure that HCPs are more
accessible to farmers?
Response. You correctly state the main problems with individual
farmer HCPs in question no. 1. They are expensive, time consuming, and
better suited for one-time development. In addition, with the lawsuits
and uncertainty over the effectiveness of the No Surprises policy,
farmers cannot be assured that they will not be required to do more
than they agreed to in the HCP. Other issues for farmers and ranchers
include the HCP focus on mitigation as the appropriate conservation
tool, and the requirement that there be sufficient funding available
for implementation of the HCP.
Some thoughts on improving the HCP process to make it more
accessible to farmers and ranchers:
a. Current law is fairly rigid in the requirements for an HCP and
is very traditional in its implementation of those requirements. The
law needs to become more flexible to allow the process to work for
farmers and ranchers and small landowners. ``Mitigation'' and
``funding'' requirements especially need to be addressed.
b. Change the focus and meaning of the ``mitigation'' requirement
from set-aside to working landscapes. In other words, ``mitigation''
should be defined in terms of ongoing habitat enhancements instead of
set-asides. For one time development, habitat set-asides might be more
appropriate because the development is less likely to be able to co-
exist with the species and habitat than ongoing farm and ranch
activities. Also, one-time development can more effectively set-aside
land for mitigation than farmers and ranchers. Farmers and ranchers
cannot afford to set aside their land for mitigation, because without
their land they cannot operate. The law might emphasize, for example,
that Best Management Practices designed to enhance habitat should be
deemed sufficient ``mitigation.''
c. ``Low effect'' HCPs are provided in regulatory guidance, and the
concept should be expanded and applied to farmers and ranchers. Because
they involve ongoing activities that have less habitat impact generally
than homebuilding or tree cutting, farm and ranch operations should not
be subject to the same scientific demands as one-time development
projects. In addition, the application and approval process for low-
effect HCPs should be streamlined to achieve quicker approval.
d. In order to ease some of the data requirements that are often
burdensome to farmers and ranchers and other individual landowners,
scientific data from HCPs and other sources should be available to HCP
applicants to reduce the likelihood of expensive duplication of effort.
Such a requirement (while maintaining appropriate confidentiality)
would help make HCPs more affordable for farmers and ranchers.
e. Funding issues--Current law requires assurance of sufficient
funding for implementation of an HCP as a condition of approval. The
law would have to provide that ``funding'' could be waived for ongoing
habitat enhancement using a working landscapes approach. Another
approach would be to provide a grant program to farmers, ranchers and
other small landowners for HCP planning and implementation.
f. Land that is enrolled in an HCP should be exempt from critical
habitat designation. Critical habitat is defined in terms of land
``which may require special management considerations or protection.''
It is our belief that an HCP already provides that ``special management
and protection'' and should not be included in critical habitat. The
same should apply to all cooperative conservation programs.
g. The ``No Surprises'' policy must be codified to provide
landowners with adequate assurances that they will not be required to
do more than they originally agreed to do under the HCP. A big concern
of farmers and ranchers is that once they enter into an agreement, the
government will come back at a later time and tell them they have to do
more. An effective ``No Surprises'' policy is a key for all cooperative
incentive programs.
h. To streamline the HCP process, we suggest establishing a one-
stop consultation for all a farmer's and rancher's programs that are
affected by an HCP. Once this consultation is completed, there should
not be any further consultation for any actions taken in furtherance of
the HCP.
Question 3. Based on your experience with the mountain plover
program in Colorado, are there any other species conservation efforts
that you are participating in that have proved beneficial to species in
your State or region?
Response. The mountain plover project was the first project of its
kind the Colorado Farm Bureau and its members initiated and
participated in. Individual farmers and ranchers are the original
stewards of the land. Agricultural producers are maintaining and
improving habitat to conserve species through normal farming and
ranching practices every day.
Perhaps due to the experience with the mountain plover, our members
are more willing to enter into other organized conservation programs as
well, such as the conservation effort to conserve the greater sage
grouse that is currently underway across the West.
Question 4. What types of incentives do you believe need to be
provided to farmers in order to ensure habitat for listed species is
enhanced on privately owned lands?
Response. We believe that a truly effective incentive program must
contain a broad array of incentives for farmers, ranchers and other
small landowners to choose from. Farmers and ranchers have different
concerns regarding their operations--some are concerned about passing
their farm to heirs and payment of high estate taxes, some have cash
flow problems, while others are concerned about restrictions placed on
their continuing ability to operate.
For that reason, an effective cooperative conservation program
should contain: direct payments or cost sharing, tax credits or other
tax incentives, and the removal of disincentives or restrictions. One
size should not fit all.
But all such programs should have the same core elements. Any
incentive program should provide: (1) an effective ``No Surprises''
policy, (2) incidental take protection, (3) exemption from critical
habitat designation, (4) be voluntary with the landowner and (5)
flexibility for the landowner.
We believe two basic types of programs could be legislated:
Voluntary Landowner Recovery Agreements: This would be a program
for listed species similar to the current EQIP or WHIP programs. Rather
than legislating a number of new programs, we believe that a simple,
broad authorization that provides flexibility to the Secretary and the
landowner would be the least complicated way to proceed.
Agreements would be voluntary with landowners and would have to
benefit species. The program and agreements would be flexible for both
Agency and landowner to allow both to accomplish recovery goals for the
species and land management goals for the landowner. Landowners could
receive cost share money for habitat improvements, and might also be
given assurances that if their actions in furtherance of the program
might accidentally harm a listed species, there would be no liability
(``incidental take''). ``Incentives'' could either be direct payments,
cost share, tax or other incentives, or the removal of disincentives,
such as providing incidental take protection or limiting consultation
for actions in furtherance of an agreement. There is a current Interior
program for Candidate Conservation Agreements with Assurances that
could be extended to cover listed species as well.
Voluntary Critical Habitat Reserve Program: The Critical Habitat
Reserve Program would be a voluntary program, similar to the current
Conservation Reserve Program. It would establish partnerships with
willing landowners or operators either to set aside land (similar to
CRP) for species habitat, or to actually manage enrolled lands for
species habitat. The latter would be better, because it would benefit
the species more as well as allow the landowner to achieve operational
goals. There would be annual payments, other incentives such as removal
of red tape or lessening restrictions, or possibly cost share for
habitat improvements. The legislation would describe contract terms and
conditions, provide length of contracts, etc. The program would be
limited to privately owned lands designated as critical habitat, simply
in order to draw some boundaries and limits on the program. The program
would be administered by the Secretary of Interior.
In developing landowner incentives, the key is to provide
flexibility to allow the Department and the landowner to both achieve
their goals.
__________
Responses by Alan Foutz to additional Questions
from Senator Murkowski
Question 1. The prohibitions on taking and the related threat of
criminal or civil prosecution are the ``big sticks'' in the ESA with
respect to the treatment of issues that occur on private lands. Many
property owners view them with understandable apprehension. Do you see
a need or benefit to amending the law to better define the situations
in which these ``sticks'' should actually be used?
Response. Yes. Enforcement activities should be better defined in
the Endangered Species Act. Producers' livelihoods are at stake in
situations including predation, and while takings are sometimes
permitted, the rules and regulations aren't made clear. For this
reason, producers are fearful of protecting their livestock from
predation and they suffer significant losses as a result.
We request that in cases where species are reintroduced, livestock
producers must be held ``harmless'' for any actions taken by them to
protect their private property if it is preyed upon by the introduced
predator species.
In addition, the designation of critical habitat could create
issues for farms. For instance, the designation could cause farmers to
have to drastically change their farming practices rather than
participating in a cooperative effort to enhance species habitat.
There are four different areas where ``take'' and its meaning might
be clarified.
a. The definition of ``take'' is too broad and uncertain. ``Take''
not includes killing or injuring a species, but also ``harming'' or
``harassing'' a species. The meaning of those terms is almost without
limit. For example, the legislative history says that bird watching
could constitute a ``take'' in some circumstances. The uncertainty in
the definition invites lawsuits against innocent landowners. The
definition of what is an illegal ``take'' needs to be narrowed to
activities that actually kill or injure a species, or cause it to be
killed or injured.
b. The definition of ``take'' needs to exclude habitat
modification. The Act was never intended to prohibit activities
modifying habitat not designated as critical as a ``take'' absent the
death or injury of a member of the species, yet it has been interpreted
as such. The administrative definition of ``harm'' walks a fine line by
including actions that affect the breeding, feeding or sheltering of a
species, but all it does is create more uncertainty. The civil and
criminal penalties are so severe that any uncertainty in the definition
of ``take'' unfairly limits landowners and inhibits otherwise lawful
behavior for fear of violating the ESA. The Act should be amended to
exclude from the definition of ``take'' habitat modification where
there is no evidence of killing or injuring a member of a listed
species.
c. Penalties can be imposed on a person who ``takes'' a listed
species regardless of whether it was intended or not. Interestingly,
intent is a requirement for an action against humans, but not for
actions against listed species. Intent should be added as a requirement
for imposition of penalties for ``taking'' a listed species. Accidental
``taking'' of a species in the course of otherwise lawful activities
should not result in civil or criminal penalties.
d. Currently, the ``taking'' of one member of a species constitutes
an actionable ``take'' that can lead to civil or criminal penalties.
Granted that in some cases there are only a few remaining members so
that taking one would jeopardize the species, but that is not true in
the vast number of cases. We suggest that the threshold for ``take''
violations be amended, or that ``incidental take'' be permitted for
listed species.
Question 2. In your view, would it improve the ESA to include
incentives for landowners to manage their lands and activities in ways
that are more hospitable to listed species? If so, what kind of
incentives do you think might be appropriate?
Response. Over 70 percent of listed species occur to some extent on
private lands. About 35 percent of listed species--over 400--live
exclusively on private lands. Private landowner cooperation, therefore,
is critical to the success of the Endangered Species Act.
The Act is currently enforced through a series of prohibitions and
restrictions--negative enforcement that does not help species recovery.
A cooperative conservation program where landowners agree to enhance
species habitat on their lands provides positive, active management for
the species that is much better for the species than the current
system. Species benefit more from landowners taking action because they
want to, not because they have to. Incentive type programs allow the
landowner to deal with the ESA on his/her own terms. Properly
implemented incentive programs help Agency and landowner find the
middle ground that benefits both species and landowner, providing a
``win-win'' situation for all.
The ESA would be improved if it included incentives for landowners
to manage their lands and activities as related to listed species.
However, incentives aren't the Response. alone. Regulations need to be
relaxed in order to provide flexibility to producers to enhance
habitat. We recommend guaranteed ``safe harbor'' be offered to private
landowners who voluntarily provide habitat for declining, threatened or
endangered species, including situations when the landowner wishes to
put the land in habitat back under agricultural production.
We support the voluntary participation of agricultural producers in
any species recovery program. Any such voluntary effort should be
protected by legislation to hold the participant harmless in case of
disease, natural predation, or natural disaster which negatively
impacts the species in question.
We believe that the goal of any species recovery program should be
species recovery, not interference with normal agricultural operations.
Each individual operator should be allowed maximum flexibility in
adjusting his operation to aid species recovery.
We support incentive payments for conservation of endangered
species. We support incentive payments for wildlife conservation only
in those areas designated as critical habitat for species survival.
Critical habitat areas should be first designated on public lands.
We believe that a truly effective incentive program must contain a
broad array of incentives for farmers, ranchers and other small
landowners to choose from. Farmers and ranchers have different concerns
regarding their operations--some are concerned about passing their farm
to heirs and payment of high estate taxes, some have cash flow
problems, while others are concerned about restrictions placed on their
continuing ability to operate.
For that reason, an effective cooperative conservation program
should contain: direct payments or cost sharing, tax credits or other
tax incentives, and the removal of disincentives or restrictions. One
size should not fit all.
But all such programs should have the same core elements. Any
incentive program should provide: (1) an effective ``No Surprises''
policy, (2) incidental take protection, (3) exemption from critical
habitat designation, (4) be voluntary with the landowner and (5)
flexibility for the landowner.
We believe two basic types of programs could be legislated:
Voluntary Landowner Recovery Agreements: This would be a program
for listed species similar to the current EQIP or WHIP programs. Rather
than legislating a number of new programs, we believe that a simple,
broad authorization that provides flexibility to the Secretary and the
landowner would be the least complicated way to proceed.
Agreements would be voluntary with landowners and would have to
benefit species. The program and agreements would be flexible for both
Agency and landowner to allow both to accomplish recovery goals for the
species and land management goals for the landowner. Landowners could
receive cost share money for habitat improvements, and might also be
given assurances that if their actions in furtherance of the program
might accidentally harm a listed species, there would be no liability
(``incidental take''). ``Incentives'' could either be direct payments,
cost share, tax or other incentives, or the removal of disincentives,
such as providing incidental take protection or limiting consultation
for actions in furtherance of an agreement. There is a current Interior
program for Candidate Conservation Agreements with Assurances that
could be extended to cover listed species as well.
Voluntary Critical Habitat Reserve Program: The Critical Habitat
Reserve Program would be a voluntary program, similar to the current
Conservation Reserve Program. It would establish partnerships with
willing landowners or operators either to set aside land (similar to
CRP) for species habitat, or to actually manage enrolled lands for
species habitat. The latter would be better, because it would benefit
the species more as well as allow the landowner to achieve operational
goals. There would be annual payments, other incentives such as removal
of red tape or lessening restrictions, or possibly cost share for
habitat improvements. The legislation would describe contract terms and
conditions, provide length of contracts, etc. The program would be
limited to privately owned lands designated as critical habitat, simply
in order to draw some boundaries and limits on the program. The program
would be administered by the Secretary of Interior.
Question 3. Current law allows anyone, even the most radical animal
rights or environmental group, to take individual citizens to court for
alleged ``taking'' even where the rationale is extremely flimsy. In
your view, has this practice been abused?
Response. We are aware of instances where we believe that it has
been abused. In some cases, the ESA has been used to try to achieve
other objectives. We have also heard of situations where suit has been
threatened and concessions extorted in exchange for dismissing or not
filing the lawsuit.
The excessive amount of ESA litigation is one of the biggest
challenges facing effective implementation. Too much time and money is
spent defending legal challenges, taking away from efforts that could
be helping species recovery.
Question 4. What suggestions do you have for providing landowners
with an assurance that they are not going to become a victim of this
practice sometime in the future?
Response. There are two different aspects to the problem that
litigation poses for farmers and ranchers. The first is the issue of
direct litigation against them through citizen suits. This can be
remedied by requiring that only the Agency can take enforcement actions
against private parties. Citizen suits would be limited to suits
against the Agency for enforcement, not against the individual.
The second problem arises in the case where suit is filed against
an Agency only, but an individual farmer or rancher is the ``real party
in interest'' who will be affected by the outcome. An example might be
where the Forest Service is sued for failure to consult before issuing
grazing permits in a particular area. The ranchers receive no notice of
the suit, and are suddenly notified that they must remove their
livestock. This situation can be remedied by requiring that the 60
notice of intent to sue that must be filed prior to suing be noticed to
the private parties as well. This requirement might be satisfied by the
Department of the Interior posting all such notices on their website in
a timely manner.
Question 5. Some outside parties have suggested that we don't need
to update or improve the ESA but just need to comply with the existing
law and fully fund ESA programs. As representatives of landowners and
companies who have to comply with the ESA on a day to day basis, do you
agree that the ESA, in its present form, is sufficient?
Response. The experience of farmers and ranchers with the
Endangered Species Act strongly suggests that changes in the law are
necessary. Of the more than 1300 total species listed under the Act,
less than 20 have been recovered and de-listed. For a law that has
imposed so many restrictions on farmers, ranchers and other private
property owners, and been the subject of so many lawsuits to save and
protect species, this result is completely unsatisfactory. The farmers
and ranchers who have had to endure these restrictions deserve more for
their forbearance.
The ESA has done a good job in putting species on the list. It now
needs to also focus on getting species off the list. For this, a new
approach is needed. Command and control regulation and land use
restrictions are not working. Moreover, they do nothing to actively
manage or improve habitat. Focus on land use restrictions as the way to
help species ignores the habitat improvement that is necessary for a
species to recover, and fails to address the real reasons for a species
decline. For example, for all of the land use restrictions against
cutting old growth timber in the Pacific Northwest, research finds that
the northern spotted owl is still declining. The issue is competition
from the barred owl, not habitat loss.
With over 70 percent of listed species on private lands, we believe
that the cooperation of private landowners is the key to ESA success.
The ESA must turn from a statute of regulation to one of cooperation.
With appropriate assistance and incentives, landowners can recover
species on their lands.
Another significant problem with the ESA is that it is too
inflexible. It contains specific detailed procedures with specific
timeframes. It also contains very specific and complete prohibitions
against taking, and very narrow exceptions. The only exception is
Habitat Conservation Planning, which was designed for one time
development of land and not to address ongoing activities such as
farming or ranching. Additional flexibility must be built into the Act
to allow more cooperative conservation opportunities and also the
flexibility needed to make those opportunities available to different
private landowners.
Many of the procedures and timelines have not stood the test of
time. Court decisions have rendered many procedures obsolete or
duplicative. For example, critical habitat was enacted in 1982 as a
means of protecting habitat necessary for a species to survive until
such time as it could recover. It provided certain Agency discretion as
well as specific time deadlines for designation. Subsequent court
decisions have interpreted the ESA to protect nearly all habitat as if
it were critical, rendering the designation of critical habitat as
redundant. Time deadlines have proven unrealistic, and numerous
lawsuits have been filed over missed deadlines and failure to
designate.
Consultation requirements are another continuing source of
litigation. Procedures and time deadlines need to be adjusted to make
the process more workable and more meaningful.
Listing is another area where there are problems. The Fish &
Wildlife Service has virtually lost any discretion to determine whether
a species should be listed. A ``not warranted'' determination is
challenged in court, and if that fails, another suit is filed. The
Canadian lynx was not listed until after the third lawsuit. Changes to
this procedure need to be made.
Congress also needs to re-think the listing of ``distinct
population segments'' of a species. Using this designation, the Agency
can list specific populations of an otherwise healthy species simply on
the basis that the specific population might not be healthy. This has
led to listing of salmon and steelhead populations in each individual
river or tributary on the basis that the population in each river is
different. Most salmon are listed under the Act, yet it continues to be
served in restaurants. It also leads to listing of marginal populations
on the fringes of otherwise healthy populations in other countries. For
example, the pygmy owl is plentiful in Mexico, but the northern fringe
in Arizona was listed. Gray wolves are plentiful in Canada and Alaska,
yet endangered in the lower 48.
There are several other areas that need to be addressed in
amendments to the Act. Additional funding will not solve the problems--
it will only exacerbate the problems resulting from flawed procedures.
More money will perpetuate the problems with critical habitat,
consultation, listing and landowner restrictions without solving them.
Question 6. In your testimony you mention that the Colorado program
never would have happened if the mountain plover had already been
listed. What did you mean by that, and what, in your opinion, has to be
changed in the Endangered Species Act in order to have the same type of
program for listed species?
Response. If the mountain plover had already been listed, producers
would have been required to maintain critical habitat and drastically
change farming practices. The rigid prohibitions against ``take'' and
the consultation requirements would have made it virtually impossible
to devise a program as flexible as the one that we did.
In addition, with this type of rigidity, producers would not be
willing volunteers. One of the major impediments when it comes to
endangered species is that producers do not trust the agencies for a
fear of the ``big sticks.'' The ESA needs to provide additional
flexibility to allow the same type of approach for listed species as
Colorado Farm Bureau and its partners were able to use for the not-yet-
listed mountain plover.
Question 7. How has the Colorado program benefited the mountain
plover?
Response. The resulting cooperative effort allowed for the
successful study of the mountain plover. More than 300,000 acres of
private land were allowed to be studied by Colorado Farm Bureau
members. The Colorado Natural Heritage Program, a non-profit, non-
regulatory organization, and CSU conducted the research in cooperation
with the U.S. Geological Survey and the U.S. Fish and Wildlife Service.
The results were very different than the assumptions that had been
made about the mountain plover. Rather than cultivated land being
harmful to the species and encroaching on the plover's habitat,
research indicated that Mountain Plovers do in fact occupy and nest on
cultivated fields and often prefer cultivated fields to short grass
prairie. Some tillage and planting activities do disturb nests, while
other activities do not. However, the research also found that fledging
success rates are roughly the same on cultivated fields as on native
short grass prairie. Had the land use restrictions proposed at the time
of the listing proposal gone into effect, the effects would have been
to decrease plover habitat and fledging rather than helping it recover.
Due to the cooperative efforts by the U.S. Fish and Wildlife
Service, State of Colorado and landowners, the Mountain Plover was not
added to the Endangered Species list.
Landowners are continuing to allow non-governmental biologists to
flag nests on fields prior to cultivation and are taking it upon
themselves to avoid destroying nests by driving around them. Research
on the plover continues as well as a very aggressive landowner
education and outreach effort.
__________
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Inhofe
Question 1. Your testimony included lots of examples of how the
current incentive structure has experienced tremendous success. You
specifically cite Oklahoma as one of those successes. At our previous
hearing, Judge Manson discussed how litigation is a burden on the
Service. Has litigation had an adverse impact on the Service's efforts
to promote voluntary incentive programs? Have judicial decisions
undermined or called into question the existence of some of your
practices? Are resources being diverted from these programs to help pay
for litigation?
Response. A Congressionally-set ceiling on spending related to
listing and critical habitat actions limits the impact of the listing
and critical habitat litigation workload on other programs that promote
voluntary conservation actions such as Endangered Species Grants,
Recovery, and Candidate Conservation. However, judicial decisions can
continually change our priorities within the listing program and some
decisions result in the use of program funds to pay attorney fees.
Attorney fees may be available to successful litigants under either the
ESA citizen suit provision or the Equal Access to Justice Act,
depending on the cause of action underlying the lawsuit. Awards payable
under the Equal Access to Justice Act may result in the payment of fees
from program funds.
Question 2. Absent specific statutory language to do so, the Fish
and Wildlife Service has put into place several programs to try to
encourage private landowners to conserve and recover endangered and
threatened species on their lands. In the experience of the Service,
what have been some of the reasons for non-participation on the part of
private landowners? What tools can Congress provide to ensure that
these programs thrive and are successful?
Response. Most of these volunteer programs are relatively new and
many landowners appear to be unaware of their existence. Continued
Congressional support for tools identified in the President's annual
budget that assist the Service to work with other Federal agencies,
State and local government agencies, non-governmental organizations,
trade organizations and other partners to inform the public of these
programs and their benefits, and assist landowners who are interested
in participating, will go a long way to ensure these programs are
effective and are more widely used.
Question 3. Clearly the voluntary conservation programs, such as
the Partners for Fish and Wildlife program, have been hugely successful
in establishing habitat for all kinds of species, endangered and non-
endangered alike. In the Service's experience, are programs like this
superior to the designation of critical habitat and does the
establishment of critical habitat interfere with the success of these
programs? Is it the practice of the service to exclude lands covered by
an incentive program from critical habitat designation?
Response. In 30 years of implementing the ESA, the Service has
found that the designation of statutory critical habitat provides
little additional protection to most listed species. The Service
addresses the habitat needs of listed species through other
conservation partnerships and programs, such as the Landowner Incentive
Program. We have had numerous instances of landowners with ongoing
cooperative efforts who have threatened to cease cooperation and their
conservation efforts if their lands were designated as critical
habitat. The Service regularly excludes lands from critical habitat
designations pursuant to section 4(b)(2) of the ESA if they are covered
by a conservation program in which the benefits of excluding the lands
outweigh the benefits of including the lands in the designation.
__________
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Jeffords
Question 1. In addition to protecting habitat for endangered
species, in your testimony you state that the Fish and Wildlife Service
has incentive programs for invasive species. You cited the Private
Stewardship Grants and gave the example of a project in Hawaii that is
removing invasive species and restoring native plants. Are a large
percentage of those grants used for invasive and native species
control? What other incentives does the Fish and Wildlife Service have
for controlling invasive species and restoring native species?
Response. Approximately one-third of the fiscal year (FY) 2004
Private Stewardship Grant Program awards were provided for projects
that specifically addressed exotic and invasive species control or
removal. Many of the financial assistance programs offered through the
Service, such as Partners for Fish and Wildlife, provide funding to
address exotic and invasive species control. In addition, the Service
has staff located in the Aquatic Invasive Species Branch in Washington,
as well as invasive species coordinators for National Wildlife Refuge
lands, dedicated to addressing exotic species concerns and the control
of invasive species.
Question 2. Is there more that the Administration could do to
encourage private landowner incentives for conservation of listed
species, without legislative changes to the Endangered Species Act? If
so, what would they be?
Response. The Administration fully supports conservation incentives
for private landowners through the Cooperative Conservation Initiative,
a host of Department of the Interior financial assistance programs, and
various landowner conservation tools (e.g., Habitat Conservation Plan
(HCP), Safe Harbor Agreement (SHA), Candidate Conservation Agreement
with Assurances (CCAA), and conservation banking) designed to foster
citizen stewardship through voluntary conservation activities. These
incentive programs do not require legislative changes to the Endangered
Species Act and have proven to be both popular and effective
conservation tools. To further encourage landowners, we are
continuously identifying ways to make the public more aware of these
programs and to streamline the processes involved to make it even
easier for landowners to use them.
__________
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Chafee
Question 1. One of the concerns expressed in relation to Federal
incentives for species protection on private lands is the length of
time and financial burden placed on landowners in working with the
Service to develop and implement Habitat Conservation Plans and other
conservation agreements. How does the Fish and Wildlife Service tackle
these issues when encouraging private landowners, and particularly
smaller landowners, to utilize voluntary conservation measures for
species protection?
Response. The Service encourages private landowners to work with us
at an early stage in their project so we can assist them in selecting
the appropriate program (e.g., Habitat Conservation Plan (HCP), Safe
Harbor Agreement (SHA), Candidate Conservation Agreement with
Assurances (CCAA), and conservation banking), identifying grant funding
opportunities for their particular situation, and informing them of the
processes involved. The Service also provides technical assistance to
landowners to design conservation activities and obtain grants that
provide financial assistance for completing the planning process; this
can be particularly helpful to smaller landowners.
Question 2. In the development and implementation of Habitat
Conservation Plans (HCPs) and other conservation agreements on private
lands, how does the designation of new critical habitat for species
impact conservation agreements already in place?
Response. It has been our view that areas not in need of special
management considerations or protections are outside the definition of
critical habitat. For that reason, we exclude from critical habitat
areas that adequately manage for the species concerned. This has
allowed the Service to exclude from critical habitat lands covered by
HCPs in effect or in draft form on the date of the final critical
habitat designation, starting with the final rule designating critical
habitat for the coastal California gnatcatcher in 2000.
Question 3. In your testimony, you mention the future potential for
conservation banks to protect habitat for species on a broader-scale
and a more consistent basis. Under what current Fish and Wildlife
Service programs would private landowners purchase mitigation credits
to go toward a conservation bank? How do conservation banks ensure
habitat protection for species in a more comprehensive fashion?
Response. Private landowners seeking incidental take authorization
for listed species through the Endangered Species Act (ESA) section 7
consultation or section 10 incidental take permits for HCPs may be
eligible to purchase mitigation credits in a conservation bank.
Whenever a conservation bank will achieve equivalent or greater
benefits for the species, private landowners are encouraged to purchase
credits in a conservation bank rather than attempt to provide
mitigation on their own lands. Conservation banks are generally large
mitigation sites that are well protected, well managed, and well
funded; thus they provide increased protection for species and cost
much less per acre to protect and manage than smaller, single project
mitigation sites.
Question 4. Many Habitat Conservation Plans (HCPs) are designed to
last long time periods, some as long as 50 to 99 years. If during that
time the science suggests that a species is in decline, how would
adaptive management be used to ensure that HCPs are reviewed and
altered to protect species? What happens if an HCP is not working to
protect species even after changes are made?
Response. In conjunction with adaptive management, species
monitoring is an important component of HCPs. Typically, triggers or
thresholds are established for monitoring that, if reached, would
result in an appropriate management response to prevent a significant
decline in species from occurring. However, if a significant decline is
detected, HCPs allow for additional changes in management through
changed circumstances. These changes can include those detailed in the
HCP or additional changes as agreed to by the permittee and the
Service. In addition, the Service has issued Incidental Take Permit
Revocation Regulations that describe circumstances when permits may be
revoked, which are codified at 50 C.F.R. Part 117.
Question 5. How does the National Environmental Policy Act or NEPA
process come into play as the Service develops voluntary conservation
agreements for private properties?
Response. Under NEPA and section 10 of the ESA, the development of
an appropriate NEPA document and the opportunity for public
participation is a mandatory element of Habitat Conservation Plans,
Safe Harbor Agreements, and Candidate Conservation Agreements with
Assurances. For programmatic plans/agreements, there is no need for
individual landowners, who become participants through certificates of
inclusion, to prepare a separate NEPA document. At a minimum, plans or
agreements and associated permits are noticed in the Federal Register
for public comment for 30 days. Large, complex, or programmatic plans
or agreements generally are noticed for 60 to 90 days. Also, the
Service often provides opportunity for public participation through
public meetings, websites, and other avenues of input throughout the
planning stages.
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Clinton
Question 1. According to a study by the Department of the Interior,
in 1991, 24 million Americans took trips for the express purpose of
viewing and photographing wild birds. They spent $2.5 billion on trip-
related expenses, including $1.5 billion on food and lodging. ESA
listed birds, such as the whooping crane and the condor, are a huge
tourist draw, as are gray wolves in Yellowstone National Park and red
wolves in North Carolina. How can the public and private sectors work
together to increase economic benefits from eco-tourism in communities
that are home to rare species?
Response. Outreach and education tasks, listed in nearly every
recovery plan, are used to publicize efforts to provide viewing and
enjoyment opportunities, highlight the benefits of viewing
opportunities to local communities, and inform communities about
potential partnerships. Using incentive and partnership programs and
technical assistance, along with effective outreach, the public and
private sectors can work together to identify and develop viewing or
enjoyment opportunities for the public that will cause minimal impact
on rare species and their environments. Examples of successful public
outreach include festivals celebrating the whooping crane, Karner blue
butterfly, and Kirtland's warbler.
__________
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Lautenberg
Question 1. A bird species that migrates through New Jersey, the
Red Knot, is in serious trouble. We used to have 100,000 of these birds
stop in the Delaware Bay on their way up from the tip of South America.
Now we have only about 13,000. Do you think the Red Knot deserves an
emergency listing under the Endangered Species Act?
Response. The Service has longstanding concern over the status of
the Atlantic flyway population of the red knot. From 1999 through 2004,
we provided funding (including $117,000 in Candidate Conservation funds
and $230,000 in migratory bird funding) to the State of New Jersey's
Endangered and Nongame Species Program (NJENSP) to monitor and conduct
research on red knots, including studies on their arctic breeding
grounds, their wintering grounds on Tierra del Fuego, as well as the
important migratory stopover in Delaware Bay. We provided $25,000 to
NJENSP in fiscal year (FY) 2004 to conduct a comprehensive status
assessment of the red knot and provide the Service with a written
document including the data collected over the previous years. This
document would assist the Service in making a determination on the
status of the species under the ESA.
In July 2004, the Service initiated a status review for the
Atlantic flyway population of the red knot through our internal
candidate assessment process. In the course of that status review, we
have been performing a rigorous, critical analysis of the best
available scientific and commercial information. We will use that
analysis to make a determination of whether listing the red knot as an
endangered or threatened species is warranted.
In August 2004, the Service received a petition to emergency list
the Atlantic Flyway population of the red knot as endangered under the
ESA. On September 10, 2004, we sent a letter to the petitioner
explaining that information presented in the petition and within our
files did not demonstrate that the red knot was at immediate risk of
extinction or that potential threats to the Atlantic coast population
were so severe that the standard listing process would be insufficient
to prevent extinction. We further notified the petitioner that we would
consider the petition according to our normal listing process in fiscal
year (FY) 2005. The Service recently received two additional petitions
requesting emergency listing for the red knot, and we are currently
evaluating the information in those petitions to determine if emergency
listing is warranted.
Question 2. How does the U.S. Fish and Wildlife Service (FWS) plan
to address the backlog of endangered species listings and critical
habitat designations if its budget gets cut?
Response. The listing budget has increased 31.5 percent, or $3.8
million, from fiscal year (FY) 2004 to fiscal year (FY) 2005, with an
increase of over $2.2 million in the fiscal year (FY) 2006 request. The
fiscal year (FY) 2004-2005 increase includes $1.5 million for listing
(46 percent), and $2.3 million for critical habitat (26 percent). These
increases also include salary adjustments, cost-of-living increases,
and other uncontrollable costs such as litigation support. The Service
expects to make significant progress in addressing the petition backlog
in fiscal year (FY) 2005 and is scheduled to initiate or complete
petition findings for 24 of the 56 outstanding listing petitions.
Responses by Marshall P. Jones Jr. to additional Questions
from Senator Murkowski
Question 1. Section 9 of the ESA, along with implementing
regulations promulgated by the Agency, use an expansive definition of a
``taking'' of a listed species to include harm, harassment, and
activities that change ``essential behavior'' or disrupt behavior. If a
landowner discovers a listed species on his property, what assurances
can the Federal agencies provide the landowner that he or she is free
to engage in ordinary uses of the land without being exposed to takings
claims and possible prosecution?
Response. The decision to include ``harm'' and ``harass'' in the
definition of ``take'' was made by Congress, and the Service's
regulations seek to explain what these terms mean. The assurances
provided to a landowner depend on the activities he or she proposes to
engage in on their land and the effects those activities may have on
listed, proposed, or candidate species. A Habitat Conservation Plan
(HCP), Safe Harbor Agreement (SHA), Candidate Conservation Agreement
with Assurances (CCAA), or some combination of these three programs can
generally cover take of any listed species or species that may be
listed in the foreseeable future.
Question 2. It is my understanding that efforts to provide
administrative mechanisms designed to offer such assurances have been
struck down by Federal courts as being inconsistent with the ESA--what
changes are needed in the statute so that needed landowner assurances
can be provided?
Response. The Service's No Surprises policy was challenged in
court, however it was not struck down. The permit revocation
regulations related to the No Surprises policy were vacated by the
court on procedural grounds, and the Service was ordered to reconsider
the permit revocation regulations in relation to the No Surprises
policy. The Service promulgated new permit revocation regulations as
instructed by the court. No changes were made to the No Surprises
policy and these assurances are available to landowners.
Question 3. Does the FWS have any programs that expedite the
consideration of HCPs proposed by small landowners?
Response. Low-effect HCPs are essentially expedited HCPs. Projects
that qualify as low-effect HCPs are those that have relatively minor or
negligible impacts on federally listed, proposed, or candidate species,
and minor or negligible effects on other environmental values or
resources and can be categorically excluded under NEPA. Programmatic or
umbrella-type HCPs that allow small landowners to participate through
certificates of inclusions, such as county-wide or state-wide HCPs, are
also a form of expedited HCP that small landowners can utilize.
Question 4. On average, how long does it take FWS to review and
approve an HCP once it has been submitted for approval.
Response. The amount of time it takes to develop a HCP varies
greatly depending on its size, complexity, number of applicants, and
other factors. Low-effect HCPs generally take a few months. Large,
regional plans can take years to develop. Once an application is
submitted to the Service along with a final draft HCP, processing times
range from about 4 months to a year depending on the size and
complexity of the plan.
__________
Responses by Robert J. Olszewski to additional Questions
from Senator Ihofe
Question 1. In your testimony, you refer to lots of land purchase,
conservation easements and other Federal land management agreements. Do
you have any suggestions for ways in which we can include landowner
incentives without ceding private property to government or other third
party entities?
Response. Conservation easements and safe harbor agreements both
fulfill a strong role without ceding overall property rights to the
government or some other organization. We also cooperate with third
parties often before a species is listed to help understand and provide
habitat needs this should also be encouraged financially.
Responses by Robert J. Olszewski to additional Questions
from Senator Jeffords
Question 1. In your testimony, you cite many examples where your
company has entered in to Habitat Conservation Plan (HCPs) agreements
under the Endangered Species Act. There is concern that even when
adaptive management is incorporated in plans, it is often unclear if
monitoring and information is affecting management. Do you use adaptive
management practices in your HCPs? If so, how do you translate adaptive
management practices into management on the ground? What kind of
monitoring are you doing of the endangered species under your HCPs?
Response. Adaptive management should first be defined early in the
HCP process as clearly as possible. Landowners need as much certainty
as possible to enter the process and without clearly defining the
implications of incorporating a reasonable approach to adaptive
management in the HCP ``up-front'' this will also potentially
discourage committing to the HCP process. However, if done
thoughtfully, adaptive management can allow revisiting the science
behind the HCP as more is learned. It should be a process that allows
us to confirm, learn and refine our assumptions as the HCP moves
forward. It is also important to remember that we often are measuring
the habitat our HCPs provide, just as much or more than the actual
``count'' of endangered or threatened species.
Question 2. What would you do if you found that the HCP is not
working to protect the species? Many HCPs are designed to last long
time periods, some as long as fifty years. If during that time the
science suggests that a species is in decline, would you agree that the
HCP should be reviewed and changed?
Response. This has been covered at least partially by the answer to
the previous question no surprises is critical to the landowner and we
need to define the limits of the potential realm of where an adaptive
management program might take us in the future. Certainly, management
activities might be modified by learnings subsequent to the signing of
an HCP agreement. We should also recognize that there may be instances
where an outside impact appears and a landowner may have no real
control over the situation the spread of the barred owl in the Northern
Spotted Owl habitat of the Pacific Northwest provides a current day
example.
Question 3. Are there any specific incentives for private
landowners that you would like to see included in the Endangered
Species Act?
Response. Please refer to July 13 testimony and answers in a number
of questions above.
__________
Responses by Robert J. Olszewski to additional Questions
from Senator Chafee
Question 1. How have the characteristics of your land ownership
benefited the formation of Habitat Conservation Plans (HCPs) for
endangered species on Plum Creek properties?
Response. Much of Plum Creek's property in the West is situated in
a ``checkerboard'' ownership pattern intertwined with Federal lands.
These Federal lands often provide major habitats for endangered and
threatened species and we are significantly impacted by this unique
ownership situation. We also have some ownership in large, contiguous
tracts that allows us to think of areas from the perspective of a large
``landscape.''
Question 2. On average, what has been the length of time and cost
of HCPs developed for species protection on Plum Creek properties?
Response. Generally, HCP development takes somewhere around 2-3
years, and the costs of developing these HCPs are in seven figures. Of
course, this can vary with the complexity of the specific project.
Question 3. Would you elaborate on ways in which the Habitat
Conservation Planning process could potentially be streamlined to
encourage their utilization by more private landowners?
Response. Please refer to July 13 testimony and recommendations
regarding the National Environmental Policy Act (NEPA) and National
Historic Preservation Act (NHPA) triggers which considerably slow the
process. We also add that working with overlapping agencies in the
USFWS and the NMFS adds major complexity and some inefficiency to the
program.
Question 4. As the nation's largest private timberland owner, Plum
Creek owns properties in many different regions of the country, all
with diverse views and geographic challenges in relation to the
protection of endangered species. How does the process or formulating
HCPs and other conservation agreements differ based on land management
practices and views pertaining to the ESA in various regions of the
U.S.? For example, how would your company go about habitat protection
of listed-species in the West versus a similar situation in the New
England region?
Reponse. Approaches to endangered species management across the
country vary and that is appropriate based on specific species biology
and ownership patterns. Different approaches allow landowners and the
agencies to pull a variety of ``tools from the tool box'' to deal with
varied situations. We have some Plum Creek HCPs in the West and South,
yet we have participated jointly in a statewide HCP effort to protect
the Karner blue butterfly in Wisconsin with many partners. Safe Harbor
Agreements have allowed many private non-industrial landowners in the
South to participate appropriately in protecting red-cockaded
woodpeckers on their properties. These are but a few examples of highly
varied approaches they should continue to be encouraged and expanded
rather than constrained by negative thinking.
Question 5. Several of Plum Creek's HCPs have met with controversy
from the beginning. In your opinion, what is driving these concerns?
Response. Unfortunately, some different parties have different
goals or motives associated with the HCP program. At least some members
of the environmental community appear to try to use the process to hold
up land management activity, rather than blending these activities with
the protection of endangered and/or threatened species, or often
actually improving habitat through forestry operations associated with
an HCP.
__________
Responses by Robert J. Olszewski to additional Questions
from Senator Murkowski
Question 1. The prohibitions on taking and the related threat of
criminal or civil prosecution are the ``big sticks'' in the ESA with
respect to the treatment of issues that occur on private lands. Many
property owners view them with understandable apprehension. Do you see
a need or benefit to amending the law to better define the situations
in which these ``sticks'' should actually be used?
Response. We believe ``take'' has been fairly well-defined by a
variety of legal cases. Take is also appropriately defined by the fact-
specific issues with regard to each listed species.
Question 2. In your view, would it improve the ESA to include
incentives for landowners to manage their lands and activities in ways
that are more hospitable to listed species? If so, what kind of
incentives do you think might be appropriate?
Response. Please refer to specific comments in the July 13
testimony. Section 6, LWCF, Legacy Program funding could all be helpful
in this area. Once again, the encouragement of creative approaches
``outside the box'' such as statewide safe harbor agreements should be
strongly expanded and encouraged.
Question 3. Current law allows anyone, even the most radical
animal rights or environmental group, to take individual citizens to
court for alleged ``taking'' even where the rationale is extremely
flimsy. In your view, has this practice been abused?
Response. In our view, this is not the major concern or issue with
ESA Reauthorization and we would not recommend a high priority here.
Question 4. What suggestions do you have for providing landowners
with the assurance that they are not going to become a victim of this
practice sometime in the future?
Response. Congress should move to codify the ``no surprises''
policy along with safe harbor.
Question 5. Some outside parties have suggested that we don't need
to update or improve the ESA but just need to comply with the existing
law and fully fund ESA programs. As representatives of landowners and
companies who have to comply with the ESA on a day to day basis, do you
agree that the ESA, in its present form, is sufficient?
Response. Please refer to July 13 testimony and response to (3) in
the first section above.
Question 6. In your testimony, you noted that habitat conservation
plans (HCPs) are not easy to complete and that ``The commitment is
expensive, time-consuming and requires us to open our operations to
public scrutiny in an unprecedented fashion.'' From Plum Creek's
experience, what changes to the Act should be made to reduce the
burdensome costs and time-commitments required in developing HCPs?
Response. Stronger incentives are needed in many instances there is
simply not enough reason for a landowner to take on the burdens of an
HCP for it to pay off. Additional Section 6 funding would be helpful,
along with streamlining of the process from a NEPA and NHPA
perspective.
Responses by Larry Wiseman to additional Questions
from Senator Chafee
Question 1. In your testimony, you mention the importance of
statewide and region- or species-specific Habitat Conservation Plans?
Would you elaborate on the benefits of these newly emerging approaches
for species protection by smaller timber landholders?
Response. Creating an umbrella agreement that can potentially cover
all family forest owners in a region provides an opportunity to
participate. The process is too lengthy and expensive for many forest
owners to undertake individually.
Question 2. You mentioned the creation of private markets as a way
to encourage forest owner conservation. What are some changes that
could be made to the ESA or other statutes that would most effectively
facilitate the creation of private markets for species protection?
Response. Formally recognize the importance and add language for
conservation banking of T&E species (this was done for wetlands banking
under section 404 of the Clean Water Act Swamp-Buster provisions).
Question 3. Regulatory uncertainty seems to be a significant
barrier to species conservation. To this end, are there specific
improvements that could be made to existing programs or ESA itself that
you believe would have the most benefit and should be high priorities
for the Subcommittee?
Response. Expand the ESA to formally recognize tools like Safe
Harbor and Candidate Conservation Agreements with Assurances. Court
challenges of the HCP ``No Surprises'' policy have shaken landowner
confidence.
Streamline the paperwork and process of providing regulatory
assurances for small forest owners (< 5,000 acres).
Increase FWS emphasis on species that are recoverable. Create a
program similar to PSGP to support use of Candidate Conservation
Agreements with Assurances. It is much cheaper to keep species off the
ES list than to try and get them de-listed.
<all>