[House Hearing, 105 Congress]
[From the U.S. Government Publishing Office]



 
  HEARING ON THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT OF 1973

=======================================================================

                                HEARING

                               before the

                         COMMITTEE ON RESOURCES
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED FIFTH CONGRESS

                             SECOND SESSION

                               __________

                     MARCH 5, 1998, WASHINGTON, DC

                               __________

                           Serial No. 105-80

                               __________

           Printed for the use of the Committee on Resources



                                


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                         COMMITTEE ON RESOURCES

                      DON YOUNG, Alaska, Chairman
W.J. (BILLY) TAUZIN, Louisiana       GEORGE MILLER, California
JAMES V. HANSEN, Utah                EDWARD J. MARKEY, Massachusetts
JIM SAXTON, New Jersey               NICK J. RAHALL II, West Virginia
ELTON GALLEGLY, California           BRUCE F. VENTO, Minnesota
JOHN J. DUNCAN, Jr., Tennessee       DALE E. KILDEE, Michigan
JOEL HEFLEY, Colorado                PETER A. DeFAZIO, Oregon
JOHN T. DOOLITTLE, California        ENI F.H. FALEOMAVAEGA, American 
WAYNE T. GILCHREST, Maryland             Samoa
KEN CALVERT, California              NEIL ABERCROMBIE, Hawaii
RICHARD W. POMBO, California         SOLOMON P. ORTIZ, Texas
BARBARA CUBIN, Wyoming               OWEN B. PICKETT, Virginia
HELEN CHENOWETH, Idaho               FRANK PALLONE, Jr., New Jersey
LINDA SMITH, Washington              CALVIN M. DOOLEY, California
GEORGE P. RADANOVICH, California     CARLOS A. ROMERO-BARCELO, Puerto 
WALTER B. JONES, Jr., North              Rico
    Carolina                         MAURICE D. HINCHEY, New York
WILLIAM M. (MAC) THORNBERRY, Texas   ROBERT A. UNDERWOOD, Guam
JOHN SHADEGG] Arizona                SAM FARR, California
JOHN E. ENSIGN, Nevada               PATRICK J. KENNEDY, Rhode Island
ROBERT F. SMITH, Oregon              ADAM SMITH, Washington
CHRIS CANNON, Utah                   WILLIAM D. DELAHUNT, Massachusetts
KEVIN BRADY, Texas                   CHRIS JOHN, Louisiana
JOHN PETERSON, Pennsylvania          DONNA CHRISTIAN-GREEN, Virgin 
RICK HILL, Montana                       Islands
BOB SCHAFFER, Colorado               RON KIND, Wisconsin
JIM GIBBONS, Nevada                  LLOYD DOGGETT, Texas
MICHAEL D. CRAPO, Idaho

                     Lloyd A. Jones, Chief of Staff
                   Elizabeth Megginson, Chief Counsel
              Christine Kennedy, Chief Clerk/Administrator
                John Lawrence, Democratic Staff Director



                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held March 5, 1998.......................................     1

Statement of Members:
    Chenoweth, Hon. Helen, a Representative in Congress from the 
      State of Idaho, prepared statement of......................    13
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming, prepared statement of....................    16
    Farr, Hon. Sam, a Representative in Congress from the State 
      of California..............................................     6
    Gilchrest, Hon. Wayne, a Representative in Congress from the 
      State of Maryland..........................................     5
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     3
    Herger, Hon. Wally, a Representative in Congress from the 
      State of California........................................    12
    Lewis, Hon. Jerry, a Representative in Congress from the 
      State of California........................................     7
        Prepared statement of....................................     8
    Miller, Hon. George, a Representative in Congress from the 
      State of California........................................     2
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey, prepared statement of.............    16
    Radanovich, Hon. George P., a Representative in Congress from 
      the State of California....................................    11
    Saxton, Hon. Jim, a Representative in Congress from the State 
      of New Jersey..............................................     3
    Schaffer, Hon. Bob, a Representative in Congress from the 
      State of Colorado..........................................     4
        Additional material submitted by.........................    85
    Shadegg, Hon. John B., a Representative in Congress from the 
      State of Arizona, prepared statement of....................    80
    Smith, Hon. Robert F., a Representative in Congress from the 
      State of Oregon, prepared statement of.....................    80
    Thomas, Hon. Bill, a Representative in Congress from the 
      State of California, prepared statement of.................    14
    Young, Hon. Don, a Representative in Congress from the State 
      of Alaska, letter to Mr. Schmitten.........................   200
        Mr. Schmitten's response.................................   201
        Letter to Mr. Blankenship from...........................   213
        Letter to Mr. Nickerson from.............................   215
        Letter of response from Ms. Clark........................   221

Statement of Witnesses:
    Clark, Hon. Jamie Rappaport, Director, Fish and Wildlife 
      Service, U.S. Department of the Interior, Washington, DC; 
      accompanied by La Verne Smith, Chief, Endangered Species 
      Division, Arlington, Virginia; Michael Spear, Regional 
      Director (Region 1), Portland, Oregon; Renne Lohoefener, 
      Assistant Regional Director for Ecological Services (Region 
      2), Albuquerque, New Mexico; John Blakenship, Assistant 
      Regional Director for Ecological Services (Region 3), 
      Minneapolis, Minnesota; David Fleming, Chief of the 
      Regional Endangered Species Office (Region 4), Atlanta, 
      Georgia; and Paul Nickerson, Endangered Species Coordinator 
      (Region 5), Hadley, Massachusetts..........................    18
        Prepared statement of Ms. Clark..........................   135
    Kitzhaber, Hon. John A., M.D., letter to Hon. William Daley..   196
    Portland Press Herald, Maine Sunday Telegram, Friday July 18, 
      1997.......................................................   217
    Ross, Hon. Gordon, Commissioner, Coos County, Oregon, 
      prepared statement of......................................    17
    Schmitten, Hon. Rolland, Director, National Marine Fisheries 
      Service, U.S. Department of Commerce, Washington, DC, 
      accompanied by William W. Steele, Jr., Regional 
      Administrator for Northwest Region, Seattle, Washington; 
      William Hogarth, Regional Administrator for Southwest 
      Region, Long Beach, California; Steven Pennoyer, Regional 
      Administrator for Alaska Region, Juneau, Alaska; Chris 
      Mantzaris, Division Chief, Northeast Region, Gloucester, 
      Massachusetts; and Andrew J. Kemmerer, Regional 
      Administrator for Southeast Region, St. Petersburg, Florida    56
        Prepared statement of Mr. Schmitten......................   153
        Hogarth, William T., Ph.D., Acting Regional 
          Administrator, Southwest Region, response to a letter 
          from David H. Dunn, Esq., Eureka, California...........   251

Additional material supplied:
    Ament, Hon. Don, State Senator, and Hon. Lewis H. Entz, State 
      Representative, Denver, Colorado, prepared statement of....    81
    Habitat Conservation Planning Handbook, U.S. Fish and 
      Wildlife Service, will be on file at the Committee Office, 
      1324 Longworth Bldg., Washington, DC



  HEARING ON THE IMPLEMENTATION OF THE ENDANGERED SPECIES ACT OF 1973

                              ----------                              


                        THURSDAY, MARCH 5, 1998

                     U.S. House of Representatives,
                                    Committee on Resources,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 11:06 a.m., in 
room 1324, Longworth House Office Building, the Honorable 
Richard W. Pombo presiding.
    Members present: Representatives Young, Hansen, Saxton, 
Gilchrest, Pombo, Cubin, Chenoweth, Radanovich, Shadegg, 
Schaffer, Miller, Farr, Delahunt, John, Green, Doggett, Herger 
and Lewis.
    Mr. Pombo. [presiding] Good morning. Today we have invited 
the Honorable Jamie Clark, the new Director of the Fish and 
Wildlife Service, to testify before the Committee on the 
national and regional implications of the enforcement of the 
Endangered Species Act.
    We welcome you for this first appearance before the 
Committee as the new Director and wish you well in your new 
duties. We wish you success in finding ways to bring back a 
common sense and people-friendly approach to protecting 
endangered species.
    We have invited the Honorable Rolland Schmitten, the 
Director of the National Marine Fisheries Services, to testify. 
Mr. Schmitten has testified on many occasions in the past, and 
we welcome you here once again.
    The Chairman has asked both of you to bring with you 
members of your staff from your regional offices who can answer 
specific questions regarding the enforcement of the Endangered 
Species Act within those regions.
    During 1997 the Chairman requested that both the Fish and 
Wildlife Service and National Marine Fisheries Service provide 
statistics on the distribution of your funds to each region, as 
well as the numbers of incidental take permits and Section 7 
consultants by region.
    The Chairman also asked for your employee staffing levels 
by region. The Chairman asked the staff to compile a staff 
report summarizing that information which is being distributing 
to the members of the Committee as a background memo. The 
information which was provided, I found to be very disturbing.
    I feel strongly that Congress must ensure that the Act is 
implemented the way it was intended to be implemented by those 
in Congress who voted for it. I don't believe that Congress 
intended for the Endangered Species Act to be used as a tool by 
the government, or by fringe groups, to stop all development in 
the West. Your statistics confirm what many of us believed, 
that the ESA has been enforced with a very heavy hand in the 
West and a very light hand in the Northeast. Those statistics 
also lend support to the belief held by some people that your 
enforcement of the ESA has been based on politics which favor 
those heavily populated areas of the country.
    My instincts and experience tell me that the approach taken 
in the Northeast and upper Midwest is based on common sense and 
a respect for private property. I don't think the West has seen 
the same courtesy or respect. I realize that most of the land 
in the West is owned by the Federal Government and there are 
many who believe that gives the government the right to control 
all of the land in the West, but there is something 
fundamentally unfair about that approach. It places all the 
burdens of protecting the environment on one area and on a 
limited number of people. We should all bear the burdens and 
the responsibilities equally and fairly.
    I am not in favor of simply mistreating people in the East 
the way Westerners have been mistreated. I think all of our 
people deserve fair and respectful treatment. I simply believe 
that it is time to stop and take a good look at whether these 
policies are even-handedly enforced and, if not, find a way to 
bring about a fairer system.
    Mr. Miller, did you have an opening statement?

 STATEMENT OF HON. GEORGE MILLER, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Miller. This is an East/West battle going on here, huh? 
Well, Mr. Chairman, I look forward to these hearings. I am not 
sure whether or not the Habitat Conservation Plans are in the 
East or the West is really the crux of the problem that we 
have. I think it is much more a problem that we have--we 
continue to list species and not provide for their recovery 
and, in that respect, the Endangered Species Act is probably 
not working very well for the environment, for the landowners, 
for private business or government itself. But I am also deeply 
concerned that we see actions taken after the listing of 
species that are inconsistent with the recovery of that species 
and, therefore, place additional burdens on remaining 
landowners and people who seek to develop their property.
    As I have stated before, when I introduced my legislation, 
and will continue to state throughout this debate, I think the 
test should be, for plans for recovery, is whether or not they 
provide for the recovery of the species. In this morning's 
hearing, I think we will hear some evidence that we continue to 
take actions, and the government continues to allow actions 
that are inconsistent with the recovery of the various species 
that they have--they themselves have listed.
    If we want to get into some discussion of East versus West, 
that is fine. I am not sure that will lead to the kind of 
examination that is necessary for providing the reforming and 
the strengthening of the Endangered Species Act, but I look 
forward to hearing from the witnesses this morning.
    Mr. Pombo. Mr. Hansen.

STATEMENT OF HON. JAMES V. HANSEN, A REPRESENTATIVE IN CONGRESS 
                     FROM THE STATE OF UTAH

    Mr. Hansen. Thank you, Mr. Chairman. I think this is a very 
important hearing that we are going to have. When this thing 
passed in 1973, I think the intent of the Act has not been 
carried out. I still remember the last conversation I had with 
ex-Speaker Tom Foley, and he said I wish I had never voted for 
this Act. I have sometimes reflected on that and wondered why 
he would say that. However, in the state that I represent, in 
the State of Utah, we put an awful lot of money in things like 
the desert tortoise, and yet we find that in other--where it is 
doing very well, in other places it is having problems.
    I was yesterday hit by the State of Utah and a few people 
that want $120 million to save four fish in the Colorado River, 
and when I was a young man, they were considered trash fish. It 
is interesting enough and that the Colorado squawfish is one of 
those, which its cousin is in the Columbia River where it is a 
predator, yet in the Colorado River, it is an endangered fish.
    I would hope we could bring some sense to this Act. Mr. 
Chairman, in my humble opinion, there should be a peer review. 
The way this listing has coming about is not really fair and it 
seems to me that every state should, and if they would check 
how the Park Service, we do have a peer review, and it would 
seem reasonable to me that we adopt the kind of thing we have 
in the Park Service and apply it to the other areas.
    Now, anyone can come along, and as you go back and check 
out how many of these things were listed, you find out it was 
not listed by science, it was listed more by emotion. I would 
hope we would have a listing process that is refined, a peer 
review process that works, and a de-listing process that works. 
The American alligator is a classic example of something that 
should have been de-listed and we had to go to court to get it 
off the list. So I honestly think this is the time we should 
work at it.
    There is nothing sacred about the 1973 law, and every piece 
of legislation I have ever been part of for 38 years, from time 
to time, they have to be changed. If I have ever seen a piece 
of legislation that deserves and needs to be changed for the 
benefit, not only of the things this was originally to take 
care of, the grizzly bear or the bald eagle and things such as 
that, now that we are down to the slimy slug and those kind of 
things, I think we should be very careful on this Act, and 
possibly at a point where we should make some definite changes 
in it.
    I thank the Chair for recognizing me.
    Mr. Saxton. Mr. Chairman.
    Mr. Pombo. Mr. Saxton.

STATEMENT OF HON. JIM SAXTON, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF NEW JERSEY

    Mr. Saxton. I thank the Chairman. Mr. Chairman, let me just 
say a word, for the moment at least, not so much about the 
substance of the matter that we are dealing with, but about 
the--I guess it is a political odyssey that we have been going 
through trying to arrive at enough common ground that we could 
get a Bill to agree on.
    First of all, let me commend you, Mr. Chairman, for the 
most--years of work that you have put into this. I know you 
traveled all over the country. I know that you have 
communicated with Mr. Miller and others on the Committee, 
including myself. During the last 12 months or so, we have met 
more times than I can remember to discuss the situation, and 
today's hearing is, hopefully, another step in trying to arrive 
at some kind of a consensus that we can all agree on.
    I don't think it is any secret to anyone that we have been 
unable to find that consensus. While today is certainly a good 
step in that direction, I just want everybody to know that Mr. 
Dingle and I, and perhaps some others, are preparing some 
legislation which will include many of the things that previous 
statements here this morning have mentioned, things like peer 
review and other issues that are very important. Some of the 
Bill will be like the Kempthorne Bill, which is much talked 
about and discussed. Some of it will certainly be issues that 
Mr. Young, Mr. Pombo can agree on, and some of it will have to 
do with what Mr. Miller just focused on in his statement, the 
issue of recovery. They are all important issues and all things 
that we need to agree on.
    So, fortunately, Mr. Dingle and I seem to have a lot of 
common ground and, frankly, we are consulting with others all 
along the way, trying to develop consensus language, and I hope 
that we, once the Bill is drafted, I hope that we can focus on 
it to try to make arrangements with everyone who is interested 
so that we can perhaps use this as a vehicle inasmuch as other 
things have failed to produce the consensus that we need.
    So I look forward to hearing from this morning's witnesses. 
I hope that we will all become additionally enlightened so that 
we can move the process forward.
    Mr. Pombo. Thank you.
    Does any other member have an opening statement?
    Mr. Schaffer.

 STATEMENT OF HON. BOB SCHAFFER, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF COLORADO

    Mr. Schaffer. Thank you, Mr. Chairman. I would just merely 
point out the Endangered Species Act is one of those sections 
of the laws which I hear about perhaps most from state 
legislators, county commissioners, and constituents back in my 
State of Colorado. In particular, the lack of clarity in the 
law presents, I believe, a credible argument which would 
explain the inordinate amount of lawsuits that we see filed, 
both on behalf of species that some believe ought to be listed 
and, conversely, by those who believe that some species that 
have moved forward toward listing should not be listed.
    But even more egregious, I think, is when you take a look 
at the amount of money that is being expended by states and 
regions in order to comply with various Endangered Species Act 
related mandates and dictates, the Chairman's concerns are 
borne out just by that statistic alone, when you see the 
disproportionate amount of funds that are spent in the West 
with respect to compliance.
    I have not done the math on this, but I would guess that 
when you take those dollar amounts and spread them out by the 
number of people who actually live in those areas, it is very 
clear and apparent that the Endangered Species Act is not 
applied evenly and managed in a way that takes into account any 
sense of fairness, geographically or with respect to citizens 
and taxpayers throughout the country.
    This Act is one that many people have complained about for 
a long time, and for one reason or another, we have not been 
able to move any responsible reform through the Congress over 
the past few years. I am hoping that with the expertise and 
sincerity of the people who are here before us today, that we 
may be able to take one large step in the right direction 
toward getting an Endangered Species Act eventually that 
actually protects endangered species and does so in the fairest 
and most efficient way possible.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Gilchrest.

STATEMENT OF HON. WAYNE GILCHREST, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF MARYLAND

    Mr. Gilchrest. Mr. Pombo, thank you.
    I hope we can work through this process.
    Good morning, Mr. Lewis.
    Mr. Lewis. Hello, my friend.
    Mr. Gilchrest. I think intelligent human beings, of which 
we all are--we all are, can get together and create an 
equitable Endangered Species Act for the East and the West, all 
across this country. I think one of our goals is to create a 
law that is equitably applied everywhere. I also think we can 
create a law that will help decentralize the total 
centralization of the Act as it now applies to the country. The 
Federal Government cannot save biological diversity in the 
United States, we can't do it alone. The law has to be a 
partnership with state, local government, and so on.
    I also think we can create a law where individuals across 
this great country would want to participate in this Act, would 
want to find a snaildarter on their property, would want to 
find some endangered plant or insect or animal so that they 
could participate and that structure is an incentive approach. 
I think we can do all of that.
    All of this has to do with recovery plans, habitat plans, 
ecosystem approaches, watersheds, all of these things, we can 
get together and figure this out.
    Now, two last quick comments. No. 1, the land lasts longer 
than any one person's lifetime. So what we do on it has an 
impact on future generations, our children. And the last thing, 
I recently read something that I found intriguing, sort of a 
perspective on all of this. If you took a book of a thousand 
pages, each page represented 100 million years of human 
history, or of Earth's history, the planet Earth, the history 
of planet Earth, you consolidated in a book of a thousand 
pages, the last 10,000 years would be found on the last line of 
the last page and that is the last word of the last page.
    A lot happened prior to us coming. The last comment is we 
do not have an option, I think, we have to understand the 
mechanics of natural processes on this infinitesimal blue and 
white speck we call Earth in the midst of an infinite, hostile 
Universe. We are responsible adults. We are charged with the 
responsibility of doing the nation's business, and part of that 
is figuring how we can reasonably, fairly, equitably protect 
biological diversity.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Farr.

 STATEMENT OF HON. SAM FARR, A REPRESENTATIVE IN CONGRESS FROM 
                    THE STATE OF CALIFORNIA

    Mr. Farr. Thank you, Mr. Chairman.
    I can't help but look down and see my colleague, Jerry 
Lewis, there, and I want to tell you a story about something 
that works, that he had something to do with, because he sits 
on the Appropriations Committee.
    One difficulty in trying to understand a lot of this stuff 
is in understanding the development of HCPs, Habitat 
Conservation Plans. We had the largest military base in the 
United States in my District, Fort Ord, which is also the 
largest base closed, 28,000 acres, and most of it is 
undeveloped land. The Army used it for maneuvers. In the 
assessment, there were something like 46 endangered or 
threatened species of plants and animals listed on this base. 
What happened at that point was that everybody sat down and 
said, before we decide what we are going to do in reusing it, 
where everything is going to go, let's do a Habitat 
Conservation Plan. Then everybody who comes in thereafter will 
be part of the responsibility for maintaining it.
    This is a unique situation because you have all this real 
estate and one ownership and, essentially, you can do the plan 
ahead of time, rather than trying to go in backward. But, I'll 
tell you, when it is done that way, it works really well. 
Everybody comes to the table knowing exactly what their 
responsibility is and it is a long-term management plan.
    My experience in being in local government, where you have 
to issue all these permits, is that essentially people come in 
with a foregone conclusion of what they want to do. Then they 
find out that they didn't ask the right questions and a lot of 
things they want to do end up going in the wrong place or doing 
the wrong thing. It would have been far better to sit down 
ahead of time.
    Obviously, there are some problems with this law and we can 
address them. I am pleased that Congressman Miller, who has the 
only Endangered Species Recovery Bill that has been introduced 
in the House this session, is here. But I am here to tell you 
that once you get the rules on the table and let everybody who 
is going to play know where they are, you can come to a 
reasonable, common sense, workable solution.
    A lot of what Mr. Gilchrest said is true. A lot of this 
endangered species stuff is the canary in the mine shaft. I 
mean we may not think they are very important, but they are an 
early warning system for things that may be going wrong. There 
are also incredible plants out there which we are just learning 
from medical science, may be beneficial to treatment of our 
illnesses.
    The reason I brought up Congressman Lewis' name is that 
that plan at Fort Ord wouldn't have worked without his support. 
So I know you are here to talk about some things that don't 
work, but I want to tell you that you helped make that work and 
I appreciate it.
    Mr. Pombo. Thank you, Director Clark.
    Let me ask at this time unanimous consent to allow our 
colleagues, Wally Herger and Mr. Lewis, to sit on the dais as 
part of the Committee for this hearing.
    Hearing no objection, welcome.
    I would like at this time to ask Mr. Lewis if he had a 
statement he would like to make.

  STATEMENT OF HON. JERRY LEWIS, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Lewis. Thank you very much, Mr. Chairman, I would ask 
unanimous consent to have my entire statement included in the 
record and I will be very brief in view of your schedule 
difficulty. I appreciate this courtesy.
    I must say as Sam Farr mentioned our working together I 
can't help but look and see your Ranking Member, George Miller. 
George Miller and I first began working together in the early 
1970 on issues that relate to subjects like the ones that you 
are dealing with today.
    In the old days I had the privilege of chairing a committee 
dealing with the environment in California, and many of the 
questions that we have before us today we discussed then. One 
of the major issues facing our state that will hopefully be 
before your full Committee at least shortly involves the impact 
of the wrong kinds of environmental activism and other 
decisions relative to the Salton Sea and its ecosystem.
    Today I have come to specifically express my concern about 
what has happened with the Endangered Species Act, and maybe 
give some specific illustrations of a problem that I hope the 
Committee would be addressing as they go about trying to make 
sense out of the Endangered Species Act.
    In San Bernardino County we have a major project that 
involves a huge flood control responsibility, the Santa Ana 
mainstream project which involves the largest unprotected flood 
plain in the country. We are in the process of constructing a 
$1.5 billion project to try to deal with that.
    At this point in time we are moving toward completing the 
Seven Oaks dam and just recently we were in a position of 
having that work stopped briefly, and potentially for the long 
term, because of the questions that swirled around the 
emergency listing of the San Bernardino Kangaroo Rat.
    To say the least, that action by the Fish and Wildlife 
Service raised a number of questions in my mind's eye. As a 
result of this listing, we see a prime example of the debate 
and discussion too often being dominated by the fringes, the 
extremes of concern about our environment.
    Within this region is a small little critter known as the 
Delhi Sands Flower Loving Fly. When it first came to our 
attention, the flower loving fly was in the area where the 
county was going to put a county hospital. As the process went 
forward to try to make sense out of that territory--we could 
only find at best three or four such flies around. In order to 
mitigate this gnat-like fly--the county ended up spending about 
$3.5 million before we even were able to break ground and build 
that county hospital. That is not the intention of the 
Endangered Species Act.
    The Kangaroo Rat which I first heard about it when I was 4 
or 5 years old. One of my friends moved from Oklahoma and he 
said have you ever seen a Kangaroo Rat, and I had never heard 
of it and here I am, all these years later, and we have got 19 
subspecies and many of them protected under endangered 
designation.
    I have within the file for your review a press release from 
the Secretary's office of 2 years ago where he said the 
Kangaroo Rat, the San Bernardino rat, would not be emergency 
listed, and yet just recently because of an internal problem 
that relates to regulation, a small territory was designated or 
was the target--we created a new federally protected species 
which impacts the whole region that involves this Santa Ana 
Project I mentioned is put on hold.
    Presently, in my district there is a National Training 
Center for the Army, a fabulous facility that involves training 
and retraining of our troops, the strength of America's defense 
system.
    Today that facility needs to be expanded. Another 
endangered species is involved--the Desert Tortoise--and yet 
just adjacent to this territory, you can throw a stone and hit 
the East Mojave National Preserve--there is enough territory 
there that is public territory to entirely encompass easily Mr. 
Gilchrest's and Mr. Saxton's states combined. With regard to 
the tortoise, you can take their eggs and put them over in the 
East Mojave territory and it won't hurt it a bit, and yet that 
endangerment is impacting potentially a very serious element of 
our ability to defend the country and freedom around the world.
    It is time for us to rethink where we have been with regard 
to the ESA. That is the fundamental thrust of my testimony. I 
think I have credentials that suggest I care about the 
environment. I know that you all do as well.
    It is time that the fringes of the debate, those who want 
to do nothing about endangered species in terms of protection 
and those who would use the environment to close down our 
economy, to be out of the debate and those of us in the center 
take over this discussion and make sense out of the Endangered 
Species Act, and I appreciate both your patience and your time.
    [The prepared statement of Mr. Lewis follows.]

 Statement of Hon. Jerry Lewis, a Representative in Congress from the 
                          State of California

    I would like to thank the Chairman and the Ranking Member 
for allowing me the opportunity to participate in this 
important hearing. I am here, in part, to express my concerns 
over what appears to be the arbitrary application of the 
Endangered Species Act in my Congressional District. I would 
also like to touch briefly on regional Fish and Wildlife 
Service funding issues as well as the Fish and Wildlife 
Service's role with respect to the proposed expansion of the 
Army's National Training Center at Fort Irwin.
    My Congressional District includes nearly all of San 
Bernardino County's 20,000 square miles and all of Inyo 
County's 10,000 square miles. The 40th Congressional District 
covers roughly one-fifth of California. Because I represent a 
territory that covers such huge expanses of land, I am 
concerned over the proliferation of listings--primarily 
emergency listings under the Endangered Species Act. In the two 
counties I represent there are over 40 species listed as 
threatened or endangered and another 10 proposed and candidate 
species.
    While many of these species do deserve Federal protection, 
the listing of species like the Delhi Sands Flower Loving Fly, 
the San Bernardino Merriam's Kangaroo Rat, and the Cushenberry 
milk-vetch, buckwheat, and oxytheca have seriously disrupted 
potential water supplies, flood protection and economic 
development efforts in San Bernardino County. In fact, the 
listing of the Delhi Sands Flower Loving Fly caused an 
additional expense of $3.5 million for a County Hospital which 
was under construction when this species was listed. The 
listing of this species also precluded ongoing development of a 
groundwater aquifer by the West San Bernardino Water District.
    I have said, time and time again, that it was a positive 
step forward when we began to focus on the word environment 
during the 1960's. However, I truly believe that the pendulum 
has moved far from center in recent years and it is now time to 
rethink how we balance the needs of the environment with 
economic impacts and the common-sense application of positive 
environmental steps. I must say that it strikes me as odd when 
we place species like flies, rats, and weeds above health care 
services for the poorest of the poor and clean, potable water 
sources for county residents. I am hopeful that over the next 
several years my friend from California, Mr. Miller, will work 
with Don Young, Richard Pombo, John Dingell, the Administration 
and other to make positive changes to the Endangered Species 
Act.

San Bernardino Kangaroo Rat

    I want to call your attention to a press release issued by 
the Fish and Wildlife Service's Pacific Regional office and 
dated October 28, 1994 which states, ``the Department of 
Interior has no plans to list the San Bernardino Kangaroo Rat 
on an emergency basis as a federally designated or threatened 
species . . .'' The statement went on to say, ``any proposed 
listing of the species would be made on the best available 
scientific information, which would be made available to the 
public, to other Federal agencies, state and local agencies, 
and to interested organizations for thorough review and 
critique well before any final decision would be made.'' The 
emergency listing of the San Bernardino Kangaroo Rat on January 
27, 1998 seems to contradict your earlier press statement. I 
have heard a lot about the Service's ``No Surprises'' 
initiative. I must say that this emergency listing was an 
unfortunate surprise to residents in my territory.
    Would you please explain?
    What was the urgent threat to K-Rat habitat that precluded 
listing this species through the normal listing process? How 
has this changed since Oct. 1994?
    It has been suggested that the emergency listing of the San 
Bernardino K-Rat was nothing more than a lever to get the Fish 
and Wildlife Service involved in Section 7 Consultations on 
activities such as flood control, sand and gravel mining 
operations, and land development projects. When the emergency 
listing had the unexpected ramification of stopping 
construction on the Seven Oaks Dam--which is the cornerstone of 
the $1.5 billion Santa Ana Mainstem flood control project which 
provides flood protection for millions of lives and billions in 
property in San Bernardino, Riverside and Orange Counties--the 
FWS moved with record speed to allow construction to resume.
    If construction on this project truly has negative impacts 
K-Rat habitat, why did the FWS allow work to continue so 
quickly?
    Has the FWS stated that it intends to propose that the 
gates to regulate outletting flows be omitted from the dam 
construction of the Seven Oaks Dam?
    Why can't the FWS be so responsive to average citizens and 
small business men and women impacted by this and similar 
listings?
    Did the FWS just try to defray public outcry by quickly 
allowing the contractor to go back to work on this important 
flood control project?
    Was there scientific data to back the decision to allow 
work to continue on the Seven Oaks Dam project?
    As a result of this emergency listing, what long-term 
impacts will this emergency listing have on the operations and 
maintenance of the Santa Ana Mainstem project?

Ft. Irwin Expansion

    As you know, the Army which operates the National Training 
Center at Ft. Irwin, has identified a need for additional 
acreage (roughly 330,000 acres) to conduct modern day desert 
warfare maneuvers. I know that FWS has been working with the 
Bureau of Land Management, the Army and other interested 
parties. Would you please give me an idea as to what progress 
is taking place with regard to this necessary and important 
expansion?

Regional Funding Disparity

    The Interior Appropriations Subcommittee provided the Fish 
and Wildlife Service $63 million for their regional offices in 
fiscal year 1997. Region I, which covers the Western United 
States, received over $34 million (over half of the entire 
regional budget) for enforcement of the ESA while Region VII 
received only $717,000. Why are we not doing more endangered 
species work in the Midwest, the South and the Northeast. Over 
35 percent of the species listed by the FWS are in California. 
Are we not listing species in other regions because we aren't 
providing adequate funding? Are we listing species such as rats 
and flies in the Pacific region because their budget is so 
flush?

Fiscal Year 1997 Regional Allocations for FWS

Region I--$34,169,000 (Pacific)
Region II--$6,548,000 (Southwest)
Region III--$2,264,000 (Great Lakes States)
Region IV--$12,664,000 (Southeast)
Region V--$2,949,000 (Northeast)
Region VI--$4,902,000 (Rocky Mtn States)
Region VII--$717,000 (Alaska)

Questions for the Record

    Would you support the listing of species only under the 
ESA, as compared to the listing of subspecies or populations?
    Why does the FWS need to review and list separately the 
Stephens Kangaroo Rat, the San Bernardino Kangaroo Rat, and the 
Tipton Kangaroo Rat? If viewed collectively, would a listing 
still be appropriate?
    In late January, the Service emergency listed the San 
Bernardino K-Rat as endangered. This was done on an emergency 
basis because a miner allegedly made threats to disturb this 
species' habitat in the short term. If it can be firmly 
established that there were no such threats that such actions 
will not be taken by that operator during consideration of a 
permanent listing, would you support the withdrawal of that 
emergency listing? Are you aware that the Secretary, by law, is 
required to withdraw an emergency listing if there is no 
substantial evidence to support the finding of an emergency?
    Would you support requiring that the ESA listings include 
an analysis of economic impacts?
    The emergency listing of the the San Bernardino K-Rat has 
already, and will continue to create major economic disruptions 
in San Bernardino County, including interfering with the 
completion or operation of major highway, water pipeline, flood 
control and other public works projects. What is FWS's role in 
finding a workable solution to this situatuion? Will you 
provide funding to the County which will enable them to 
undertake a conservation planning process? If the County had a 
Habitat Conservation Plan in place, would the Service have 
moved forward with an emergency listing?
    Would you please provide a list of species de-listed in 
Region I over the last 10 years?

    Mr. Pombo. We have a vote going on on the floor. We are 
going to break for just a minute.
    Most of the members of the Committee went over and voted as 
soon as the bells went off and as soon as they come back, we 
will call the hearing back to order, but it should just take a 
minute.
    Mr. Lewis. You notice they left immediately as I sat down. 
I appreciate it.
    [Laughter.]
    Mr. Pombo. It is no reflection on you, but we--don't go 
anywhere. We are just going to break for just a minute.
    [Recess.]
    Mr. Hansen. [presiding] As is obvious to everyone here, we 
have a vote going on. I would appreciate it if we could get the 
first panel seated so we can move along. This is going to be a 
heavy hearing today.
    Our first panel is Jamie Rappaport Clark, Director of the 
Fish and Wildlife Service, will be--the Honorable--will be the 
first one we will have up, and she will be accompanied by 
LaVerne Smith, Michael Spear, Renne Lohoefener--is that it? 
Lohoefener, well, that's pretty close, John Blakenship, Dave 
Fleming, and Paul Nickerson.
    So if you folks would come up and be seated.
    We really do not want to start until we get a few more 
members here, so if you--we want you ready to go.
    I imagine you have been told by the Committee that we 
follow the 5-minute rule in here and I hope you can get your 
testimony in in that length of time. Please keep in mind that 
any prepared or written testimony that you may have we'll take 
in its entirety, and with that, if we could just hold for just 
a moment I am sure that a lot of members will be coming back 
and they've asked me to take the Chair until Mr. Pombo comes 
back.
    Does the gentlelady from the Virgin Islands have a 
statement she would like to make at this hearing?
    Ms. Christian-Green. No, Mr. Chairman.
    Mr. Pombo. You would have our undivided attention.
    Ms. Christian-Green. I know. I was so busy yesterday I 
didn't have a chance to review some of the material, so I am 
sure I will have questions as we go along. I am particularly 
interested in hearing from the Director, Fish and Wildlife, and 
the Marine Fisheries Service because we have some issues at 
home, but I have no opening statement.
    I would just like to welcome the panelists this morning.
    Mr. Hansen. Thank you.
    Mr. Radanovich, by any chance do you have an opening 
statement that you would like to make?

  STATEMENT OF HON. GEORGE P. RADANOVICH, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Radanovich. Thank you, Mr. Chairman. Yes, just briefly 
I did want to point out my appreciation to the Chairman for 
conducting a hearing on this specific issue, and just some 
general thoughts on the current state of environmentalism and 
environmentalism protection in this country.
    I think the offer or the challenge, I think, of the 
environmental community is to really begin to focus 
environmental protection at the private property rights and 
private property incentives and local control levels.
    I think that right now the evidence that we are reviewing 
today is kind of encouraging amongst people that are in control 
of resources in this country, an attitude of shoot, shovel, and 
shut-up, which is basically the reaction to finding out that 
they have an endangered species on their property.
    I think that the real challenge to the environmental 
community is to begin to develop some environmental policy that 
is not an enemy of probably the very best approach that we can 
take to the environment, and that is of stewardship, which is a 
personal responsibility. It happens at the local level, and 
until you can identify a policy that encourages people to want 
to provide habitat and maintain and increase endangered species 
on their own property then you really haven't done your job and 
that is all I have to say. Thank you.
    Mr. Hansen. Mr. Herger of California, who has been invited 
to sit on the dais with us--we are kind of marking time--would 
you have an opening statement that you would like to make?

 STATEMENT OF HON. WALLY HERGER, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Herger. Mr. Chairman, I would like to thank you for 
holding this very important hearing and I also appreciate the 
Committee's indulgence in allowing me to sit on the dais.
    This issue is of incredible importance to the 572,000 
people who I represent in Northern California, both in the way 
of jobs--the some 36 mills that have closed because of Spotted 
Owls in areas where we find more Spotted Owls in Northern 
California than they thought they had in all of Washington, 
Oregon, and Northern California together to begin with, but 
even more tragically than the incredible unemployment, double 
digit in just about each of my 10 counties, is the loss of 
human life that we experienced a year ago, January 2nd, in 
which a levee broke on the Feather River in which it was 
determined in 1990 by the Corps of Engineers that there would 
be a loss of life in this levee--loss of life and loss of 
property--if this levee were not repaired, and yet it took 6 
years through mitigation and hoops to jump through, through the 
Endangered Species Act, to finally come up with a plan that 
would have allowed them to have repaired it in the summer of 
1997.
    Tragically the levee broke 6 months earlier and three 
people were drowned right in front of that levee along with all 
the property and some 250 homes that were inundated, so this is 
an incredibly important issue.
    I am absolutely certain that we can both protect and 
preserve endangered species and protect human life and property 
at the same time. They are not mutually exclusive, but the way 
the way is being interpreted at this time for all practical 
purposes they are mutually exclusive and again I appreciate the 
Chairman's holding this hearing so that we can work to correct 
that.
    Mr. Hansen. Thank you. Director Clark, I don't want to be 
unfair and ask you any unfair questions right now, and I would 
like to have a few more members here to hear your opening 
statement.
    If I may deviate, respectfully, for just a moment, while we 
are waiting for Mr. Pombo and others to come back, I am 
constantly asked a question about the cost of the mitigation 
and the work that is done by Fish and Wildlife on our 
endangered species.
    For example, the State of Utah wants me to put $120 million 
in a bill for recovery of four fish in the Colorado River.
    People in Washington County want me to get them more money 
for the deal that has been worked out on the HCP and Washington 
County on the Desert Tortoise.
    People in Iron County want to do something on the Prairie 
Dog and the list goes on and on.
    Let me just ask you a quickie before we turn you on, if I 
could, and I apologize.
    Ms. Clark. That's all right.
    Mr. Hansen. Has anyone projected the cost of all the 
endangered and threatened species in America if we went through 
the recovery program, what that would be?
    Ms. Clark. Well, Mr. Chairman, I believe that there has 
been--there have been studies that have been done in the past 
and there have been all kinds of subjective determinations and 
evaluations of the cost of species recovery.
    There have also been the same kinds of studies and 
evaluations on the, quote, costs of species extinction, and the 
cost to the American public of not having those species around.
    All of our species don't have recovery plans I am, you 
know, concerned to admit, but the ultimate cost of species 
recovery for all of our almost 1,200 listed species hasn't been 
evaluated.
    Mr. Hansen. Mr. Pombo and Mr. Miller, we have not started. 
I am sure Director Clark is ready to start.
    I'll relinquish the chair to my friend from California.
    Mr. Pombo. [presiding] Mrs. Chenoweth, did you have an 
opening statement that you wanted to give before we got 
started?

STATEMENT OF HON. HELEN CHENOWETH, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF IDAHO

    Mrs. Chenoweth. Mr. Chairman, I do have an opening 
statement, but I know you are anxious to move things along and 
so I would like to just submit it for the record, thank you.
    Mr. Pombo. Without objection, it will be included in the 
record.
    [The prepared statement of Mrs. Chenoweth follows.]

 Statement of Hon. Helen Chenoweth, a Representative in Congress from 
                           the State of Idaho

    Mr. Chairman, thank you for holding this very important 
hearing. I thank you for your very strong leadership; not only 
on the issue of Endangered Species Act reform, but of all 
resource issues. I appreciate you.
    We in the West have known for quite sometime that something 
was amiss. We have struggled and struggled to recover species--
to the tune of billions of dollars and the loss of thousands of 
jobs. Some of the Western species have even become national 
issues--the Spotted Owl, Grizzly Bear, Wolf and Pacific Salmon 
all come to mind.
    Through all of the controversy and costs, it has seemed 
that the West has been the primary focus of ESA activity.
    Some steps toward recovery have been made. On others, we 
have to engage in new thinking; the current policies are not 
working. But whatever your view, since enactment in 1973 of the 
Endangered Species Act, the west has paid a heavy, heavy price. 
Just ask some of the thousands of loggers now out of work. Or 
ask the school teachers whose school districts, once dependent 
on timber receipts for schools, can no longer afford school 
books.
    Yes, we in the West have paid a heavy, heavy price. 
Something is indeed amiss. And now we know. . . .
    In the East, enforcement of the Endangered Species Act has 
been done on a wink and a nod. It would appear that politics 
and economics, rather than science, has played the central role 
in determining whether to list a species as threatened or 
endangered.
    Let me explain. In the Pacific Northwest, among the number 
of high profile (and even emotional) species we are grappling 
with is the Pacific Salmon. The National Marine Fisheries 
Service (NMFS) has decided to consider the Pacific Salmon by 
stream segment. As a result, we have separate Federal listings 
for the Chinook Salmon-Sacramento River Winter; Chinook Salmon-
Snake River Fall; Chinook Salmon-Snake River Spring/Summer; 
Coho Salmon-Central California Coast; Coho Salmon-Southern 
Oregon/Northern California; and the Sockeye Salmon-Snake River. 
Each of these species carries with it its own critical habitat 
designations, which have wreaked havoc on various communities 
and families.
    Yet, in the East, there is the Atlantic Salmon. In 
September, 1995, it was proposed for listing by both the Fish & 
Wildlife Service (FWS) and NMFS. Let me quote from the 
September 29, 1995 Federal Register, ``The NMFS and FWS have 
completed a status review of U.S. Atlantic Salmon populations 
and identified a DISTINCT POPULATION SEGMENT in seven Maine 
Rivers. Atlantic Salmon in these rivers are likely to become 
endangered in the foreseeable future and therefore are being 
proposed for listing . . .''
    But, interestingly enough, just last December, NMFS 
withdrew its proposed listing rule, citing Maine's conservation 
efforts. It appears NMFS considered Atlantic Salmon in the 
aggregate, and the Pacific Salmon by stream segments. Why?
    I can't help but draw comparisons to my state of Idaho. We 
have bent over backward to protect the Pacific Salmon; Idaho 
(we) provide water . . . at the cost of farmers; protect 
habitat . . . at a cost to the timber and cattle industry; and 
have spent millions on hatcheries . . . at a cost to the Idaho 
taxpayer.
    Yet, NMFS continued on its journey to list one of the 
Distinct Population Segments of Salmon in Idaho--despite all of 
our efforts!
    Now, you can call me a cynic, but I believe in calling a 
spade a spade. And in this case, I believe population and 
politics played a very large role in a listing of the Pacific 
Salmon, and a refusal to list the Atlantic Salmon. To me, this 
demonstrates an agency (and administration) that is out of 
control. I would like not to believe this, but the numbers 
prove my point.
    Idaho is in NMFS' Northwest district, and Region 1 of the 
FWS. I ask the Committee to note that more than half of NMFS' 
budget goes to its Northwest district; and more than half of 
the FWS budget goes to Region 1 . . . both which include Idaho.
    This has allowed the agencies to literally play god, and to 
dictate policy without any input from the state.
    Mr. Chairman, I could go on and on. But I won't. But one 
thing is clear. The playing field is tilted against the West, 
and with all of the money and emotions, the agencies are out of 
control.
    The grizzly bear is one such instance. Over the clear 
objections of IDAHO's ENTIRE CONGRESSIONAL DELEGATION and the 
GOVERNOR, the Fish & Wildlife Service is attempting to 
introduce a Section 10(j) experimental population into Idaho.
    Yes, Mr. Chairman, the agencies are playing god . . . and 
playing on the emotions of the public. Never mind the threat to 
families and workers the mighty grizzly presents. And further 
there is even a question whether the designated habitat can 
support a population. There is truly a political agenda here.
    I am not advocating injuring the East like we in the West 
have been injured. But what I am advocating is that we inject 
some sanity and FAIRNESS into the debate. The West is not just 
one big National Park for Easterners to play in. We have 
communities, families and industries that have been hurt, 
seriously hurt, by out of control agencies.
    Thank you, Mr. Chairman.

    Mr. Pombo. At this point, I would also like to include in 
the record the opening statements of several members who have 
requested that, including Bob Smith, Jerry Lewis, Bill Thomas, 
and the Chairman, Don Young as well as statements from the 
public.
    We have one from Gordon Ross, who is a Commissioner in Coos 
County, Oregon. Without objection I would like to include those 
in the record as well.
    Without objection, statements of all members will be 
included in the record at this point and as well the official 
hearing record will be held open for 10 days to allow other 
people to enter their statements into the record.
    [The prepared statement of Hon. Robert Smith follows:]

 Statement of Hon. Bill Thomas, a Representative in Congress from the 
                          State of California

    Mr. Chairman, I appreciate the opportunity to give this 
statement to the Committee and to discuss the concerns of my 
constituents from Kern and Tulare Counties in California's 21st 
District. I have two goals in addressing you today. First, I 
want to remind you of the testimony of my constituents when the 
Resources Committee Task Force on Endangered Species Act met in 
Bakersfield. Their testimony related many seemingly arbitrary 
decisions by Federal authorities. Second, I want to suggest 
some ideas that may help the Committee build a broader 
coalition to create a fairer and more effective law to conserve 
endangered species.

Tales from the 21st District

    My District has been deeply affected by the presence of 
over 20 Federal endangered and almost 100 candidate species. 
Kern County embraces more than 8,000 square miles of desert, 
mountain and valley terrain (equal to the size of 
Massachusetts) including two important military facilities, 
Edwards Air Force Base and the Naval Air Warfare Center at 
China Lake. As you consider testimony on how Federal 
authorities implement the Endangered Species Act, please 
remember that:

    Farmers in Kern County saw their farm sales drop, in some 
cases to nothing, within a few years after the Federal 
Government decided that fish in the San Joaquin Bay Delta in 
Northern California needed more water. Some farmers went 
bankrupt when water costs increased six-fold within a few years 
in the early 1990's. There are many examples of people being 
saddled with costly but useless requirements. In one instance, 
Federal authorities made the Kern Water Agency survey for the 
possible presence of the Tipton Kangaroo Rat, at a cost of over 
$27,000 even though no rat was suspected to live on the 
property and none was ever found. In another example, Federal 
authorities ordered a halt to construction of a highway 
overpass until a pregnant Kit fox had the chance to give birth. 
Only after several months did Federal bureaucrats allow the 
construction to continue when the fox proved to be not pregnant 
after all and, in fact, not even female.
    How does Kern County cope with this bureaucratic mire that 
threatens to stifle its economy? Those who can afford to 
participate take part in the Kern County Valley Floor Habitat 
Conservation Plan which encompasses approximately 3200 square 
miles--covering more land than 18 Congressional districts in 
New York. That is more land subject to a habitat conservation 
plan than in all the land in all the conservation plans in the 
continental U.S. east of Nevada. I assume this is the reason 
that many of my colleagues do not constantly hear from their 
constituents about the enormous cost imposed on them by the 
presence of endangered species. Many states have no land tied 
up in conservation plans and do not have to obtain complex 
permits from various Federal bureaucracies whenever seemingly 
common occurrences take place--building a house, drilling a 
water well, putting up a highway overpass, or farming a piece 
of land.

Real Conservation

    The current system of endangered species protection simply 
is not working. If you tell a farmer that he can not use his 
property when it is the ``habitat'' (real or potential) of some 
species, then that farmer is going to make certain he does not 
have that ``habitat.'' Environmental activists may decry this 
``selfish'' response, but you might as well ask why people are 
not willing to bankrupt their families on behalf of a jumping 
rat. Landowners, like anyone else, are going to look after 
their families and their livelihoods before worrying about 
protecting obscure species that look like simple weeds and 
rats.
    Those who actually want to protect species should recognize 
this requires the cooperation of private landowners. Holding a 
bureaucratic gun to their heads will not bring cooperation and 
will not help species recover. A landowner who must set aside a 
portion of his land, often several times the portion he uses, 
is left making a living with less. The land he has left to work 
with must produce enough to make up for the several acres set 
aside for species conservation. So, to my colleagues, both 
Republican and Democrat, who have resisted reform of the 
Endangered Species Act, I issue this challenge: stop using the 
stick on private landowners and try using the carrot. Give 
landowner incentives a chance. Congress needs to make habitat 
affordable for these people who rely upon the land for their 
livelihood and who provide basic necessities like food to 
people in our country.
    The second suggestion I make is to pursue a fair process 
for implementing species conservation. Just as centralized, 
closed, autocratic decision-making by Federal authorities has 
prevented the cooperation of landowners, it has also undermined 
the legitimacy of conservation efforts. You have heard the 
stories about species being listed with insufficient evidence, 
biased implementation by Federal authorities against the West, 
spurious scientific studies, and people not being permitted 
equal access to listing documentation. All of this boils down 
to an unfair process that needs reforming. Consider our own 
experience in Congress. Even when a group loses an issue, there 
is respect for the result if a fair process has been followed: 
notice of the issue, careful study by both sides, unbiased 
expert evaluation of the evidence, equal access to information, 
and equal impact on all regions of the country. As 
controversial a program as endangered species protection 
demands such a fair process. Therefore, I strongly urge you to 
consider reforms that make this process fair, open, and 
transparent for all affected parties.
    Until such steps are taken, the Act will continue to fail 
to achieve its goal of Federal wildlife protection which 
reflects the will of the American people.

    [The prepared statement of Mrs. Cubin follows.]

Statement of Hon. Barbara Cubin, a Representative in Congress from the 
                            State of Wyoming

    Mr. Chairman, thank you for holding this oversight hearing 
today on the Endangered Species Act. I appreciate having the 
opportunity to express some of my general concerns with the 
implementation of the Act and its impact on my State of 
Wyoming.
    As some of my colleagues may be aware, in 1994 the U.S. 
Fish and Wildlife Service was petitioned by the Biodiversity 
Legal Foundation to list the Preble's Meadow Jumping Mouse as 
an endangered species. The Service subsequently published a 90-
day finding in December, 1994 that the requested action may be 
warranted. The proposed rule for listing the mouse as 
endangered was published on March 25 last year and I understand 
a final decision about the listing will be made later this 
month. I have several concerns about the testing of the mouse 
as an endangered species in Wyoming.
    It is my understanding that the Wyoming Game and Fish 
Department conducted over 7,000 trap-nights in potential 
habitat in southeast Wyoming between 1990 and 1993 without 
recording any evidence of the mouse. The Medicine Bow National 
Forest also channeled an extensive portion of its annual 
endangered Species funds into surveys for the Preble's meadow 
jumping mouse in 1995, but no present populations were located. 
The Game and Fish Department further surveyed their habitat 
units in southeastern Wyoming. NO Preble's mice were found.
    I am also told that extensive work in Colorado has 
confirmed the absence of this species from many historical 
areas and, rightfully so, private landowners have refused to 
allow Fish and Wildlife Service employees on their land to do 
surveys. Without this information, the listing decision will 
have to be made from available data, which, in my view, and I 
might add the view of the Wyoming Game and Fish Department is 
inadequate at best.
    If the Preble's meadow jumping mouse is listed as an 
endangered species, all public lands with suitable habitat will 
have to be surveyed for this species prior to any activity 
which may affect the species or the habitat. Although such 
surveys are not required for activities on private lands, any 
landowner requesting Federal funds or requiring a Federal 
permit for work on their lands will likely be required to have 
surveys for the mouse conducted if the proposed work will 
affect potential Preble's habitat.
    Because the Preble's habitat consists mainly of riparian 
grounds, including numerous areas with thick ground cover where 
grazing occurs, the ranchers in my State are very concerned 
about the impact of listing the Preble's mouse could have on 
their industry. In fact a briefing paper provided to my office 
on the mouse and its habitat states, ``Reducing or eliminating 
livestock grazing in riparian areas, especially during the 
months that the mice are active, and discouraging road building 
into riparian areas may be useful management tools.''
    Once again, we appear to be putting the cart before the 
horse with respect to the listing of a species. We don't have 
adequate data to support listing, we don't really know much 
about its population, we haven't adequately assessed all 
possible impacts, yet we are moving ahead with listing. I'm 
beginning to wonder why we don't just list everything that 
moves, with the exception of people and then this problem would 
be solved. But I don't believe we want to do that. We don't 
have the resources to manage the species or protect their 
habitat or perform necessary services as it is now. So why 
should we add to that burden? My guess is, this is just one 
more avenue for the environmental community to stop what they 
perceive to be unnecessary development along the Front Range of 
Colorado and Wyoming. I think that is a travesty and I hope 
that if this Committee considers legislation to reform the 
Endangered Species Act either now or in the future, we do 
something to alter the criteria for listing.

    [The prepared statement of Mr. Pallone follows.]

Statement of Hon. Frank Pallone, Jr., a Representative in Congress from 
                        the State of New Jersey

    Mr. Chairman, I would like to thank you for holding this 
oversight hearing on the Endangered Species Act. I am looking 
forward to the testimony today by Jamie Rappaport Clark, the 
Director of the U.S. Fish and Wildlife Service, various 
regional administrators, as well as Rolland Schmitten, Director 
of the National Marine Fisheries Service to discuss the various 
aspects of the Endangered Species Act.
    While the current endangered species Act has fueled a 
debate between those who want a clean environment and those who 
want a healthy economy, today's hearing will discuss the 
implementation of the Act by the two agencies with 
jurisdiction: the U.S. Fish and Wildlife Service and the 
National Marine Fisheries Service.
    We all are aware that the current law has limitations. Too 
many species get put on the threatened or endangered list and 
not enough get taken off. Current practices have been 
criticized as ineffective and inefficient. Not enough attention 
has been placed on recovery or preventing species from getting 
to the point where they need to be listed. Half of all species 
on the endangered list do not have recovery plans. The question 
I have for the agencies today is, how can we do better?
    In closing Mr. Chairman, I would like to welcome the panel 
today and I look forward to hearing their testimony on this 
contentious topic.

    [The prepared statement of Mr. Ross follows.]

    Statement of Hon. Gordon Ross, Commissioner, Coos County, Oregon

    Mr. Chairman:
    My name is Gordon Ross. I am a fourth generation resident 
of Coos County, Oregon, and at present one of three county 
commissioners for Coos County. I'm also on the Board of 
Directors of the Association of Oregon and California Revested 
Railroad Grant Land Counties. (O & C Counties).
    Coos County is located on the south coast of Oregon with an 
approximate population of 62,000. Our principal industries are 
lumber, fishing, agriculture and recreation. Coos County has 
two National Forests; the Siskiyou and the Siuslaw, the Coos 
Bay BLM District that manages O & C, Coos Bay Wagon Road and 
Public Domain Lands managed under the President's Northwest 
Forest Plan. The Elliott State Forest and our County owned 
forest that is managed under the Oregon Forest Practices Act 
are all within our boundaries. Our current unemployment rate is 
between 10 and 12 percent, almost three times Oregon's urban 
area unemployment rate. The Endangered Species Act is putting 
our industries and our County at risk. Coos County and the West 
are being held hostage by the Endangered Species Act and the 
whole nation is suffering for it. Since the listing of the 
Northern Spotted Owl and the implementation of the Northwest 
Forest Plan the soft wood timber imported into the United 
States has risen from 12 billion board feet to 17 billion board 
feet, an increase of imports of 5 billion board feet per year. 
The increase in imports corresponds almost exactly with the 
decline in domestic harvest on Federal lands, caused mostly by 
listings under the Endangered Species Act
    Presently, as we work with the National Marine Fisheries 
Service to avoid a Coho salmon listing in Oregon, we have on 
our table a draft letter from them that proposes changes to the 
Oregon Forest Practices Act that would further reduce the 
harvest of timber on private, state and county lands. As we try 
to understand NMFS's proposal, our estimates run between a 60 
and 80 percent reduction in annual harvest
    Coos County operates a 15,000-acre forest that generates 
revenues that fund public health and safety programs for the 
benefit of all county citizens. The County forest is harvested 
on a sustained yield basis under the regulatory requirements of 
the Oregon Forest Practices Act. Our Winchester Creek timber 
sale, due to sell March 10, contains just short of a million 
and a half-dollars worth of timber. Under Oregon's present 
statute we must leave $82,000 worth of timber along streams, 
under the Governor's voluntary stream side set back we will 
have to leave $167 000 on the land; but if the National Marine 
Fisheries Service scenario were place] in Oregon law, around 
$1,000,000 or two thirds of the sale would be lost. This is not 
an isolated or unique example. Most of our timber sales would 
be similarly impacted if the National Marine Fisheries Service 
prevails. This would be a death blow to programs now being 
supported by Coos County's timber sales program including 
Women's Crises Center, kelp-line, homeless shelter, retired 
senior volunteer programs, wildlife service, natural resource 
conservation programs, extension service, all health department 
programs from teen pregnancy prevention and water monitoring to 
immunization.
    When we consider the entire annual harvest program, of 190 
acres, we would experience a loss that would completely 
eliminate all County programs for public health and safety. 
Because 37 percent of Coos County's private sector agricultural 
income is from wood lots the same reduction in revenue will be 
experienced in the private sector so additional taxes to 
support these programs are not an option. In short the 
Endangered Species Act is crippling us in the West. Eventually 
it will be felt nation wide.
    We have examined the ``Statement of Cooperation'' among the 
U.S. Fish and Wildlife Service, National Marine Fisheries 
Service and the State of Maine, which formally accepted the 
State of Maine Atlantic Salmon Conservation Plan. We note that 
the forest practices requirements under plan are not nearly as 
strict as Oregon's current forest practices rules and we ask 
the question, why are the people of Coos County specifically 
and the West in general being treated differently?

    Mr. Pombo. Having said that, Ms. Clark, we are finally to 
that point. If you are prepared, you may begin.

  STATEMENT OF HON. JAMIE RAPPAPORT CLARK, DIRECTOR, FISH AND 
WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR, WASHINGTON, 
 DC; ACCOMPANIED BY LA VERNE SMITH, CHIEF, ENDANGERED SPECIES 
DIVISION, ARLINGTON, VIRGINIA; MICHAEL SPEAR, REGIONAL DIRECTOR 
   (REGION 1), PORTLAND, OREGON; RENNE LOHOEFENER, ASSISTANT 
     REGIONAL DIRECTOR FOR ECOLOGICAL SERVICES (REGION 2), 
 ALBUQUERQUE, NEW MEXICO; JOHN BLAKENSHIP, ASSISTANT REGIONAL 
   DIRECTOR FOR ECOLOGICAL SERVICES (REGION 3), MINNEAPOLIS, 
  MINNESOTA; DAVID FLEMING, CHIEF OF THE REGIONAL ENDANGERED 
     SPECIES OFFICE (REGION 4), ATLANTA, GEORGIA; AND PAUL 
 NICKERSON, ENDANGERED SPECIES COORDINATOR (REGION 5), HADLEY, 
                         MASSACHUSETTS

    Ms. Clark. Thank you, Mr. Chairman, and again thank you for 
this opportunity this morning to discuss the Endangered Species 
Act.
    I am joined today by some of the most foremost experts in 
the field of endangered species conservation from the Fish and 
Wildlife Service. I hope to provide the Committee with direct 
responses to any questions that the members might have, but if 
I cannot, I will turn to these experts with me today.
    Answers to the questions in your invitation letter are in 
my written testimony. Therefore, this morning I will outline 
some of the challenges we have been facing and the 
opportunities we have discovered by taking new approaches to 
species conservation.
    Over the past several years, the Clinton Administration has 
produced a remarkable record of success through a simple 
commitment to making the Endangered Species Act work. We are 
working more closely than ever before with the National Marine 
Fisheries Service to improve the efficiency and the 
effectiveness of the Endangered Species Act.
    Since 1994 we have implemented a series of innovative 
policy reforms to improve the Act's effectiveness while 
encouraging Americans to protect endangered and threatened 
species on their own lands. As a result, we are now enjoying an 
endangered species program that works better than ever before 
for both species and for people.
    We strengthened the science that has been the foundation of 
species conservation by instituting improved and consistent 
peer review. We streamlined the Section 7 Federal agency 
consultation process. We have increased the roles of states, 
tribes, landowners and other conservation partners in recovery 
planning and implementation.
    We have expanded the use of candidate conservation 
agreements and plans to help conserve species before they need 
to be listed. Through these agreements we have successfully 
kept species off the endangered species list including the 
Copperbelly Water Snake and the Atlantic Salmon, and in 
exchange for long-term species conservation commitments we have 
offered economic certainty to landowners through our no 
surprises policy, which has been a key tool in revolutionizing 
the HCP process.
    The record is clear. Prior to 1994 only 14 landowners 
successfully developed HCPs in over 10 years. Today over 225 
HCPs cover over five million acres and another 200 are under 
development.
    Finally, we are improving our monitoring programs and 
increasing the use of adaptive management to ensure the success 
of all of our endangered species programs.
    These reforms have bred a new generation of conservation 
successes. Some are small and simple, like Mary Presley's HCP 
to protect the Florida Scrubjay on her one-half acre of land by 
leaving 30 percent of her lot uncleared. She says she likes it 
that way for privacy as well as for the birds.
    Other successes are large and complex, as in San Diego, 
where the entire community has rallied around a plan to protect 
172,000 acres of land for over 80 listed and candidate species 
while allowing for careful development.
    Another example is a mosaic of protection provided by Safe 
Harbor agreements that span from Louisiana to North Carolina 
that will contribute to the eventual recovery of the Red 
Cockaded Woodpecker in the foreseeable future.
    Successes are also occurring between government agencies 
like the Fish and Wildlife Service and the Forest Service. 
Through the streamlining of Section 7 we expect that within 6 
months we will ensure that as many as 600 grazing allotments 
are in compliance with the Endangered Species Act in the 
Southwest.
    We are confident that this process will result in an 
appropriate balance between traditional land uses and species 
conservation.
    These types of successes are being duplicated all over the 
country, as people and communities are creating innovative ways 
to protect endangered and threatened species while achieving 
economic goals. Over the next several years we will begin to 
turn the page to a new era of success as we expect to process 
delistings and reclassifications for as many as two dozen 
species. This is an exciting juncture for us because recovery 
is the ultimate Endangered Species Act success story.
    To conclude, Mr. Chairman, I don't pretend to tell you that 
the business of endangered species conservation is all 
sweetness and light. It's not. It's hard work, and it's often 
controversial. But I am proud to tell you that we're doing it 
better now, in close cooperation with all the Federal agencies, 
with less need for regulation, and more opportunities and 
incentives for cooperation from landowners than ever before.
    Reauthorization of the Endangered Species Act is long 
overdue, and S. 1180 as reported from the Senate Environment 
and Public Works Committee represents a constructive step in 
that direction. The bill incorporates many of the reforms we've 
made, and will yield a stronger and more user-friendly law.
    I look forward to working cooperatively with your Committee 
and other Members of the House to reauthorize an Endangered 
Species Act that will continue to make America the world 
leaders in species conservation as we enter the 21st century.
    Thank you again for this invitation, and I'd be happy to 
answer any questions you or other members may have.
    [The prepared statement of Ms. Clark may be found at end of 
hearing.]
    Mr. Pombo. Thank you very much for your testimony.
    One of the purposes of this hearing was to discuss some of 
the differences between the different regions of the country in 
how the Act was being implemented specifically in those 
different regions of the country. Everybody's been given a copy 
of the handouts that include these figures.
    The first one, Ms. Kennedy, if you could put that one up 
that shows--yes. On this particular slide what we're seeing is 
the differences between full-time employee hours in the 
different regions of the country, in particular to draw your 
attention to Region 1, which has 368 positions, versus Region 
5, which has 31 positions, and Region 3, which has 24 
positions.
    Could you explain to me why there's that disparity in the 
numbers of people that are employed?
    Ms. Clark. I'd be glad to. And if I didn't feel like I was 
in the center seat of an airplane, I could get up and maybe 
point out some of the differences on our map.
    I think what's important to note is that we employ our 
forces and we allocate our resources based on where the 
biological diversity of the country is, and while there's--why 
there's a lot of discussion about East versus West, in 
reality--and it might be easy to look at this map for a 
moment--these maps--the issue is really North versus South. As 
you get closer to the equator, it's not a surprise that 
biological richness, ecological--biological diversity is much 
more apparent, and so it's not a surprise to us that you'll see 
through the whole band of the southern tier a much more rich 
area.
    We send our forces and we employ our bodies, our full-time 
equivalent positions, to the areas of the country where the 
species occur. That's not to say that we don't have hot spots. 
We have hot spots in California, southern California in 
particular, we have hot spots in the islands due to the 
localized occurrences and local endemism of many of the 
species. And we have hot spots in the Southeast like Florida, 
Mississippi, Georgia, Alabama. So it is absolutely untrue 
that--where we put our bodies and our resources is where the 
activity is.
    Mr. Pombo. Put up the second one, which does show the 
numbers of species that are listed in the different regions.
    If you go throughout the southern tier, as you speak of, 
that is where the majority of listings are, but if you look at 
the positions in Region 2 and Region 4, you have about two-
thirds the number of positions in those two regions as you do 
in Region 1. So there is--there is still a big disparity even 
if you put Region 2 and 4 together.
    Ms. Clark. Right.
    Mr. Pombo. As contrasted with Region 1.
    Ms. Clark. Well, I'd be the first to admit that we don't 
have enough resources to provide adequate technical assistance 
and support to implement the Endangered Species Act nationwide. 
The endangered species budget in the Fish and Wildlife Service 
is without a doubt the most carefully tracked budget that we 
have among all of our allocations. It's based on a formula. 
It's based on some capability funding in each region. And then 
it's a direct allocation based on the demand of the resource 
need in each of the regions in the country.
    Mr. Pombo. If I could have you put up 11. I believe it's 
No. 11.
    You talk about the biodiversity within the southern 
regions, the differences that we have in Region 1 and through 
the southern region. And yet one of the things that I think 
that we can all agree on is one of the major problems with 
endangered species is the destruction of habitat.
    1If you look at the eastern regions, the Northeast in 
particular, the upper Midwest, if any part of the country has 
had a destruction of habitat, I would say that it is much 
greater in that region of the country versus the South and the 
West. And apparently those States that are within that region 
that have their own State Endangered Species Act recognize that 
as well.
    This particular chart shows the numbers of species that are 
listed under the State Endangered Species Act in those 
respective States versus the numbers that were federally listed 
under the Federal ESA. You contrast the difference say between 
New Jersey, which has 393 different species that are listed 
under their State Endangered Species Act; 15 are listed under 
the Federal Endangered Species Act. You contrast that with 
California, which has 292 on their State list; 214 are listed 
on the Federal ESA with 65 proposed and 26 candidate species.
    So looking at that I would say that there's an obvious 
difference between the effort that has been put in to list 
under the Federal ESA versus one region of the country and in 
this case California in particular.
    Ms. Clark. Well, Mr. Chairman, it actually doesn't have 
anything to do with the level of effort. It has a lot to do 
with the uniqueness of the lands. And in fact it really depends 
on the lens you look through.
    Many of the States in the New England area are about the 
size of a few counties out west. And when the State's looking 
through a lens, they're looking at their own political 
boundary. And to give you a classic example, the purple martin 
is listed as threatened in New Hampshire, and the flowering 
dogwood is listed as endangered in the State of Maine. That's 
fine. That's because the lens that they're looking at is their 
own State boundaries.
    The Federal Endangered Species Act causes us to evaluate 
the status of the species throughout its range. Many of the 
species in the northern climes have wide-ranging activity, and 
so the flowering dogwood, while it might be endangered in the 
State of Maine, is certainly not endangered throughout its 
range. So it would never qualify for the Federal Endangered 
Species Act listing.
    Mr. Pombo. Let me ask you specifically about a species 
that's listed under the Federal ESA, the American burying 
beetle, and there have been a number of activities to try to 
recover that in particular. Connecticut has it listed as a 
historic species on their endangered species list. They say 
that it was part of its historic habitat, and they have seen 
fit to list it as a historic species. What efforts are being 
made by your Agency to reintroduce the American burying beetle 
into its historic habitat in the Northeast?
    Ms. Clark. Mr. Chairman, I do know that we have a lot of 
efforts under way to recover the American burying beetle, but 
I'll turn to Paul Nickerson, who's chief of our Endangered 
Species Office in Hadley, Massachusetts, to let him respond.
    Mr. Nickerson. Mr. Chairman, at this point no efforts in 
Connecticut. However, we have a very aggressive effort to 
reintroduce the burying beetle on Penikese Island in 
Massachusetts, which to this point has been successful. We have 
several years of carryover populations, and we feel we're well 
under way to furthering our recovery goal there.
    Whether we'll get to Connecticut or not remains to be seen. 
But one step at a time, and the feeling was Massachusetts, 
Penikese Island and Martha's Vineyard is another place we've 
successfully reintroduced. So we're moving toward recovery for 
that species, but not Connecticut yet.
    Mr. Pombo. Are there takes of the American burying beetle 
occurring within the Northeast or are you issuing permits?
    Mr. Nickerson. No, sir. We've had one Section 7 
consultation on the American burying beetle on Block Island. 
There has been no need for us to issue any permits with the 
exception of recovery-type permits for scientific study.
    Mr. Pombo. May I ask on another specific species, the 
Karner blue butterfly, which is federally listed? It is found 
in portions of New Hampshire, New York, Michigan, Wisconsin, 
Indiana, and Minnesota. But I can find no permits issues for 
that--for the Karner blue butterfly.
    Are takes occurring without permits?
    Mr. Nickerson. No, sir. There's two reasons for that. Its 
distribution in New Hampshire is very limited. We've got an 
easement on the last site. It's managed under our Great Bay 
National Wildlife Refuge. So there's no need to worry about 
take permits there. We've already worked it out with the 
landowners so that the management regime is in place.
    Insofar as New York is concerned, the State of New York has 
a very aggressive endangered species program, and they take 
care of any takes that they either anticipate or that they know 
occur. In the event they need help from our law enforcement 
folks, they bring us to the table. But normally they negotiate 
these things out with the landowners or the town officials 
ahead of time. An example is mosquito spraying in one of the 
counties, and they identify particular areas where the Karner 
blue occurs, and no spraying is allowed in those areas. So it's 
being taken care of by our State partners, and we like it that 
way.
    Mr. Pombo. California also has an aggressive Endangered 
Species Act, and we don't seem to have that same level of 
cooperation, and that does concern me. There are distinct 
populations on the Karner blue butterfly, distinct population 
segments that you have identified. Are you requiring a 
migration corridor between those distinct populations?
    Mr. Nickerson. The recovery plan is still in preparation, 
so we've not gotten to that point yet. Our goal now in 
conjunction with the State and the Nature Conservancy is to 
continue to identify the sites where the Karner blue occurs and 
protect those sites.
    One more thing we've done, in conjunction with Niagara 
Mohawk, they maintain power line corridors and they have to 
spray. What that can do if it's done correctly is promote the 
growth of lupin, which is a host plant for the Karner blue. 
We've issued them a recovery permit knowing that under certain 
circumstances there will be take, but that in the long run 
we'll be able to preserve the habitat, and those power line 
corridors can get at part of what you're saying. We've not done 
it in total because of the nature of the Karner blue.
    When fire was prevalent, fire used to do what you say for 
us. The habitat would succeed, and yet there would be a fire 
somewhere else, and the early succession plants such as lupin 
would come up. Now we've eliminated fire, so now lawn mowers 
and sometimes herbicides and other means of ecological 
suppression--in other words, retarding the logical succession 
of plants, is doing that for us.
    Mr. Pombo. You are adopting a recovery plan for that 
particular species. It's not complete. Am I to understand that?
    Mr. Nickerson. Yes, that's correct. It's in preparation.
    Now another interesting thing, the State of New York has 
written their own, so this is another case where our State 
partners are a little bit ahead of us, because they can focus 
solely on activities within New York.
    Mr. Pombo. My time has expired, but I'm sure I'll have an 
opportunity to continue questioning.
    Mr. Miller.
    Mr. Miller. Thank you, Mr. Chairman.
    Again, I'm not quite sure what we're getting at in this 
hearing, but going back to your--this original map that was up 
on the wall that deals with listings of critical habitat by 
region and other aspects of activity in the region, I think 
that the Director has responded quite correctly that the 
deployment of resources are driven by the activity that's 
taking place and the biodiversity of those regions.
    But if we also look at this map, I think if you look at 
that area west of the Mississippi you're talking about 71 
percent of the land mass in the United States, and if you take 
the HCPs in the West and the HCPs in the East, you have 129 
HCPs or one for every 16,000 roughly square miles, and in the 
East you have 50, one for roughly every 17,000 square miles in 
those two regions.
    The Director has already pointed out the issue of 
biodiversity. The West and South have a greater abundance of 
species than the Midwest and the Northeast, where there are 
fewer HCPs. California has 6,205 species of vertebrates and 
vascular plants; Florida, 3,745; Texas, 5,473. By contrast, 
Wyoming has 2,758; Iowa; 2,129; Maine has 2,058.
    Then if you want to put another overlay on this map, you 
could put the overlay of growth. You're deploying your 
resources where we're having the greatest interaction between 
open space and urban populations. In the high-growth area of 
Texas where about 6 million people a decade are moving to Texas 
are increasing their population. In California, 10 million new 
people a decade. The Pacific Northwest is currently a hot spot 
in-migration of individuals. Florida is legendary in terms of 
its in-migration of individuals. And the Carolinas have been 
the hot area in the Southeast.
    So now we have--we've put an overlay of land mass, we've 
put an overlay of HCPs, we've put an overlay of biodiversity, 
and now let's overlay population on top of that.
    Then with that population let's overlay economic activity. 
The hottest regions in the country right now are not the 
Northeast. People are leaving. That's why their Congressmen are 
worried about reapportionment. They're not going to have a seat 
because they don't have people. Maybe we can do an HCP for 
them.
    [Laughter.]
    Mr. Miller. We can combine the reason the Minnesota--many 
of the Minnesota and Wisconsin delegations voted against Puerto 
Rico last night. They couldn't figure out where the six seats 
were going to come if they didn't come out of Minnesota, 
Wisconsin, and the Northeast. So maybe we can do a big HCP of 
the Northeast and Minnesota and they'll all get along fine.
    So let's go to economic activity. The average housing 
starts in the Northeast were 132,000 a month. In the Midwest, 
320,000 a month. In the South, 661,000. In the West, 361,000. 
So you start to see now we're bulldozing the land. We're trying 
to make room for people who are moving to these areas because 
of the economic activity, apparently economic activity not 
threatened by the Endangered Species Act at this point, because 
we're still creating those numbers of new housing in those 
regions where the greatest number of people are being deployed 
to monitor and enforce the law. Somehow the economic activity 
is beating the pants off the rest of the Nation.
    Then we can overlay the question of what have we been doing 
in these regions that might have caused the problem. We can go 
to hydroelectric rates. And we can start to see that in the 
West we've been the beneficiaries of the Federal Treasury 
building large dams on complex river systems that have 
completely screwed up the fisheries of that region. So I 
suspect there's a reason why NMFS is out west, because of the 
complex decisions we've made about damming some of the great 
rivers of the West when we with all due respect knew much less 
than we know now. And there's an awful lot of people.
    I notice with the announcing of the listing in the 
Northwest last week or the week before, Boeing, Microsoft, 
Republican State legislators, the mayor of Seattle and others 
were saying this is a problem we've got to work out. This is 
vital to our region. And we support the listing and we support 
engaging in how to solve the problem. So apparently they think 
this is rational. They're getting the economic activity, 
they're getting the in-migration, and they're getting the cheap 
hydroelectric rates.
    Now maybe they won't need them, because I see that British 
Columbia's offering cheaper hydroelectric rates, so the 
aluminum companies are thinking about going to British Columbia 
as opposed to staying in the Northwest. But we've benefited 
from some of the lowest electrical rates. But we got there by 
damming some of the more complex river systems in the country. 
And we're paying the price. And a big part of this workload is 
about fisheries, it's about salmon, and it's about the problems 
in the Northwest and in California which are dramatically 
supported by the population.
    Then we can overlay public lands, where we're more likely 
to encounter these problems and monitor these problems because 
in those public lands we also have a great number of wilderness 
areas, we have a number of national parks, we have great 
economic activity, people come visit those, and they're 
candidates for the protection of the species. And the fact is 
the West enjoys those benefits, again at the behest of the rest 
of the country.
    I suspect if we're starting to ask about the allocation of 
resources, the East might say why are there so many National 
Park Service out west. Well, it's because where the parks are. 
And so, you know, this map doesn't tell a story and the charges 
for the moment don't seem to tell the story either.
    Would you like to think about the West? Would you like to 
think about the Southeast or the South or the Florida Panhandle 
or Texas or the Southwest, Arizona and others, that are growing 
at this rate without the monitoring and enforcement? Would you 
just like to show up in court at some particular time?
    So those are the choices. Or you can try to get ahead of 
the curve, you can try to get ahead of the curve, and deal with 
the issues of habitat conservation plans and prelisting 
activities and avoidance systems and all the things that these 
people at this table are doing so that we can continue to build 
those 600,000 homes in the South and the 300,000 homes out in 
California and we can continue to have a thriving economy. Or 
we can just wait and meet at the courthouse door when the judge 
says shut it down.
    And so this is an interesting argument. I think this is War 
on the West, Part 2. I don't think you're going to make it meet 
the burden of proof. Because it just doesn't add up. There are 
reasons why these agencies are deploying their people. There 
are reasons why they're welcomed by local government and 
developers and others so we can solve these problems and we can 
get on with the activity.
    And there's reasons why they're welcome there by the people 
who live in these regions because they want to continue to see 
the salmon thrive, they want to be able to continue to take 
their kids fishing, those of us in the Delta realize the 
millions and millions of dollars that are generated through 
fishing days and activities and recreation, as do other people 
in the local communities, whether it's West Yellowstone or the 
Seattle Sound or the Delta or wherever else we've come to 
understand the engine, the economic engine that the West is. 
There's a reason people pack up and leave San Jose, California 
and Palo Alto and go to Boise, Idaho.
    Screw around with the Endangered Species Act and there will 
be a reason--there will be no reason to leave, because they'll 
look the same, and the benefits will be the same. In Money 
magazine--what is it, Money magazine, the most livable places 
in America, schools and then environment are the two foremost 
reasons why people decide it's a good community. There's a 
reason people are moving to the Northwest--economic opportunity 
and a wonderful environment. There's a reason we lost many 
people to California to Boise or Salt Lake City--economic 
opportunity and a wonderful environment. OK?
    So the West isn't doing--this isn't about a war on the 
West, this is about an area, whether it's the West or the 
Southeast, or the Southwest, Florida, that's doing extremely 
well, extremely well economically, and accommodating a massive 
inflow of population of both businesses and families and 
residents and somehow staying way ahead of the curve, and has 
benefited from an awful lot of public money being spent there 
to develop inexpensive energy with the attendant cost. And 
obviously a sophisticated population that understands the 
struggle to preserve the reasons why a lot of people went to 
the West and what they hope to preserve for their families in 
terms of their communities.
    Finally, it needs to be said that I find nothing wrong with 
the Endangered Species Act--I find a great deal wrong with the 
Endangered Species Act. Hopefully we'll get into some of that 
in round 2 of our questioning.
    Mr. Pombo. Mr. Young.
    Chairman Young. [presiding]. I have to go to another 
meeting, but my understanding of ESA is that the take of listed 
species is prohibited even if the take is accidental or 
incidental to some lawful activity. The term ``take'' includes 
modification or destruction of habitat. So if I clear land to 
build a house or cut down trees that are the home of an 
endangered species, that is a violation of the ESA unless I get 
a Section 10 incidental take permit. Now, this is a question. 
Is an incidental take permit mandatory if you are impacting 
species on the habitat?
    Ms. Clark. Let me see if I can repeat the answer back in 
the form of both a question and an answer.
    Take of listed species has its strict definition in the 
regulations. Where there's significant habitat destruction that 
significantly impairs the breeding, feeding requirements of a 
species, then yes, Mr. Young, it does constitute a take under 
the Endangered Species Act.
    Chairman Young. All right. An incidental take permit is 
mandatory. And as I said, now, the question is, you have never 
issued a Section 10 incidental take permit in Region 3 and only 
one in Region 5. Does that mean there are no takes of species 
occurring in those regions?
    Ms. Clark. Well, there are also other ways to issue take 
authority, and certainly Section 7 of the Endangered Species 
Act, working with other Federal agencies, is one of those ways.
    Chairman Young. But the question is now, there has been an 
awful lot of violation issues on taking in the western region. 
A lot. It is my understanding you never issued in Section 10 
take permit in region 3 and only one in region 5. Do you mean 
there's no negative impact on species--and that's one of the 
most heavily impacted areas--has anybody ever looked at what's 
happened around here, how many houses are being built and how 
many trees are being cut down and how many species are being 
impacted upon? And I don't hear a peep, not federally or 
locally.
    I mean, I've got great big maple trees every day being cut 
down, a habitat for all kinds of species, and that's what 
concerns me the most. It seems like--and by the way, I heard 
the term law enforcement officers Fish & Wildlife. That's one 
of your biggest problems: attitude. We are going to call them 
the law enforcement officers. There is no real cooperation 
between the individual land owner--we're talking about private 
land--and by the way, and this hasn't changed now, ma'am, is 
that in Alaska, with all the land we had that's federally 
owned, it was never looked at by Fish & Wildlife on the Federal 
lands. It was only looked at on private lands and those lands 
that had been leased for endangered species. Now, are we 
cataloguing all the species on the Federal land today?
    Ms. Clark. We're working very hard to conduct biological 
evaluations of all of our national wildlife refuge lands.
    Chairman Young. Well, that's a good answer, but are you 
doing it?
    Ms. Clark. Are we doing it?
    Chairman Young. Or are you just concentrating on private 
land?
    Ms. Clark. We are absolutely doing it given our available 
resources.
    Chairman Young. OK. Now, the second question. This is 
probably why the Act has to be changed. I had a group come in 
from California today--the other day talking about a water 
project, $4 billion. One billion was supposedly to rehabilitate 
the salmon run in California, one billion dollars. How many hot 
lunch programs, how many social programs, how many housing for 
the elderly and the poor could that one billion dollars cost?
    Thirdly, it's my understanding that the Fish & Wildlife has 
told those people that they cannot try to rehabilitate the 
species; it has to come from the natural stock. Now, is that 
the attitude of the Fish & Wildlife, that you're only going to 
use the natural species and none of the other proposed methods 
that could be done?
    Ms. Clark. The attitude of the Fish & Wildlife Service is 
to work cooperatively with all of our partners to recover 
endangered species as quickly and efficiently as possible.
    Chairman Young. Does that include the artificial 
propagation of fish, et cetera, et cetera, so we get more fish?
    Ms. Clark. The artificial insemination or the artificial 
stocking?
    Chairman Young. Yes. Can you do that?
    Ms. Clark. It really----
    Chairman Young. The reason I say this is--I was going to 
save it until Rolland's questions, but on the Willamette River, 
I believe--let's think about this a moment--now they're going 
to save the endangered species of nady chinook salmon, but 
there have been, to my knowledge, for 50 years five hatcheries 
on that river. Now, how in the world are you going to save the 
nady--is there going to be a litmus test for the fish? You come 
from the hatchery and you're a natural fish, but the river has 
been listed as endangered habitat for all fish.
    Ms. Clark. Mr. Young, as much as I would like to respond to 
your question, and I wish I had the information, I'm going to 
have to punt it to my colleague, Rolland Schmitten. This is an 
issue----
    Chairman Young. Well, Rolland Schmitten right now is on my 
list, if you want to know the truth.
    Ms. Clark. OK. Well, then, I will try to continue to answer 
the question.
    Chairman Young. But you're part of the Fish & Wildlife 
group that actually backs this up. But I'm just suggesting 
there has to be some logic to the actions of the agencies to 
make this thing work. One of my pet peeves is, very frankly, is 
I've been told that the answer is they're not the same DNA.
    Ms. Clark. Control propagation and reintroduction are 
important tools supporting recovery of endangered species, 
specie-specific activities and whether or not it works for 
specific stocks of salmon is an individualized evaluation 
that's conducted by the----
    Chairman Young. Again, I'm not particularly picking on you; 
I'm just suggesting somewhere along, this government better 
wake up and you better wake up, because the public is going to 
start hearing about these billion-dollar projects to protect a 
species that can't be protected.
    A billion dollars, like I say, is a tremendous amount of 
money. It could be spent for other purposes other than that one 
fish when it can be rehabilitated by, frankly, bringing in the 
smelt or some fish from some other area, from a hatchery, and 
reestablishing the fishery, just like the sockeye salmon on the 
Columbia River. That's what Rolland has told me has got to be 
protected.
    Did you see the project on the Columbia River, how much 
that is going to cost? A tremendous amount of money. And not 
only that, when they get done, they won't be able to achieve 
the goal. And here's where your credibility starts getting very 
weak.
    The Endangered Species Act, like I say, I'm the only person 
in this room that has ever voted for it, probably the worst 
vote I ever made in my life because it wasn't done as we were 
told it was going to be done. Now we have vertebrae and all 
these other good things involved and no logic applied to it.
    So I just--I'm just very concerned, but I'm also going to 
suggest agencies better start coming up with some ideas as to 
how they can best approach to reestablish some of the species 
or you're going to get hurt and so are the species, and that 
ought to be your main goal.
    Ms. Clark. Our main goal is recovery of endangered species, 
Mr. Young.
    Mr. Pombo. [presiding] Mr. Farr.
    Mr. Farr. In light of the previous discussions, let me get 
more specific. All politics is local. The politics I would like 
to ask you about is the creation of a Fish & Wildlife Service 
office in Sacramento. I think your explanation of what's 
happening and where the workload is and where the issues are 
and the incredible seminar we just got from George Miller on 
economic development and prosperity in America relative to the 
Endangered Species Act--all these indicate that we ought to 
have an office. Because your regional office is in Portland 
while an awful lot of the workload, particularly with the 
CalFed, is in California, it requires that people travel all 
the way from Portland to northern California do that work.
    Is there going to be an opening of an office in Sacramento?
    Ms. Clark. Mr. Farr, we have a reprogramming letter that is 
before this body awaiting response on the establishment of a 
regional office in Sacramento. It is my wish and it is the wish 
of the department that we have middle and senior level 
management in California to provide that technical assistance 
and policy oversight. We're awaiting a response from both the 
House and Senate Appropriations Committee on a reprogramming 
for fiscal year 1998, and the President, in support of this 
regional office, submitted a $3 million budget initiative in 
fiscal year 1999 to support the completion of the regional 
office.
    Mr. Farr. Thank you. So we have to deliver the money?
    Ms. Clark. You have to deliver the response that it's OK to 
reprogram 1998 dollars.
    Mr. Farr. OK. With regard to the steelhead and other salmon 
species, can you comment on the status of the development of 
the California State Management Plan and whether that plan, the 
California plan, would be acceptable to the National Marine 
Fisheries Service?
    Ms. Clark. Mr. Farr, I'll have again to defer that to my 
colleagues in the National Marine Fisheries Service. The next 
panel--I mean, we're happy to squeeze more in, but----
    Mr. Farr. Oh, the next panel. All right.
    Ms. Clark. Excuse me?
    Mr. Farr. That's the next panel?
    Well, I think what's important, though, is that we have in 
California been developing state management plans, and 
sometimes these plans were ahead of the Federal listings. So 
what happens is when the Federal listing, particularly with 
salmon, comes along, it preempts essentially the deals that 
have been made and people they have in place, and there's big 
confusion about that. If the state plan is working, why upset 
it? I just want to leave that message out there.
    Ms. Clark. Mr. Farr, if I could respond in a general 
fashion, the Fish & Wildlife Service is absolutely, as I 
certainly believe the National Marine Fisheries Service is, 
supportive of state management plans and we have certainly 
shown that in areas like the Atlantic Salmon and Coho, where we 
have deferred to state management in lieu of listing.
    Mr. Farr. The last question is, what steps is the Fish & 
Wildlife Service taking to investigate and address the causes 
of the sea otter decline, a federally listed threatened 
species, and will additional funds be made available in fiscal 
year 1999 for this purpose?
    Ms. Clark. We are working with the Friends of the Sea 
Otter, a public-private partnership group, to evaluate the 
otter. I know that we have had some declines due possibly to 
disease and certainly possibly to the effects of El Nino. I 
would be glad to get back to you with more specifics, but I 
don't have a specific response on available allocations or 
appropriations at this time.
    Mr. Farr. Could you get back to me?
    Ms. Clark. I would be happy to.
    Mr. Farr. Thank you.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Schaffer.
    Mr. Schaffer. Thank you, Mr. Chairman.
    Ms. Clark, your earlier comments in response to the 
Chairman, you mentioned that the Fish & Wildlife Service does 
not look at political boundaries but only looks--considers 
biological ranges of certain species, and I want to talk about 
the cactus ferrugineous pygmy owl in that respect because it is 
a species that you have moved to protect, and yet I'm told that 
this is a very bountiful species in Mexico.
    Do you consider the biologic range of species when they 
happen to--when that range crosses the United States border, 
including Mexico, Canada, other ranges that may occur?
    Ms. Clark. Yes, Congressman, we absolutely do evaluate and 
consider the status of the species throughout its range, but we 
also put our own joint policy with National Marine Fisheries 
Service, consider independently the range in the United States, 
and we have the ability to evaluate the status and add to the 
list distinct population segments in the United States that are 
threatened with extinction, and so we have listed the U.S. 
population of the cactus ferrugineous pygmy owl in Arizona 
because of its status in the United States.
    Mr. Schaffer. What is the origin of that policy? Is that 
based in statute? Is that based on a regulatory level, agency 
level? Where did you come up with that?
    Ms. Clark. It's joint inner-agency policy that was done--
it's not--wait a second. Let me back up. The law gives us--in 
the definition of species, species are defined as species, sub-
species or any distinct vertebrate population segment which--
and then it goes on in the definition. We have defined----
    Mr. Schaffer. But does the definition include within a 
range or within a political boundary?
    Ms. Clark. The definition is very straightforward, and as I 
said, it just says distinct vertebrate segment or distinct 
vertebrate population segment. We defined in policy that was 
submitted for public notice and comment what distinct 
population segment means, and part of it was discreteness--the 
discreteness, which is where it occurs, and if there's a 
physical separation, then discreteness is also--can be 
determined by international borders, significance, significance 
of that population to the species as a whole, and whether or 
not that population is threatened or endangered.
    Mr. Schaffer. When you mention that your primary objective 
as an agency is to preserve species and to help them 
reestablish themselves if they're deemed to be threatened in 
some way, how does that square with the plentiful nature of 
this owl in this case that just happens to be on the other side 
of the border but maybe not so plentiful in the northern 
portion of its range in the United States? It seems that the 
focus is the quantity of owls within a political boundary 
rather than the strength and health of the species overall.
    Ms. Clark. Well, we have used the United States borders in 
our policy determinations because that's also where we control 
recovery. I guess you could make an analogy to the----
    Mr. Schaffer. Let me ask, with respect to applying sound 
science to the strength and integrity of that species, what 
relevance does a political border have to play in the 
scientific assessment of the strength of the species?
    Ms. Clark. I have two answers to that question. First, just 
to kind of clarify our belief of the population status, I'm not 
so sure it's as plentiful as the suggestion is in Mexico.
    Mr. Schaffer. If you're not sure, why is it listed?
    Ms. Clark. Because it is endangered with extinction in the 
United States.
    Mr. Schaffer. You just said you're not sure about that.
    Ms. Clark. No, I was referring to your status evaluation of 
being plentiful in Mexico, and we don't believe it's plentiful 
in Mexico either, but we have listed it in the United States 
based on our policy.
    You could analogize it with state listings. States are 
looking through the lens of their state borders and the Federal 
Endangered Species Act is charged with protecting and 
preventing species' extinction in the United States, and that's 
what we have done with the pygmy owl.
    Mr. Schaffer. So your comment that you look at biologic 
ranges is not accurate, then; it is political borders that you 
look at?
    Ms. Clark. No.
    Mr. Schaffer. The United States.
    Ms. Clark. No. We look at the entire range of the species 
and we have listed many cross-border species, but we also have 
the opportunity and the authority, we believe, to use the 
international borders as a border when listing distinct 
population segments.
    Mr. Schaffer. I'm curious about the legality of these 
cross-border listings and the lack of information, particularly 
that you're unsure as to the extent of the strength of the 
species. I don't want to take a lot of time here, but that's 
something I can tell you I'm interested in, first on the legal 
side of listing species that share two different political 
jurisdictions, international jurisdictions within their 
biologic range, but also in the case of owl here, whether we 
have any idea of whether it's really endangered or threatened 
or not when we consider the full range.
    Mr. Chairman, is there going to be another round of 
questioning of these witnesses?
    Mr. Pombo. Yes.
    Mr. Schaffer. OK. I've got more comments, and I'll wait. 
Thank you.
    Mr. Pombo. Ms. Christian-Green, do you have any questions.
    Ms. Christian-Green. I have no questions.
    Mr. Pombo. Mr. Gilchrest.
    Mr. Gilchrest. Thank you, Mr. Chairman.
    Just a couple of questions relative to the number of 
positions based on employee hours of enforcing ESA. Region 1 is 
bigger than Region 5, but if you looked at 368 positions in 
Region 1 and 31 positions in Region 5, I would assume the 
explanation for that is that, if you looked at Region 5 and the 
amount of open space left there is small compared to the amount 
of open space left in Region 1, so there is potentially more 
ground to cover and more species that have been dislocated or 
fragmented, but are still surviving out there, that you want to 
save. Is that a fair assumption?
    Ms. Clark. Well, first, Mr. Gilchrest, is I could make one 
clarification. These, our charts, or my charts, those positions 
are not hours enforcing the ESA. Those are positions----
    Mr. Gilchrest. Those are people.
    Ms. Clark. Those are bodies.
    Mr. Gilchrest. Those are humans.
    Ms. Clark. So it is not an hours issue.
    Mr. Gilchrest. I understand.
    Ms. Clark. So those are positions that are implementing 
that the Endangered Species Act.
    Mr. Gilchrest. So you have 368 people in Region 1, 31 
people in Region 5.
    Ms. Clark. Implementing the Endangered Species Act in 
Region 1, right. That's how I read this chart.
    In Region 5, as we discussed a little bit earlier, 
regardless of the splendor of New England, the ecological and 
biological diversity is not as rich as it is in the Southern 
parts of the United States. So we deploy our resources and 
allocate our dollars based on the----
    Mr. Gilchrest. Is that because of climate or----
    Ms. Clark. Climate, soil types. Just the differences in the 
geography. As you get closer--like the tropical Rain Forest, as 
you get closer to the equator, biological richness increases 
exponentially.
    Mr. Gilchrest. So biological richness, there is more 
biological diversity----
    Ms. Clark. As you go toward the equator.
    Mr. Gilchrest. [continuing] in Region 1 as opposed to 
Region 5?
    Ms. Clark. Well, it is easier to look at this map. As you 
go from--if you kind of cut, if you bisect laterally the United 
States, you can see, and California is a big long state, but it 
is really the Southern part of California, across the arid 
desert Southwest, Texas and then kind of the richness of the 
Southeast. You have Hawaii, and Puerto Rico and the Virgin 
Islands that are in that same category, closer to the equator.
    Mr. Gilchrest. So because of the sheer diversity, that is 
how you base----
    Ms. Clark. That is what dictates where our resources go. It 
is very, very oriented. We maintain capability funding and 
capability personnel in each region of the country, but then 
the rest of the allocation is based on the resource demands and 
the resource needs and it is driven by the biological resource 
issues.
    Mr. Gilchrest. Does the Fish and Wildlife service have a 
specific policy as far as when something is either listed or 
getting ready to be listed, so that the community in the area 
potentially impacted is educated and communicated to to 
understand the nature of this proposed listing? Is there a 
method of communication, either inter-agency communication to 
the community, Fish and Wildlife Communication to the 
community?
    Ms. Clark. Our regions spend a lot of time on information 
and education. That is one of the sole purposes of the 
candidate list, which is that the list of species that are 
awaiting proposal, those are the species of concern that we 
believe are in trouble.
    Mr. Gilchrest. Do you communicate that via the planning 
commission for a county, the local county government, or the 
city mayor, in some continuing effort?
    Ms. Clark. We spent a lot of time communicating and 
coordinating. Could we do better? Absolutely. Could we 
communicate kind of what is in the hopper and what is on the 
horizon? Absolutely. We are kind of expanding our opportunities 
and capabilities to do that, given our available resources. 
But, absolutely, the desire to inform and keep everyone on the 
same sheet of music with declining species issues is very----
    Mr. Gilchrest. Is it done in any official regular format 
where local government, like the county commissioners or the 
planning commission will know that three times this year, twice 
this year, someone from the Fish and Wildlife Service is going 
to come in, because these are the people that plan the 
activity, where the industry sites will go and where the 
housing will go, all of those things, to discuss this issue of 
biological diversity, what keeps a species alive, what is a 
Habitat Conservation Plan, those kinds of things?
    Ms. Clark. Well, certainly, and I will be happy to pass to 
some of my colleagues, but at the local levels, our folks are 
communicating within the local environment frequently. Is it 
done on a structured or regular basis? I can't answer that. We 
annually publish candidate lists. We routinely communicate with 
local planning commissions and local landowners, and certainly 
have a tremendously close relationship with the states, the 
tribes, landowners, and we continue to try to improve our 
effectiveness in that area.
    Mr. Gilchrest. I almost think the structured approach, 
having had some experiences with these kinds of problems in 
Maryland, in the long run would pay big dividends.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Herger.
    Mr. Herger. Thank you very much, Mr. Chairman.
    I would just like to just briefly followup on that, Ms. 
Clark. I am very concerned, very concerned on the way you are 
administrating the law, and I am certainly very concerned the 
way Mr. Spear, who is over our area, is administrating the law 
of Region 1. I feel it is incredibly discriminatory. It seems 
to me that you are discriminating against some species over 
others.
    I guess my question would be, a couple, this is more in the 
way of a comment, because I do have a more specific question I 
want to direct to Mr. Spear. But, again, we have nine states in 
Region 5, we have endangered species in that area, and yet you 
only have 31 people who are somehow protecting those endangered 
species. We had reference on a declared war in the West earlier 
by a statement of one of my colleagues.
    We look at, right in the region right next to Region 5, 
around the Great Lakes, Region 3, 24 positions. Do we not have 
endangered species in those areas? It seems to me that you are 
discriminating against some species over other species. I would 
be very unhappy if I lived in those regions and to see what 
lack of attention that you are giving to those species that are 
there.
    And yet we go over to Region 1, the region that I live in, 
including Northern California, not 31 positions, Region 5, nine 
states; not 24 positions, Region 3, eight states; we have five 
states that are a larger area, five states, 368 positions that 
you have out harassing--harassing the people, my constituents.
    You also made a statement, Ms. Clark, as I understood it, 
that where and when there is a regional plan, that you try to 
respect those regional plans. Now, this is where I want to 
bring, direct my fire to Mr. Spear, the Director of our area. 
We are very unhappy with the job you do in our area, Mr. Spear. 
We are very happy to hear one thing, at least we are trying to 
bring an office closer to us so we don't have to try to 
communicate with you way up in Portland, to where we feel so 
incredibly discriminated against down in our area in the way 
you are managing.
    But I would like to ask you now the question, under the 
current Administration's Northwest Forest Plan, approximately 4 
million of the program's 24 million acres were supposed to be 
managed to allow continued timber harvests. Now, again, we have 
discovered more spotted owls in just Northern California, more 
pairs, than they thought they had in all of Washington, all of 
Oregon, all of California put together, just in our area. So 4 
million out of 24 million, we were supposed to allow for our 
people to be able to survive, allow our economy to survive in 
that area in which 36 mills in my District alone have closed in 
just several years, pretty much because of your policies and 
the way you have run those misdirected policies.
    But in the formulation of the plan, all threatened and 
endangered species found in these matrix lands were reviewed 
and considered in the final plan. At the same time, the Fish 
and Wildlife Service also granted a no-take provision for the 
entire Northwest Forest Plan. However, according to local 
officials, Fish and Wildlife Service has assumed control over 
all activities on the matrix lands, and through the ESA's 
consultation requirements, the agency is imposing additional 
review and mitigations requirements on top of those already 
agreed to under the Northwest Forest Plan.
    In the words of one local official, ``The Fish and Wildlife 
Service in nickel-and-diming those forests to death with added 
regulations at the project level.''
    My question, how does your agency, Mr. Spear, justify these 
added requirements in light of its previous agreements and, as 
things now stand, the Forest Service's and BLM's hands are tied 
and these other agencies have to follow your recommendations 
from the Fish and Wildlife Service, an agency that has no real 
ownership in the affected lands, again, how does your agency 
justify these added requirements in light of its previous 
agreements?
    Ms. Clark. Mr. Herger, if I could respond for a moment to 
the discrimination issue, and then I will pass it to Mr. Spear 
to talk about the Northwest Forest Plan. I will continue to 
respectfully disagree that we are discriminating anywhere in 
the country to address species' needs.
    Mr. Herger. Why don't you put personnel there to show that 
what you are saying is indeed correct then?
    Ms. Clark. Again, I will respectfully disagree. We employ 
our personnel where the species and the biological resources 
are most in need of technical assistance.
    Mr. Herger. How can you find them if you have nobody there?
    Ms. Clark. Well, also contrary to popular belief, 
Congressman, we don't find these by ourselves. We work very 
closely with the states. We work very closely with the 
university system. We work very closely with our partners like 
the Nature Conservancy to identify those species that are 
either locally or globally in danger of being threatened or 
becoming extinct.
    We talked about the differences in vegetation climes and 
the differences in biological richness as you get closer to the 
equator. So, again, I suppose we could have a debate, and it is 
a debate I would welcome, on whether or not the Fish and 
Wildlife Service has enough resources to deploy across the 
country. But, certainly, we use our available resources to the 
best of our ability to put them where the biological resources 
are most in need of support.
    With that, I will pass it to Mike to talk about the 
Northwest.
    Mr. Spear. Mr. Herger, the issue of our impact on the 
matrix lands of the Northwest Forest Plan is something I am 
familiar with. Of course, I don't know the details of every 
timber sale that have come before our people, et cetera. But I 
know of the situation you are talking of. I can say a couple of 
things for sure, we are not intimidating or harassing, or 
tieing the hands of the BLM and the Forest Service officials. 
Matter of fact, there is--throughout the Forest Plan area, I 
think is one of the most cooperative relationships that 
developed as a result of the Forest Plan, and we are a partner, 
along with the BLM and the Forest Service, in implementing that 
plan.
    Specifically, on the matrix lands, when the biological 
opinion was written for the overall Forest Plans, it was not 
written to say that there would never be any further review of 
the matrix lands. It was written in a programmatic nature 
across the landscape, to indicate that the layout of the Forest 
Plan, with the late successional reserves, and the matrix lands 
and the other features, as a whole, should bring about, through 
the life of the plan, the recovery, the support and recovery 
for the spotted owl, as well as the other endangered species.
    One of the things we have learned since this plan went into 
effect, as any plan, you learn down at the local level some of 
the specifics, that much of the late successional reserves that 
were set aside under the Forest Plan, in the terminology of our 
people, were stumps. There were not--we knew that there was not 
a lot of late successional reserves, but we also, at the time 
it was done, didn't realize the extent to which those lands are 
currently cut over and it will take a long time to truly 
support the owl as was intended under that plan.
    As a result of that, our people do examine the matrix lands 
in those areas where the late successional reserves are weak 
and try to develop opinions so that we can carry the owl 
through in those areas where, for all intents and purposes, 
that which the Forest Plan said was there, in that late 
successional habitat, really isn't there.
    Now, I will also add something here that--you have used the 
same term I used, nickel-diming of folks out in the field. I 
have given very specific direction to the field. We are not 
going to get into the nickel-diming, that there was a generic 
approach taken to these matrix lands. But it is a very 
difficult job our people have to do in the field to try to come 
up with a prescription that allows, in those areas where the 
late successional reserves are weak, or almost non-existent, 
allows the species to even exist in the interim while those 
reserves are growing back. But we are not to get into nickel-
diming and I would be happy to look into any circumstances, 
specifics that you consider in that way, because that obviously 
is not to the benefit, in the long run, of the species or the 
people or the plan.
    Mr. Herger. Well, I appreciate your comment. What you are 
saying sounds very nice, but it has nothing--it doesn't seem to 
relate at all with the people I talk to, the Forest Service 
people that I am talking with. I wish I had more time, 
obviously, I don't. I appreciate the consideration, the 
Chairman letting us go more.
    But, again, I would like to get in the fact that we have 
more owls there just in our Northern California than we have 
had in all the other states. We can go on and on and on, it is 
just incredible what the Fish and Wildlife Service is doing to 
our area, what it is doing to our economy and what is doing to 
forest health, where we have forests that are burning down 
because we are unable to be able to go in and begin to thin and 
begin restoring at the historic level.
    Anyway, it is quite involved. Hopefully, we can get your 
office closer to our area. Hopefully, we can get you down a 
little more often where we can look at this area. But it is 
really a disgrace to management. Thank you.
    Mr. Pombo. The good news and the bad news. The bad news is 
we have another vote on the floor. The good news is it is 
supposed to be the last vote of the day. So we are going to 
break. I am going to go ahead and recess the hearing 
temporarily. We will be back as soon as we can to finish the 
members who have not had an opportunity to ask questions, and 
there will be another round of questioning. But we will return 
as quickly as we can, and I would encourage my colleagues to 
hurry and vote and come back so that we can keep this going.
    I apologize to the panel for the delay, but this is 
something we can't avoid.
    [Recess.]
    Mr. Pombo. We're going to go ahead and call the hearing 
back to order. Take your seats, please.
    At this point, I'll turn to Ms. Cubin.
    Mrs. Cubin. Thank you, Mr. Chairman.
    Ms. Smith, I'm going to ask these first questions and 
hopefully we can cover them with the questioning and the 
answering as briefly as possible because there are some state 
issues that I really want to cover as well.
    But I want to get some information straight. It is correct, 
did I understand correctly that there have been no takings of 
endangered species in Regions 3 and 5, no incidental permits 
granted; is that right?
    Ms. Clark. To my knowledge, there have been no Section 10 
incidental take--oh, excuse me, there has been one in New 
England. That doesn't mean, though, that we haven't granted 
incidental take authority through Section 7 of the Endangered 
Species Act.
    Mrs. Cubin. Do you have any idea how many Section 10's 
there have been in Region 6?
    Ms. Clark.I don't, but I believe Chairman Pombo's charts 
lay it out. There have been seven habitat conservation plans.
    Mrs. Cubin. No, I'm talking about takings. I'm talking 
about takings in Section 6, where people have been prosecuted 
or whether----
    Ms. Clark. OK. Let me see if I can separate it so I make 
sure I answer your question correctly. When we grant take 
authority under either Section 7 or Section 10, that is an 
incidental take-- granting incidental take or take that's 
incidental to otherwise lawful activities. I'm not sure that 
the take that you're asking about or referring to is the level 
of, quote, prosecutorial activity that we've engaged in for 
illegal takings.
    Mrs. Cubin. OK. That is what I'm trying to get at.
    Ms. Clark. I'm trying to figure out
    Mrs. Cubin. OK. That's what I'm trying to get at.
    Ms. Clark. OK.
    Mrs. Cubin. If you combine Section 3 and Section 5, there 
are, according to these figures, 73 listed species. The 
geographic region, certainly Section 3 and Section 5, would be 
larger than Section 6. There are 102 employees trying to 
protect the endangered species in Section 6 and 55 in Regions 3 
and 5.
    What I'm getting to, what I'm trying to point to, do you 
honestly think or is there a little room for doubt in your mind 
that there are enough personnel in Section 3 and Section--
excuse me--Region 3 and Region 5 to protect the species that 
are in need of biological support? Don't you see any 
incongruity there at all?
    Ms. Clark. I would answer that in a much more nationwide 
way. I believe that----
    Mrs. Cubin. Well, I don't want you to answer it in a 
nationwide way. I want you to answer the question I asked.
    Ms. Clark. OK. The question that you asked, do we have 
enough personnel in regions----
    Mrs. Cubin. No, no, no. The question is, is there any room 
for doubt or any room in your mind that maybe you need to 
reexamine the status quo, because can you not understand why 
people like Mr. Herger felt that there is discrimination 
against protecting species in the east and against people who 
live on the land and make their living off the resources in the 
west?
    Ms. Clark. There is absolutely no doubt in my mind that our 
available resources are deployed based on the biological 
diversity.
    Mrs. Cubin. And you don't think you need to look in--you 
don't think you need to review that at all?
    Ms. Clark. No, Mrs. Cubin, I don't. I do believe there is--
there is definitely doubt in my mind whether we have enough 
resources to implement the Endangered Species Act nationwide, 
but given our available resources, I believe they are the 
same----
    Mrs. Cubin. But even though there are 60 or 72 endangered 
species in Sections 3 and 5, there are 45 in Section 6--or 
Region 6--excuse me for saying that--there are twice as many 
people to protect half as many species in Region 6.
    Now, come on. You know as well as I do that private 
property owners that--like you said, nature conservancy, they 
don't just help in the east, they help in the west as well.
    Ms. Clark. I agree.
    Mrs. Cubin. You have the same resources in the west as you 
do in the east to supplement your budgets and to supplement 
your job. I just don't see how you can with a good conscience 
sit there and say that there is no lopsided or that you won't 
even look into the possibility that the ESA is administered 
differently in the west than it is in the east.
    Ms. Clark. We are constantly evaluating implementation of 
the Endangered Species Act to ensure that it's implemented in 
as fair, flexible manner as we can make possible. As I 
suggested before and submitted as part of the record for my 
official testimony, we have an allocation methodology that puts 
our resources where the species are in most need of biological 
support.
    Mrs. Cubin. That rote answer is getting a little tedious.
    As you know and as a lot of my colleagues know--well, I see 
my time is up, Mr. Chairman, and we're going to do a second 
round, so I can do that later. I want to do a state issue, but 
I'll do it later.
    Mr. Pombo. OK.
    If I could have you put up No. 8, it was earlier stated 
that the differences between HCP's Section 10 take permits in 
different parts of the country--on this particular slide, you 
can see that in Region 3 and Region 5, there has been one HCP 
that has been put together, and I believe the one is on the 
piping plover.
    I had a gentleman in my office--it's been several months 
ago now--who had a problem with a development that involved the 
piping plover. I could not find any issuance of a Section 10 
take permit on that particular project, that it had ever 
occurred. Have you issued Section 10 take permits, incidental 
take permits on piping plover?
    Ms. Clark. Mr. Chairman, do you know where this development 
was?
    Mr. Pombo. I believe it was in Long Island.
    Ms. Clark. OK.
    Mr. Pombo. But have you issued any at all in Region 5?
    Mr. Nickerson. No. The piping plover is a small shore bird 
that literally relies on about 100-foot-wide strip of beach 
just above the high tide line. Virtually all the development 
that has done damage to the bird has taken place. We are not 
aware of any additional development. The biggest problem the 
plover faces now is disturbance from vehicles, predation, to 
some degree vandalism. We feel that working with both the state 
agencies, the county agencies, the Federal agencies that run 
beaches, we are able to keep on top of that to the point where 
plover numbers are increasing. We have not issued any sort of 
permit such as you say on Long Island.
    We have done Section 7 consultations. We have done a number 
of those but no incidental take permits pursuant to Section 10 
on Long Island have been issued.
    Mr. Pombo. It's my understanding from reading the press 
reports that you have what you refer to as symbolic fencing to 
fence off the piping plover area, that an effort is made to put 
up signs to tell people to stay out of that particular area. 
But you at no time have found it necessary to issue a Section 
10 incidental take permit?
    Mr. Nickerson. Only for the State of Massachusetts. We have 
not. The other thing we do for plovers is we erect predatory 
ex-closures around the nest because we have a problem with 
foxes and certain Avian predators. Symbolic fencing and 
education done both at the state, Federal and town level seems 
to work well enough. We're able to continually increase the 
numbers of nesting pairs without anything additional, any 
additional measures.
    Mr. Pombo. How much habitat has been set aside as habitat 
for recovery of the piping plover? Have you set aside a 
considerable amount of habitat? Has there been a requirement as 
mitigation on new developments? Have you done any of that?
    Mr. Nickerson. No, sir. We haven't set aside any. There 
is--a fair percentage of the beachfront habitat is already 
federally owned, and what's left really isn't up for sale 
because of a number of----
    Mr. Pombo. Excuse me, what did you----
    Mr. Nickerson. I said, what's left really isn't up for 
sale. Remember, I said this species is----
    Mr. Pombo. Is not up for sale?
    Mr. Nickerson. No. No one sells beaches anymore, and no one 
builds on them. We've learned our lesson about that. So 
development with this species is not a problem, sir. The thing 
that we have to do and do carefully is work with the Corps on 
Long Island as they embark on various beachfront stabilization 
projects to ensure, through Section 7, that those things can go 
forward in such a way that the plover habitat can remain 
protected. But development for this species now is not a 
problem, sir.
    Mr. Pombo. Just to stay with you for a minute, just to ask 
a question on the burying beetle again, is the land where you 
are trying to reintroduce the beetle, is that currently 
inhabited? I forget the name of the island that you cited.
    Mr. Nickerson. There are two places, sir, Penikese Island, 
which is owned by the State of Massachusetts, and it's 
inherited seasonally by a--I need to put this nicely--kind of a 
place for troubled young men for rehabilitation sort of thing. 
Martha's Vineyard, of course you've heard of, that is inhabited 
both by people and now by American burying beetles and the 
reintroductions there so far have been successful.
    Mr. Pombo. Do you have an estimated cost on the 
reintroduction of that species?
    Mr. Nickerson. Based on the ease with which we're able to 
do it, it would be minimal, sir. No, not precisely. It would be 
less than $5,000.
    Mr. Pombo. Total?
    Mr. Nickerson. Yes, sir.
    Mr. Pombo. And how many have you reestablished in that 
area? How many beetles have you reestablished in that area?
    Mr. Nickerson. We do annual censuses. What we try to do 
is--it's a complex process because the burying beetle feeds on 
carrient. So what we have to do is place carrient and let the 
beetle eat cloves, and we try to have 100 to 200 pairs on each 
site, and we have to reassess that every year because depending 
upon prey availability, those numbers do go up and down.
    Mr. Pombo. Could you for the record provide the total cost 
and the numbers of species that you have reintroduced to that 
area? Could you do that for me?
    Mr. Nickerson.Number of burying beetles, you mean?
    Mr. Pombo. Yes.
    Mr. Nickerson. Yes, sir, I could. Sure.
    Mr. Pombo. I would appreciate that.
    In the--I've got to get the name of this report right--the 
fiscal year 1997 allocation of endangered species funding white 
paper, Ms. Clark, you state in there on page 5 that regions 
with the smallest numbers of listed and candidate species may 
have fallen below the level of having a minimum endangered 
species program capability.
    That kind of sends the message to me that a decision is 
being made that you will maintain a skeleton crew to keep the 
endangered species program in place within those regions, but 
you're beginning to rely more and more upon the state and other 
outside agencies for enforcement of the Act. In fact, I believe 
you said that you considered the nature conservancy your 
partners in this venture earlier in response to a question.
    Would that be accurate?
    Ms. Clark. Mr. Chairman, not entirely. That statement that 
you read that suggests that--was an acknowledgement that 
regions with smaller numbers of endangered species or listed 
species have fallen below minimum capability was a correct 
statement, which is why this kind of elaborate allocation 
methodology has been refined, and going on in the white paper 
is--that was the beginning of the rationale for why we have 
capability funding in each region, to maintain at least a base 
level of endangered species' expertise.
    Again, I would be happy to go back and have the discussion 
on whether or not we have enough money nationwide to implement 
the law, but we have capability funding in each region, and 
then we deploy the allocation and the bodies to where the 
biological needs are.
    I would make one note, however. While your charts have the 
numbers of positions, that doesn't necessarily compute with the 
notion that all of those positions are filed. We haven't moved 
bodies around the country to align directly, but there is 
enough money in the program to fill all those positions today 
anyway.
    Mr. Pombo. I realize that those are the maximum positions 
and that's what was provided to the Committee by----
    Ms. Clark. Correct.
    Mr. Pombo. [continuing] your agency.
    Ms. Clark. I was just clarifying.
    Mr. Pombo. In Region 5, for example, you have--I believe 
it's 25 people currently, but you have, you told us, an FTE of 
31 positions.
    Ms. Clark. That's correct. I was just clarifying----
    Mr. Pombo. So you have less in Region 5 than what we have 
portrayed on this.
    Ms. Clark. I was just clarifying the difference between 
FTEs authorized and FTEs filled based on available 
appropriations.
    Mr. Pombo. And maybe we should have also include the 
numbers of people you actually have, because I do know that in 
Region 5, you have less than--less numbers than we actually 
stated that you did.
    Ms. Clark. That's correct.
    Mr. Pombo. So the disparity is actually larger than this 
slide shows.
    Ms. Clark. The disparity may or may not be larger, but 
there is a disparity nationwide.
    Mr. Pombo. Just to followup on the HCPs, it was stated 
earlier that there is a difference between the different 
regions in the numbers of HCPs that have been put together. 
It's obvious from the slide that the majority of the work that 
has been done has been done in the west and in the southwest, 
and next to nothing has been done in Regions 3 and 5 in terms 
of putting together HCPs.
    But you also, I believe, stated that a lot of the activity 
that is occurring in Region 3 and Region 5 is occurring on 
publicly owned lands. For example, the reintroduction in 
Massachusetts, some of the public beaches are being used for 
recovery areas, a lot of the recovery plans that are being put 
together and recovery efforts are being done on public lands.
    Chris, if you could put up I believe it's the final slide 
on the percentage of federally managed land by state.
    In terms of the ability of your Fish and Wildlife managers 
to use public lands as a means of recovery, as a means of 
lessening the impact on privately owned lands, we've had 
testimony in the past that the vast majority of endangered 
species that are found in California are found on private 
property. People have testified to that before the Committee in 
the past.
    It appears from this slide here that if the same kind of 
effort was put into using public lands as a means of recovering 
species, as a means of providing habitat for endangered and 
threatened species, for species that are on the candidate list, 
that it would be much easier to do that in the West than it 
would be in the East, and yet in the East we find an effort, a 
very serious effort being made to use publicly owned lands to 
lessen the impact on people, to lessen the impact on economy, 
and it appears from testimony that we've received here today 
and previously that a real effort is being made in the West to 
go after the privately owned lands. And I think that there is a 
disparity, and it may be a philosophy between the different 
regional managers, it may be a court-ordered philosophy that is 
being imposed upon Region 1. I don't know, but I'd like you to 
comment on that.
    Ms. Clark. Sure, I'd be happy to. First of all, the species 
themselves don't care whose land they're on. I mean, they don't 
recognize land ownership or political boundaries. That's a 
fact.
    Secondly, we were discussing kind of the Federal 
connectivity. There are multiple Federal connectivities. First 
you have the Federal land base. And nationwide we work very 
diligently with our Federal partners to recover species on 
Federal lands. And we have in essence, quote, shifted the 
burden to the Federal land base. But there are other Federal 
activities that are subject to the consultation requirement of 
the Endangered Species Act, and that consultation workload is 
growing all the time. There are other agencies that either 
authorize or undergo activities that aren't tied to the land 
base, and we work with them in their kind of affirmative 
obligations to conserve and recovery endangered species. We 
have, you know, continued----
    Mr. Pombo. If I can interrupt you. Everybody from the West 
is very familiar with Section 7 consultations and that process. 
You know, California is nearly half owned by the Federal 
Government. A lot of activity that occurs occurs on Federal 
lands. We all realize that. But if you contrast that with the 
Section 10 permits, incidental-take permits, the HCP that's 
occurred in California, even though the government owns over 
half of California, the HCP activity, the, you know, the 
conflicts that occur between private landowners and Fish and 
Wildlife Service over the management of those lands, it is by 
far much higher in the West in California than it is in the 
Northeast.
    And from what I'm hearing, it appears that there's a real 
effort to try to avoid those kind of conflicts from the 
regional manager out of the Northeast versus what we live 
through every day in the West. I think there's a very different 
philosophy that's occurring because of that.
    Unfortunately my time has expired.
    Mr. Schaffer, were you prepared to ask a second round?
    Mrs. Chenoweth. Mr. Chairman, point of order.
    Mr. Chairman, point of order.
    Mr. Pombo. Oh, excuse me.
    Mrs. Chenoweth. If you don't mind, I haven't had my first 
round of questioning, and I have a hearing that I have to 
chair.
    Mr. Pombo. I'm sure Mr. Schaffer will yield. I'm sorry. I 
did not realize. I didn't go to you.
    Mrs. Chenoweth.
    Mrs. Chenoweth. Thank you very much.
    Director Clark, in the East I think that it's pretty clear 
to us that the enforcement of the Endangered Species Act has 
really been done on a wink and a nod, and I think that it's 
been made clear to us, not only by the actions but by the 
information that is coming out of this hearing. I don't think 
it's any surprise to you to know that your answers are not 
satisfying the Committee, and it would appear that in large 
part politics and economics rather than science has played the 
central role in determining whether species are listed, whether 
there has been a partnership formed with States. Because in 
Idaho, for instance, the bull trout was listed or considered 
for listing by the State and the habitat was in the process of 
being protected by the State, and that is a State species, and 
yet the Fish and Wildlife Service came in and without regard to 
the fact that the State said no, thank you, we can handle the 
species ourselves, it is a State species, Fish and Wildlife 
Service went ahead and listed it.
    Also in the Pacific Northwest among the number of very high 
profile and emotional species that we're grappling with is the 
Pacific salmon, and the National Marine Fisheries Service as 
well as your agency decided to consider the Pacific salmon by 
stream segment, and in fact we have separate Federal listings. 
For instance the winter chinook salmon is on the Sacramento 
River in California. We have the fall chinook salmon in the 
Snake River. We have the spring and summer chinook salmon in 
the Snake River, the coho salmon in the central California 
coast, the coho salmon in the southern Oregon, northern 
California, and the sockeye salmon in the Snake River. Each of 
these species carries with it its own critical habitats and 
designations, which have wreaked havoc on various communities 
and families in the Northwest.
    Yet in the East there is the Atlantic salmon. And in fact 
in September 1995 the Fish and Wildlife Service and National 
Marine Fisheries Service proposed the Atlantic salmon for 
listing. And on September 29, 1995, in the Federal Register, it 
states the National Marine Fisheries Service and the Fish and 
Wildlife Service have completed a status review of the U.S. 
Atlantic salmon population and identified it as a distinct 
population segment in seven Maine rivers. Atlantic salmon in 
these rivers are likely--likely to become endangered in the 
foreseeable future and therefore are being proposed for 
listing.
    Interestingly for some reason the East was not subjected 
indeed to what the West has been subjected to in the issue of 
the salmon, but just last December I know that National Marine 
Fisheries Service and your Agency withdrew its proposed 
listing, citing the Maine conservation efforts.
    Well, I can tell you that in the West we have bent over 
backward in order to protect the Pacific salmon, and indeed the 
Pacific salmon of course through chemical imprinting was the 
species that was used to populate the Great Lakes. So it is a 
hearty species, but nevertheless its listing has created great 
distress to the West, and yet the Atlantic salmon in spite of 
your proposal in September 1995 was not listed.
    Now that compared to what you see that the Chairman has 
thrown up there on the wall in terms of the overheads and the 
charts, it's eminently clear to us that there really has been 
more pressure put on the West than on the East, and I for one 
do not want to see the Eastern States subjected to what the 
Western States have been subjected to.
    But I do think that as we saw the other night in a report 
from the Charleton Research Company by far and away the 
American population would much prefer that the States and local 
units of government handle endangered species. And looking at 
the number of species that were listed as threatened or 
endangered by the States as compared to those that were listed 
by the Federal Government and the success of the States in 
working in partnerships with private property owners and 
various other organizations, I just can't help but conclude 
that the Federal effort has been a dismal failure, that we 
should look in the future to having the States manage 
populations of threatened or endangered species, and then 
States like Wyoming and Idaho would not have to deal with over 
the objections of their Governor, their State legislature, 
every single one of their county commissioners, the imposition 
of the grizzly bear being transpopulated into Idaho over the 
objections of the State. And that we could see Idaho manage 
species like the bull trout to a full recovery.
    So I hope that in the future, and I didn't have an opening 
statement, Mr. Chairman, and I see my time is up, but I do hope 
that in the future this body will look more closely at seeing 
the States take a firmer role and seeing the Federal Government 
back out of this position.
    Thank you.
    Ms. Clark. If I could respond, Mr. Chairman
    Mrs. Chenoweth, I could not agree with you more about the 
States' role in species conservation, and in fact I stood along 
with Secretary Babbitt and our partners at NOAA, NMFS, and the 
Governor of Maine and the Maine delegation, and celebrated the 
removal--the withdrawal of the Atlantic salmon proposed rule 
based on the State of Maine conservation plan. I've met with 
the States in the Northwest about the bull trout, and we have 
said all along standards are the same. The standards are the 
elimination of the threats. And we believe in the Atlantic 
salmon case the State of Maine stepped forward, addressed the 
threats to those species just as the State of Oregon did with 
the coho such that the Federal Government did not step in.
    Contrary to popular belief, adding species to the list is 
not success for the Federal Government. I think it's very 
symptomatic of the collapse of biological diversity in the 
country. We don't consider adding species to the list something 
that we celebrate. It is clearly a failure in that area. We 
have been working with the States on the bull trout. I would be 
thrilled if we could collaboratively pull off a conservation 
plan that would address all the threats to the bull trout so 
that we were faced with yet again another announcement of 
success come this June when the statutory deadline is up and is 
obliging us to make a decision.
    Fairness East to West, fairness North to South, you know, I 
apologize if we're not communicating it clearly to this 
Committee, but again we have continued to deploy our limited 
resources where the biological needs are and, you know, whether 
we are doing it to the satisfaction of the Committee or to the 
public I guess remains to be seen.
    On the conservation plan front, we've worked really hard in 
this administration to use the flexibilities of the Endangered 
Species Act while ensuring that our policies are fair and 
flexible.
    I firmly believe we use the best available science. I 
firmly stand behind the collaborative nature of our work. 
Conservation plans are drafted by the landowner. We've put a 
tremendous amount of resources into providing technical 
assistance to those landowners and the development of those 
plans to ease the conflict between economic development and 
species conservation. We stand behind that goal, and I think 
we've been very successful.
    Is there a lot of work to be done? Absolutely. Can we get 
better at this? Sure, and we're continuing to try to get 
better, providing incentives, providing the commitment. The 
American public also wants to preserve their natural heritage, 
and we're struggling as members of the American public to 
ensure that our natural heritage is in fact conserved.
    Mrs. Chenoweth. Mr. Chairman, I'd like to respond to that.
    Indeed, the listing of the Atlantic salmon and the Pacific 
salmon was not equal. It was not fair. You employed different 
standards to the Pacific salmon than you did to the Atlantic 
salmon. The National Marine Fisheries Service further defined 
distinct population segments, as is required by Congress, and 
formed another requirement called evolutionarily significant 
units. This happened in a Federal Register listing dated 
February 7, 1996.
    So you see, you didn't nor did National Marine Fisheries 
Service, neither agency employed the same standard or the 
same--for a population of salmon on the east coast than you did 
on the west coast. And that's what we're blanching at. That is 
unfair. The Federal Register speaks for itself. And it's unfair 
to employ different criteria in different regions, and I think 
that's why we're seeing the disparity in the numbers on these 
charts.
    Thank you very much.
    Mr. Pombo. Mr. Schaffer.
    Mr. Schaffer. Thank you, Mr. Chairman.
    Soon the Secretary of the Interior through your Agency will 
be making an important decision concerning whether to list the 
Preble Meadows jumping mouse in Colorado as threatened or 
endangered under the Endangered Species Act. I'm going to 
present you here in a minute a request on behalf of me, Senator 
Wayne Allard, Congressmen Joel Hefley and Scott McInnis that 
you extend the period for considering whether to list or that 
you conclude listing as warranted but precluded. I also present 
a letter from the chairman of the Colorado State--chairman of 
the Senate and House Agriculture and Resources Committees.
    Their letters cite the importance of individuals and local 
and State governments in light of existing and developing 
efforts to promote the Preble Meadows jumping mouse the need to 
solicit additional data and profound impacts that listing would 
have on Colorado's Front Range. We strongly urge the Service to 
extend the period for evaluating its proposed listing for 6 
months or to conclude that listing as warranted but precluded 
under the Act.
    The State of Colorado has taken steps to ensure that we 
fulfill our obligations without the need for Federal 
involvement. Colorado's General Assembly is considering a State 
law to address the issue, and a broad-based coalition of 
landowners, State, and local government officials and 
conservationists has been convened to protect the mouse and its 
habitat in a way that respects property interests and 
accommodates economic and social development along the Front 
Range.
    Recent studies have called into question the classification 
of the mouse and demonstrated that its habitat may be more 
extensive than previously thought. In addition, there are 
serious disagreements as to the effect of water diversions, 
grazing, and agricultural activities, and moreover the largest 
known populations of the Preble Meadows jumping mouse exist on 
Rocky Flats and the Air Force Academy and other Federal lands. 
The action or inaction of those Federal agencies with mouse 
populations onsite will play a decisive role in the fate of the 
species.
    It's vitally important to the people of Colorado that 
additional data is gathered and that the State be given the 
full opportunity to deal with the situation without listing 
under the Act. A 6-month extension is best for the species and 
for the people of Colorado's Front Range, and I strongly urge 
that the extension be granted, that the Service make a 
warranted but precluded finding under the Endangered Species 
Act.
    And the letter is here signed by those that I mentioned, 
and also for the record without----
    Mr. Pombo. Without objection.
    Mr. Schaffer. I submit this for the Committee's 
consideration.
    Thank you, Mr. Chairman.
    [The information referred to may be found at the end of the 
hearing.]
    Mr. Pombo. Mr. Farr.
    Mr. Farr. Thank you, Mr. Chairman.
    I'm just sitting here listening. I am really interested in 
the contrasting views in this Committee. I think it reflects 
the politics of the Nation and now when one side sees evil, the 
other side sees good.
    In California we have over our state library the slogan 
that says, ``Bring me men to match my mountains.'' California 
now reflects that. Thirty two million people, one out of every 
nine Americans, now lives in California. I am really shocked at 
what I am hearing today. I am hearing that the War on the West 
is an argument that there is too much government in California. 
Yet our delegation is constantly writing letters and trying to 
get more government related to highways and more money, more 
hospitals, more harbors, certainly more water money, certainly 
more Corps of Engineers money.
    What we seem to be saying is that if there is a War on the 
West, let FEMA begin the war because we want more Federal 
involvement in the West, particularly when it comes to natural 
disasters.
    But my question is really one more generic to this country. 
It appears to me from the testimony that you have given today, 
that the viewpoint depends on where you stand.
    Often Washington forgets that there are state governments 
out there as well trying to do in some cases what the Federal 
Government is doing and hopefully in most cases bragging that 
they are doing a better job.
    The Staff writeup addresses the way the states have 
responded to the listing of the salmon. It seems to me that 
where there are strong, really strong state plans, and there is 
state money to enforce those plans, there is less Federal help, 
less Federal governance, less Federal bureaucracy, to put it in 
their terms. I have heard that, for example, New Jersey has a 
very strong endangered species state plan. There are probably 
less resources that the Federal Government has to give there.
    Regarding your observation and the plan on the salmon, I 
think the Staff report mentioned that two different scenarios. 
On the one hand, Oregon and Washington embrace, so to speak, 
the listing with the idea that they will get in and work to 
save the species because they have strong resource concerns 
expressed politically in their states. California, on the other 
hand, has taken ``How could you do this to us? You are not 
collaborating'' position. So the question is, is it indeed true 
that where the states are strong you need less Federal 
involvement?
    And then after you have answered that question, I want to 
get specific on El Nino and California. Specifically, can you 
update me, because I am catching a plane out of here to go back 
and report this, on whether ESA requirements can be modified to 
facilitate the disaster response.
    Ms. Clark. In response to the first part of your question, 
Mr. Farr, absolutely where the states step up it lessens the 
need for the Federal involvement.
    We work very closely with the states to leverage not only 
our expertise but our resources to ensure for long-term species 
conservation. I think the Atlantic Salmon is a classic example 
of that. That is being repeated in many parts of the country.
    We are not looking to duplicate state activities. We are 
looking to complement state activities. I wholeheartedly agree 
with you on the importance and the capabilities of the states' 
involvement in long-term species conservation.
    As for El Nino, the Fish and Wildlife Service, and I will 
pass the baton to Mike Spear in a minute, we have been working 
hand in hand with all of the kind of emergency teams in the 
state of California. The emergency provisions of the Endangered 
Species Act remain in effect and I really have been 
collaborating and coordinating not only in the information 
sharing but in the response to the disaster activity in 
California.
    Mr. Farr. Do the emergency provisions allow for 
discretionary waivers or discretionary judgments to be made?
    Ms. Clark. The emergency provisions of the Endangered 
Species Act allow for the safety and the health of the 
populations to be addressed first. Absolutely.
    The health and safety of Californians are top priority. We 
work along-side of the disaster relief agencies to provide 
guidance to try to minimize impacts on species, but certainly 
safety of the human population is top priority.
    Mr. Farr. There are those that are concerned that the 
incident, which started I think February 2nd, is ongoing. We 
are having road problems every day now as the saturated land 
adjusts. Because this is a federally declared disaster, a 
continuing disaster in Federal terms, then throughout the 
period you can use this discretion?
    Ms. Clark. We are continuing the emergency provisions of 
the Endangered Species Act.
    Mr. Farr. Which allows us then to get in to do the repairs 
with out----
    Ms. Clark. Protection of human life and limb is top 
priority and we are just--we are there supporting the disaster 
agencies in ensuring that that occurs.
    Mr. Farr. Well, I hope the record will reflect what we just 
heard, so that we don't hear these kneejerk reactions that the 
Federal Government isn't in a position to be able to waive or 
care about the concerns of disaster cleanup and response. Thank 
you.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Spear, did you wish to respond?
    Mr. Spear. I wanted to add to Mr. Farr that, you know, not 
only are we responding in the emergency and allowing the 
emergency provisions to take place but because this was an 
anticipated event, last Fall there was a lot of effort and 
coordination between state and Federal agencies, very close 
relationships between our people, the Corps of Engineers, a lot 
of clearing of flood channels was done. The Corps of Engineers 
put out regional general permits.
    In other words there was a lot of anticipatory efforts to 
ensure that flood waters would move as smoothly as possible off 
of the lands so, you know, we always look back and we learn 
lessons, and we learned some very valuable lessons in January 
1997 when this faced us head-on very quickly.
    So this year has gone quite smoothly, partly because 
obviously there has been a day of respite between some of the 
storms and it's not quite as bad a flooding as last year, but 
there was a lot of anticipation. The relationships have been 
established between agencies. All the rules are clear now I 
think, and so I would say we have--considering the amount of 
damage that has gone on--there's been minimal, minimal trouble 
so far, and I anticipate that we won't have any throughout the 
rest of the year in terms of how to deal with these flooding 
problems.
    Mr. Farr. What a difference a year makes.
    Mr. Pombo. Before I go back to Mrs. Cubin, just to followup 
on Mr. Farr's question about disaster activities, in order for 
us to do activity in California, there is often a mitigation 
rate of 5 to 1. If you want to fix something on a particular 
levee bank, Fish and Wildlife puts in a 5 to 1 mitigation rate 
where if you are destroying one acre of habitat for an 
endangered species you have to replace that with five acres.
    Is that similar throughout the rest of the country? For 
example, in the Northeast with the Piping Plover habitat, when 
you want to come in and repair erosion on beaches, do you 
require the local city to create five new acres of Piping 
Plover habitat for every acre that they are repairing?
    Mr. Nickerson. No, because the beach is the beach. The 
amount of beach doesn't change. What may happen is the shape of 
the beach or the configuration of the dunes behind the beach 
may to a greater or lesser degree influence the effectiveness 
of the habitat to support Piping Plovers, so there is no need 
for that kind of a requirement.
    Mr. Pombo. Well, let me just follow what you just said. 
Many people in my area would argue that the levee is the levee 
and you repair it the elderberry bushes, for example, will 
regrow where you repaired the levee, where you fixed the levee, 
but the requirement in Region 1 is that you plant five acres of 
elderberry bushes some where else and they require you to 
produce so many branches on each elderberry bush that you grow 
and to maintain those over a period of time, so that we are 
increasing the amount of habitat that is available for the 
beetle.
    Now it would seem that if the exact same standard was 
applied that you would require that city, that whatever agency 
is responsible for that beach to produce more I believe it is 
fine grasses and low-lying sand dunes for the Piping Plover as 
a mitigation rate of repairing that activity.
    Mr. Nickerson. No, it doesn't work that way, because we are 
not really losing habitat. Storm damage affects temporary 
habitat loss or modification and which may or may not render a 
particular beach better or worse for Plovers. Most of the 
repair work involves sand deposition, and we work with the 
Corps----
    Mr. Pombo. I understand what you are saying but, see, our 
guys would argue exactly what you are saying that they are not 
losing any levee bank--the levee bank is still there----
    Mr. Nickerson. It's difficult for me to draw a parallel. I 
am not familiar with the----
    Mr. Pombo. I just think that there it is----
    Mr. Nickerson. [continuing] the physical description----
    Mr. Pombo. [continuing] is being done. Mrs. Cubin.
    Mrs. Cubin. Question for you, Mr. Chairman. Some of those 
levees failed in the past and there was loss to human life.
    How many lives were lost when those levees were not allowed 
to be repaired?
    Mr. Pombo. I believe that there were nine----
    Mrs. Cubin. Nine lives?
    Mr. Pombo. [continuing] nine lives that were lost.
    Mrs. Cubin. Thank you.
    I have been informed by the Wyoming Game and Fish 
Department that they conducted over 7,000 trap nights in 
potential habitat in southeast Wyoming between 1990 and 1993 
without recording any evidence of the----
    Mr. Pombo. Black Footed Ferret?
    Mrs. Cubin. No, a mouse----
    Mr. Pombo. The Prebble Meadow----
    Mrs. Cubin. The Prebble Meadow Jumping Mouse, right, and 
the Medicine Bow National Forest also channeled an extensive 
portion of its annual endangered species fund into surveys for 
the Prebble Meadow Jumping Mouse in 1995, but no present 
populations were located.
    The Game and Fish Department further surveyed their habitat 
units in southeastern Wyoming and again said that no mice were 
found to be present.
    I am told that extensive work in Colorado has confirmed the 
absence of this species from many historical areas and 
rightfully so, because private landowners have refused to allow 
the Fish and Game--or the Fish and Wildlife employees on their 
land to do surveys, so without this information about the 
private land, the listing decision will have to come from 
available data, which in my view, and I might add in the view 
of the Wyoming Game and Fish Department, is at the very best 
inadequate.
    If the Prebble Meadow Jumping Mouse is listed as an 
endangered species, all public lands with suitable habitat will 
have to be surveyed for the species prior to any activity which 
may affect the species or the habitat.
    Although those surveys are not required on private land, in 
order for anyone who is requesting Federal funds or a Federal 
permit for work on their lands, they would likely be required 
to allow those surveys on their lands as well--and then, just 
to finish this up--the Jumping Mouse's habitat seems to be 
riparian areas. The grazers in my state are very, very 
concerned that they are going to lose the use of their private 
land based on inadequate information, incomplete information, 
and yet you intend to move forward and list the mouse.
    Do you really think that your information is adequate, that 
the data that you have is adequate, since you don't have any 
idea what exists on the private lands?
    Ms. Clark. Well, first, Mrs. Cubin, we haven't made a 
decision of whether or not to list the mouse. We have proposed 
it and I certainly hope that the Wyoming data have been 
submitted for the record because that is going to be very 
important data in our consideration.
    We make decisions on whether or not a species should be 
added to the list based on the best available science, and what 
we attempt to do is complete a status review as possible when 
we are evaluating the status of that species.
    I am not in a position to give you an endpoint for this 
decision yet. I do know that Colorado has been working very 
closely with us on the development of conservation measures. I 
don't believe Wyoming has been as assertive or aggressive in 
that arena but certainly the data that had been developed or 
evaluated by the state of Wyoming will be very helpful in our 
decisionmaking.
    Mrs. Cubin. What is puzzling to me is that you mentioned 
earlier the problem with resources and that you need more 
money, you need more resources, and so even considering listing 
another species where you can't have the data because you 
haven't been on the land for the surveys or for counting, it 
doesn't seem, you know, very wise to me.
    The other thing that I want to tie this into--are you aware 
that the population targets for Grizzly Bears have changed two 
or three times?
    Ms. Clark. I am aware that there is ongoing evaluation of 
the kind of recovery plan and we are re-evaluating the 
mortality requirements for female cub ratios.
    Mrs. Cubin. No, the question is that they have changed two 
or three----
    Ms. Clark. I don't know how many times they have changed.
    Mrs. Cubin. But they have changed. You are aware of that?
    Ms. Clark. Yes.
    Mrs. Cubin. They have changed two or three times and the 
Wyoming Game and Fish Department tells me that the reason that 
the population targets for the bear have changed two to three 
times is that when the recovery plan for the bear was first put 
together, they didn't have adequate knowledge about the bear's 
population and habitats, breeding habits, and so on, but now, 
10 years later, they do.
    They have better modeling and I am not at this point in 
time arguing that the number is such that it should be 
considered recovered but my point is I am hopeful that you will 
take into consideration the situation with the Grizzly Bear 
before listing something like the Jumping Mouse where you plain 
don't have the information.
    My time is up. Are you going to have a third round of 
questions?
    Ms. Clark. If I could just respond----
    Mrs. Cubin. I'll just submit my questions in writing, but 
please do respond.
    Ms. Clark. To be very frank, we could always have more 
science and better science. Again, we make the decisions at the 
required timeframe based on the best available science we have.
    With the Prebble Meadow Jumping Mouse, we have conducted 
some survey, you're right. The fact that private landowners 
have not granted the Fish and Wildlife Service access to their 
private lands doesn't give us the right to trespass to survey.
    We absolutely do not do that, so we have surveyed as much 
as we can working with the states and other folks to get the 
best evaluation of the status of the species, so I just wanted 
to make sure and clear that our lack of information on private 
lands is not because we didn't want to survey but we are 
absolutely not going to trespass against private landowners' 
desires.
    Mrs. Cubin. Yes, and I know that that is in fact the case, 
and do appreciate your respect for private property rights, but 
my point is that, you know, there is so much private land there 
that I don't know how you can determine that a species is 
endangered when you can't make a survey of the private land, 
which if people weren't so terrified that they would lose their 
livelihood, that they would lose the right to use the property 
that they rightfully own because a species might be identified 
on their property.
    If it were easier for a rancher for example to--if they had 
a higher level of assurance that they could work with the Fish 
and Wild life Service instead of being at odds all the time, 
then I think--I don't think there are better stewards of the 
land than the people that live on it----
    Ms. Clark. I agree.
    Mrs. Cubin. [continuing] and I think that, you know, if you 
could make inroads anywhere it would be to help with that trust 
level and by not making arbitrary decisions, as Mrs. Chenoweth 
or what appeared to be as Mrs. Chenoweth suggested with the 
salmon in the Atlantic and the Pacific.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Herger.
    Mr. Herger. Thank you, Mr. Chairman.
    Ms. Clark, if I could ask, in what way are economic impacts 
considered in the ESA?
    Ms. Clark. The decision on whether or not to add a species 
to the list is based solely on science and the biological 
status of the species. Certainly, economics factor in when we 
are determining pathways to recovery and trying to determine 
the most efficient way to recover a listed species, and we do 
factor in the economic realities of different recovery regimes.
    Mr. Herger. Are they considered in the designation of the 
critical habitat?
    Ms. Clark. Oh, yes, absolutely. I forgot that. When we 
designate critical habitat, we do consider economics and other 
relevant factors when determining those areas essential to the 
conservation.
    Mr. Herger. So then would you agree that the critical 
habitat designations and its economic analysis, which can 
exclude areas, offers a counterpoint to the listing of a 
species that is a balance between science and economics through 
the exclusion process?
    Ms. Clark. That is an interesting question. I am trying to 
formulate it in my own mind. Whether or not a species deserves 
Endangered Species Act protection is a science question and a 
biological matter. When we are determining the critical 
habitat, economics does factor in, but there isn't necessarily 
a 1 to 1 ratio for those two pieces of the Endangered Species 
Act.
    Mr. Herger. Well, just looking at the law and reading from 
the law----
    Ms. Clark. Right.
    Mr. Herger. [continuing] of 1982, and the report language, 
it says here, ``The balancing between science and economics 
should occur consequent to listing through the exemption 
process.''
    Ms. Clark. Through the exemption--in determining critical 
habitat, that is absolutely correct.
    Mr. Herger. Right.
    Ms. Clark. And I agree with that.
    Mr. Herger. Of all the species listed, could you tell me 
how many critical habitats have been designated with them? And 
I might mention again, this is included in the law, that when 
we designate a species as being endangered, the law says we are 
supposed to list with it critical habitat in order to save that 
species. My question is, at the time that we are listing these 
species, how many times when we are listing these species are 
we, along with it, designating these critical habitats for 
them?
    Ms. Clark. I believe, and we are all sitting here looking 
at numbers, there are about--around 100.
    Mr. Herger. By law, by the way.
    Ms. Clark. Unless it is determined not to be prudent or it 
isn't determinable. We are obliged to designate critical 
habitat unless not prudent or not determinable.
    For many of our species and, obviously, the majority of our 
species, we believe the strict designation of critical habitat 
are those areas essential to the conservation of the species.
    Is it necessary? Working with other Federal agencies, 
working with the states and other landowners, we can achieve 
habitat protection and species conservation without legal 
designation of critical habitat.
    Mr. Herger. Now, is this a choice on the Department on Fish 
and Wildlife to ignore the law which states that you will 
designate a critical habitat?
    Ms. Clark. No, it is absolutely not a choice to ignore----
    Mr. Herger. But why are you not doing that? Because my 
understanding of the law is that, at the time you list, the law 
says you will designate critical habitat. You are indicating 
you are not. The statistics I have indeed show that you are 
not, and have not been. As a matter of fact, the numbers I 
have, November 1997, there were 1,119 species listed in the 
United States, and only 139 or 12 percent have critical habitat 
designation. Could you tell me why this is the case? And as 
such, would you agree that in the vast majority of these cases, 
no economic benefits, therefore, because of your choice to 
ignore the law, no economic benefits were weighed, so that 
there really is no balance between science and economics, as 
was intended by the law?
    Ms. Clark. Let me see if I can try this. We are absolutely 
required to designate critical habitat for species when we list 
them, unless we determine that they are not prudent, or that 
critical habitat is not determinable. It is not prudent if we 
make the administrative case that it is either--provides no 
conservation benefit to the species by designating critical 
habitat, or it would increase the threat of vandalism to the 
species.
    Way over half of our endangered species, our listed species 
today are plants. Many of them are found on private lands. 
Critical habitat has virtually no effect on private land. The 
balancing of economics comes only with the habitat designation. 
It doesn't affect the science of the listing of the species.
    Mr. Herger. I would like to read from the law.
    Ms. Clark. OK.
    Mr. Herger. The law which, obviously, it is very apparent 
that you have chose to ignore, and almost 90 percent of the 
time. As a matter of fact, precisely 88 percent of the time, 
your department has chosen to ignore. Let me read from the law.
    By not more than one additional year should you be coming 
up with a critical habitat and I just wonder, could it be the 
reason why you have chosen to ignore this law, not implement 
it, except for only 12 percent of the time, is because you 
purposely do not want to weigh, as it says here, an economic 
balance between science and economics? Could that be the reason 
why you are not implementing this part of the stated law?
    Ms. Clark. No, it is not, Congressman.
    Mr. Herger. Can you see where that is the end result? And, 
again, I am talking from experience. Nine national forests are 
in the area I represent, parts of or all of nine national 
forests. The unemployment rate is in excess of 10 percent in 
virtually each of my counties, has been as high as 20 percent 
or more in some of my counties. Thirty-six mills shut down. 
Forests that are two and three times denser than they have been 
historically. More Northern Spotted Owl found there in just 
Northern California than all the other three states put 
together. Again, we go on and on.
    I just wonder is there a political agenda by the Clinton/
Gore Administration to ignore this law?
    Ms. Clark. No, there is not any political agenda. As I said 
before, species are added to the list based on biology. Whether 
or not we designate critical habitat, which is just the habitat 
overlay, it has--I mean the species and all the protections of 
the Endangered Species Act are already afforded to the species, 
if and when we designate critical habitat, we can balance out 
geographic areas only from critical habitat designation, not 
for the protection of the species by itself, by weighing in 
economic and other relevant factors.
    Mr. Herger. I believe the results and the facts speak for 
themselves, Mrs. Clark, despite what seems to be not a very 
adequate explanation of the law and how it is not being obeyed. 
But I might also mention, I might ask a question, just in 
reference to what you are saying, in balance, why is it that we 
have so many owls in Northern California? Some have reasoned 
that as you move south out of Washington and Oregon, you get 
into more climates that are easier to live in and, obviously, 
we have far more owls than we do up in Northern Washington, but 
yet it is still listed in my area even though there's owls 
virtually every place. Why has this balance not been, then, as 
you have just spoken of, why is it not being practiced in 
Northern California with respect to the Northern Spotted Owl?
    Ms. Clark. Whether or not a species should be listed under 
the Endangered Species Act is based on a consideration of the 
status throughout its range, and we are evaluating the status 
of the spotted owl throughout the range of Washington, Oregon 
and California, and believe it is threatened at this time.
    The balance that you are referring to is tied to whether--
--
    Mr. Herger. You referred to it. You are the one who 
mentioned balance in your statement.
    Ms. Clark. OK. The balance that I referred to is tied to 
whether or not we designate by statute critical habitat for the 
Northern Spotted Owl, not whether we protect the species itself 
throughout its range.
    Mr. Herger. My time is up. I have no idea what you have 
been saying, but, in any event, I wish you would read the law.
    Ms. Clark. I think we have been competing with each other.
    Mr. Herger. I wish you would look at the law, Ms. Clark, 
and Mr. Spear, who is your designee for our area. You are not 
doing that at this time, and many, many lives are suffering, as 
well as the environment, directly because of that. Thank you.
    Mr. Pombo. Mr. Herger, if I may--Ms. Clark, if you could 
try to answer that question in writing for the record, it would 
be appreciated by the Committee, and I am sure by Mr. Herger as 
well.
    Ms. Clark. I would be happy to. Thank you.
    Mr. Pombo. I think that there was a little bit of confusion 
as to exactly what the question was in terms of what the answer 
was, so if you could answer that for the record, I would 
appreciate it.
    I just had one final question, and then I will dismiss this 
panel. Mr. Spear, with the recent proposal that lists the 
Chinook salmon in the Pacific States, everybody is kind of 
under the impression that there will be a need for increased 
water flows from that area. With everything we have gone 
through with CalFed over the past several years, and I know you 
have participated in that process, do you feel that this 
endangers that process, the increased water and will it force 
us to go back to the drawing board in terms of the impact on 
urban and agricultural interests?
    Mr. Spear. Mr. Chairman, I will answer this carefully, 
because this is really a question for National Marine Fisheries 
Service.
    Mr. Pombo. I am going to ask them, too, but I want to----
    Mr. Spear. OK. But I have been close to it, so I will 
provide some answer. I believe that the process as a whole, the 
contributions by ourselves, National Marine Fisheries Services, 
State Fish and Game, have taken into account a great extent the 
status of these fish in the development of alternatives. As you 
know, we are getting ready to come out with the draft 
documents. So, I would say as a general matter, that this is 
something that has been generally brought into the process, and 
I don't think we will see a situation where everything has to 
stop and start over again.
    Mr. Pombo. This is where we run into a problem. We think a 
deal is a deal. Urban interests give up, environmental 
interests give up, agricultural interests give up, for the sake 
of coming up with a water policy that we can deal with in the 
Delta, and then you have a new listing that comes in and most 
of the people that are looking at this process are now saying, 
wait a minute, how is a deal a deal if all of sudden we are 
going to have to increase here, or we are going to have to 
change that.
    I think that, as you look at this, there is going to be 
continued concern on the part of the stakeholders who thought 
they had signed off on something, going into this process. I am 
already hearing from my constituents on this one.
    Mr. Spear. I think I can take it in a more general note now 
because you have gotten into the realm of what we call in the 
CalFed, the assurances package. Unlike in 1994, where the 
accord was signed and everybody had a pretty clear 
understanding in their mind about what they thought it meant, 
there was obviously some things that were--that didn't fit 
exactly.
    The one that we are talking about now is very rigorous 
assurance packages which will include the species, even whether 
or not there had been a listing that would have included 
consideration for the Spring Chinook, Fall Chinook and all of 
those fish of the Sacramento system----
    Mr. Pombo. So you are saying that that was already taken 
into account?
    Mr. Spear. In other words, the insurance package had been 
intended to deal with those species regardless of a listing. 
Now, we all know that we are not there yet. We don't have a 
deal. We don't have a package. But the plan was to specifically 
include them, and a lot of other unlisted species, basically, 
every species that we can think might be affected, were going 
to be rigorously dealt with in what is the biggest HCP that has 
been or ever will be developed, more likely, if we ever get 
through CalFed. So that we would provide the----
    Mr. Pombo. If it will ever happen.
    Mr. Spear. [continuing] provide the certainty for the 
future. But that--that is what everybody wanted. Whether it was 
the environmental side or the water side, they want to know 
what are we getting with this, so that we write it down.
    Mr. Pombo. Well, thank you. I want to thank the panel for 
your testimony, Ms. Clark. I appreciate you coming in. I know 
it has been a long afternoon. I greatly appreciate it. All of 
the people from the different regions, thank you as well.
    I will tell you that I know a number of members had 
additional questions, and they will submit those to you in 
writing. If you could please answer those in a timely manner 
and have those back to the Committee as quickly as possible, it 
would be of great benefit to all of us to complete that 
hearing.
    So thank you very much.
    Ms. Clark. Thank you, Mr. Chairman.
    Mr. Pombo. I would like to call up the second panel.
    Well, to start off with this panel, I apologize to you. I 
realize that it's been a long afternoon and you've been waiting 
patiently for us to get to you. You're probably wishing that we 
wouldn't.
    [Laughter.]
    Mr. Pombo. But I appreciate you hanging around. Mr. 
Schmitten, if you want to give your testimony, we're prepared.

STATEMENT OF HON. ROLLAND SCHMITTEN, DIRECTOR, NATIONAL MARINE 
FISHERIES SERVICE, U.S. DEPARTMENT OF COMMERCE, WASHINGTON, DC, 
 ACCOMPANIED BY WILLIAM W. STELLE, JR., REGIONAL ADMINISTRATOR 
  FOR NORTHWEST REGION, SEATTLE, WASHINGTON; WILLIAM HOGARTH, 
   REGIONAL ADMINISTRATOR FOR SOUTHWEST REGION, LONG BEACH, 
CALIFORNIA; CHRIS MANTZARIS, DIVISION CHIEF, NORTHEAST REGION, 
  GLOUCESTER, MASSACHUSETTS; AND ANDREW J. KEMMERER, REGIONAL 
  ADMINISTRATOR FOR SOUTHEAST REGION, ST. PETERSBURG, FLORIDA

    Mr. Schmttten. Well, thank you very much, Mr. Chairman and 
members of the Committee. I am very pleased to be here on 
behalf of my agency, the National Marine Fisheries Service. We 
are a part of NOAA; that's the National Oceanic and Atmospheric 
Administration. With me today are regional administrators from 
the Northwest, Mr. Will Stelle; from the Southwest, Dr. Bill 
Hogarth; from the Southeast, Dr. Andy Kemmerer; and from the 
Northeast, Mr. Chris Mantzaris.
    I'd like to begin by saying that the agency is a full 
partner with the U.S. Fish and Wildlife Service in 
administrating the Endangered Species Act. And we work with 
other agencies. In fact, we do seek those partnerships and to 
decentralize as mentioned by Congressman Gilcrest with our 
states, our industries, tribes out West and private landowners.
    Our responsibility is different under the ESA, but it is to 
recover threatened and endangered marine species that live in 
the oceans and coastal waters, and it's that distinction that 
differentiates us from the U.S. Fish and Wildlife Service. Mr. 
Chairman, we're responsible for 38 listed species. We also have 
19 species that have been proposed for listing.
    Some of the more familiar species are all the great whales, 
with the exception of the gray whale which we have delisted; 
Pacific and Atlantic salmon; sea turtles; Hawaiian monk seals; 
and stellar sea lions. I truly welcome this opportunity to 
discuss with you today how we implement the Endangered Species 
Act in all five regions.
    Mr. Chairman, I think that several on the Committee know my 
background. Prior to coming in to my current position, I spent 
4 years as a state director of fisheries in the West, followed 
by 10 years as a regional director for the National Marine 
Fisheries Service in the Northwest. And it was actually during 
that period that my agency listed the first salmon species.
    Then, we utilized the standard approach to ESA listing that 
the Federal Government had employed for many years. And, in 
general, that approach was to view the Act as solely a Federal 
responsibility and to unilaterally conduct the biological 
reviews, to make the proposals in the final listing and then to 
develop and promulgate the recovery plans.
    One could read that approach into the Act. It flew in the 
face of the years of working with and seeking partnerships with 
the states and tribes on nearly all resource issues. Further, 
in the case of West Coast salmon, it was the states and the 
tribes that had collected the necessary data from which a 
decision could be made. And they had competent scientists that 
could and should be used as part of the process.
    Since coming to the other Washington, I have supported 
identifying and using the flexibility that exists in the Act to 
allow partnering in making critical decisions in the ESA 
process. Frankly, if we ever expect to get support for our 
listing decisions, we must include states and tribes in our 
process. During the past 4 years, I'm pleased with the progress 
that we have made.
    We set out to make the ESA more accessible, more flexible, 
and I think we've done so. On February 23rd, our two agencies 
published the final ``No Surprises'' policy and regulations. 
And it's this rule that's the cornerstone of reforms that have 
been made to encourage the landowner to participate in 
protection and recovery of species.
    In effect, it is the answer that industry wants for 
consistency in making business decisions and how much 
protection is really necessary. Another goal of this 
Administration and the agency is to encourage states to 
participate in the recovery of species. And we have two 
landmark state conservation plans that are partially 
responsible for the agency not going forward with a final 
listing determination.
    Two state conservation plans--one in Maine, one in Oregon--
demonstrate our commitment to work with states and that we want 
them to be a partner in the ESA decisionmaking process. Also, 
through habitat conservation plans, HCPs, the two agencies have 
expanded species protection to over five million acres of land.
    The agency is currently working on 50 large-scale HCPs from 
California to the Pacific Northwest. I think it really 
illustrates the collaboration of our agencies. In fact, of all 
the salmon listings to date and all the HCPs, the Fish and 
Wildlife Service has been jointly a part of the process through 
its entirety.
    Just last week, you're probably aware that the two 
agencies, the State of California and the Pacific Lumber 
Company reached an agreement on the principles related to the 
company's submission of an HCP. This is for 207,000 acres. Mr. 
Chairman, I see I have a red light, so let me just summarize 
for you and attempt to handle the Committee's questions.
    In summary, we are working in partnership with the Fish and 
Wildlife Service and are sure that we are consistent in our 
treatment of activities that may affect listed species. We have 
provided guidance to our regions to ensure that they are fair 
and provide consistent advice to the Federal, private, state 
and tribal landowners.
    And just finally, I would like to emphasize that this 
Administration has truly taken some unprecedented actions in 
the past 5 years to use and show the flexibility that is 
inherent in the ESA and to make it work for everyone--Federal 
agencies, states, industries, tribes, et cetera. It's only 
through partnerships with industries and others that the 
species have the best chance for survival. Mr. Chairman, I 
thank you very much.
    [The prepared statement of Mr. Schmitten may be found at 
the end of the hearing.]
    Mr. Pombo. Thank you.
    Just to pick up on the last point you made, in terms of the 
flexibility in the Act--and I've always pushed to give the 
agencies greater flexibility. And I'm beginning to wonder if 
that's really the right thing to do. You recently withdrew a 
listing proposal for the Atlantic salmon and turned over the 
conservation efforts to the State of Maine. Which type of 
activities has the State of Maine agreed to undertake as part 
of that agreement?
    Mr. Schmitten. Mr. Chairman, that's a good question because 
many are asking it. Let me just take you through, first of all, 
the similarities because people say what are the similarities, 
what are the consistencies between what your agency has done 
and Fish and Wildlife with Maine and Oregon showing the 
components of the plan and also compare the two state 
conservation plans.
    First of all, the similarity, the key point, is that the 
plans that the states submit must address the threats to the 
species. And the plan must provide how those threats will be 
removed before the agency can accept the plan. The factors to 
be considered are the same factors in 4 (a) of the Act, and 
those are the factors that are for listing criteria.
    Also, in any plan we look for the sufficiency funding, not 
necessarily how much anyone gives, but if it is sufficient to 
get the job done, as well as the ability to promulgate the 
regulatory requirements. We look for the ability to monitor 
what the states have put forward, and we never lose sight of 
the fact that the agencies retain the ability to go back and 
list if the plans aren't working.
    Now, let's look at the State of Maine and the threats. 
First of all, on forestry there were no major threats. On 
agriculture, there were no major threats. For agriculture, at 
most, there were some cranberry bogs that had some water 
issues, and those have been corrected. For fish, which is a big 
issue for the State of Oregon and the coho listing, commercial 
fishing has been banned for over a decade.
    Recreational fishing is catch and release. On hydro, the 
State of Maine has no hydro facilities in the seven rivers. So 
what are the threats? The key threat for the State of Maine was 
the agriculture industry, the potential for strain as fish 
leave or break out of the facilities. In addition, hatcheries 
are not an issue in the State of Maine.
    If you were to look at the flip side for the State of 
Oregon, the critical issue was habitat. In fact, in our initial 
review of the State's plan, we actually went back for a 
specific MOA to bolster or give us assurances for the needs of 
habitat before we could accept that plan. Harvest was a major 
component that the State put forward that we could accept as 
that reduces the overall harvest impact.
    On hatcheries, there was a realization that hatcheries do 
have an impact on wild stocks and they took some dramatic steps 
to ease those. There is some hydropower, but not a lot of 
hydropower. The key difference is that nearly half of the State 
of Oregon is affected in the habitat, and I think that's where 
you see the key differences between the two plans.
    Mr. Pombo. So you determined that forestry, grazing, 
agriculture were not factors in Maine? You determined that 
commercial fishing was not a factor? You determined that the 
dams they had were not a factor and that they were, in your 
example of Oregon, they were in that case? And you stated that 
the agency retained the ability to list at a future date in 
Maine, but did list in Oregon?
    Mr. Schmitten. Mr. Chairman, may I correct that?
    Mr. Pombo. Yeah.
    Mr. Schmitten. Mr. Chairman, no, we accepted both states' 
conservation plans. I was illustrating the differences. I think 
if you were to sum it up, the standards are the same, the 
threats were different.
    Mr. Pombo. The standards were the same and I just--I don't 
know. And if they were, I'll followup on that but in terms of 
this overall plan, you looked at what Maine was doing and you 
said that it was--that that would fit, that that would do what 
you wanted to recover the species in Maine, and made that 
decision.
    You just heard Mr. Spear testify that the CALFED process 
that we're going through is taking into account the impact on 
all of the listed species, as well as those that--all of them 
that they could determine--any candidate species and anything, 
that that process was taken into account, all of those.
    We are spending hundreds of millions of dollars in this 
process. The economic impact on California, the CALFED process 
is going to be substantial. You have all of the major 
stakeholders that are involved with that particular process. 
Now, what are we missing in terms of telling us, OK, take care 
of your species. We will retain the right to list in the 
future, but, you know I don't understand what the difference 
is. What are we not doing in California that they did in Maine?
    Mr. Schmitten. California has not submitted a specific 
state conservation plan, for instance, for the winter-run 
Sacramento chinook. The CALFED plan is an excellent plan. 
It's----
    Mr. Pombo. If I could interrupt you just for a second, we 
have not submitted a specific plan on that, but the entire 
CALFED process that involves the Delta and its--the tributaries 
leading into the Delta, as has already been testified to, that 
they have taken into account all of that, and it's my 
understanding that March 16th, their proposal is going to be 
ready by the end of this year.
    They should have a proposal enacted that everybody's signed 
off on. I believe they are going as fast as they possibly can 
in putting this process together, and yet, that does not seem 
to carry the same weight with your agency as what they did in--
Maine did.
    Mr. Schmitten. Mr. Chairman, it's difficult to compare the 
two. They are both good plans. First, let me say the pieces 
that are currently missing in the CALFED plan. First, it does 
not address coho. It was built around the Delta Smelt, as well 
as the winter run Sacramento Chinook. The issue of water, I 
think, is resolved for all intent and purposes. You asked that 
question to Director Clark.
    We don't look at additional water needs. If we do, we have 
indicated it would come from voluntary sources. What we will be 
looking to add to the CALFED plan will be aspects of both 
hatchery and harvest that are currently not there. We're 
working very closely with the State, and I give the State a lot 
of credit. This is a good plan and I see no reason that this 
plan won't be adopted.
    Mr. Pombo. And just so I understand what you just said, any 
additional water will come from voluntary sources?
    Mr. Schmitten. That's correct.
    Mr. Pombo. You hear that?
    Mr. Schmitten. And I additionally said where the shortfalls 
are in the plan that we need to work with the states right now, 
and we've indicated this with the hatchery and harvest.
    Mr. Pombo. I'm going to relinquish for the moment, but I 
will get back.
    Mr. Miller. What's with the implication of doing hatcheries 
and harvest with the fishermen?
    Mr. Schmitten. First of all, the key implication is that 
they need to be at the table with us, and that's important and 
that may be different than from the past, Mr. Miller. Second, 
there's a big potential on harvest. I'm now going to shift to 
our proposal to list fall chinook, which I suspect you're 
probably talking about. About 60 to 70 percent of the harvest 
currently is on fall chinook.
    I think what we need to do is look for ways of mitigating 
that, for instance, marking hatchery fish so you can separate 
and identify hatchery fish from wild fish.
    Mr. Miller. OK. Let me ask you a question with respect to 
Headwaters. My quick look at Headwaters suggests that somehow 
this--the suggestions for, at least for buffers; I'm not quite 
clear on slope management yet--but the suggestions on buffers 
are somewhat less than what we saw in the Northwest proposals 
on Option 9. Why is that?
    Mr. Schmitten. Mr. Miller, some have asked that the FEMAT 
standards were not applied as they were in the Northwest. The 
answer there is that FEMAT was not intended to be applied to 
private lands. FEMAT was intended to be applied in the Federal 
lands initially coming from the spotted owl, but ultimately 
going to the Forest Plan.
    FEMAT is intended to put the burden, the majority of 
recovery on Federal lands and not on private lands. So it's a 
case of apples and oranges. Those standards were never meant to 
be put on to PALCO.
    Mr. Miller. I guess I'm not following you. If the rivers 
and the streams run through private lands, how do you protect 
that particular stream, those particular buffer zones? Isn't 
the mission to recover the species----
    Mr. Schmitten. Oh, absolutely.
    Mr. Miller. [continuing] and that habitat?
    Mr. Schmitten. I was just going to now go into how we did 
approach this, and we approached it scientifically. We 
established the necessary and functioning aquatic habitats that 
we felt were necessary for the long-term survival of these 
species.
    We think that we've got an excellent plan, especially over 
the long-term, of a suite of many species, not just anadromous 
species, but for the many species in the agreement. I'm going 
to ask Dr. Hogarth if he has additions or comments on that.
    Mr. Hogarth. Just briefly, I think the one thing you have 
to look at is the degree of flexibility. Also we looked at the 
risks involved. There is a risk assessment that goes with it. 
In the Federal lands, we have a higher degree of certainty than 
we would probably have on private ownership. And that's because 
of the idea of recovery or properly functioning habitat.
    Mr. Miller. Wait a minute. Just back up. Do that all again 
for me.
    Mr. Hogarth. What we're looking for in any of these habitat 
conservation plans is properly functioning aquatic habitat.
    Mr. Miller. OK.
    Mr. Hogarth. And that means we want to make sure that the 
conditions (prescriptions) that we put on will provide for 
sediment control, temperature, and to a large degree, the 
protection that the salmon need, the conditions that will 
provide for their long-term survival.
    You look at it, there is a difference in the risk factor. 
They probably have a higher degree of certainty on Federal land 
or public land, than we would on private land. We try to 
accomplish--we feel like we've accomplished the same thing and 
maybe with a little difference in risk. We look at the site as 
a whole.
    In the Pacific Lumber Company, we do have in Class 1s, for 
example, a 170-foot buffer. We feel like that will provide the 
canopy cover we need and will provide the large woody debris 
that we need. We have a prescription for the number of trees 
they have to leave per acre, greater than 40-inch diameter. We 
have prescriptions for Class 2; we have prescriptions for Class 
3.
    We've got road work. You take it as a package, and we look 
at it site-specific is what we've had to do. And we feel very 
comfortable that the salmon will have the protection they need 
on the Palco property.
    Mr. Miller. The FEMAT standards you suggest are for Federal 
lands. What about the MANTAC standards? Weren't those----
    Mr. Hogarth. The MANTECH is also science. To be honest with 
you, we looked all the science. We looked at MANTECH. The 
science was ultimate, including the FEMAT science, but still 
went to the site and we tried to develop site-specific. One 
thing we are doing with Pacific Lumber Company over the next 
three and a half years, is that we will have a geophysicist 
onsite doing water sewer analysis.
    And we will look at those mass waste analysis to determine 
what should the prescriptions be.
    Mr. Miller. Is MANTAC good science?
    Mr. Hogarth. I think it's good science. I think all of it's 
good science. We looked into all science.
    Mr. Miller. All science is good science?
    Mr. Hogarth. No, we feel like----
    Mr. Miller. I'm asking----
    Mr. Hogarth. Not all science is good science.
    Mr. Miller. [continuing] MANTAC's relied upon; right?
    Fairly heavily?
    Mr. Hogarth. It's hard to say we've relied on any one--we 
didn't rely on any one body of science.
    Mr. Miller. So we have lands where you claim there's a 
higher degree of risk, in terms of management as opposed to 
Federal lands, and yet we have lesser standards on those lands?
    Mr. Hogarth. No. We said that there's a risk and that we 
accepted as probably higher risks on private lands than the 
risk that we accept on Federal lands.
    Mr. Miller. Why are we accepting that? Isn't the test 
whether or not the fisheries and riparian areas are taken care 
of or not?
    Mr. Hogarth. Congressman----
    Mr. Miller. Why are we----
    Mr. Hogarth. I think if we--you know, we have developed the 
prescriptions on this site for what we think provides for 
properly functioning aquatic habitat. Now, we do not feel it 
takes a 300-foot buffer, for example, with a 50-foot no-cut. We 
have an 170-foot buffer with a 30-foot no-cut and with 
prescriptions of entry, and this type of thing, within the--up 
to 100 foot.
    And we are willing to look at, you know, each one of these 
HCPs and probably will have a different prescription based on 
conditions onsite and what we know about streams, the 
conditions onsite and the length of time for the permit, and 
this type of thing.
    Mr. Miller. Well, I appreciate your answer, but I'm a 
little troubled by it. And I realize this is in the preliminary 
stage, but you know, it would be a tragedy if we put out this 
kind of public money to preserve the head water groves and in 
the process destroyed the fisheries.
    And, you know, this is some fairly difficult terrain. 
That's why some people suggest we shouldn't be, you know, we 
shouldn't be buying it. But the fact is that it has what others 
believe is obviously very valuable assets. And, you know, we 
don't get many opportunities to get in there at this stage of 
the game.
    If we do, we ought to be doing it right, and I don't think 
the test is whether it's public or private land. We're 
negotiating a deal here where we're paying for everything we're 
taking. And the question is whether the results of that action 
and the question is, that's got to be measured against the 
protection of this fisheries.
    Mr. Hogarth. If I may, Mr. Chairman----
    Mr. Miller. And I don't know why when, you know, when 
you're negotiating this deal and we're putting up the money and 
we're dealing with it in this fashion why I'm accepting a 
higher degree of risk with respect to this than I would be 
willing to accept on the public's lands.
    Mr. Hogarth. It's my opinion based on the team of 
biologists that we had working--and we had a local group 
consisting the National Marine Fisheries Service, Fish and 
Wildlife Service, state of California, and EPA. We had our 
prescriptions reviewed by outside scientists from the Northwest 
region and the Southwest region at the Alaska Center. We had 
our prescriptions reviewed.
    The bottom line is if we had felt we needed a 300-foot 
buffer on Class 1s, we would have recommended a 300-foot 
buffer. The team felt like based on the conditions on PALCO's 
site and the length for the permit that the prescriptions we 
put forward will protect salmon over the life of that permit.
    And we did not look at any one group--say that FEMAT is a 
standard you've got to accept; MANTECH has a study you've got 
to accept. We looked at what was necessary and what we felt 
like would do the job.
    Mr. Miller. But this is the negotiations, and I have great 
respect for you and I have great respect for the people sitting 
on the side of the table. But I think the bottom line is 
whether or not these are the best standards for this situation 
or are these the best standards that we can get in these 
negotiations. And there's a world of difference between those 
two.
    Because if the standards aren't sufficient, somebody ought 
to say so, and then we can deal with the negotiations on that 
basis. My concern is that we may be accepting here something 
that is less than necessary to provide the level of protection 
that is needed because this is the best we can do in this 
negotiation.
    And I want to say again, it'll be a tragedy if people 
believe that somehow the saving the headwaters or putting out 
all of this money and in the process we look back here a decade 
and we've blown the opportunity on the fisheries. This is a 
package. This is a package.
    And, you know, I appreciate the context it's a grove, the 
ancient forest, and all the rest of that, but part of that 
package is the impasse of this Federal action purchasing this 
lands and allowing these cuts to take place, all of which are 
rather dubious outside of these negotiations that, in fact, we 
end up with the right package in terms of protections of these 
fisheries.
    And I'm a little concerned when I see, you know, these 
buffers and no-cuts being adopted that are unlike what we've 
seen on life forced elsewhere. I'll give you the benefit of the 
doubt for a minute, but I just want to tell you looking at the 
preliminary information, I'm a little worried that what we've 
got here is a bit of a political compromise in terms of this 
long-term protection.
    And I appreciate these are tough negotiations. There's a 
lot of pressure on people here. Everybody wants this done, and 
they want it done right away. And there's--people have got 
reputations riding on this politically, but it ought to be done 
right.
    And I just send up a bit of a warning here--concern that we 
not get into a position where we haven't done it that way and 
to come back and revisit this--this is a major--as all of my 
colleagues in Congress will tell you, this is a major Federal 
action with respect to the allocation of resources. You know, 
this delegation is paying dearly for this decision, and it 
ought to come out right.
    Mr. Pombo. Mr. Herger.
    Mr. Herger. Thank you, Mr. Chairman. Mr. Hogarth, your 
agency recently announced a propose endangered listing for the 
spring run Chinook salmon in California Central and Sacramento 
Valley. This listing has the potential of closing down one of 
the world's most rich agricultural regions and to derail 
important water use agreements throughout California. What is 
most confusing about this proposed listing, however, has to do 
with its timing.
    Not only is the EIS for California's CALFED Program due 
next week, but California's experiencing its most abundant 
salmon returns ever counted. My question--my first question is, 
how are you going to integrate the EIS in the listing process?
    Mr. Schmitten. Mr. Chairman, I'll start and then I'll pass 
over the mike to Dr. Hogarth. First, on the timing issue, the 
timing is set by law for the proposals to list. We've been a 
party to CALFED. We had shared our biological review team 
findings with the State so there are no surprises here. The 
State was fully aware of the directions that we were going.
    The issue on numbers of fish, the biological review team is 
established to simply look at the science and does include 
other Federal agencies' scientists on that team. They do 
acknowledge the large number of fish, but when they did a very 
careful and close examination, it showed that there was a 
strong reliance of hatchery fish and that it certainly has been 
shown elsewhere that a major dependence on hatchery fish to 
wild fish puts the wild fish at risk.
    Further, it was shown that in the ocean harvest, the takes 
are around 70 percent which, again, exacerbates if you have a 
weak run of natural fish, and you have a strong run of hatchery 
fish and you're harvesting. Though, at 70 percent on both you 
can see what that does to the lesser run.
    These are lessons that have been learned out of the 
Northwest, so where are we? We have a year to look at these 
issues. There are solutions that we can examine. One would be a 
possible mass marking of all hatchery fish which would resolve 
the issue, I think, of harvest. We could look at ways of 
preventing strain. By doing that, we can keep our genetic 
integrity, which we want to do to bolster the weak runs until 
we can get a balance between the two.
    And I think that we certainly will continue to be a part of 
the CALFED process, which is separate, and we've identified 
that it is not a water issue in that regime; it's an issue of 
hatchery and harvest.
    Mr. Hogarth. Just quickly to respond to this, you know, the 
spring run is really by all standards, as you mentioned, in 
danger. And I think everyone that looks at it from a state's 
perspective will agree with that. The fall run is the one that 
supports the fishery. And it's the one that we're concerned 
with the fact that the San Joaquin Valley is pretty much land 
of less than 4,000 fish, while the Sacramento River has the 
larger runs of 200,000 to 300,000 fish.
    They said they are natural, but we don't know if they are 
natural. We just know they don't go back to the hatchery. So 
over the next year, we'll be working with the state of 
California. We've already initiated looking at the hatchery 
practices, the marking of the fish and try to get a better 
hold.
    And in the spring run that you mentioned in Central Valley, 
we know it's the fact that they've lost a great deal of their 
habitat. The upper reaches of the habitat for spring run had 
been taken away by the construction of dams. And there's one 
dam that seems to be obsolete that we'll be looking at so we 
get it removed to help restore some of the habitat.
    So there are two issues--spring run and fall run--and fall 
run is more connected with the hatchery harvest than San 
Joaquin versus Sacramento. There are just questions that we 
have to resolve over the next year. And we realize that the 
CalFed process has put over $80 million in restoration budgets 
and working. And we're very much working through the CalFed 
project, and we'll continue to work with it.
    Mr. Herger. Let me just state my--again, my major concern 
is one of--is what we're doing justifying the need? And I want 
to get back again referring to we're having the largest run 
perhaps recorded in recent times. I would also ask you could 
you explain what definitive science that we have that justifies 
the listing and what the difference is between what comes out 
of the hatchery and what is the wild run.
    Mr. Schmitten. Let me indicate that----
    Mr. Herger. And keep in mind the backdrop here. We're 
looking at a--we're looking at people's lives; we're looking at 
people that are some of families that are five- and six-
generation ranching, farming families here that are being 
affected. We have maybe more fish than we've seen in recent 
times. I could go on and say a quote Mr. Hogarth where he 
mentioned that, ``Whether these populations recover due to 
listing action or implementation of a viable state restoration 
plan is no concern to the fish,'' end of quote.
    And I can list a half a dozen or more different projects 
that the state of California has done--Shasta Dam water 
temperature control, control of pollution from Iron Mountain; 
Bureau of Reclamation installed a temperature control at 
Lewiston and Whiskey Town Reservoir. It goes on and on on what 
we're doing. We have more fish than we've seen before.
    We have farmers than we're probably going to bankrupt here, 
and I don't know if we can show a difference between what is 
coming out of hatcheries and what is--what you would call wild, 
and yet, they are being listed. The people that I represent can 
see no rhyme or reason to what you're doing.
    Mr. Schmitten. Well, Congressman, I think there are three 
questions here. First the background. I am aware of the 
background. I grew up in the related background. I know the 
small communities; I know the dependencies. So I understand 
that. This is not an issue of the environment or the economy.
    It's an issue where we need both. It's simply the Act has 
indicated that for wild species--and that's what we're looking 
at here--it requires that we do----
    Mr. Herger. Can you tell the difference? Do you know the 
difference?
    Mr. Schmitten. Absolutely.
    Mr. Herger. We can tell the difference? In what way? How do 
you tell the difference?
    Mr. Schmitten. It's genetics through DNA. It's the same 
type of thing they do for human fingerprinting today. They use 
tissue samples, and, I mean, for the human sector, you can do 
it to the individual. We can do it for at least the distinct 
population segments that the Act requires. And, yes, 
specifically we can tell the difference.
    Mr. Pombo. Mr. Schmitten, in the Pacific Northwest you've 
listed endangered species, sub-species, distinct population 
segments as being endangered down to being able to tell a 
population from a specific stream. With declining numbers, that 
population will be listed as threatened or endangered.
    Are you doing--are you breaking it down to the exact same 
level in all the regions of the country? For example, with the 
Atlantic salmon, did we look at species, sub-species, distinct 
population segments. Did we break it down to that level?
    Mr. Schmitten. Mr. Chairman, these are excellent questions. 
First, back to our process of ESUs and distinct population 
segments, we have vetted those through the National Academy of 
Science and peer reviewed them. The agency used our joint 
policy--and that's Fish and Wildlife and NMFS's policy--on a 
distinct population segments, as well as the ESU policy for 
Pacific and Atlantic salmon. So the answer is, yes, we did.
    Mr. Pombo. I'm a little bit confused by your answer because 
according to the Federal Register, what was put into the 
Federal Register, the policy applies only to species of salmon 
native to the Pacific. Under this policy, a stock of Pacific 
salmon is considered a DPS if it represents an evolutionarly-
significant unit, or ESU, of a biological species.
    The stock must satisfy two criteria to be considered an 
ESU, and then it goes on from there. But it specifically says 
in here, this only applies to Pacific salmon.
    Mr. Schmitten. Mr. Chairman, I carefully used the phrase or 
the sentence that said NMFS used our joint Fish and Wildlife 
Service and National Marine Fisheries Service policy on 
distinct population segments. And I said, as well as the ESU, 
it is one in the same. We used the distinct population segment 
process. It is the same as the ESU process.
    Mr. Pombo. So you're telling me there's no difference 
between a distinct population segment and an ESU?
    Mr. Schmitten. The director wants to speak on this.
    Mr. Herger. Mr. Chairman, let me just focus a little bit on 
this concept of the evolutionarily significant units, which was 
the scientific method developed in the Northwest for purposes 
of trying to apply the distinct population segment definition 
on the Endangered Species Act to Pacific salmonids.
    And the ESU policy which as the director said has been 
reviewed and basically endorsed by the academy twice is 
directed to the application of the distinct population segment 
definition to Pacific salmonids. So it is consistent with--it 
is simply the application of it to Pacific salmon.
    Mr. Pombo. Is it done in----
    Mr. Herger. The agency used the basic distinct population 
segment concept. We didn't develop a separate ESU policy for 
Atlantic salmon.
    Mr. Pombo. Have you listed under ESUs in the Pacific 
Northwest? Are there species listed under that criteria as a 
evolutionary significant unit?
    Mr. Herger. Yes, ESUs. The answer is, yes, sir. The ESU 
policy, which is basically a scientific methodology to relate 
neighboring run is the application of the distinct population 
segment concept of statute to Pacific salmonids.
    It is the basis by which we identify distinct population 
segments of Pacific salmon for purposes of making judgments 
about whether or not those population segments are at risk of 
extinction or not, so, yes, all of our Pacific salmon listings 
are governed by the ESU scientific methodology.
    Mr. Pombo. And that's broken down to specific rivers, 
specific streams----
    Mr. Herger. It's----
    Mr. Pombo. [continuing] population segments that are coming 
out of a specific stream or specific area?
    Mr. Herger. Mr. Chairman, again the application of this--
the identification of what runs, neighboring runs should be 
clustered together into a unit for the purposes of judging 
whether or not that unit is at risk of extinction or not is the 
technique governed by the ESU protocol.
    Mr. Pombo. So, all of your species that you have listed in 
the Pacific Northwest fall under this criteria----
    Mr. Herger. Protocol.
    Mr. Pombo. [continuing] under this protocol.
    Mr. Herger. Yes, it has resulted----
    Mr. Pombo. What about the Northeast? Are all of the species 
that are listed in the Northeast under the same?
    Mr. Herger. The ESU protocol was designed specifically for 
Pacific salmonids. It was not designed for Atlantic salmon and 
it did not govern the listing decision--the identification of 
Atlantic salmon as a distinct population segment. That was done 
on general statutory distinct population segment grounds.
    We have not developed a separate scientific protocol for 
Atlantic salmon as we did and have done for Pacific salmon.
    Mr. Pombo. Why is there a difference? Why did you develop 
it for the Northwest? And, Chris, if you could put up slide 
number 6. Why did you develop a separate listing procedure or 
separate protocol for the Pacific versus the Atlantic?
    Mr. Herger. Mr. Chairman, we used the same principles. I 
think the confusion is the terminology. When we first looked at 
distinct population segments, we asked our sign tests how does 
that apply to salmon? Are they all one in the same? The Act 
says you can go down to a distinct population segment, so we 
had to come up with the confines of that.
    The scientists broke it down, gave it a term, evolutionary 
significant units; a couple of components in it--one, genetic 
integrity which we can now determine; two, uniqueness and 
succinctness, the most southern run, the timing of the run--
spring versus fall that really separates them. Those features 
together blend into meeting the Act distinct population 
segments, so we use the same process. You shouldn't be 
concerned with ESU.
    Mr. Pombo. Well, I am concerned, really, and I'll tell you 
why is that over the past--between 1993 and 1997, 71 percent of 
your listing program dollars went into the Pacific Northwest. A 
huge amount of effort and listing has gone into the Pacific 
Northwest.
    And you contrast that with any other region of the country, 
there's a huge difference, and it's obvious that with this 
different policies that's in place for the Pacific versus the 
Northeast or the Southeast, or anywhere else, that a huge 
amount of effort has been put into listing on the Northwest 
down to the point where we're doing DNA testing to tell the 
differences, and everything else.
    And one of the questions we get back is, if they spent just 
as much money finding things to list in the Northeast, would 
they not have the same kind of impact that we're having on--out 
in the Northwest? And don't misunderstand me. I'm not saying 
that we should not know what endangered species we have in the 
Northwest. That's not what I'm saying.
    What I am saying is that there are two regions of the 
country that did not receive any funding under the listing 
program--sow row funding under the listing program, and the 
Northwest received almost three-quarters of the listing money. 
That just inherently will make a difference between the number 
of species that you have listed in one particular area over the 
other areas.
    And that causes people to say, you are implementing this 
law differently in the Pacific Northwest than you are in the 
Northeast or the Southeast, or anywhere else. Just the simple 
fact of the way that you appropriate funds, where you put your 
efforts into and when you come in and testify and say that we 
can tell the difference between a hatchery fish and a wild fish 
because we do DNA testing on them and we can tell down to doing 
DNA testing the difference.
    A lot of people begin to ask, why in this region of the 
country are we doing DNA testing on the fish to tell if they 
came from a hatchery or if they are wild where in another area 
of the country they are withdrawing a listing on the Atlantic 
salmon.
    I mean, these are the questions that we get all the time, 
and you guys, you biologists, all you guys can get together and 
talk and you all understand what you're saying. Well, you know, 
99.9 percent of the people in the world say, there's something 
wrong here. And, you know, so that's what we have to deal with.
    Mr. Schmitten. Mr. Chairman, if I may. First, until today I 
had never heard that there may be discrimination between the 
East and West. When I saw this chart I guess three things 
popped into my mind--first, that our dollars are directed to 
where the problems are, and obviously you can tell the 
Northwest is exactly where we have had salmon problems, also 
where the petitions are--we don't generate all the examination.
    The public submits petitions, and that's where they are 
coming from. Second, I think that it's illustrative of where 
some of the healthy ecosystems are, and it's a good example of 
why Alaska and the region is not there. They have three listed 
species in Alaska, so they are not exempt, but there are two 
whales and a stellar sea lion.
    And then third, that while we show the listings and we show 
the funding, if you were to show, then, the recovery elements 
of ESA, I would find that there is staff in every single region 
around the country. Going back to Alaska recovery, we have the 
third largest volume of dollars, $4 million and 12 FTEs. So, I 
read that as simply showing exactly the conditions that we're 
in today.
    Mr. Pombo. Two-thirds of your staff are in the Northwest 
region?
    Mr. Schmitten. Yes. And I don't know--the 71 percent I'll 
agree to. Two-thirds of our listings are in the Northwest 
region.
    Mr. Pombo. Did you do DNA testing in----
    Mr. Schmitten. In the Atlantic salmon, as well as the 
Pacific salmon, yes.
    Mr. Pombo. And how many different distinct population 
segments did you identify there?
    Mr. Schmitten. Let me ask the regional representative.
    Mr. Mantzaris. Thank you. What we found is that initially 
when we proposed this species to be listed, the seven rivers 
that had specific genetic markings, that showed similarity in 
each of those seven rivers.
    However, on increased genetic testing, we found that some 
of the allelle or genetic markings within those fish extended 
beyond those seven rivers and were similar to fish in rivers to 
the South. So in the final proposal, we expanded the DPS to 
include those other rivers to the South.
    But our focus right now is on those seven rivers and as we 
get more information, we'll determine whether we should include 
those southern Maine rivers in one DPS. So right now, instead 
of having one DPS that includes seven rivers, we have one DPS 
which we call the Gulf of Maine DPS.
    Mr. Pombo. You have one DPS that includes seven rivers?
    Mr. Mantzaris. Initially, we started that way, but now what 
we've done, we've expanded it to call it the Gulf of Maine DPS 
which we have----
    Mr. Pombo. So that includes the DPSs for the entire Gulf of 
Maine?
    Mr. Mantzaris. Yes, the entire Gulf of Maine, but there are 
rivers that we haven't fully investigated. But as we 
investigate those additional rivers----
    Mr. Pombo. Does that DPS make it bigger?
    Mr. Mantzaris. It could be made bigger, yes. It could be, 
but we don't have sufficient information to determine whether 
it can be made bigger or not, at this time.
    Mr. Pombo. So to me, that doesn't sound like the same thing 
where we have distinct population segments from individual 
rivers, individual streams, different times of the year. I 
mean, we've broken this down----
    Mr. Schmitten. I think because the genetics has turned out 
to be different on the Northwest as it has in the Northeast. 
What we found in the Northeast is that the genetic testing has 
shown that there are specific differences--there's great 
differences----
    Mr. Pombo. There's no differences between the rivers?
    Mr. Schmitten. Wait; there's great differences between 
North America and Europe. There's a very distinct difference 
there.
    Mr. Pombo. Just specifically with what you're dealing with, 
is there differences between the rivers?
    Mr. Schmitten. Yes, there are differences between the 
rivers, but there are also similarities.
    Mr. Pombo. Are there similarities between the rivers, 
between the different population segments that you've got in 
the Northwest?
    Mr. Mantzaris. If I understand the question, yes, there are 
similarities. The question is----
    Mr. Pombo. So you both have similarities. He's put the 
entire gulf together. We've split it up into different streams, 
so----
    Mr. Stelle. Mr. Chairman, I would entreat you to understand 
the issue of scale here. For instance, in the Pacific 
Northwest, the clusterings that we have used for the listing 
process encompass one cluster as the entire Snake Basin 
drainage, which is a huge geographic area. It is not just one 
simple, small river.
    Another cluster is the entire upper Columbia River. A third 
cluster runs from Southwest Oregon down to San Francisco so 
these are large clusters. We are not splitting hairs here. 
We're trying to cluster into related units on a good solid 
scientific foundation.
    There are similarities between the clusters. There are also 
very distinct differences between those clusters--warrant us as 
treating different purposes.
    Mr. Pombo. I'm not questioning the--that you can find 
differences--the sciences that you've used at this point. I'll 
just leave it at that. Mr. Miller.
    Mr. Miller. Speaking of some of these clusters, on the--my 
understanding is on the coho that we don't have in place yet 
the avoidance guidelines in Northern California; is that 
correct?
    Mr. Hogarth. That we do not have a 4 (d) Rule in place; 
that's correct.
    Mr. Miller. Why and when?
    Mr. Hogarth. I don't know what the schedule for it is. We 
can get back to you.
----------
Status of the Guidelines

    The NMFS Take Avoidance Guidelines for Coho Salmon will be 
released when they have had the benefit of outside technical 
and peer review. Under the terms of the MOA NMFS recently 
signed with California, NMFS and the State will be conducting a 
joint review of the California Forest Practice Rules. NMFS and 
the State intend to utilize the expertise of the Governor's 
Watershed Protection and Restoration Council's (WPRC) Science 
Panel to review both the Guidelines and proposed changes in the 
State forest practice rules agreed to by NMFS, the California 
Department of Forestry, the California Department of Fish and 
Game, and the State Regional Water Quality Control Board.
    Considering that adoption of Guidelines and changes in the 
forest practice rules will have long-term benefits for the 
resource and potential economic impacts on the industry and 
private landowners, we believe it is imperative that the 
process and agreement with the State be allowed to be 
implemented. It is essential that the best possible standards 
be produced as an outcome of the WPRC process.
Challenges

    The NMFS Take Avoidance Guidelines for Coho Salmon have 
been difficult to develop because of the complexity of dealing 
with a species that has an extensive geographic range and where 
various stages of the coho life cycle occupy coastal streams at 
all times. Specifically, juvenile coho reside in freshwater for 
up to 18-months before returning to the ocean. At any point in 
time, the fry, juveniles and adults will be in the stream 
system.
    Guidelines cannot be selective with regard to how they are 
applied to the land yet ``one size fits all'' Guidelines have 
the potential to have a tremendous economic impact if not 
carefully considered in their development. Large industrial 
timber companies have the land base to provide certain levels 
of protection and conservation while maintaining the economic 
viability of their companies. Small forest landowners, and 
ranchers that rely on selective timber harvest to augment their 
income do not have this flexibility.
    NMFS intent is to utilize the Endangered Species Act to 
recover coho salmon, and not to create an economic hardship for 
small landowners. Within the range of coho salmon in Northern 
California, approximately 8 million acres of timber land is 
divided in ownership between the industrial timber companies 
and small landowners. Presently, NMFS is engaged in the 
development of Habitat Conservation Plans (HCPs) with every 
large industrial timber owner in Northern California to permit 
incidental take of coho. Small landowners do not have the 
resources to engage in this level of conservation planning. 
With this in mind, NMFS is and continues to be aware of the 
importance of instituting Guidelines that do not discriminate 
based on the size of the landowner.
    To meet this shortcoming of the Guidelines approach, NMFS 
is seeking to develop alternatives for small landowners through 
either low effect HCPs, enhanced non-industrial timber 
management plans, or through the State WPRC process. This 
effort takes time to develop to assure that we have a 
scientifically and technically sound approach. The premature 
implementation of Guidelines has the potential to seriously 
undermine the cooperation of landowners who ultimately are the 
only stakeholders that can assist in recovering coho salmon.

    Mr. Miller. I mean, because----
    Mr. Hogarth. Wait a minute.
    Mr. Schmitten. Mr. Miller, are you talking about take 
avoidance or----
    Mr. Miller. Yeah.
    Mr. Schmitten. [continuing] or the 4 (d)? There is a 
difference.
    Mr. Miller. [continuing] because you have the 4 (d)----
    Mr. Schmitten. OK.
    Mr. Miller. [continuing] and right now that's being borne 
by people not fishing, but there's other activities taking 
place in the area that have an impact, and we're supposed to 
make some decisions about how to avoid some of those, are we 
not?
    Mr. Hogarth. That's----
    Mr. Miller. Isn't that what the avoidance guidelines do?
    Mr. Hogarth. That's underway already as far as when we 
listed, then the Section 7 consultation started with the Corps 
of Engineers, with the Federal highways. That is underway, yes, 
sir.
    Mr. Miller. When is that going to happen?
    Mr. Hogarth. It's already happening.
    Mr. Miller. When are they going to be done, though? I mean, 
when are people going to have----
    Mr. Hogarth. Well, we go----
    Mr. Miller. [continuing] to alter their activities in I 
mean, we're going forward--we're going forward with force 
activities. We're going to continue in the highway activities. 
When are----
    Mr. Hogarth. Each one of those projects comes to us for 
Section 7 consultation. You do it project by project.
    Mr. Miller. Right.
    Mr. Hogarth. The state has--on Coho, the state did not come 
forward with any plan.
    Mr. Miller. I'm sorry.
    Mr. Hogarth. On Coho, we do not have any agreement with the 
state of California. But what we're having to do is we do these 
all from a Federal perspective.
    Mr. Miller. Are those going to start to fall into place?
    Mr. Hogarth. What I'm trying to say, they've already 
started. Any activities since Coho has been listed has to come 
to us for a Section 7 consultation. And we determine whether 
it'll have an impact in what we do from that point.
    Mr. Miller. And where are we in that process? Are there 
activities that----
    Mr. Hogarth. The activity's ongoing. There are ongoing 
activities.
    Mr. Miller. Those cover what areas, highways----
    Mr. Hogarth. Highways, Corps of Engineers, Forest, and the 
council meeting sets--the council sets the harvest regulations 
based on the listings.
    Mr. Miller. Those activities cover on private land also?
    Mr. Hogarth. Yes, sir.
    Mr. Miller. So if I--I don't--I guess I'm missing something 
here in terms of what comes first here, the chicken or the egg. 
You have an engaged activity. If they've got to count any 
activities in these areas and these watersheds now, you've got 
to come to you; right?
    Mr. Hogarth. That's correct; yes, sir.
    Mr. Miller. Whether it's on private land and each one's 
judged independently----
    Mr. Hogarth. That's correct.
    Mr. Miller. [continuing] and the decision's made about 
those activities?
    Mr. Hogarth. That's correct.
    Mr. Miller. Is anybody taking action on private land and/or 
public land, a public agency all got to go through this 
process?
    Mr. Hogarth. That's correct with the emphasis right now 
kicked in first on Federal land.
    Mr. Miller. It's--we're back again.
    Mr. Hogarth. (Laughter.)
    Mr. Miller. I mean, I appreciate, you know--I mean, 
appreciate what's going on here. I mean the Federal lands are 
becoming the sink for all of these activities and maybe that's 
fine and then people--but then people shouldn't come just about 
cutting on the Federal forest, and what have you.
    But the emphasis on--so other people are just going along 
merrily their way?
    Mr. Hogarth. No, sir, they don't go merrily their way, but 
the----
    Mr. Miller. I mean, that's just puts a burden on the 
Federal lands then people tell you they don't like what you're 
doing on the Federal lands, but the private people are 
benefiting by what you're doing on Federal lands.
    Mr. Hogarth. Part of what you say is correct, yes, sir. 
But, you know, the process----
    Mr. Miller. Where's the gatekeeper on this?
    Mr. Hogarth. It's us and we do our best with what we have 
to get the total job done. I mean, it's not that we could go 
into every project because we couldn't cover it.
    Mr. Miller. I hate to break the news to Mr. Pombo, but I 
think we need more of your people in the West and--[laughter]--
and in the Pacific Northwest.
    Mr. Hogarth. Well, for example, in timber harvest plans--
what we do with timber harvest plans right now is that we rely 
on the state fish and game, and they have a problem with those 
timber harvest plans, they come to us. But we have a stack now 
that's as tall as I am.
    Mr. Miller. But what do you mean, they have a problem? 
You're the people that are there now there are looking at a 
listing and aren't you the gatekeeper as whether or not these 
activities are in consistence with the recovery or not?
    Mr. Hogarth. Congressman Miller, you made a statement 
earlier today, which I'll agree with, about the size of 
California and activities in California. With the staff I have 
in the Southwest region, we have to set priorities. And when we 
feel like that timber harvest plans, for example, that fish and 
game is looking at those timber harvest plans and if they feel 
one is controversial or we get word that one is controversial, 
then we will review it.
    And we just did that on several. One company, we went in to 
them and said that we've made a petition to the Board of 
Forestry. We feel like those timber harvest plans were not 
sufficient to protect--the protection we needed. But we do not 
review every one of them and what I'm saying, we set priorities 
on where we think we get the most for the people we have. 
That's why we need more cooperation----
    Mr. Miller. Well, it's obviously a war in the West because 
we're being deprived of our resources.
    Mr. Hogarth. We've got to have more resources or we've got 
to have a better working relationship with state of California.
    Mr. Miller. Well, you know, to take the scenario that you 
just outlined this thing's going to spiral downhill, and the 
restrictions are going to get more and more difficult on the 
fishing industry or on the timber industry or on private--
because you're not going to get recovery.
    I mean, if you can't monitor it and you can't enforce it 
adequately--and I appreciate--you know, listen, I have great 
respect for trying to allocate the resources around to all 
these problems but, I mean, that's kind of where we're falling 
down here in terms of recovery.
    I mean, we have made a listing; we've made a listing, 
determined that the call of these watersheds are in trouble. 
There's action should be avoided. It's easier to tell a 
fisherman, OK, you stop fishing; OK. That one's kind of clear. 
But the burden's on them, and this is supposed to be about 
trying to lighten the touch on various aspects of our economy, 
whether it's recreation or commercial fishing or logging or 
farming, or what have you so you can kind of lighten the touch 
and still bring about recovery.
    But what you're saying because of inadequate resources, you 
just kind of--you're going to end up clamping down on Federal 
forest lands because you don't--because the plans on state 
lands may or may not be adequate. Now, if that doesn't work 
out, we're going to clamp down tougher on the fisherman or for 
a longer period of time, or what have you, because we weren't 
able to bring these other parties to the table.
    Mr. Hogarth. Well----
    Mr. Miller. I'm not asking you to agree with that; I'm just 
saying this sounds like a downward spiral where we just end up 
with more and more difficulty with respect to trying to get 
these species recovered and off the list, and we can get on 
with other activities.
    Mr. Schmitten. Mr. Miller, maybe I can turn the spiral 
upward. We made a listing. The first thing we do is engage in 
Section 7 consultation with all Federal actions that may 
affect. We also have promulgated the 4 (d) rule which applies--
take (ph). Now the next process, a piece in this, will be the 
recovery plan.
    Once the recovery plan is in place, then I think that's the 
holistic plan for where we go. And we simply--do you want us 
there--we want to get there and we're just not quite there. 
We've just listed Coho.
    Mr. Miller. I'm just concerned that in the----
    Mr. Hogarth. In the interim, we may lose----
    Mr. Miller. People are rushing--logging private lands or 
rushing to get activities done before--before you have your 
recovery plan, and they are making the problem worse because we 
don't have the gatekeeper to avoid these actions that should be 
avoided so that we have a better chance of recovery and maybe a 
chance at sooner recovering.
    Mr. Schmitten. And I think we're in agreement that's a 
concern. I hear Dr. Hogarth saying that he's being the best 
gatekeeper in this interim period as he possibly can. We share 
your concern.
    Mr. Miller. One last on just--on one of the other--the 
other one was on the steel head. What's with these negotiations 
with the state? Is that going to come to fruition or is that 
going to avoid the problems or--I mean, it took you a long time 
to hammer this thing out in Oregon and Maine or--Maine.
    Mr. Schmitten. It took us about a year and a half with 
Oregon. We have been working since last March with the state of 
California, not making good progress until recently. First, can 
we get there? Let me absolutely guarantee you by March 13th, 
which I think is next week, we will have an announcement to 
make on whether we're there or not, whether we list or not.
    We will meet that deadline. The court has given us the 
ability to go to March 13th, and we've made good progress with 
both Oregon and California during this time.
    Mr. Miller. Well, I just--I mean, not to put this in the 
same context as the headwaters, but you know, the law has--puts 
obligations on you with you know, with your decision with 
respect to steel head.
    And, you know, I appreciate you've been working since last 
March, but if most of that time from last March has been 
unproductive--you've been working the last few weeks because 
the court has put a deadline on us, I would hope that we not--
we don't accept in lieu of listing an inadequate plan for the 
state to take this over because the state would rather take it 
over than have the Federal Government tell them what to do or 
have a listing that, you know--I just think that you ought not 
to get out of the driver's seat here because the state dragged 
its feet for 9 months and now perceives that you're serious and 
the date is serious about the jeopardy here.
    And action has to be taken, and so now we're in a hurry-up 
slam bang deal to make this look like the state can handle its 
affairs when the state wasn't participating up until the 
eleventh hour here and that we not get--we not buy ourselves an 
agreement in lieu of listing--when that is not satisfactory. 
And I'm not casting dispersions on your judgment; I'm just 
saying that know, you know, the state has try today avoid this, 
you know, in any kind of meaningful discussion.
    And then, now all of a sudden, we're running because the 
court's going to say on March 13th whether you're in contempt 
or whether this is adequate or not when we ought to keep the 
focus here. This is, again, about whether listing is necessary 
to provide for the recovery of this species.
    Mr. Schmitten. I agree. A fair amount of the decision will 
be the piece--the fact that the species needs come first. 
Second, science will drive the process; third, I can assure you 
that the agency will not accept an inadequate plan, and that's 
exactly the tenets that we've set forward to the state in our 
negotiations.
    Mr. Miller. You know, I'm just concerned and, again, I go 
back to headwaters but I'm concerned that, you know, we have 
tough requirements under the law, but there's the law. And I 
think there's, you know, there's a perception somehow that this 
law is so terribly unpopular that you would rather avoid a 
listing or avoid this because what would the public say, you 
know, as opposed to the headwater deals collapsing?
    Mr. Schmitten. Well, that's not necessarily your choice, 
because the law puts requirements upon you; and either we have 
an agreement that will provide for the--for those protections 
of that habitat and the fisheries or we don't. And if the 
headwaters is going to collapse because of that, the public 
ought to know that. And then we can decide where the chips fall 
because I suspect that the people on the other side of the 
table wouldn't want that either.
    But we ought not to make a secret little deal that's 
inadequate. We ought to make a deal that publicly we can assure 
people will bring about the results that are part of this 
package in terms of saving the headwaters, because it's not 
just about keeping trees vertical. It's about an ecosystem that 
people think is important and these riparian areas are part of 
that.
    And we have enough history to know how quickly we can get 
into trouble on these riparian areas and how long it takes to 
recover them. That's why you've got all these people deployed 
in the Northwest. It was real easy to screw them up. Now, we've 
got a fire and boat drill going up there trying to figure out 
how to save these huge and complex watersheds.
    And in this case, we ought not to repeat that for the sake 
of getting some dammed deal. You know, if everybody bows down 
when they say headwaters, but it ought not to be the instrument 
by which we destroy riparian areas.
    I think we can't lose sight of the goal. Certainly, what 
we're looking for is an opportunity for a better result. If we 
can do better for the resource, a partner--and I've heard the 
Committee over the last 2 or 3 years ask us to work closer with 
the states--if we can get a better deal, why shouldn't we?
    And if you look, we are not out to avoid listings. If you 
look at the record across the country, there's over a thousand 
listed species. There's less than a dozen accepted state 
conservation plans. We're very frugal. They have to meet the 
tenets that we laid out, and we discussed this a little bit 
ago. We will not accept a bad deal.
    Mr. Miller. Thank you.
    Mr. Pombo. Mr. Herger.
    Mr. Herger. Well, thank you, Mr. Chairman. Mr. Inspector 
Schmitten, I appreciate the last comment that you made, and I'd 
like to emphasize that on working for a better deal and better 
results. I have to believe without any shadow of a doubt that 
that's what the American public--certainly all those that I 
represent in my area are looking for. They are looking for 
better results.
    I firmly believe with no doubt in my mind whatsoever that 
we can both manage for our environment and protect our 
endangered species and not destroy our economy simultaneously, 
but yet, that is what's happening. That is certainly what's 
happening in the area that I represent.
    And I'd like to address another concern that we have in our 
area. In California in the Pacific Northwest, there's a 
substantial overlap of jurisdiction between NMFS and the Fish 
and Wildlife Service, particularly in the issuance of Section 
10, Incidental Take (ph) Permits and Section 7, consultations.
    For example, in Northern California if a timber company 
wants to obtain a Section 10 Incidental Take Permit, it must 
get one from both agencies because the presence of spotted owls 
and marbled marriates, which are under the jurisdiction of the 
Fish and Wildlife Service, and also from the NMFS because of 
the presence of salmon streams. I'm aware of examples of 
forestry practices which must be approved not only by the 
Forest Service, but also by NMFS and the Fish and Wildlife 
Service.
    In issuing a Section 10 permit, the law requires that the 
secretary issue the permit if the take will not appreciably 
reduce the likelihood of the survival and recovery of the 
species in the wild, however NMFS is requiring that incidental 
take permits actually contribute to recovery versus simply not 
reducing the likelihood of recovery.
    Isn't this beyond the statutory authority of the agency to 
require the private landowner to actually contribute to 
recovery?
    Mr. Schmitten. Congressman, first on the overlap, there is 
not overlap. In fact, to avoid duplication we assigned teams in 
which both agencies are on so the private landowner, then, 
doesn't have to go to NMFS and have to go to the Fish and 
Wildlife or together. Earlier in my sworn--in my testimony, I 
indicated that every single salmon ACP that we have done, we've 
done with the Fish and Wildlife on the team. So there is a 
team.
    As far as the standard, the administration is not using 
different standards. We're very carefully applying the Section 
10 (a) 2 (p) 4 of the Act where it says that we're not to 
appreciably reduce the likely hid of survival and recovery of 
the species in the wild. We're diligent about that, and we are 
not inconsistent with our application on private lands.
    Mr. Herger. Well, I would--I'd like to give you some 
examples not here but afterwards----
    Mr. Schmitten. I'd appreciate that.
    Mr. Herger. I certainly--I can tell you this is a problem, 
not only in the private sector, but----
    Mr. Pombo. If the gentleman would yield for just a second, 
I didn't understand your answer to the question he asked about 
whether or not this was above and beyond the scope that a 
Section 10 permit requires to contribute to the recovery of a 
species versus that it doesn't lead to the endangerment of the 
species. I forget the exact term, but I didn't understand 
exactly how you answered that.
    Mr. Schmitten. I said a couple of things; one that we're 
not using inconsistent standards. And by that I mean our 
agencies, both Fish and Wildlife and the National Marine 
Fishery Service, at the fundamental principle that guides us is 
the Section 10 (a) 2 (b) 4 of the Act in that that indicates 
both survival and recovery. It's a two-prong approach, and it's 
not a conjunction nor--it's an end.
    I guess an example, Mr. Chairman, might be where the ACPs 
are lengthy in duration, say 50 to 100 years. The difference 
between survival and recovery is just not very well-defined 
scientifically. So in our approach in the long-term ACPs is we 
simply seem to continue the long-term survival of the species, 
and we do that by seeking proper-functioning habitat. This is a 
difficult one to get, so----
    Mr. Pombo. If the gentleman would continue to yield on that 
point, in the Act the taking will not appreciably reduce the 
likelihood of the survival and recovery of the species. It 
seems like what you're saying is different than what the Act 
says; that it's a different standard than what the Act says. If 
it wasn't, then why didn't you just stick to the--what the Act 
says?
    Mr. Schmitten. We believe we are sticking to what the Act 
says; it says not appreciably reduce the likelihood of the 
survival and recovery of the species. And I tried to cite an 
illustration where it's difficult to grasp, and that would be, 
say, a long-term ACP of 50 or 70 years where you can't--that 
area's great. Science can't tell you what's recovery, what's 
survival.
    Mr. Pombo. But isn't----
    Mr. Schmitten. So----
    Mr. Pombo. Doesn't your standard contribute to the recovery 
of the species? Isn't that what you're saying?
    Mr. Schmitten. Yes. And what we're saying is that to seek--
--
    Mr. Pombo. That's not in the Act, though.
    Mr. Schmitten. To seek that standard in the Act, we're 
saying if we can get proper-functioning habitat, that satisfies 
whether it's survival or recovery. That will get you there.
    Mr. Pombo. I just think it's a different standard. If it 
was the same standard, you would use what it says here; you 
wouldn't say ``contribute to the recovery of''----
    Mr. Schmitten. We believe----
    Mr. Pombo. [continuing] because that's not what--I have the 
Act, I can show you the language that's in the Act. It doesn't 
say that a Section 10 permit must contribute to the recovery of 
the Act--to the species. It doesn't say it. It must contribute 
to the recovery of the species. That's not what it says. And if 
you're trying to tell me that it's the same thing--if it was 
the same thing, you wouldn't use different words.
    Mr. Schmitten. Mr. Chairman, let me do this for you. I 
think it would be quickest for the Committee if I submitted our 
approach in writing for you. And then, if you need me to 
followup, I would do that. We believe firmly that we're 
adhering to the standards.
    Fish and Wildlife concurs with where we are, and we think 
that in the areas the only anomaly might be long-term ACPs 
where no one can define what it is. We think that we have an 
approach that is consistent, and that's a proper-functioning 
habitat.
    Mr. Pombo. It's nice that Fish and Wildlife concurs with 
what you're doing; that's great. But, you know, we're kind of 
responsible----
    Mr. Schmitten. Yes.
    Mr. Pombo. [continuing] and I'm not exactly sure if you've 
kind of expanded the authority of the Act, and I would like you 
to----
    Mr. Schmitten. I'll submit that, then, in writing for the 
Committee.
    Mr. Pombo. Mr. Herger.
    Mr. Herger. Thank you, Mr. Chairman. And thank you very 
much for your addressing this concern that both of us have and 
certainly our districts have. But, Mr. Director, I have to tell 
you my question was directly to private land. I'd like to move 
now to Federal land. Just in talking, for example, with the 
Klamath National Forest, they are having very dramatic problems 
on coordinating between the Fish and Wildlife and your 
organization in coming up with a plan.
    And it seems to be overlap. Are you--how would you address 
that? Are you--do you recognize that we have a, what is 
perceived by the people I represent, as a major problem of 
overlapping and coming up with one policy? Let's now take the 
example of forest practices within the Klamath National Forest 
up in Northern California.
    Mr. Schmitten. Congressman, further, I have not heard that 
we have any problem. In fact, in our Section 7 activity with 
other Federal agencies, we have specifically tailored a 
program--this goes back to when I was a regional director in 
the West where we looked at these as programmatic activities so 
we did all the grazing at one time, all the timber so we would 
not slow down any of the affected parties.
    We have done literally thousands of Section 7s. To this 
date, we are caught up. I have not heard a complaint in 2 years 
that we're in arrears on any of our Section 7 activity.
    Mr. Herger. Well, thank you, and I'll get some more 
information and come back to you.
    Mr. Hogarth. I'll check on that, Congressman.
    Mr. Herger. Thank you. I appreciate that. Thank you, Mr. 
Chairman.
    Mr. Pombo. Before we close the hearing, I just wanted to 
give you the opportunity to correct one thing. You said that 
there was no duplication between Fish and Wildlife and the 
National Marine Fisheries. We have lists of different permits, 
take permits, that were required by you and the same people 
being required to do it with Fish and Wildlife Service for 
different species. So, the fact----
    Mr. Schmitten. Mr. Chairman, that'd be right. For our 
species, we simply are working together with Fish and Wildlife 
so there should be no duplication. I could be----
    Mr. Pombo. On the same species, there may not be a 
duplication, but----
    Mr. Schmitten. That's my very point that I've made to the 
Committee.
    Mr. Pombo. Well, I guess there may be. I'm not sure. I 
mean, we have one here where they already got a permit for 
Marble Marriet, and they've applied for or are in negotiations 
on one on the Coho. And so, they already did what they had to 
do to satisfy Fish and Wildlife Service, and now they are in 
with you on the Coho.
    So there is some duplication in terms of having to go 
through several different agencies in order to proceed. And I 
think that was the point that Mr. Herger was trying to make.
    Mr. Schmitten. Mr. Chairman, this is something I welcome 
getting into because that's what I want to avoid and have gone 
truly out of my way to make this a one-stop shopping. We should 
not put people through multiple hoops when they seek Federal 
permits and especially if it's a permit that both agencies are 
involved in, so this is something I would welcome the chance to 
look into any issues that you raise like that.
    Mr. Pombo. Well, I know there are other members that are 
concerned about this, and that's one of the reasons why I 
wanted to clarify that.
    Mr. Schmitten. I think you'll find----
    Mr. Pombo. And I know that that's something, and we just 
looked at this and we found one right off the top that they 
already did everything they had to do to satisfy one Federal 
agency--actually two because they already satisfied the Forest 
Service----
    Mr. Schmitten. Yes.
    Mr. Pombo. [continuing] then they satisfied Fish and 
Wildlife. Now, they are back in negotiations trying to satisfy 
you. I don't know how long this one--particular one's been 
going on, but I would suspect if they've already satisfied Fish 
and Wildlife Service, you're talking about a long period of 
time.
    Mr. Schmitten. I assure you; this is what we want to avoid. 
For instance, in the Northwest, we have teams now where the 
Forest Service is there; BLM is there, Fish and Wildlife, 
National Marine Fishery Service, Club Fed, you've got. Even 
EPA, Fish and Wildlife, National Marine Fishery Service are 
trying to avoid the very thing you suggested.
    And you potentially have some sites. You share those with 
me and those are the type of things that I can fix----
    Mr. Pombo. Well, thank you.
    Mr. Schmitten. [continung] in holding up the standard.
    Mr. Pombo. I know there are more questions we can ask, but 
it's been a long afternoon, and I'm sure there will be further 
questions that we would submit to you. I apologize to you for 
the delay in bringing your panel up, but all of you, thank you 
for being here and being able to answer our questions.
    And the things that we ask that you respond to in writing, 
if you could do that in a timely manner, it would help a great 
deal. But, thank you very much.
    Mr. Schmitten. Thank you very much, Mr. Chairman.
    Mr. Pombo. And the hearing is adjourned.
    [Whereupon, at 3:42 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows.]
 Statement of Hon. John B. Shadegg, a Representative in Congress from 
                          the State of Arizona

    Let me start by asking my colleagues a simple question: how 
many of you have schools in your state which have had 
construction delays because a species on the endangered list 
MIGHT be present?
    In Arizona, we have the very dubious distinction of being 
faced with this situation. In Tucson, the Amphitheatre School 
District needs a new high school. The Canyon del Oro High 
School which is currently being used by the district is 
overcrowded: it was built for only 1,800 students and is now 
being used by over 2,800 students. Needless to say, this is 
severe overcrowding and it will only get worse since Tucson is 
in one of the fastest growing regions in the country. These 
excess students are being taught in portable classrooms; not 
exactly the high-quality learning environment we want for our 
children.
    The school district is trying to lessen the overcrowding by 
building a new school on a plot of vacant land and, as required 
by law, the school district performed an environmental 
assessment on the property. That environmental assessment 
revealed that no species on the endangered list are present on 
the property. Let me repeat that, not one species on the 
endangered list is present on the property.
    Despite the fact that there are no endangered species on 
the property the Amphitheatre School District has been forced 
to wait while the Fish and Wildlife Service prepares a formal 
biological opinion under the Endangered Species Act. Why? 
Because surveys have revealed that there may be a Cactus 
Ferruginous Pygmy Owl between one and six miles from the site 
of the proposed school!
    It is ludicrous that construction of this badly needed 
school would be delayed be cause there is a species not on the 
site, but in the neighborhood. What is even more ludicrous is 
that the Cactus Ferruginous Pygmy Owl is not even endangered! 
There are well over a thousand of the birds in Texas and 
hundreds, if not thousands more in Mexico, a fact that the Fish 
and Wildlife Service itself has acknowledged.
    Because of this situation, the school district has been 
forced to delay construction of the new school and to look at 
alternative sites. The delay adds at least one more year to the 
date when the new school will be able to open. That is at least 
one more year that children in this school district will need 
to learn under overcrowded conditions.
    I would not wish this problem on any state. However, it is 
apparent that quite a number of my colleagues really do not 
understand just how serious this problem is. That is the only 
conclusion I can come to because so many of my colleagues 
continue to support the status quo in regard to the Endangered 
Species Act. I firmly believe that much of their support comes 
from a ``Not In My Backyard'' syndrome: they don't face the 
problem in their states and really don't care what happens in 
someone else's state.
    I would like to commend my colleague Don Young for holding 
this hearing. It is crucial that we look at just how the 
Endangered Species Act is applied in different regions of the 
United States and whether all regions are being treated in a 
fair and equal manner. As the facts show, clearly this is not 
the case. In the Southwest Region where Arizona is located, 
there are 119 species listed under the Act. In contrast the 
Northeast Region has only 39 listed species: less than one 
third the number listed in the Southwest! On a more fundamental 
level, it is important for people to understand that the 
Endangered Species Act simply is not working. The Act has been 
in place since 1973 and currently has 1,679 species listed 
under it, however, in the 25 years that it has been in 
existence, only eight species have been delisted. This is not a 
success story, this is an abject failure.
    I am glad that we have this opportunity to bring facts like 
these before the American People and hope that, by bringing out 
the problems with the current Endangered Species Act, we can 
move expeditiously to enact meaningful reforms. It is vital 
that we help people to understand that a ``one size fits all'' 
policy simply does not work.
                                ------                                


 Statement of Hon. Robert F. (Bob) Smith, a Representative in Congress 
                        from the State of Oregon

    Mr. Chairman--
    The Endangered Species Act is the most powerful law in the 
country today. Its impact on private property, economic 
production, and our standard of living is unprecedented; 
because of its power, the enforcement of this law must be 
carefully scrutinized. I commend you on your decision to hold 
this important hearing.
    The total impact of the implementation of the Endangered 
Species Act is sometimes difficult to ascertain. We do know, 
however, that it has led to a greater reliance on imported wood 
products, higher energy costs, restrictions on the use of our 
nation's waterways, and more rigid regulations on the use of 
private land. Ultimately, my biggest concern about the Act is 
the emotional burden it places on hard-working farmers who have 
been forced to deal with a question fundamental to their very 
existence: will they have enough water to grow their crops and 
provide for their families?
    This is a critical aspect of the law that is too often 
overlooked. As Federal agencies focus on the rigid regulations 
written to implement the Act, they often lose sight of the fact 
that we are placing people's livelihoods at stake over a 
biologist's judgment. This is an awesome responsibility. Do we 
cut off water to a farmer and ruin his crops because one 
biologist believes that a lake ought to have six additional 
inches of water in it? Or for an additional 50 cubic feet per 
second of flow in a river? If such a decision is made, Federal 
agencies bear the burden of proof. Solid scientific evidence 
must be driving these issues; too often it does not.
    The listing of a species must contain two key components. 
First, we ought to have rigid standards placed on the 
scientific evidence being used to support the listing. The data 
should be collected using commonly-held scientific practices, 
peer reviewed by a broad array of experts in the field, and 
closely scrutinized by agencies and affected interests before 
being adopted. If the Federal agencies rush to judgment under 
the threat of a lawsuit, the burden of proof to delist then 
falls on landowners. This is wrong. It should be the agencies' 
burden to prove that a species merits listing, not a 
landowners' burden to prove it does not. Second, there must be 
a comprehensive plan adopted that specifies realistic numerical 
targets for species recovery. Without such a common 
understanding of the goals, how can landowners participate in 
the species recovery? If they are forced to comply with an 
ever-expanding list of Federal requirements and shifting 
standards, the Federal Government will lose the most effective 
partner they have in the effort to save legitimately threatened 
species.
    When the Federal Government's efforts degenerate into 
incrementalism and loosely defined goals, the recovery of 
species will never be successful. If, however, we can adopt a 
common understanding of the key issues that lay before us--
principally, the adherence to strictly scrutinized and peer 
reviewed science, and a detailed recovery plan--we can make 
progress. The need to provide more stability to the victims of 
misguided agency decisions require that we act to make this law 
better. I look forward to working with my colleagues in the 
Congress to achieve this goal.
    Mr. Chairman, thank you again for calling this very 
important hearing, and I look forward to discussing this matter 
in greater detail with our witnesses.
                                ------                                


  Statement of Hon. Don Ament, State Senator, and Hon. Lewis H. Entz, 
                 State Representative, Denver, Colorado

    Members of the House Committee on Resources:
    It has come to our attention that the Director of the 
United States Fish and Wildlife Service (USFWS) will be 
appearing before your Committee on Thursday to address the 
issue of whether or not to list the Preble's Meadow Jumping 
Mouse (PMJM) as threatened or endangered under the Endangered 
Species Act.
    As chairmen of the Senate and House agriculture committees 
we spend a great deal of time addressing the endangered species 
issue. At the state level we have held hearings regarding 
endangered species and understand the importance of extensive 
public comment. We have also been successful in developing 
recovery programs at the state level as a means of avoiding a 
Federal listing of certain species.
    In this respect we request that the USFWS extend the 
comment period on the Preble's mouse. This extension would 
allow sufficient time for all parties affected to provide the 
USFWS with information and possible recovery options. It is 
vital that all local concerns be heard at the Federal level and 
the extension of the comment period will allow this to take 
place.
    All too often the concerns of individuals and efforts by 
local and state governments are lost in the process at the 
Federal level. We urge your Committee to support an extension 
of the comment period in support of the citizens who will be 
directly affected by the decision of the USFWS.

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