    [Senate Hearing 105-369]
    [From the U.S. Government Publishing Office]

                                                            S. Hrg. 105-369

                        ENDANGERED SPECIES RECOVERY ACT

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

                                    HEARINGS

                                   BEFORE THE

                                  COMMITTEE ON
                          ENVIRONMENT AND PUBLIC WORKS
                              UNITED STATES SENATE

                           ONE HUNDRED FIFTH CONGRESS

                                 FIRST SESSION

                                       ON

                                    S. 1180

                A BILL TO REAUTHORIZE THE ENDANGERED SPECIES ACT

                                   __________

                           SEPTEMBER 23 AND 24, 1997

                                   __________

      Printed for the use of the Committee on Environment and Public Works

                       U.S. GOVERNMENT PRINTING OFFICE
     46-658 CC                WASHINGTON : 1998
    _______________________________________________________________________
                For sale by the U.S. Government Printing Office
    Superintendent of Documents, Congressional Sales Office, Washington, DC 20402

                   COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                           ONE HUNDRED FIFTH CONGRESS

                     JOHN H. CHAFEE, Rhode Island, Chairman
    JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
    ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
    DIRK KEMPTHORNE, Idaho               FRANK R. LAUTENBERG, New Jersey
    JAMES M. INHOFE, Oklahoma            HARRY REID, Nevada
    CRAIG THOMAS, Wyoming                BOB GRAHAM, Florida
    CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
    TIM HUTCHINSON, Arkansas             BARBARA BOXER, California
    WAYNE ALLARD, Colorado               RON WYDEN, Oregon
    JEFF SESSIONS, Alabama
                         Jimmie Powell, Staff Director
                   J. Thomas Sliter, Minority Staff Director

                                      (ii)

                                C O N T E N T S

                                  ----------
                                                                       Page

                               SEPTEMBER 23, 1997
                               OPENING STATEMENTS

    Allard, Hon. Wayne, U.S. Senator from the State of Colorado......     9
    Baucus, Hon. Max, U.S. Senator from the State of Montana.........     3
    Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     1
    Hutchison, Hon. Tim, U.S. Senator from the State of Arkansas.....    13
    Inhofe, Hon. James, U.S. Senator from the State of Oklahoma......     7
    Kempthorne, Hon. Dirk, U.S. Senator from the State of Idaho......     4
    Lieberman, Hon. Joseph I., U.S. Senator from the State of
      Connecticut....................................................    15
    Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    14
    Sessions, Hon. Jeff, U.S. Senator from the State of Alabama......    12
    Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......    10
    Wyden, Hon. Ron, U.S. Senator from the State of Oregon...........     6

                                   WITNESSES

    Clark, Jamie Rappaport, Director, U.S. Fish and Wildlife Service,
      Department of the Interior.....................................    16
        Prepared statement...........................................   129
    Garcia, Terry, Acting Assistant Secretary, National Oceanic and
      Atmospheric Administration, Department of Commerce.............    19
        Prepared statement...........................................   137
    Racicot, Marc, Governor, State of Montana........................    22
        Letter, supplementing testimony..............................   142
        Prepared statement...........................................   140

                              ADDITIONAL MATERIAL

    S. 1180, Endangered Species Recovery Act.........................    44
                                  ----------

                               SEPTEMBER 24, 1997
                               OPENING STATEMENT

    Chafee, Hon. John H., U.S. Senator from the State of Rhode Island   145

                                   WITNESSES

    Bean, Michael, director, Wildlife Program, Environmental Defense
      Fund...........................................................   148
        Letter, American Farm Bureau Federation......................   189
        Prepared statement...........................................   187
    McClure, James A., chairman, National Endangered Species Act
      Reform Coalition...............................................   145
        Letter, National Endangered Species Act Reform Coalition.....   186
        Prepared statement...........................................   181
    Moore, W. Henson, president and chief executive officer, and co-
      chair, American Forest and Paper Association, on behalf of the
      Endangered Species Coordinating Council........................   150
        Prepared statement...........................................   190
    Shroufe, Duane, director, Arizona Department of Game and Fish....   155
        Prepared statement...........................................   209
    Van Putten, Mark, director, National Wildlife Federation.........   152
        Prepared statement...........................................   196
        Response to additional questions from Senator Chafee.........   212

                              ADDITIONAL MATERIAL

    Statements:
        Coalition on the Environment and Jewish Life.................   213
        Evangelical Environmental Network............................   214
        National Association of Home Builders........................   216
        National Association of Realtors.............................   224

                    ENDANGERED SPECIES RECOVERY ACT OF 1997

                                  ----------

                          TUESDAY, SEPTEMBER 23, 1997

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to notice, at 9:30 a.m. in room
    406, Dirksen Senate Office Building, Hon. John H. Chafee
    (chairman of the committee) presiding.
        Present: Senators Chafee, Inhofe, Kempthorne, Allard,
    Sessions, Thomas, Wyden, Baucus, and Lieberman.

    OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
                         STATE OF RHODE ISLAND

        Senator Chafee. I want to welcome everyone here this
    morning for a hearing before the full Committee on Environment
    and Public Works concerning the reauthorization of the
    Endangered Species Act and legislation which has been
    submitted, S. 1180.
        Now, our problem is as follows: at 9:30, which is right
    now, there are two back-to-back votes on a matter that has been
    long-scheduled in the Senate. So what I would like to do is to
    make an opening statement, and then--that will take a little
    time, but not too long. I'll ask the other Members whether they
    want to make their opening statements or they'll have a chance
    when we get back, so you can just see how the time comes, see
    whether, indeed, they start at 9:30.
        The purpose of this hearing is to solicit views on S. 1180,
    the Endangered Species Recovery Act of 1997. Last Tuesday, I
    joined with Senators Kempthorne, Baucus, and Reid to introduce
    that bill to reauthorize and amend the Endangered Species Act.
        The Endangered Species Act is our most important law to
    protect our nation's natural resources and biological
    diversity, and it has been instrumental in saving some of our
    country's most treasured species.
        ESA law was last reauthorized almost 10 years ago in 1988,
    and I think it is very important to bear that in mind. In other
    words, the reauthorization in 1988 expired in 1992. Our bill
    reforms ESA and brings it up to date. It increases protection
    for endangered species in two fundamental ways. First, the bill
    improves the law's ability to work on private land. This is
    very important because private lands are habitat on which more
    than \2/3\ of the listed species depend, to a large extent. It
    isn't just Federal lands we're talking about. It's private
    lands that we want to deal with, to the extent possible, and
    preserve that habitat.
        The bill includes several incentives to encourage
    landowners to protect endangered plants and animals. Although
    some of these incentives have been implemented
    administratively, they are not authorized by statute.
        What are some of these incentives?
        They include ``no surprises'' guaranteed for permit holders
    that the Government will not seek additional mitigation over
    time.
        A ``safe harbor'' policy encourages landowners to protect
    lands valuable to species without risking additional liability
    as a penalty for good stewardship.
        A candidate conservation policy encourages landowners to
    undertake protection for species before they become endangered
    or threatened. Specific funding mechanisms, including a habitat
    reserve program and a habitat conservation revolving loan fund,
    are provided.
        Each of these provisions will greatly improve species
    conservation by creating tools that never existed in the law
    before in areas where the law was never applied before.
        The second way in which the bill strengthens protection for
    species is by overhauling the recovery program. For the first
    time since ESA was enacted, the bill would require actual
    implementation of recovery measures by the Federal Government.
    A recovery goal for each listed species must be developed by
    scientists using only the best science available. Each recovery
    plan must include measures to reach the goal and bench marks to
    measure progress as the plan is carried out.
        The Fish and Wildlife Service and the National Marine
    Fisheries Service are authorized to enter into implementation
    agreements with other parties to carry out the recovery plans.
        Now, I just want to greatly stress here the thanks that are
    owed to those who worked so closely in preparing this measure.
    Senator Kempthorne has been the chairman of the subcommittee
    that dealt with this. We had a series of hearings going back
    nearly 2 years. We had hearings in Oregon and in Idaho, in
    Wyoming, and those were very, very helpful.
        Senator Baucus has been tremendous and devoted long hours
    on this. Senator, I want to thank you for everything you did.
        Senator Reid, likewise, who is the ranking member of the
    subcommittee that dealt with this matter, should be recognized.
        It has been a long negotiation. As I said, we started
    nearly 2 years ago. Through all that period, Senators
    Kempthorne, Baucus, and Reid have been most able leaders,
    working patiently on each issue.
        Our witnesses have been involved in the effort to
    reauthorize the ESA for a long time and bring a great deal of
    insight and knowledge to our deliberations. So we welcome our
    distinguished panelists, and at this time--as I mentioned,
    Senator, before you got here, I thought we'd do what we could,
    recognizing that those two votes are going very shortly, and as
    soon as those go off, shortly after we'll adjourn and go over.
        Senator Baucus?

      OPENING STATEMENT OF HON. MAX BAUCUS, U.S. SENATOR FROM THE
                            STATE OF MONTANA

        Senator Baucus. Thank you very much, Mr. Chairman.
        I'd like to begin by saying Senator Reid would like to be
    here. He supports the bill. He has a conflict, another hearing,
    but he is definitely here in spirit.
        Senator Chafee. Is he here in vote?
        Senator Baucus. He supports the bill.
        I also want to acknowledge your leadership on this issue.
    Senator Kempthorne, Senator Reid, myself, and others know who
    the real leader is, and it is you. You've done a great job, and
    we want to let you know we would not be here were it not for
    your leadership.
        Let me also make clear that, despite the grumbling and the
    honest heart-felt reservations we hear in some quarters about
    this bill, I think today's hearing represents extraordinary
    progress.
        For example, just think back. Two years ago the Endangered
    Species Act was under attack. Appropriations writers, radical
    proposals to gut the Act, fierce partisan debate. Maybe all
    that controversy was good politics, but the Endangered Species
    Act was in critical condition, especially because of the
    appropriations writers which paralyzed the Fish and Wildlife
    Service's ability to implement the Act on the ground.
        In contrast, today we have a bipartisan bill. It will
    reauthorize the Act and make narrow, targeted improvements. It
    will provide more protection for the species. It will make it
    easier for farmers and ranchers and other landowners who are
    trying to play by the rules. And it will allow us finally to
    put the controversy and partisanship behind us and move ahead.
        Now let me turn to the bill. With all due respect to
    Senator Kempthorne, who has been a strong advocate for a
    conservative bill, let me list a few things that our bill does
    not include.
        It does not include a takings provision. It does not change
    the standard for listing. It does not contain water rights
    language that overrides the protections of Federal law. It does
    not mandate the selection of the least-cost recovery plan. It
    does not change the substantive standards of Section 7. And it
    does not override NEPA.
        Taking all this together, the bill does not include any of
    the provisions that would have threatened the fundamental
    underpinnings of the Endangered Species Act.
        But, of course, the measure of a law is not what it fails
    to accomplish, but what it does accomplish. It accomplishes a
    lot. It improves the listing process by bringing better science
    to bear and providing for flexible, non-bureaucratic peer
    review.
        I believe that better science makes the Act stronger, much
    stronger because it provides more confidence in decisions that
    are being made. It increases public participation by providing
    for more public hearings and opening up the recovery planning
    process. It creates a new emphasis on recovery planning,
    because recovery, after all, is what we're aiming for. It
    increases the role of states and encourages more cooperation
    with private landowners. And it makes modest changes to improve
    the consultation process among Federal agencies.
        All that said, the bill is not perfect. It is not the bill
    I'd write if I were to write it my own way. Rather, it is a
    hard-fought compromise that represents concessions all around.
    It can be improved. I'm especially sensitive to the concern
    that the bill requires substantial increased funding in order
    for key provisions to work.
        However, today's hearing is not the end of the road, but
    the beginning. We still have a lot to learn. Yesterday I held a
    meeting in Helena, Montana, to consider the views of many
    Montanans who have very strong feelings about this bill. Today
    we'll hear more from experts who have a great deal of
    experience with the Act.
        We take your comments seriously. We've tried to achieve a
    solid bipartisan compromise, but we don't have all the answers.
    The folks I talked to in Montana yesterday and the witnesses
    today can help us improve our bill. That way we can pass a new
    Endangered Species Act, one that will renew our commitment to
    protect the fragile web of life that will sustain the
    grandchildren of the 21st century.
        In closing, I want to again compliment our subcommittee
    chairman, Senator Kempthorne, and the ranking member, Senator
    Reid. Just like they did last Congress on the Safe Drinking
    Water Act, they worked very creatively to produce a win/win
    solution that is good for our environment and good for our
    economy.
        Thank you.
        Senator Chafee. Thank you very much.
        Senator Baucus. I want to thank Secretary Babbitt, too, and
    also Jamie Clark.
        Senator Chafee. We want to give kudos to Secretary Babbitt,
    whom we worked with very closely on this, and Jamie Clark,
    director of the U.S. Fish and Wildlife Service. They worked
    with us. I can remember being up here--Senator Kempthorne,
    Senator Reid, you, Senator Baucus, myself. I guess it was a
    Saturday morning, and we were working away, trying to get these
    compromises arrived at. And we were greatly appreciative.
        Senator Baucus. That's true. It's not often you see the
    Secretary or the director late at night with their sleeves
    rolled up trying to work out agreements to this bill, and I
    appreciate it very much.
        Senator Chafee. Thank you.
        Senator Kempthorne?

     OPENING STATEMENT OF HON. DIRK KEMPTHORNE, U.S. SENATOR FROM
                           THE STATE OF IDAHO

        Senator Kempthorne. Mr. Chairman, thank you very much.
        Mr. Chairman, I want to acknowledge the significant
    accomplishments that I think have taken place with regard to
    this bill, and it is because of your participation, your
    leadership; it is because of Senator Baucus' participation, his
    tenacity; Senator Reid and his participation. And I know that
    when we really began to dig into this 18 months ago to begin
    coming to a work product, I know there was probably a sense of
    whether or not we'd even get there, because we came from very,
    very wide, differing views of this. But I think all of us
    acknowledge that the Act could be improved, and that's what we
    have accomplished.
        I think that somehow we have probably taken what is one of
    the more emotional polarizing issues, the Endangered Species
    Act, and we have crafted a balance in this particular Act--a
    balance between making the Act work better to save species and
    making the Act work better for people in communities; that we
    truly can accomplish the original goal of the Act, which is to
    help species, but do it without putting people and communities
    at risk, because that is exactly what has been happening. And
    so this bill brings about some very important changes.
        There are over 1,000 species currently on the endangered
    species list today. Half of those, no recovery plan has ever,
    ever been written. Significantly, no endangered species has
    ever been removed from the list based upon a recovery plan. So
    this bill puts an emphasis on recovery, because recovery is
    forever. It also allows us the opportunity that we can help
    species before we reach that point. It also has significant
    opportunities for now enhancing states' rights and states'
    authority in this whole process.
        We need an ESA that will make advocates out of adversaries.
    As it is administered today, the ESA separates people from
    their environment. I will repeat that. It separates people from
    their environment. We are all environmentalists, because that
    is our life support system. It invites Federal regulators to
    become land use managers over some of the best stewards of our
    environment, our farmers, ranchers, and landowners. And we need
    their help if we are truly going to save species, because it is
    estimated that well over half of the species are on private
    property. Why would you not want to have a landlord that is
    friendly to the species? That just makes sense.
        The ESA must provide more incentives to encourage property
    owners to become partners in the conservation of our rare and
    unique species, and we can bring real and fundamental reform to
    the Endangered Species Act. We can minimize the social and
    economic impacts of ESA on the lives of ordinary citizens that
    too often live in fear of the Act. And we can benefit species.
    I believe that Senate bill 1180 does just that.
        Let me cite a few things that the bill does. The bill
    requires recovery plans for all species and sets deadlines for
    those plans. The bill provides incentives for agreements to
    implement recovery plans. States can assume responsibility for
    the development of recovery plans. Federal agencies are given
    greater authority to identify projects that are not likely to
    adversely affect a species. The bill allows permit applicants
    to participate in the consultation process. The bill gives
    property owners a variety of new tools to preserve species and
    habitat, including more flexible conservation plans, the ``no
    surprises'' protection ``safe harbor'' agreements, the habitat
    reserve agreement that Senator Chafee mentioned.
        The bill requires enforcement actions be based on
    scientifically valid principles, not assumptions. The bill
    requires the Secretary to use good science. All listing and de-
    listing decisions must be peer reviewed. A species must be de-
    listed when its recovery goal is met.
        Do you realize that currently we don't have a process for
    truly de-listing a species? We have an Act that is not
    constructed to declare victory? Well, now we will.
        Again, I've seen all the different comments in the press
    about this from all the different groups and organizations, and
    I've seen what people on all sides of this and the extremes
    have said. But I will just tell you that again, Mr. Chairman, I
    think that we have struck a balance. I look forward to this
    hearing. I look forward to the fact that 1 week from today
    we'll have a markup, and we're going to do what's right for
    species and also right for property owners.
        So, Mr. Chairman, again I thank you and Senator Baucus and
    Senator Reid for the partnership that has been established on
    this.
        Senator Chafee. Thank you very much, Senator.
        You mentioned emotions. We held a hearing in Roseburg,
    Oregon. There were about 1,200 loggers in the area that
    gathered in the great, big--it was the county fair grounds. And
    they all seemed to be much bigger than I was.
        [Laughter.]
        Senator Chafee. And they weren't terribly happy with the
    position I took. I think the entire police force of Roseburg
    accompanied me out of the building.
        Now, we've got the vote. There are just a few minutes left,
    so what I'd like to do now is we'll recess. There are two
    votes. I would ask everybody to come back as quickly as
    possible. Then we'll continue with other opening statements and
    proceed with the hearing. Thank you very much.
        [Recess.]
        Senator Chafee. All our Members aren't here. If there is
    one great non sequitur in the Senate, it is, ``There will just
    be two quick roll calls.''
        [Laughter.]
        Senator Chafee. Senator Wyden is next on our list.

      OPENING STATEMENT OF HON. RON WYDEN, U.S. SENATOR FROM THE
                            STATE OF OREGON

        Senator Wyden. Thank you very much, Mr. Chairman.
        I want to commend you and all four of the bipartisan group
    of Senators for what I think is a very solid start at this
    effort to preserve the Endangered Species Act.
        My sense is that the solutions of the future are going to
    be found outside the beltway, and I think there ought to be an
    effort to encourage States, in particular, to develop home-
    grown, locally driven solutions to protecting species the way
    Oregonians have sought to do with the coho.
        Let me also say that, as part of this effort, and something
    in this bill that I think makes sense, that States and areas
    that look to develop these solutions outside the beltway will
    be held accountable. They will have to operate in line with
    Federal criteria. It's not just a question of bucking the task
    home, but they will have to operate within certain specific
    criteria.
        Now, there are two parts of this legislation that I am
    concerned about at this time, Mr. Chairman and colleagues.
        First, it seems to me that it is critically important that
    this committee spell out what will happen if the funds that are
    so critical to making this legislation work are not
    forthcoming.
        I think the sponsors, the bipartisan group of sponsors
    have, as I say, set out a very significant improvement in the
    way the Federal Government will operate, but it seems to me
    there must be a fall-back mechanism that would be put in place
    if the funds are not forthcoming. So that is No. 1.
        No. 2, I would hope, Mr. Chairman--and this is an area I
    would like to work with the bipartisan group of sponsors on--
    that there could be more of an effort to encourage the States
    to play an active role pre-lifting of an endangered species. In
    other words, this bill allows for a very significant role for
    the States in the development of a recovery plan.
        But I think if we've learned one thing about this
    challenge--and the Endangered Species Act challenges us like no
    other Federal environmental law does--we have to do more to get
    there early.
        I know that my State, in developing the coho salmon plan,
    which did, in fact, avoid an endangered species listing, did
    find it very confusing as to what the path was with respect to
    the Federal Government in going forward on this effort.
        So I will be interested in working with the bipartisan
    group of sponsors to lay out a very clear path for States pre-
    lifting so as to encourage these home-grown, locally driven
    solutions.
        Last point that I would mention is a technical one, Mr.
    Chairman, and I'm sure the sponsors have looked at this, as
    well, and that is, I'm concerned that there may be, in parts of
    the bill, such a maze of bureaucratic steps that we may be
    stifling some of the creativity necessary to conserve
    endangered species. This is a technical issue, of course, and I
    know the sponsors of it have looked at it. But I would hope
    that, perhaps as part of this bipartisan effort, we could take
    some additional steps there to streamline some of those steps.
        Those three concerns, Mr. Chairman, are important to this
    Senator. But, again, I think a very solid start has been made
    by this bipartisan group, and I'm looking forward to working
    with them to get a good bill out of committee and get it out in
    an expeditious way.
        Senator Chafee. Thank you very much, Senator. Those were
    constructive suggestions. We appreciate the thought you've
    given it.
        Senator Inhofe?

     OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM
                         THE STATE OF OKLAHOMA

        Senator Inhofe. Thank you, Mr. Chairman.
        I would agree with Senator Wyden that we want to work
    together and get a good bill out. There would be some changes
    that I would look for in this that are probably different than
    the Senator from Oregon would look for. But I'm concerned about
    what this does in some other areas.
        Mr. Chairman, I am the chairman of the Readiness
    Subcommittee of the Senate Armed Services Committee. I can
    remember being at Camp Lejeune, where they have areas roped off
    to protect the habitat of the red-cockaded woodpecker. I have
    been watching amphibious operations in North Carolina and South
    Carolina where they are unable to perform adequate training
    because of certain endangered species. I'm very much concerned
    about this.
        About 3 years ago they were talking about putting the
    Arkansas River shiner on the list, and we calculated what that
    would cost the average small farmer in Oklahoma with runoff
    into the Canadian system, and it's something that we have to
    approach in a more realistic manner.
        I was prepared to talk about the good things in this bill,
    but I'd just echo what Senator Kempthorne listed in his list of
    three or four things that were very positive changes.
        But the one area that I think is sadly lacking is that of
    protecting property rights, and I am very much concerned about
    that. I think it should have been addressed in this bill. It is
    not addressed. I know that we have a bill, 1181, coming along
    that will be addressing it. It would be my hope at some point
    that we could incorporate this language into this bill during
    the process, but I think what we have right now is an
    improvement over the existing situation, and I look forward to
    working and making it a better bill.
        [The prepared statement of Senator Inhofe follows:]

    Prepared Statement of Hon. James M. Inhofe, U.S. Senator from the State
                                  of Oklahoma

        Mr. Chairman, thank you for holding this hearing today on
    the Endangered Species Recovery Act of 1997. I know that you,
    Senator Kempthorne, Senator Baucus and Senator Reid worked long
    and hard to reach the product that we have before us today.
        I have many concerns regarding the Endangered Species Act.
    I serve on the Armed Service Committee, as do many of my
    colleagues on this committee. As Chairman of the Readiness
    Subcommittee, I have heard many times how endangered species
    affect the activities of our military. In Camp Lejeune, The
    Red-Cockaded Woodpecker prevented training exercises. On the
    beaches of North and South Carolina, amphibian operations were
    curtailed because of the Sea Turtle.
        America has adopted an attitude that places more value on
    the life of a critter that on a human being. We want to protect
    the Spotted Owl, yet we care little for the men and women who
    lost jobs in the Northwest when the timber industry was
    virtually shut down. We want to protect the Arkansas River
    Shiner, a bait fish in Oklahoma, yet we will allow unborn
    babies to have their brains sucked out in a partial birth
    abortion. Mr. Chairman, we need to do something.
        Although this bill is far from perfect, it does move us one
    step closer to reforming an outdated law that has punished
    private land owners for too long. After reading through the
    bill, I found several sections that seem particularly important
    and wish to touch on those briefly.
        I am glad to see more State involvement. States views must
    be solicited and considered by the Secretary when a listing is
    initiated. Also, States may assume responsibility for recovery
    planning. This bill will authorize States to appoint the
    recovery team and submit the draft recovery plan to the
    Secretary.
        I am glad to see a process for de-listing a species within
    this bill. We have declared many species endangered, but few
    have ever been declared recovered. This will give the Secretary
    direction to implement just such a plan.
        And finally, I am glad to see requirements that the
    Secretary use sound science regarding the listing of any
    species.
        Having said that, I also wish to mention one glaring
    omission: The issue of private property rights and compensation
    for lost use. To me, this is the key to any meaningful
    endangered species reform. I have spoken to Senator Kempthorne
    and expressed my concern regarding this issue and he has
    assured me that this is also of concern to him. His bill, S.
    1181, will address the property rights issue, and I wish to
    compliment him on that and offer my support for that
    legislation.
        Additionally, I am in the process of drafting letters to
    Senator Hatch, Chairman of the Judiciary Committee, and Senator
    Roth, Chairman of the Finance Committee, to encourage them to
    hold hearings on S. 1181 as soon as possible. It is my sincere
    hope that when the bill before us today is brought to the
    floor, it will be amended with the language in S. 1181.
        Mr. Chairman, as I have stated, this bill begins to move us
    in the right direction. However, it does not fulfill the
    campaign promises we made to America. I will reluctantly
    support this language and will actively pursue amending the
    bill to reflect the concerns of private property owner
    everywhere. Thank you.
        Senator Chafee. Well, thank you. As far as the property
    rights matters go, I do not wish to see that included in this
    legislation. If it is separate legislation applying to more
    than endangered species, that's a separate matter, it seems to
    me.
        As you know, there has been in the past legislation
    reported out of the Senate Judiciary Committee dealing with the
    overall broad topic.
        Senator Allard?

     OPENING STATEMENT OF HON. WAYNE ALLARD, U.S. SENATOR FROM THE
                           STATE OF COLORADO

        Senator Allard. Mr. Chairman, I'd like to thank you for
    holding this hearing. I'd also like to applaud the efforts of
    both you and Senator Kempthorne on this issue. I know that
    you've put in countless hours, but I am somewhat disappointed
    in the final product.
        As a western member of the committee, I have to look to
    several items on endangered species reform that are crucial to
    my State in Colorado, and I think many other western States.
        Most importantly, language which protects existing yields
    of water, limiting the scope of Section 7 consultations, and
    protecting interstate compacts are important. Unfortunately,
    the legislation does not address these three concerns.
        I accept the concerns of the chairman saying he doesn't
    want to have any water language, he doesn't want to have water
    law change in this particular piece of legislation.
        If we apply that standard to this committee and the
    legislative branch, I don't think it's unreasonable to expect
    the same standards out of the bureaucracy, because they are in
    the process of changing water law, changing existing yields of
    water, and it seems to me that if we're going to have that
    restriction on this committee, that an appropriate restriction
    ought to be put on the bureaucracy, as well, so that they're
    not out there constantly changing water law.
        Second, addressing Section 7 is very crucial to Colorado.
    In recent years, attempts by the Fish and Wildlife Service to
    expand Section 7 consultations from discrete action under
    review to other existing activities is very disturbing and I
    believe needs to be corrected.
        Now, let me give the chairman an example of why strong
    language is necessary, and it goes back to a situation that
    occurred in 1991 in Colorado. At that time the Denver Water
    Board proposed to add what we call a ``fuse plug'' to the
    spillway. A fuse plug is a small plug that's put in a dam so
    that if you have a flash flood it doesn't tear out the whole
    dam. The fuse plug breaks away and saves the structure. The
    spillway is something, again, that is utilized during times of
    high run-off. It allows the water to run around the dam so it
    doesn't take out the dam. These are safety devices that we use
    in dam construction.
        The installation required a Section 404 permit from the
    Corps, and Section 7 was, therefore, required on the action.
        When the Corps and Fish and Wildlife began their
    determination of the scope, their conclusion was that the
    addition of a fuse plug required consultation on the impact of
    the project, on the depletion of the entire Colorado River.
    That's from Rocky Mountain National Park all the way down to
    the Gulf, through a number of western States, all the way down
    into Mexico.
        This is not reasonable, and I think it points out a good
    example of why we need to have something on Section 7.
        Because of this, the Denver Water Board canceled their
    proposed safety improvement.
        This legislation, in my view, would not stop that kind of
    abuse.
        I'm also concerned that Senate Bill 1180 does not go far
    enough in protecting interstate compacts. Specifically, I'm
    concerned that Section 3(l)(3) does not provide enough
    protection to interstate compacts. Protecting compacts is
    crucial to my State, and unless it can be fixed I'll have a
    very difficult time coming around and supporting this
    legislation.
        I would remind the committee and the chairman that we have
    seven major drainage basins that occur in the State of
    Colorado. We have interstate compacts that have been agreed to,
    those States that are downstream from the State, and these have
    been agreed to by the Congress. And I think that we need to
    protect those compacts. They are vital to my State.
        Mr. Chairman, again I would like to thank you for holding
    the hearing and I look forward to today's testimony.
        Senator Chafee. Thank you very much, Senator.
        I would remind all Senators that I just hope we won't let
    the vision of the perfect get in the way of the good. And the
    chances of legislation vastly different from what this
    legislation is of passing the Congress are very slim.
        As I mentioned in my opening statement, this bill--the last
    reauthorization was nearly 10 years ago in 1988, and we've had
    other efforts since then that have not succeeded.
        So I would hope that all of us would recognize that there
    may be some things that we would like to be different, but the
    question is: is it worthwhile, according the achievements that
    we have in this legislation?
        Senator Thomas?

     OPENING STATEMENT OF HON. CRAIG THOMAS, U.S. SENATOR FROM THE
                            STATE OF WYOMING

        Senator Thomas. Thank you, Mr. Chairman.
        I heard your admonition on brevity, and I will do that and
    submit my statement.
        Thank you, all of you, and Senator Kempthorne,
    particularly, for the efforts over the years that you have done
    here.
         I must confess I am a little nervous when my friend from
    Oregon and the Secretary of Interior talk about a solid first
    step. A first step? It makes you wonder what the next step is
    going to be. But, nevertheless, there are some good things
    here.
        I do think certainly we have to move toward getting more
    cooperation in the Federal, State, and local governments, as
    well as landowners.
        Mr. Chairman, I would have to disagree a little bit with
    this idea of the--I hear it so often--don't let the perfect
    interfere with the good. I think if you don't have a package
    you never get the rest of the stuff. You go with part of it,
    and then the pieces that you think are important, that I think
    are important, never get taken up. So I just think you have to
    modify that a bit to say this is a package and we have to go
    there.
        I hope, too, that, as I've observed this over the last
    several years, each time this comes up we divide into camps and
    the environmentalists say, ``Oh, if you want to change this
    you're simply trying to get rid of all the protection for
    endangered species.'' That's not the question. We've had 20
    years of experience in dealing with this issue, and it's
    certainly time to use that experience to have a better bill.
    And if people want to change and make changes, it doesn't mean
    they're opposed to the endangered species. So I hope we get
    away from that kind of a break that always seems to happen.
        I am concerned about water rights. I think that is terribly
    important to the west, and whatever my friend from Colorado
    indicates--and he's exactly right--we move in to the authority
    of States to adjudicate water through these bureaucratic kinds
    of things, and that's not what we propose to do.
        I think property rights are terribly important here. This
    matter of listing and de-listing, clearly there has to be some
    priorities in listing. There are a million critters out there
    to list, and there is only so much resource. You have to do
    something to have some priorities.
        The de-listing--and I've talked to the director before. The
    grizzly bears in Wyoming, we've been going to de-list those for
    how many years? Still haven't got it. Aren't even close. I
    think we have to do something there.
        So certainly I'm glad we're doing this. I just hope that we
    take a realistic look at it and say, ``Look, we've had some
    experience. These are the things that need to be changed from
    that experience,'' and seek to do it.
        I thank you, Mr. Chairman.
        Senator Chafee. Thank you very much, Senator.
        [The prepared statement of Senator Thomas follows:]

    Prepared Statement of Hon. Craig Thomas, U.S. Senator from the State of
                                    Wyoming

        Thank you, Mr. Chairman, for holding this hearing today to
    examine the recently introduced ``Endangered Species Recovery
    Act of 1997.'' As this committee knows, you and Senators
    Kempthorne, Baucus, Reid--and the Clinton Administration--have
    been negotiating for months to reach a compromise on this
    legislation. I look forward to hearing the comments of my
    colleagues, and those of the witnesses, about the strengths and
    weaknesses of this bill.
        Reforming the Endangered Species Act is one of the most
    important issues this committee will deal with this Congress.
    It is an Act that is complex and we need to look at ways to
    make the law more effective. This cannot be achieved, however,
    without cooperation between Federal, state and local
    governments, as well as private landowners. And as we learned
    from the last Congress, it is important that we do it right the
    first time. True reform of the Act cannot be achieved
    incrementally.
        At the outset, let me say that we all want to protect and
    conserve endangered species. I am hopeful that this time around
    we can move beyond the rhetoric that has taken place in the
    past and recognize that all parties want to help protect
    species. The discussion should focus on using our experience to
    find a better way to list, recover and de-list endangered
    species.
        Having reviewed the bill briefly since its introduction
    last week, I do believe there are some good provisions that
    will improve the ESA. However, I also noticed that issues like
    state authority over water rights and private property rights
    are not as detailed as some would like. As a Western Senator, I
    am concerned about what this means for folks in my state, and
    what it means for passage of this legislation.
        As Senator Kempthorne and others on this committee know,
    water is the lifeblood of many farmers and ranchers in the arid
    West. Without it, communities, jobs and economic growth would
    literally dry up. I want to make sure that, at a minimum,
    states do not lose primacy over water allocation under this
    legislation, and would prefer to work with the sponsors to
    possibly add language reaffirming states' rights with regard to
    water.
        On the issue of private property, we all realize the
    warning flags that go up even at its suggestion. I have
    participated in numerous hearings with Senator Kempthorne in
    the last Congress and certainly understand both sides of this
    issue. S. 1180 incorporates ``safe harbor agreements'' and ``no
    surprise policies,'' which aim to protect private property
    owners from further liability under the ESA when they take
    voluntary steps to conserve species on their property. I
    believe these provisions are important, but are they enough to
    ease the concerns of landowners in Wyoming and other states?
    I'm not sure. I hope to hear from our witnesses about these
    provisions and will be working with folks in my state in the
    next week to ensure they are comfortable with these measures.
        I am pleased, however, that for the first time, the
    Secretary of Interior will be required to use the best
    scientific and peer-reviewed data available when listing and
    de-listing endangered species. In Wyoming, we've seen first
    hand the need to improve the listing process. The U.S. Fish and
    Wildlife Service should not be forced to spend taxpayers' money
    to look at proposals to list species without strong scientific
    evidence to back it up. And it's refreshing to see that
    individual states will be recognized as partners in the listing
    and recovery processes. For too long, the states folks who have
    all the responsibility for managing the species once it is off
    the list--have not been true partners in that process.
        Furthermore, we need to start focusing on priorities for
    listing and de-listing and I hope to hear more about the
    scientific requirements in the bill for petitions to list, de-
    list or alter the status of a species. Wyoming's experience
    with the Grizzly Bear is a good example of some of the problems
    with the current de-listing process. It is my understanding
    that this legislation would develop deadlines for recovery
    plans and includes benchmarks to determine whether progress is
    being made toward recovering the species. I think it's
    important to realize that criterion and priorities need to be
    set--and once those targets are met--begin the process of de-
    listing. I hope our panelists will elaborate on how this
    section of the bill will improve the recovery and de-listing of
    endangered species.
        In closing, Mr. Chairman, let me again say thanks to you
    and the other bill sponsors for bringing this issue to the
    forefront. Reforming the Endangered Species Act is, and has
    been, a priority of mine for quite some time. I hope we are
    able to move forward in a manner which improves the current Act
    and recognizes the importance of partnerships between the
    Federal Government, state governments and private property
    owners.
        Senator Chafee. Senator Sessions?

    OPENING STATEMENT OF HON. JEFF SESSIONS, U.S. SENATOR FROM THE
                            STATE OF ALABAMA

        Senator Sessions. Thank you, Mr. Chairman.
        I want to thank Senator Kempthorne and the chairman for the
    work that you've put onto this bill. It is progress. It is
    better than we've had. I tend to believe it could be better,
    still, and I think we ought to strive to make it better, and I
    support those who share those concerns and agree with Senator
    Thomas.
        We are here to reauthorize Endangered Species Act and to in
    no way take the teeth out of it or to undermine it, but I do
    believe we can make it work better. I believe we ought not to
    have regulations which are, in effect, a tax on those who have
    to meet those regulations. We ought to have no regulations that
    are unwise or unproductive, and the regulations we do have
    should enhance the goals that we seek to achieve.
        Alabama has 87 species that are endangered--I think fifth
    highest in the nation. It is a rich ecological area that has
    much to offer the nation. We want to preserve that heritage,
    and we look forward to working with the members of the
    committee toward that end.
        I will say I'm also somewhat concerned that, in delegating
    some of the authority under the Act to the State environmental
    agencies--and we have a good one--that that is being
    undermined, I understand, by taking some of that power back and
    demanding approval of Federal agencies in addition, even after
    having delegated it to the States, so that's something I'm
    concerned about also, Mr. Chairman.
        In the interest of brevity, I conclude my statement.
        [The prepared statements of Senators Sessions, Hutchinson,
    Reid, and Lieberman follow:]

     Prepared Statement of Hon. Jeff Sessions, U.S. Senator from the State
                                   of Alabama

        I would like to begin by thanking Senator Chafee for
    calling this hearing to discuss S. 1180, the Endangered Species
    Recovery Act. This legislation, if enacted, would serve to
    reauthorize the Endangered Species Act through 2003, and I
    believe it appropriate that we have this hearing today to
    discuss some of the more controversial aspects of not only this
    legislation, but also of current law. I would also like to
    commend both Senator Chafee and Senator Kempthorne, the
    chairman of the Drinking Water, Fisheries and Wildlife
    Subcommittee, for the time and effort they have expended toward
    bringing this legislation forward.
        Mr. Chairman, as a native Alabamian I have been truly
    blessed to come from a state with a rich assortment of diverse
    plant and animal species living within its borders. Alabama's
    legacy of biodiversity has been reflected within the context of
    the Endangered Species Act as Alabama currently hosts 87 plant
    and animal species that have been identified as either
    endangered or threatened, the fifth highest total in the
    nation. Constant exposure to so many species clearly gives
    Alabamians a unique perspective on the importance of efforts
    which seek to preserve not only our own indigenous species, but
    also those species whose ranges fall outside our borders.
        Clearly, the large number of species Alabama hosts have
    also given rise to a large number of private individuals,
    landowners, and commercial entities who have had to navigate
    the complex world of Federal Endangered Species Act compliance.
    As we advance the important goal of species preservation, it is
    equally important that our efforts do not lose sight of the
    need to protect these people from many of the burdensome and
    costly regulations and procedures that they face under current
    law. I think we all can agree that many of the concerns these
    individuals have raised, for example concerns about unwarranted
    Federal consultation in permitting programs that have been
    delegated to the States, are valid and merit our serious
    attention. I believe that it is possible to reform current
    Endangered Species law in a common sense fashion to advance the
    dual goals of species protection and protection of private
    property rights, and I will be interested in hearing the
    comments of the witnesses who are assembled here today as to
    whether this legislation successfully promotes both of these
    important goals.
        To this end, I would also like to thank the witnesses for
    coming forward today to present their views to the Committee.
    Clearly, the panelists today represent a broad range of
    interests, and I am certain their input will prove to be of
    assistance to us during our deliberations.
                                  ----------

    Prepared Statement of Hon. Tim Hutchinson, U.S. Senator from the State
                                  of Arkansas

        Thank you, Mr. Chairman. I am pleased today to be a part of
    the beginning of a historic process to reauthorize the
    Endangered Species Act. I especially want to compliment Senator
    Kempthorne, Senator Chafee, Senator Baucus and Senator Reid for
    their efforts in making this legislation possible. I know that
    the negotiations have been difficult and, at times,
    frustrating. But, you stuck with it and have seemed to come to
    a consensus bill that can be passed.
        Like the budget agreement, I don't think this legislation
    is perfect. Had I written it, it would be quite different. But,
    if that were the case, we would not be where we are now. I am
    looking forward to working on this legislation and coming to an
    agreement that will be a positive step toward serious reform of
    this law.
        While once identified by some as the crown jewel of
    environmental legislation, the Endangered Species Act has
    become one of the most burdensome pieces of environmental
    legislation. Like so many laws created by Congress, the
    intentions of the ESA are good and, to a certain extent, has
    helped protect endangered species from becoming extinct. One
    such example is the American Bald Eagle, which is a success
    story that should be celebrated. Unfortunately, the success
    stories under the Endangered Species Act are few and far
    between.
        To far too many land owners, the law has become a symbol of
    waning property rights and endless litigation. I consistently
    received letters from constituents who virtually beg for reform
    to this law, because in far too many cases, these law-abiding
    citizens have been treated almost like criminals. Many times
    these are not big landowners or large timber companies, but
    small land owners who are trying to make ends meet. One such
    constituent, Mr. Don Lind, of Fort Smith, Arkansas, complains
    of ``runaway environmentalism,'' in his June letter to me.
        In my opinion, one of the biggest problems with the
    original Endangered Species Act was that focused far too much
    on protection of a species, without doing enough to ensure the
    recovery of a species. I am very pleased to know that S. 1180
    will focus more on recovery and that states will get an
    enhanced role to take over the recovery planning process.
        Perhaps the most positive step in this legislation,
    however, will be to allow landowners to participate in the
    recovery and protection of a species. We have left these people
    out of the process for far too long. Their cooperation and
    efforts will enhance our ability to recover these endangered
    animals, while bringing those who are directly affected into
    the process.
        Mr. Chairman, thank you, again, for your efforts. And thank
    you for calling this hearing today.
                                  ----------

     Prepared Statement of Hon. Harry Reid, U.S. Senator from the State of
                                     Nevada

        Mr. Chairman, I wish to thank you for scheduling today's
    hearing on this important legislation. Your leadership on this
    issue has brought us to the point we are at today and I commend
    you for your dedication to reauthorizing this important Act. I
    also wish to extend my thanks to the ranking member of the
    committee, Senator Baucus, and the chairman of the
    subcommittee, Senator Kempthorne.
        The Endangered Species Recovery Act is the product of years
    of bipartisan efforts. The Endangered Species Act is considered
    to be one of the cornerstones of our environmental laws.
    Unfortunately, the current Act is failing in its ability to
    recover species. Like any good act, it is in need of
    reauthorization to adapt to changes in society. Having
    carefully examined where and how it is lacking we undertook
    efforts to craft legislative solutions. Much of these solutions
    are the result of input we received from environmentalists,
    landowners and those involved in administering this Act.
        I believe the legislation we introduced last week
    represents a good starting point for reauthorizing the Act.
    While it may not make everyone happy, I do not believe we
    should make the perfect the enemy of the good. No legislation
    will please everyone. And arguably those measures which are
    criticized equally by opposing interests represent the best
    proposals. Bipartisan efforts help to ensure passage, they are
    not meant to be crowd pleasers.
        I am pleased with the result of our bipartisan efforts. I
    wish to thank the Senators Chafee, Baucus and Kempthorne for
    the time and commitment they made toward reauthorizing this
    Act. I believe this measure represents significant progress
    from where we started earlier this year.
        It is important that we undertake reauthorization so that
    we can put an end to legislative efforts to gut this Act on the
    annual Appropriations measures. As all are aware, these often
    extreme proposals resulted in fiercely partisan debates. I do
    not believe the appropriations process is the appropriate
    vehicle for amending this Act. Without this bill, however, that
    is where we would be debating this Act today.
        The bipartisan measure we are considering today undertakes
    the necessary reforms to make this Act work. It not only
    provides greater protection for species but is makes the Act
    more user friendly to ranchers and landowners who simply seek
    to play by the rules. What are the improvements this bill
    makes?
          Listings will be based on better science.
          There is more public participation in developing
    plans to recover species.
          The bill emphasizes conservation and recovery of
    species.
          It includes deadlines and benchmarks for
    recovery.
          It provides for greater cooperation with
    landowners.
          It includes greater incentives and assistance to
    landowners.
          It streamlines Federal agency consultation and
    thus will bring about greater recovery.
          It ensures that recovery plans will actually be
    implemented and not simply sit on book shelves gathering dust.
        A few other points. I have heard from some
    environmentalists about their concerns. I thank them for their
    input and look forward to reviewing their comments. I would
    like to remind them of how far we have come on this measure by
    mentioning some things that are not in this bill.
          It does not include a provision on water rights.
          It does not allow agencies to ``self-consult'' on
    adverse affects.
          It does not require the selection of the least
    costly recovery strategy.
          It does not modify the standard of emergency
    listing to ``threat of imminent extinction.''
          It does not require a special rule for threatened
    species at the time of listing.
          It does not incorporate the Sweethome standard of
    ``proximate and foreseeable'' cause for take enforcement.
          It does not waive NEPA review for HCPs and
    Recovery Plans.
        While improvements could be made, this measure is a solid
    proposal. I am hopeful we can fulfill our responsibility to
    reauthorize this Act.
                                  ----------

     Prepared Statement of Hon. Joseph I. Lieberman, U.S. Senator from the
                              State of Connecticut

        Mr. Chairman, I want to thank you and Senators Baucus,
    Reid, and Kempthorne for all of the work you and your staff
    have put into this bill. We heard through a series of hearings
    last year that while the Endangered Species Act is a very
    important environmental protection law, it is also a
    controversial law--particularly in cases where its
    implementation has delayed or prevented public and private
    development and other economic activities. So I commend you for
    trying to craft legislation that tries to meet the conflicting
    needs of the different values and interests involved.
        As we enter this hearing, I think we should remember that
    the need to prevent species decline and habitat loss is
    growing, not declining. Global loss of plant and animal species
    is occurring at a far greater rate than ever before in the
    fossil record. This pace of extinction is truly staggering. At
    current rates, half of the plant and animal species alive today
    could be gone in 55 years--in large part due to human activity,
    not by the process of natural evolution. This statistic points
    to the need to ensure that our laws protect species so that we
    do not waste the biological legacy entrusted to us by our
    Creator.
        This bill is a good start and has much to recommend it. In
    particular, I want to point out that ``on-the-ground''
    conservation efforts might get a big boost if we can adequately
    fund the measures proposed in this legislation that offer
    financial incentives to private landowners who agree to manage
    their lands to benefit species. The bill also provides for
    greater public participation in the development of conservation
    plans for species, something that is sure to increase the
    acceptance of conservation measures by the people who
    ultimately have the responsibility of implementing them.
        However, I have questions about whether the bill--if
    enacted as currently written--would weaken the Act in some
    important respects. Let me discuss some of these issues.
        First, there are questions about whether a number of
    provisions in the bill impose new, burdensome requirements for
    listing species and for planning species' recovery efforts.
    Without adequate funding, I am concerned that the agencies
    responsible for administering the Act will face too much
    paperwork as they struggle to complete the complex analyses
    specified in this law. With tight deadlines for recovery plan
    completion--only 5 years to complete plans for over 400 plus
    species--limited resources for on-the-ground conservation
    efforts could be consumed.
        Second, I question whether we should put into law the so-
    called ``no surprises'' policy. Under this provision, a
    landowner may enter into a conservation agreement for a number
    of species--some of which are not yet listed for protection
    under the ESA. As long as the landowner is in compliance with
    that agreement--which can last for as long as 100 years in some
    cases--he or she will not be required to undertake any
    additional mitigation measures, even if new knowledge about a
    species shows that more protections are required. Conservation
    biologists will tell us that we know very little about the
    requirements of many species, especially those that are not
    listed under the ESA. So, I am concerned about providing
    landowners with such solid assurances in law for such a long
    time period when only a limited amount of science is available.
    We may need to expand the ``extraordinary circumstances''
    reopener that is now in the bill. An additional question raised
    about the ``no surprises'' policy is that the bill does not
    establish any mechanism to pay for ``surprises'' when they do
    occur. If a conservation plan fails to meet its objectives, the
    Secretary ought to have some kind of insurance fund available--
    be it funded by appropriations or by performance bonds as some
    have suggested--to ensure that we can meet our obligations to
    help species recover.
        Finally, Mr. Chairman, I have questions about changes to
    the process known as ``consultation.'' Under current law,
    Federal agencies must consult with Fish and Wildlife Service or
    the National Marine Fisheries Service whenever an agency action
    may result in a ``take'' of imperiled species. In other words,
    consultation ensures that actions by Federal agencies will not
    affect species' chance for recovery--it is a law based on the
    common sense principle of ``look before you leap.'' The changes
    in consultation proposed in the bill would limit the
    application of common sense by giving the Services--which
    already would be burdened by new requirements for listing and
    recovery--only 60 days to review decisions made by other
    Federal agencies.
        So this legislation is a good start, but I hope that we can
    work together to address some or these concerns as we consider
    reauthorization of the Endangered Species Act.

        Senator Chafee. Thank you very much, Senator.
        Now, this is my plan. We have two panels. The first panel
    has three distinguished witnesses, and the second panel has
    five distinguished witnesses. All witnesses before this
    committee are distinguished.
        [Laughter.]
        Senator Chafee. I am very anxious to complete this hearing
    this morning. I know that we have our lunches at around 12:30-
    ish. I think that can probably be extended up until 12:50, but
    it is true that we have to move right along. I don't want to
    cut anybody off, but we're going to give each of the witnesses
    5 minutes to make his or her presentation, and we'll reserve
    our questions until the panel has completed its testimony, and
    then we'll move back for questions.
        So we'll start with The Honorable Jamie Clark, who is the
    director of the U.S. Fish and Wildlife Service.
        We're delighted to see you here, Madam Director. Will you
    proceed?

     STATEMENT OF HON. JAMIE RAPPAPORT CLARK, DIRECTOR, U.S. FISH
         AND WILDLIFE SERVICE, U.S. DEPARTMENT OF THE INTERIOR

        Ms. Clark. Thank you, Mr. Chairman.
        Mr. Chairman and members of the committee, thank you for
    the opportunity to speak with you today about this very
    important legislation to reauthorize the Endangered Species
    Act.
        Having served as a program manager for the endangered
    species program, I have, along with many of you, been deeply
    involved with the 5-year quest for a reauthorized and
    strengthened ESA. I'd like to commend you, Mr. Chairman, and
    Senators Kempthorne, Baucus, and Reid, and your staffs for the
    dedication and hard work that made introduction of this bill
    possible.
        The Endangered Species Act is one of the nation's premier
    conservation laws, and I'm very encouraged by this bipartisan
    legislation. We appreciated your inviting the Departments of
    Interior, Commerce, and Justice to provide technical assistance
    and support to the process.
        We're also pleased that another bipartisan bill, H.R. 2351,
    has been introduced in the House, and that the leadership of
    the House Resources Committee has begun tentative bipartisan
    discussions in an effort to seek common ground on
    reauthorization.
        These positive developments suggest that at long last
    legislative gridlock is ending and we're on the road to
    reauthorizing the Endangered Species Act.
        Your long efforts have resulted in legislation that has
    been carefully crafted to maintain the essential strengths of
    the current law, while taking steps to make it work better for
    species, landowners, and the States. The Administration is very
    pleased that the bill maintains a requirement that listing
    decisions be based solely on biological considerations and
    sound science, that the essential protections under Sections 7
    and 9 remain intact, that there is increased opportunity for
    public and State involvement, and that recovery of species
    remains the centerpiece of the Act.
        We are also pleased that the bill codifies many of the
    reforms and policies that the Administration has proposed and
    carried out over the past few years.
        On balance, we believe that S. 1180 will strengthen our
    ability to conserve species. The Administration supports
    enactment of the bill, subject to the reconciliation of several
    issues set forth in this testimony. Prior to the committee
    markup of S. 1180, the Administration will provide the
    committee with a list of technical and clarifying amendments,
    as well as suggested report language. We'll also provide
    additional technical amendments, as the other Federal agencies
    and the Administration complete their review.
        We believe Senate 1180 will strengthen our ability to
    conserve threatened and endangered species. The bill enhances
    recovery by encouraging conservation plans that address
    multiple species dependent on the same habitat and by providing
    increased Federal, State, and public involvement in the
    recovery planning and implementation process.
        The bill ensures the use of sound science through the
    addition of peer review to listing decisions, new petition
    management guidelines, and increased information sharing with
    States. The bill provides incentives and certainty for
    landowners. The bill promotes increased public support and
    involvement in species conservation, and incorporates our
    ``safe harbor'' policy to encourage species and habitat
    conservation on private lands, while providing regulatory
    certainty to landowners.
        The bill also addresses one of the major concerns regarding
    conservation plan, and ``no surprises,'' by requiring
    monitoring of conservation plans to better assess their impacts
    on species.
        The bill increases the involvement of States, tribes,
    affected public landowners, and the environmental and
    scientific communities to enhance public participation in
    endangered species conservation by emphasizing the importance
    of collaborative partnerships, and the bill eliminate threats
    to species through conservation measures undertaken before they
    have declined to very low numbers.
        We are also pleased that the bill does not contain
    problematic language on water rights, property rights, or
    compensation provisions, that it reaffirms our ability to
    emergency list species when necessary, and does not waive other
    environmental statutes. We would strongly object to such
    provisions if they became part of the bill.
        I'd like to now highlight the Administration's concerns
    regarding the bill. Securing adequate funding to support this
    legislation will be the greatest challenge facing all of us.
    The legislation calls for an authorization level that more than
    doubles the resource agencies' current ESA budgets. Without
    adequate appropriations, we will face significant litigation
    backlogs, the recovery of many species will be stalled, and
    response and technical assistance to landowners, applicants,
    and Federal action agencies will be delayed.
        Also, a number of agencies will require additional funds to
    adequately implement this bill because of the increased
    responsibilities for land management agencies, such as the
    Forest Service, Fish and Wildlife Service, and Bureau of Land
    Management.
        In short, absent adequate funding or a reduction in the
    complexity of some of the processes, we cannot support this
    bill. The bill's greatest strength is in its increased emphasis
    on recovery, but the additional process outlined in the bill
    will be expensive to implement, and new deadlines may be
    difficult to meet, even with adequate funding.
        The bill should be amended directing the Secretary to
    develop and implement a biologically based recovery planning
    priority system using the biological priorities as set forth in
    S. 1180 as a template for the system.
        One method for streamlining the bill's process requirement
    is to consolidate the designation of critical habitat with the
    development of recovery plans. Although the bill allows for the
    regulatory designation of critical habitat at the time of
    recovery rather than listing, a significant improvement, we
    remain concerned that the cost of administrative burden of
    designating critical habitat by regulation in this bill is not
    warranted.
        Habitat is the key for all species and, as such, needs to
    be thoroughly addressed in all recovery plans. Continuing to
    carry out a regulatory critical habitat designation process
    simultaneously with the new recovery plan development process
    is duplicative and escalates costs for little resource or
    stakeholder benefit.
        We also recommend that our recent practice of working
    together with other Federal agencies early in the consultation
    process in a proactive manner is both more efficient and better
    if a species' conservation be codified. Even where early
    consultation occurs, the bill could be read to require that
    action agencies wait an additional 60 days for resource
    agencies to object to their findings concerning whether their
    actions will adversely affect listed species.
        Language that stresses the importance of early proactive
    coordination and cooperation among Federal agencies and the
    ability of agencies to still request and receive expedited
    concurrence letters would alleviate those concerns.
        Finally, I'd like to urge that the spirit of cooperative
    discussion that produced this bill extend to the development of
    the committee report so that our mutual understandings of these
    complex issues are strengthened, not eroded, as the bill
    proceeds through the legislative process.
        I'm very encouraged that the Senate is moving forward to
    reauthorize the Endangered Species Act. We in the
    Administration stand ready to continue to assist in any way
    possible in seeing this process through to completion. We're
    optimistic that we can reach closure on these issues before
    final consideration of this bill in the Senate so the
    Administration can support its enactment. Together we can make
    the Act work even better for species and people and get on with
    conserving our resources for future generations.
        Thank you, Mr. Chairman.
        Senator Chafee. Thank you very much, Director Clark. We
    appreciate that.
        Senator Chafee. The Honorable Terry Garcia, acting
    Assistant Secretary for the National Oceanic and Atmospheric
    Administration, the U.S. Department of Commerce.
        Mr. Secretary?

      STATEMENT OF HON. TERRY GARCIA, ACTING ASSISTANT SECRETARY,
         NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, U.S.
                         DEPARTMENT OF COMMERCE

        Mr. Garcia. Thank you, Mr. Chairman.
        I am pleased to be here today on behalf of the National
    Oceanic and Atmospheric Administration of the Department of
    Commerce. NOAA, as you know, is a partner with the Department
    of Interior in administering the Endangered Species Act.
        Under the ESA, NOAA has primary jurisdiction over
    endangered plants and animals that live in our nation's ocean
    and coastal waters, including Pacific and Atlantic salmon,
    steelhead trout, sea turtles, whales, dolphins, and sea lions.
        I welcome the opportunity to discuss with you the
    Endangered Species Recovery Act of 1997, S. 1180, as introduced
    by you, Mr. Chairman, and Senators Baucus, Kempthorne, and
    Reid.
        I would like to congratulate the Senators on reaching a
    bipartisan consensus on the very difficult issues involved in
    preventing the extinction of threatened and endangered species.
        Senators the extinction of our nation's living resources is
    not an option. Similarly, merely maintaining species on the
    brink of extinction is not acceptable. The return of ecosystems
    and habitats to their full function so that they can sustain
    species must be the outcome and goal of this legislation.
        I agree completely with you, Mr. Chairman, when you said
    last week, ``It is time to make recovery, rather than mere
    survival, the standard by which we measure our action.''
        Indeed, the principal unfinished business of the current
    ESA program relates to our ability to enlist non-Federal
    activities and landowners in the important job of recovery.
    Just look at the map of the west coast. Just look at the range
    of the Pacific salmon--it moves from Los Angeles to Canada--and
    you'll see the critical importance of involving landowners and
    other affected parties, States, and regional governments in the
    process.
        I applaud the authors of this bill for the great strides
    they make in addressing this need by providing incentives to
    landowners, counties, and other entities to enter into long-
    term conservation agreements. Many of the Administration's
    reforms to provide landowner incentives have been codified in
    this bill.
        Landowners are concerned, for example, that conservation
    measures on their land will create future restrictions, that
    they will be penalized for their efforts. To address these
    concerns, the Administration reached out to landowners with a
    ``no surprises'' policy. Under ``no surprises,'' in return for
    entering into agreements to conserve the species, landowners
    are given assurances that the Government will not impose
    additional requirements in the future.
        Such certainty allows landowners to plan for the future,
    with the knowledge that a deal is a deal, and promises that the
    services will not require financial or regulatory commitments
    beyond those in the agreements.
        The bill also contains provisions based on the
    Administration's ``safe harbor'' and ``candidate conservation''
    agreements. These agreements attempt to keep species out of the
    emergency room and provide preventative treatment before the
    conservation and recovery of the species becomes a crisis.
        Another important area is the role of State conservation
    planning, whereby the full range of State authorities and
    capabilities can be enlisted in the task of recovery.
        Earlier this year, as Senator Wyden noted, NOAA and the
    State of Oregon literally broke the mold in the adoption of the
    Oregon salmon recovery plan in lieu of listing coho salmon in
    northern and central Oregon. The Oregon Plan is not perfect,
    and more work must be done, but it is a fully funded suite of
    aggressive programs directed to improvements in all aspects of
    the salmon life cycle. We remain optimistic that it will help
    save salmon and chart a new course for the next generation of
    ESA efforts in this country.
        The Oregon plan is also a good example of NOAA's efforts to
    involve stakeholders. Involvement of stakeholders creates
    ``ownership'' in the process; our efforts in the Pacific
    Northwest to involve diverse groups have been amply rewarded.
        In developing the Oregon Plan, NOAA coordinated with the
    general public, tribal governments, watershed councils, the
    timber industry, other Federal agencies, and State agencies,
    including the Governor's office.
        This dynamic process brought all the interested parties to
    the table, with the goal of preserving the area's natural
    resources and economic stability, and provided greater
    certainty that the parties would accept and support the end
    result.
        Such cooperation ensures that our collective energies will
    not be squandered on litigation and delay, but will go toward
    real species protection. Incorporating the stakeholder approach
    into recovery planning will provide similar ownership and
    accountability for the results.
        As a science-based agency, NOAA welcomes the bill's
    emphasis on using good science. In our experience, there are no
    shortcuts to or end rounds around good science. Basing actions
    on good science eliminates time-consuming delay over biological
    issues, enhances species protection, and reduces unnecessary
    litigation. NOAA is pleased to see the bill codify NOAA's
    existing policy of basing its listing, de-listing recovery,
    consultation, and permitting decisions on the best scientific
    and commercial data available. NOAA also acknowledges the value
    of peer review, as the agency has followed a peer review policy
    since 1994.
        That said, we have several concerns which should be
    addressed or must be addressed in order for us to support the
    bill.
        If this Act is to live up to its name and truly recover
    species, adequate resources must be provided. Due to the
    complexity of the bill and the many new deadlines, we believe
    more funding than is currently authorized will be necessary.
    Without sufficient funding, the cycle of litigation, conflict,
    and crisis will haunt this Act into the next century, delaying
    recovery of our invaluable living resources.
        The land management agencies will also need additional
    funding in order to carry out their new responsibilities. The
    funding issue involves more than mere authorization levels. As
    Jamie just noted, it will require firm commitments from
    Congressional leaders that appropriation increases above
    current baseline levels will be made for all agencies involved
    in this effort.
        We also, along with the Department of Interior, support
    additional language which would stress the importance of early
    cooperation and coordination among the agencies. We do share
    concerns regarding the various interim deadlines contained in
    the bill, and we, with Interior, will submit some technical
    amendments to address these concerns.
        This bill has made tremendous progress since the discussion
    draft circulated last January. Many provisions contained in
    that draft bill that would have proved troublesome, such as a
    provision on water rights, have been removed all together.
    Other provisions have been constructively modified, such as the
    consideration of social and economic impacts on recovery plans.
        I'm also pleased to note that property rights provisions
    have not been included, as noted earlier. If they are, NOAA
    would feel compelled to oppose the legislation.
        If these last few concerns noted in my testimony and in
    Interior's are addressed, then this bill will have our support.
    As it stands now, this legislation is a tremendous achievement
    and deserves serious consideration by all members of the
    committee, the Senate, and the House of Representatives.
        Thank you, and I'm prepared to respond to your questions.
        Senator Chafee. Thank you very much, Mr. Secretary.
        Senator Baucus, would you introduce the next witness?
        Senator Baucus. Yes. With pleasure, Mr. Chairman.
        I'd like to introduce the Governor of our great State of
    Montana. Marc Racicot has a long career of distinguished public
    service. He served as assistant attorney general, he served as
    attorney general. He's now serving in his second term as
    Governor. He enjoys widespread popularity in our State. He is
    very solid, hard-working, honest, dedicated, common-sense,
    balanced--all the things we want of our public servants.
        I might say it's analogous to and very much a part of the
    effort behind this bill--namely, in a bipartisan way the four
    of us and the Secretary of Interior and Jamie Clark, too, have
    been working together to try to find the right solution that is
    best for America, listening to all the various points of view
    and trying to put them together in a way that makes good sense,
    and our Governor, Marc Racicot, is just such a person. I can
    mention the salmon issue, grizzly bear, bull trout, very
    contentious issues in our State, and he has put together an
    effort to try to resolve them in a very solid way.
        We're very honored, Mr. Chairman, to have him as our
    Governor.
        Senator Chafee. Thank you.
        Governor, we're delighted to have you here. Won't you
    proceed?

       STATEMENT OF HON. MARC RACICOT, GOVERNOR, STATE OF MONTANA

        Governor Racicot. Thank you, Mr. Chairman, and Senator
    Baucus--you are very kind and generous--and members of the
    committee.
        As was mentioned, my name is Marc Racicot, and I am
    temporarily serving as the Governor of the State of Montana. I
    am here today, however, representing not only myself, but the
    Western Governors Association and the National Governors
    Association, which I can allege represents virtually all of the
    Governors of all of the States and the territories of the
    United States of America.
        I genuinely appreciate the opportunity to talk with you
    today about the Governors' perspectives on this unique
    legislation and its impact on our efforts to protect the
    nation's conservation resources.
        I would like to, as well, request that the written
    testimony that I have prepared also be made a part of the
    record, if that's acceptable.
        Senator Chafee. It will be.
        Governor Racicot. We support the consensus bipartisan
    approach and recommend that the bill move forward. You have
    made major progress in this bill, and we know that it is a
    delicate consensus that has produced the provisions of Senate
    bill 1180.
        The Western Governors know well what you and your staffs
    have endured to this point. We started a similar debate in the
    early years of this decade. As a group, we had never
    experienced a more acrimonious debate--so acrimonious, in fact,
    that we had to initially back off our attempt.
        However, under the leadership of Montana's Governor, Stan
    Stephens, on one side of the debate, and Idaho's Governor,
    Cecil Andress, on the other, the Governors became convinced
    that the only way the Endangered Species Act could be improved
    was through a consensus process.
        That leadership and consensus resulted in an outstanding
    proposal which would strengthen the role of the States,
    streamline the Act, and provide increased certainty and
    assistance for landowners and water users, while at the same
    time enhancing its conservation objectives.
        The consensus has since been endorsed by the Western
    Governors Association, the National Governors Association, and
    the 50 State fish and wildlife associations through their
    International Association of Fish and Wildlife Agencies.
        It was then forwarded to you, first in the form of
    legislative principles in 1993, and then in legislative
    language in September 1995.
        The consensus principles that the Western Governors
    Association and the National Governors Association developed on
    ESA reform are reflected in Senate bill 1180. While none of our
    members would draft the bill in its exact form, we believe it
    deserves our active support.
        Because such consensus on both our parts was difficult and
    hard-fought, it is worth a few minutes to outline here those
    areas in which we do agree in substance and which we encourage
    you to retain in the bill, and to work with us as you move
    toward Conference Committee consideration.
        A greater State role has been acknowledged in recovery
    planning, and the bill reflects the strong intent to make
    States partners in achieving the objectives of the Act by
    inclusion of the language calling for cooperation with the
    States, in the major sections of the Act, as well as a strong
    definition of what that is to entail.
        As a technical point, parenthetically, I suggest that the
    committee may have inadvertently missed inserting that phrase
    in the sections on ``safe harbor,'' candidate conservation
    agreement, Section 7, and implementation agreement provisions.
        Inclusion of strong incentives for private landowners, like
    ``safe harbor'' and ``no surprises,'' the habitat conservation
    planning fund provisions, technical assistance to enable
    landowners and water users to be true partners in reversing the
    decline of species in their habitat, and in the companion bill,
    of course, the tax incentives for landowners are also areas
    that we believe should be retained in the bill.
        In addition to that, peer review for listing decisions,
    greatly enhanced public comment, and involvement in all aspects
    of the Act elevating the recovery of species to a central focus
    of the Act, and the incorporation of implementation agreements
    with Federal agencies and other entities to ensure that
    recovery plans are not only comprehensive and inclusive in
    their effort to conserve species, but also that they are
    carried out: multi-species habitat conservation plans--HCPs--
    and the streamlined ACP process for small landowners with small
    impacts; designation of critical habitat at recovery planning
    stages, where it is most sensible and practical; increased
    rigor in the listing process; and, finally, increased funding
    authorization to carry out the new and expanded requirements of
    the Act.
        As I'm sure you can appreciate, there were issues upon
    which the Governors could not reach consensus--areas which I
    know caused you difficulty, as well--for instance, water
    rights, Section 7, and a narrower definition of ``take.'' Each
    Governor is working on those particular issues from the unique
    perspectives of their States and their needs.
        However, just as the Governors were able to move ahead and
    reach overall consensus, we are encouraged that this committee
    has done the same. We strongly encourage you to retain the
    consensus you have reached and to move ahead with this
    legislation.
        The vital natural resources which we all wish to see
    sustained and conserved depend upon the incentives, the
    streamlining, and the acknowledgement of partnership that are
    integral to this legislation.
        I want to note that you were able to reach consensus on
    question seven, which eluded us in our deliberations. The
    Governors cannot specifically endorse that consensus because it
    is beyond the scope of our own agreement, but we encourage you
    to keep up that effort.
        There were also four areas in which the Governors did reach
    consensus and on which you did not. We believe they would be
    very important and effective additions to your legislation. We
    understand that you have a consensus bill here and that you
    need to move it basically intact, so we request the opportunity
    to work with you and all the parties that are necessary to
    consensus prior to conference to try to meld in these four
    areas of gubernatorial consensus. They are: State-initiated
    conservation agreements, adequate funding, a more-rigorous and
    less-costly de-listing process, and reconfirmation of the
    intent of Congress to have a statutory and regulatory
    distinction between a species listed under the Act as either
    threatened or endangered.
        I would like to highlight the most critical of those four
    for you.
        In my State, we have pulled together a broad-based group
    representing the major stakeholders with an interest in bull
    trout conservation. This bull trout conservation team or
    restoration team has been working to develop a conservation
    plan for this candidate species which would provide the basis
    for construction and recovery.
        The type of agreements we can forge and the flexibility we
    need to forge those agreements are possible with a candidate
    species, but next to impossible if listing were to occur under
    the ESA. Yet, litigation and the deadline triggered by that
    petition is forcing the Fish and Wildlife Service toward that
    very listing, to the detriment, we believe, of our cooperative
    efforts and the bull trout.
        The key concern of the Governors is that Senate bill 1180
    provide for State-initiated conservation agreements. These
    agreements would be led by the States, so if listing were
    forced to occur, as it likely will with the bull trout, the
    agreements forged would continue in force and effect after
    listing.
        The States simply have to have an incentive to get out in
    front of the listing process and conserve species. That is when
    the costs are as low as they will ever be and the flexibility
    to make important land management decisions is most urgent.
    Incorporating State-initiated conservation agreements into your
    legislation is a fundamental incentive for the States.
        My colleagues in Oregon and Texas invite the members from
    your committee and the House Resources Committee and staff and
    other interested persons to visit them and see how these
    conservation agreements work on the ground.
        Naturally, Montana or any other State in the west would be
    pleased to act as host, as well. We encourage you to accept the
    invitation and learn why incorporation of State-initiated
    conservation agreement language in your legislation is so
    critical to species conservation and to getting active, early
    State participation.
        As to the specifics of the language for State-initiated
    conservation agreements and the other three areas of consensus
    which we believe the Governors have shown can be achieved, we
    provide more detail in my written comments.
        Naturally, as I'm sure would be true with each of you, the
    Governors would like to manicure various aspects of the
    legislation. Our staffs are reviewing the bill, and we will
    forward to you those comments in the next several days. We hope
    you will provide us the opportunity to work with you as the
    bill moves forward.
        I do genuinely appreciate this opportunity, and I thank you
    very much for giving me the chance to give you these brief
    comments on behalf of the Nation's Governors.
        I, too, would be pleased to answer any questions or discuss
    with you any particulars about my testimony this morning. Thank
    you.
        Senator Chafee. Thank you very much, Governor, for those
    comments. You certainly have a lovely State, and I've had the
    privilege of visiting there, and you are well-represented on
    this committee with the distinguished work of Senator Baucus.
        All three witnesses have discussed the need for the
    adequate funding, and we agree with that. We put in
    authorization, but, as somebody pointed out--I guess it was
    Director Clark--there is a difference between authorization and
    appropriation. However, all we can do is authorize on this
    committee, and then put our shoulder to the wheel and try and
    get the necessary funds.
        But I want to say that all of us here--certainly the
    principal ones that worked on this, Senators Baucus,
    Kempthorne, Reid, and I--all agreed on the funding.
        I'd like to ask, Jamie, you talked in your testimony about
    habitat is the key for all species. And I can't agree with that
    more. Habitat is what this thing is all about. And habitat
    conservation plans, HCPs, are what protect the habitat.
        Now, I know that in subsequent panels, on the next panel
    there undoubtedly will be criticism of the steps that we are
    incorporating in the law which you presently do by
    administrative action--``safe harbor,'' ``no surprises.'' When
    we put them into law, thus we give them an added protection.
        Before the Fish and Wildlife went to those particular
    measures, how many habitat conservation plans had been approved
    or had been adopted? Do you know the answer to that?
        Ms. Clark. I can get in the ball park. Prior to this
    Administration, there were less than 15 HCPs that had been
    completed.
        Senator Chafee. That was my understanding, that the figure
    I had was 14. There were 14 HCPs that had been adopted.
        Now, if you agree that HCPs are the key to this, or a very
    crucial part of it all, then you move to say how you encourage
    the HCPs, and we've done that through adopting statutorily what
    you have been doing administratively.
        Now, since you have been in office now--what, 5\1/2\ or 6
    years or something like that--how many HCPs have been adopted?
    Do you know, roughly?
        Ms. Clark. We have over 200 HCPs that have been completed,
    and probably the same number that are under development today.
        Senator Chafee. Now, what do we say to the witnesses that
    follow you on this if these are attacked? What's our best--
    what's your best defense?
        Ms. Clark. Well, Mr. Chairman, I think there are a couple--
    --
        Senator Chafee. I mean, you know what I'm talking about.
    We're talking about the ``safe harbor,'' we're talking about
    the ``no surprises.''
        Ms. Clark. Well, as you paraphrased my testimony, you're
    absolutely right. I think the important thing about the
    Endangered Species Act is our need to profile the importance of
    habitat conservation, of maintaining species without their
    native habitats is certainly not going to promote recovery in
    any stretch of the term.
        Collateral with this notion to understand and provide for
    long-term species and habitat conservation is the need to
    provide incentives for landowners, incentives for the
    potentially regulated public to step out and conserve those
    species and their habitats. That was the theme behind the
    ``safe harbor'' provision. That certainly is the theme behind
    the ``no surprises'' provision associated with habitat
    conservation plans.
        The concern has been heard and is very real with the
    magnitude of these kind of agreements that are in play now and
    have been adopted and finalized, that we continue to monitor
    the landscape and try to manage the efficiency of the process,
    and that's something that we have taken very seriously and have
    incorporated into our ongoing administration policies.
        But it is the combination of providing certainty for the
    public, providing for long-term species conservation, and
    monitoring along the way that I think is the right mix.
        Senator Chafee. A point that we've--when we had a press
    conference announcing this--and certainly Senator Kempthorne
    stressed it--was the recovery. What we're trying to do is to
    encourage the recovery of these species, not just throw out
    protection to them and not have them decline any more. We want
    them to come back.
        Now, almost half the species listed don't have recovery
    plans, and our bill requires these plans, and under a certain
    deadline. Now, that has been attacked, as I--not attacked, but
    suggested that this adds too much more red tape. Could you
    comment on that?
        Ms. Clark. Certainly. I wouldn't maybe characterize it as
    ``red tape.'' The comment that I'll make, particularly for the
    Fish and Wildlife Service, since most of the backlog lies with
    us, is that it's not because of a lack of a desire to complete
    recovery plans; it's a lack of dollars and resources to get the
    job done.
        The concern expressed, as we've expanded the process,
    incorporating stakeholder involvement, is that we be mindful of
    our available appropriations and our available resources.
    Recovery is the key. Recovery plans are blueprints to march us
    toward species recovery, involving and being sensitive to the
    species' needs and the impact on landowners.
        So we incorporated, by policy, 3 years ago the recovery
    planning deadlines.
        Senator Chafee. My time is up.
        Senator Baucus?
        Senator Baucus. Thank you, Mr. Chairman.
        Ms. Clark, as I understand it, the Administration does
    support this bill, but would like to see some changes and some
    improvements, from your point of view?
        Ms. Clark. That's correct.
        Senator Baucus. One of the questions I heard in Montana
    yesterday is that the HCPs may make sense, and the ``no
    surprises'' policy part of it makes sense, but the long-term
    HCPs might be a little bit too long, and it's difficult if not
    impossible to reopen HCPs if there are some changes of
    circumstances or more information is available that would lead
    an ordinary, prudent, common-sense person to think there should
    be a change in the habitat conservation plan.
        Do you have a response to that?
        Ms. Clark. A couple of comments.
        I think the stresses on our environment are not getting any
    less, and the available habitat for species and conservation
    over the long haul is not increasing, necessarily. Certainly,
    populations are increasing and pressure on the environment is
    increasing.
        These long-term conservation plans that we are developing
    and negotiating do cause us to be mindful of the terms, and the
    ``no surprises'' policy, as incorporated today, does allow for
    tinkering. We don't go back for more land or we don't go back
    for more money, but it allows us to operate within the scheme
    of the terms and conditions of the plan, itself, and tinker
    with it. Plus, it encourages us to cooperate with the States
    and with the other Federal agencies to ensure our comprehensive
    landscape look at species recovery needs.
        Senator Baucus. So you don't--under what circumstances
    should habitat conservation plan be reopened?
        Ms. Clark. If the permit applicant doesn't comply with the
    terms.
        Senator Baucus. What about extraordinary circumstances?
        Ms. Clark. We have extraordinary circumstances--thats' a
    good point. The terms of extraordinary circumstances are
    species-specific and plan-specific, and the terms under which
    the extraordinary circumstances would be evaluated are
    incorporated in each of our plans.
        Senator Baucus. I appreciate that.
        I also heard a concern by several environmental groups that
    suggest that they should have equal input and access to the
    Section 7 consultation process as persons were seeking
    authorization and funding from a Federal agency as equal access
    compared with the action agency who is consulting with the Fish
    and Wildlife Service.
        Your thoughts about that?
        Ms. Clark. Section 7 consultation is a deliberative process
    between the resource agencies--National Marine Fisheries
    Service or the Fish and Wildlife Service--and the consulting
    agency.
        Applicants are afforded the opportunity to be involved in
    the process, and the applicant definition that is contained in
    Senate 1180 embraces our current regulatory definition of
    applicant.
        It is a process that is on a deadline that we try to
    streamline as much as possible. We support the current process
    in the bill.
        Senator Baucus. Do you think this bill essentially achieves
    the goals of providing greater protection to species, as well
    as adding greater protection to landowners?
        Ms. Clark. Yes, it does.
        Senator Baucus. Governor, you said something kind of
    interesting to me, and that was, as I understood it, a State-
    initiated conservation plan. And I'm wondering how they would
    differ from the provisions in the bill which do already allow
    that--that is for a non-Federal person to enter into an
    agreement with the Secretary to provide a candidate
    conservation agreement subject to the same terms as habitat
    conservation plans--that is, ``no surprises,'' and so on and so
    forth.
        Are you suggesting something new in addition to the
    revisions already in the bill?
        Governor Racicot. Yes, sir, although those provisions are
    obviously very constructive. We believe that there are
    opportunities where you can forecast, you can see predictively
    that there is going to be a situation developing, and if you
    are going to encourage the highest level of prevention in terms
    of risking the elimination of species or threatening them, that
    you ought to encourage this constant monitoring and vigilance
    on the part of the States to be doing virtually everything that
    they can do to make certain that they do not end up in a
    situation where there is even a petition filed or candidate
    species that is under consideration.
        And so what we're suggesting is that, with those who are
    very intimately involved with the landscape, they can obviously
    perceive precisely what is occurring, and you ought to make
    certain that you provide every flexibility that you possibly
    can for the States even to proceed at that point.
        Senator Baucus. I don't want to be too technical here, but
    do you think that the provisions in the bill which provide for
    any non-Federal person to do as I say restricts a State from
    embarking upon the course that you are suggesting?
        Governor Racicot. We think that it could be more clearly
    defined. I'm not certain that I could say that it restricts it.
        Senator Baucus. Because a point of this actually is to
    allow the State to do the same thing that----
        Governor Racicot. We would just like to very plainly have
    the ability to proceed in that direction.
        Senator Baucus. And that's provided for already in the
    statute.
        Thank you.
        Senator Chafee. Thank you, Senator.
        Senator Kempthorne?
        Senator Kempthorne. Mr. Chairman, thank you very much.
        Madam Director, let's talk about Section 7 consultation
    process for just a moment.
        I know that, as I've traveled around the State of Idaho and
    around the country, it's interesting that not only are the
    landowners quite frustrated with existing Section 7 process,
    but many of the Federal agencies are just as frustrated.
        As you know, the bill includes a new streamlined process
    that would allow Federal action agencies to make the initial
    determination that an action is not likely to adversely affect
    a species.
        Would you agree that Federal agencies, with their own
    biologists, have the expertise to make these determinations?
        Ms. Clark. Yes, Senator, in many cases, they currently do.
    Our current regulatory process allows for Federal agencies to
    make that first call, that it is not likely to adversely
    affect, and they do.
        Senator Kempthorne. And, Director Clark, have you seen the
    frustration both among the Federal agencies and the property
    owners that often there is no closure to consultation and it
    continues and it continues one agency to another and back to
    that agency, and so that the project never receives a verdict?
        Ms. Clark. I've certainly heard stories, and we have been
    very sensitive to that in this Administration and have worked
    hard to accelerate the consultation process into a much more
    early collaborative, proactive mechanism, which certainly has
    been embraced in the Northwest and in your State, in
    particular.
        Senator Kempthorne. Now, the action agency with our
    language, again, if they determine that an action is not likely
    to adversely affect, they can go ahead and approve the project,
    but there's 60 days for your agency to review that decision.
        Do you feel that that is appropriate? And do you feel that
    gives your agency sufficient time, but also that it does not
    jeopardize a species?
        Ms. Clark. I feel that the process is currently contained
    in the bill is appropriate, and I'll summarize it the way I
    understand it. The Federal agencies, with qualified biologists,
    can make that original initial call. They submit the
    information to the resource agencies, along with the
    documentation regarding how they made that not likely to
    adversely affect, and they move forward within 60 days unless
    we object.
        We can object under one of three circumstances: we disagree
    with their evaluation, the information is incomplete for us to
    deliberate that evaluation, or the complexity of the action is
    such that we just don't have enough time.
        And so, given those kind of caveats, I believe that species
    will not be jeopardized.
        Senator Kempthorne. All right. Thank you.
        Governor Racicot, if I may then continue that thought
    there, from your perspective of the property owners in Montana,
    have you heard that Section 7 has been an area of great
    frustration for property owners as they have tried to get
    approval on a project but, unfortunately, consultation
    continues without closure?
        Governor Racicot. Yes. I have heard that complaint.
        Senator Kempthorne. And do you feel then, Governor, that
    the provision that we have now put in place that an action
    agency can go ahead and make a determination will allow
    projects to move forward, knowing full well that the Fish and
    Wildlife, or NMFS, if that would be the case, have 60 days to
    review that, but that finally there is a process in place and
    that there is a deadline that will be imposed? And isn't that a
    clear signal to property owners that they now can have some
    certainty and expectations as they deal with the Federal
    Government?
        Governor Racicot. I think it is a substantial improvement,
    and it does provide a trigger that requires some action. They
    can't just sit there in lethargy for a period of time and not
    be acted upon.
        I do have some concern about the standard. Will not
    adversely affect seems to me to be one of those standards that
    will probably be susceptible to a significant amount of
    construction.
        Senator Kempthorne. And, Governor Racicot, let me ask you,
    because you've been involved in this--and I appreciate greatly
    the Western Governors Association and the National Governors
    Association and the work product that you provided us, which,
    as you have pointed out, is reflected a great deal in this
    legislation that is before us. Were the Governors in your
    consensus process able to reach agreement on water rights,
    property rights, or the scope of Section 7?
        Governor Racicot. No, we could not.
        Senator Kempthorne. And can you give any further insight
    into that?
        Governor Racicot. Well, I probably--I'm not the recipient
    of all of the comments. I can certainly reflect that there are
    some that genuinely have some concern about water rights
    language.
        I, having been involved as attorney general and having
    litigated a number of those different issues, have a certain
    view, and I have some comfort given me by the fact that I know
    that those are construed as a matter of State law, but I
    certainly can't speak for--and I'm comfortable with that--I
    can't speak for all of the Governors in that respect.
        Senator Kempthorne. Well, Governor, again, I appreciate
    your involvement and that of the Governors, and I'm a real
    advocate for States' rights, and I believe that we have now
    incorporated a real role for the States to play in the recovery
    of species and also looking out for the citizens that you
    serve.
        Governor Racicot. Senator, thank you. And if I could--I
    hope not gratuitously--also commend the sponsors of this
    legislation, I know what it's like--although I certainly can't
    claim to know precisely what you went through in this respect--
    to deal with this issue and to put together a piece of
    legislation that is so encompassing and so difficult and so
    important, and I simply can't compliment you enough. I think
    this is an extraordinarily fine piece of legislation and it is
    in the best interest of the public and all of those creatures
    we share this planet with that it move forward.
        Senator Kempthorne. Governor, thank you.
        Senator Chafee. That's the kind of statement we're
    delighted to hear.
        [Laughter.]
        Senator Chafee. Don't feel at all reluctant to repeat it at
    any opportunity you have.
        [Laughter.]
        Senator Chafee. Thank you, Senator.
        Senator Wyden?
        Senator Wyden. Thank you, Mr. Chairman. And I want to thank
    the witnesses, as well. That was excellent testimony. I look
    forward to working with all three of you.
        Particularly for you, Governor, and Ms. Clark, a question
    with respect to the State plans. And I think right at the heart
    of our getting a good bipartisan bill here is to come up with
    sensible ground rules to encourage these home-grown, locally
    driven, outside-the-beltway solutions to preserving species.
        As both of you know, I have really championed the Oregon
    plan, because I think it is really the first fresh model to try
    to bring together environmentalists, scientists, industry,
    people across the board.
        Now, this legislation does a lot to involve the States
    after a species is listed, but I don't think it is doing enough
    to mobilize these States pre-listing, so I have a question for
    each of you.
        The first, with respect to you, Ms. Clark--and, as you
    know, this was my priority when you came up for confirmation--
    would you support conceptually--because you haven't seen the
    language now--laying out in this legislation the terms and the
    time table so we can send a message to States that they have an
    opportunity to be involved pre-listing?
        Ms. Clark. Absolutely, Senator. We support all interested
    parties, including the States, early on, to prevent listing of
    species.
        Senator Wyden. Well, we will get with you as the terms and
    time table and the amendment come out, and that is helpful.
        Governor Racicot, I just want to make sure I understand the
    position of you and the Western Governors, because I think you
    are very close to what Oregon talked about, but I may be
    missing something and I want to get it.
        At home in Oregon we felt that avoiding a listing
    altogether was absolutely key psychologically, and it was
    especially key to industry, and a lot of ag folks and others
    were reluctant but wanted to come up with something new, and
    they said, ``You've got to avoid a listing.''
        Are you and the Western Governors, in effect, calling for
    something that is close to Oregon but slightly different, which
    would say, in effect, ``Well, all right, if there is a listing
    so be it, but then there would be an opportunity, in effect, to
    suspend the listing if you can attain the standards.'' Is that
    what you're calling for?
        Governor Racicot. Yes.
        Senator Wyden. And in that way it's a little bit different
    than what Oregon has proposed.
        Governor Racicot. Yes, Senator, and that's what Senator
    Baucus was probing, I believe, as well. And perhaps I didn't
    describe it well.
        Let me give you an example. In Montana I mentioned the bull
    trout restoration team, and, of course, we have populations at
    risk there.
        Three years ago, we put together, prior to the time that
    there was a petition filed, an effort recognizing that this was
    going to present itself, and this is a very, very sacred
    creature in the State of Montana, as virtually every one is
    except for a few insects here and there.
        And the bottom line is that we put together a group of
    public and private resources, and they represented industry,
    they represented the environmental community, they represented
    State interest and Federal interest--Fish and Wildlife Service
    is involved. And we commissioned ourselves to perform a number
    of responsibilities, including performing a very exhaustive
    scientific inquiry.
        A petition was filed in the middle of that process and,
    quite frankly, I believe the Fish and Wildlife Service is very
    sympathetic to our efforts, but they simply could not avoid
    proceeding with the listing process.
        That places us now in a situation where that largest
    interest, the largest corporate interest owning over a million
    acres, has gone on their own and, as a consequence, destroyed
    the opportunity.
        Senator Wyden. Let us do this. I think, based on the
    answers that you and Ms. Clark have given, we are close, and
    we're certainly on the same wave length in terms of concept. I
    want you to know I am going to offer in this committee an
    amendment to try to promote these State efforts. I think it is
    long overdue. I think it gives us a chance to come up with
    fresh, creative ideas, but ones that are in line with some
    Federal criteria and can bring certainly Members of the Senate
    together, so we'll be showing it to both of you and look
    forward to working with you on it.
        One last question for you, Ms. Clark, on this funding
    issue, which I feel is critical to really doing this well. What
    would happen under this kind of situation? The funds are
    available at the beginning. And, as Chairman Chafee noted, we
    don't have control over all of this, but let us say at the
    outset the funds are available, but midway through this process
    the funds do not become available. What happens then? And isn't
    it going to be essential, as I said in my opening statement, to
    have some sort of fall-back mechanism for us to not lose the
    good work that has been done on a bipartisan basis by the
    Chairs and ranking members?
        Ms. Clark. Well, certainly, I think, as you've heard from
    all of us, funding is essential to implementation of this bill,
    and I think we have a whole different ball game if funds aren't
    available, and I think we're all sensitive to that.
        Immediately we would have to look, at a minimum, at
    reduction in some of the complexity of the process and looking
    at different ways to achieve what continues to be the important
    goals of species and habitat conservation.
        Senator Wyden. Mr. Chairman, my time is up, but I'd like to
    say again I want to work with you and all four of you on this
    because I think that this is a solid bill and I think we do
    need some kind of fall-back mechanism so as to deal with this
    situation of, later in the authorization process, the funds not
    being available, and we wouldn't want to lose the good work
    that has been done.
        I yield back.
        Senator Chafee. Thank you very much.
        Senator Burns, I noticed your Governor is here. Do you want
    to welcome him in any fashion?
        Senator Burns. I was trying to pick a place without working
    itself to death, and I found it.
        Senator Chafee. Senator Allard?
        Senator Allard. Thank you, Mr. Chairman.
        Ms. Clark, on your testimony it wasn't clear to me if the
    bill--if the legislation is kept the way it is right now, can
    you support it, or do you oppose it unless some changes are
    made?
        Ms. Clark. We support this legislation conditional on some
    of the technical amendments that partially I discussed here,
    and we're finishing up this week, and hope to work with the
    chairman and other Members as the week goes on prior to markup.
        Senator Allard. So you're still withholding your support
    until the technical amendments are resolved?
        Ms. Clark. Yes, we are.
        Senator Allard. And now I was looking at the testimony from
    Mr. Garcia. He said, ``If all our concerns are addressed, then
    this bill will have the Administration's support.'' So you, as
    the bill currently stands, if I interpreted your testimony
    right, your testimony is that you oppose the legislation until
    the specific conditions that you mentioned in your testimony in
    here are met, in which case then you would support it? Mr.
    Garcia?
        Mr. Garcia. Actually I heard the question. I was going to
    say I preferred my formulation----
        Senator Allard. You looked a little blank there.
        Mr. Garcia. We support the legislation, subject to
    satisfaction of the conditions that we laid out in the
    testimony.
        Senator Allard. So you don't support the legislation now,
    until those changes are made?
        Mr. Garcia. Without those changes, no.
        Senator Allard. So there is still some negotiating that we
    have to do on both sides before we get the support of the
    Administration?
        Mr. Garcia. That's correct. The most fundamental concern we
    have--and all of us have emphasized that--is adequate funding.
    If we don't have adequate funding, there is no way that we can
    possibly comply with the complexity of----
        Senator Baucus. If the Senator will yield, it's just the
    funding. Neither of you see fundamental problems in the way of
    Administration support? You're talking more about technical
    provisions, which you see resolved----
        Ms. Clark. Absolutely.
        Senator Baucus.--except for the funding issue----
        Ms. Clark. Absolutely.
        Senator Baucus.--which you think is significant. I think
    there is no one on this committee that would disagree with
    that.
        Ms. Clark. Right.
        Senator Allard. Well, that was the next point I wanted to
    get to, and I thank the Senator from Montana in that regard.
        As was pointed out by the chairman, we don't have control
    on the funding. I mean, you can be advocate for the funding of
    it, but this is an authorizing committee. We put the legal
    language in place so that when the dollars are appropriated,
    that they are authorized and within proper hearings such as
    this, and Congress has agreed that it's a program that needs to
    continue forward.
        So, understanding the problem that this committee faces
    with the funding issue, then you would go ahead and fully
    support the bill now as is currently drafted?
        Mr. Garcia. With the technical changes that we have
    proposed, yes.
        Senator Allard. So you still--so, even though there are
    funding issues here, that's still not all your concern? You
    still have some concern about some basic fundamental language
    that we have in here, and, putting the funding issue aside,
    neither one of you can support this piece of legislation until
    those technical issues or those issues are resolved; is that
    correct?
        Mr. Garcia. That's correct.
        Senator Allard. OK. So we still have some concerns by the
    Administration, and if this was presented to the President as
    it stays today, then the President would veto it?
        Ms. Clark. Let me----
        Senator Allard. Or you would make a recommendation to the
    President to veto it?
        Ms. Clark. Let me just make a couple of clarifying points.
        What we are talking about, clarifications in this bill that
    make it more clear to those of us that have to implement it and
    to the regulated public.
        I think we're talking about potential continued
    streamlining of some of these processes because of the concern
    over the funding. But certainly the marker is out and we're
    very mindful of the role of this committee that you don't
    appropriate dollars, but it's a discussion that we've had all
    along, and we have to remain concerned that we not build a
    process that implodes with no funding. And it's more of a
    discussion than anything else.
        But I think we remain very confident that the remaining
    concerns--and ``concerns'' is too strong a word--that are in
    this bill are issues that we can work out in the short term.
        Senator Allard. Well, the reason I want to--I mean, the
    committee also has some concerns.
        Ms. Clark. Right.
        Senator Allard. I've mentioned some concerns in my
    testimony. I don't think that any of those concerns really have
    an impact on species recovery; it just helps clarify, I think,
    and make a lot of affected parties probably feel more
    comfortable about this legislation.
        For example, on the interstate compacts, would you have any
    problem with us strengthening that language a little bit so
    that the States, and particularly the States that I represent
    where we have so many interstate compacts, would feel a little
    more comfortable with that language?
        Ms. Clark. Senator, that's when you get out of my league
    very quickly. We have a whole host of lawyers that are looking
    at that. The whole notion of water rights and interstate
    compacts are beyond my repertoire, so I can't respond to that.
        Senator Allard. Well, of course, though, the point I make
    is that these are agreements----
        Ms. Clark. Right.
        Senator Allard.--that have been made by the States,
    agreements that have been passed by the Congress.
        The chairman is gaveling me down already, but, you know,
    there are----
        Senator Chafee. I'm gaveling because of the red light.
        Senator Allard. But, you know, these things have already
    gone through a lot of debate, and they are very important
    issues, I think, particularly to important rivers like the
    Colorado River----
        Ms. Clark. Right.
        Senator Allard.--where we've got so many States involved.
        Ms. Clark. Right.
        Senator Allard. And we have large--I mean, California, for
    example, has economy realized heavily, and I wouldn't want to
    do anything to force more people to move out of California and
    go to Colorado. You know, there is--we do have those concerns
    in that, and I would hope that we can all sit down.
        Ms. Clark. Right. Absolutely.
        Senator Allard. And I don't see them as a problem with
    endangered species recovery, but they are things that people
    need to be assured that they aren't going to happen.
        Thank you.
        Senator Chafee. Senator Inhofe. I apologize. I
    inadvertently skipped over you, Senator, and I apologize.
        Senator Inhofe. That's quite all right, Mr. Chairman.
        I think that everyone in this hearing is aware that this
    bill was developed primarily by the four that have been
    mentioned, and I commend them, also, for the time that they
    have spent on this. My areas of expertise on this committee
    really aren't in endangered species, but I know that Senator
    Allard was very, very active over in the House side, and he has
    a lot of concerns that he has brought up, and I have looked at
    a number of amendments that I believe you at one point or
    another--probably next Tuesday--will be offering. But I would
    like to see--a couple of things have been addressed.
        Governor Racicot, in the case of the unfunded mandates that
    I'm sure when you met with the Western Governors and the
    National Governors this term came up from time to time, is my
    understanding--if this thing doesn't happen in terms of
    funding, as Senator Wyden mentioned, if we started out funding
    and then stopped, or if we didn't even start out, it's my
    understanding that you would not fall into a situation where
    you would have to fund something that later on might
    precipitate a lawsuit under the unfunded mandates law. Is that
    correct?
        Governor Racicot. I think that's correct. The challenge, of
    course, for us is--I might give you one example. We have a lot
    of costs that are assumed by the States already. For instance,
    with the grizzly bear management in greater Yellowstone area, I
    believe there is about $1 million of expense assumed by the
    States of Montana and Wyoming in that particular process, and
    about $100,000, I believe, the Federal Government contributes.
    So the States are assuming a significantly large expense right
    now.
        If there is not adequate funding--I mean, all of these
    issues, all of this refinement, and all of this improvement in
    process takes people to drive it, and there are very, very
    lengthy and difficult investigations that take place. And,
    quite frankly, I think a great deal of the frustration with the
    Act is the result of an inability to simply keep up with an
    extraordinarily large and exponentially growing work load. And
    if you don't have funding, you're going to create a bad
    reputation very quickly for the reforms to the Act.
        Senator Inhofe. Thank you, Governor. Of course, a lot of
    those--the problems we've dealt with from a funding perspective
    were there prior to the inception of this bill.
        Governor Racicot. That's true.
        Senator Inhofe. And I recognize that. I'm thinking about
    what happens from this point forward.
        All three of you in your testimony talked about the
    technical amendments. Senator Allard mentioned, you know, where
    would you be if these were not adopted, so a lot is riding on
    that.
        We're having our markup--is it going to be Tuesday? And you
    mentioned--you kind of scared me a little bit, Director Clark,
    when you talked about your whole host of lawyers. When would
    you think we are going to be able to see these technical
    amendments? It will be before the end of this week, so that we
    don't get them all sprung on us right before the hearing?
        Ms. Clark. Right. First let me say, Senator, sometimes our
    host of lawyers scare me, too.
        The host--and maybe I'm using too strong a word--of
    technical or clarifying amendments that I'm talking about are
    along the lines of embracing the early collaborative
    consultation process. I don't think that that's a big deal, but
    it would be helpful in clarifying the notion that we all want
    Federal agencies to work together early on in the consultation
    process. It is the idea of developing a biologically based
    recovery plan priority system.
        These are amendments or clarifying language that we're
    working on as we speak.
        Senator Inhofe. When will we see these? That's my question.
        Ms. Clark. By the end of the week. We'll be working with
    staff and Members to----
        Senator Inhofe. I think that's critical, because a lot of
    times we won't have time on Monday. Some of us aren't even here
    on Mondays.
        Ms. Clark. That's our top priority.
        Senator Inhofe. OK. Fine.
        Ms. Clark. We're going to work on that.
        Senator Inhofe. And several of you have mentioned the
    various deadlines that are there, as such, as the requirement
    that each Federal land management agency develop an inventory
    of endangered, threatened, and proposed and candidate species
    by December 31 of the year 2003.
        Just real quickly, do you think that the deadlines that are
    in here are realistic?
        Ms. Clark. Well, again, we go back to the old mantra of
    adequate funding, and that's an issue that has been raised in
    the inter-agency process of review, especially for our land
    management agencies, including Fish and Wildlife Service.
        Senator Inhofe. What if they were not able to meet these
    deadlines? Do you foresee a problem that this whole host of
    lawyers--would they see the problem that maybe some lawsuits
    might be coming into effect, for example, if that isn't
    happening by the deadline in the year 2003, how it might affect
    someone using that or leasing that land currently? Could they
    be sued successfully, do you believe?
        Ms. Clark. Well, I'm not a lawyer, myself, but I don't
    interpret the provision in the law as being judicially
    reviewable if, in fact, the deadline is not met.
        Senator Inhofe. Well, I think it is something that has to
    be.
        Since, Mr. Chairman, you had so much remorse about
    overlooking me, let me have an additional minute to ask one
    last question that's a little more specific.
        [Laughter.]
        Senator Inhofe. Well, how about 30 seconds?
        I have heard from some--actually, one of them was in
    Oklahoma and one was not--pipeline companies that were
    concerned that this did not address the problems that would
    exempt them, their operations from this Act if an emergency
    should occur, such as a leak, a leaking pipeline. This might
    have a damaging effect on the environment by not allowing them
    to be exempt during the repair of that type of danger.
        Is this something that was discussed, or would you like
    to--would you be receptive to an amendment that would take care
    of that problem?
        Ms. Clark. I can't speak to the full gamut of the
    discussions, but certainly addressing emergencies in the
    environment is something that is important and we need to do.
    There is a current emergency provision in the law that deals
    with acts of God, but certainly being able to expeditiously
    clean up catastrophic events is something we all need to be
    sensitive to.
        Senator Inhofe. Perhaps some of your staff could work with
    us between now and next Tuesday. I would like to have an
    amendment that would address that problem.
        Thank you, Mr. Chairman.
        Senator Chafee. Thank you.
        Now we've got a problem, and that is there has been a
    democratic objection to this committee and all committees
    sitting beyond 2 hours after the Senate went in session. The
    Senate went in session at 9:30 and, regrettably, we're in
    excess of that.
        What I'd like to do--I'm not sure what happens if we go
    over, whether we're sent to Alcatraz or what takes place.
        [Laughter.]
        Senator Chafee. I've had in mind that perhaps the most
    junior Members--Senators Session and Wyden--should be submitted
    as hostages----
        [Laughter and applause.]
        Senator Chafee.--in case dire things occur to the
    committee. But, in all fairness, the rules are the rules, and
    perhaps they don't have a way of enforcing them, but we're
    really required--the Finance Committee has now just adjourned,
    and they, as you know, had a very, very major hearing.
        My question is this: the Governor has come from out of
    State. What I'd like to do is to take the next panel. And I
    know on the next panel--take that tomorrow--the only difficulty
    there would be Mr. Duane Shroufe of Arizona.
        Mr. Shroufe, is there any chance of your being around for
    tomorrow?
        Mr. Shroufe. Yes.
        Senator Chafee. Yes? Well, then let's do this. I hope the
    committee will just make every effort for everybody to be here.
    There may be conflicts, but let's get started at 9:30 tomorrow.
        Senator Baucus. Mr. Chairman, may I make another
    suggestion?
        Senator Chafee. Sure.
        Senator Baucus. As I understand it, there is this little
    feud that's going on on the floor. It is somewhat similar to
    problems that sometimes arise which requires us to suggest the
    absence of a quorum, and then the matter is worked out fairly
    quickly.
        I might suggest that we temporarily suspend, maybe for 5 or
    10 minutes. It's possible that this matter could be worked out
    in about 5 or 10 minutes, and that would obviate the necessity
    of somebody coming back at a later date.
        Senator Inhofe. Could the Senator from Montana make some
    phone calls to try to----
        Senator Baucus. It's the Senator from Oklahoma whose phone
    call would be more important here.
        Senator Inhofe. I see. All right.
        [Laughter.]
        Senator Chafee. Let's just proceed.
        But, however, I am willing to stretch the situation a
    little bit as far as the conclusion of this panel goes, and we
    have two more questioners, Senators Thomas and Sessions. And
    why don't we go ahead with your questions, gentlemen, and then
    the next panel, if you'd just wait and let's see how things
    develop.
        Go ahead, Senator.
        Senator Thomas. Thank you.
        Ms. Clark, how long has the recovery plan been in place,
    being prepared for the grizzlies in the Yellowstone area?
        Ms. Clark. I'm sorry, Senator, I don't have the exact
    number of years for that; we have a recovery plan in place with
    five independent chapters, but I don't have the date on it.
        Senator Thomas. It has been going on forever, and it hasn't
    yet been completed. Isn't that right? We don't know exactly
    when there will be a de-listing?
        Ms. Clark. Well, we have a completed recovery plan. We're
    revising the Yellowstone chapter as we speak to lay out the
    habitat criteria.
        Senator Thomas. What in this bill is going to change that
    so that that won't go on as long as it has?
        Ms. Clark. This bill requires, by statutory deadlines,
    recovery plans, but it also embraces the notion of revisions.
    The de-listing criteria in this plan--excuse me, in this bill
    requires that de-listing initiatives be based on
    accomplishments of the recovery set forth in the species
    recovery plans, which involved addressing the criteria that
    required the species to be listed in the first place.
        So de-listing of species are based on the best available
    biology----
        Senator Thomas. But they haven't been de-listed because of
    lawsuits. Are you going to change that?
        Ms. Clark. We have biological criteria that we need to
    complete and finish the evaluation on before we initiate the
    de-listing. You are right that there is a lot of litigation
    around Yellowstone.
        Senator Thomas. What do you call ``measurable bench
    marks''?
        Ms. Clark. Biological indicators that we can evaluate
    whether or not we've met working our way toward the recovery
    goal.
        Senator Thomas. Isn't that a reasonable thing to do?
        Ms. Clark. To develop biological bench marks?
        Senator Thomas. Yes.
        Ms. Clark. Absolutely.
        Senator Thomas. Why haven't you done them in the past?
        Ms. Clark. I believe we have in many instances.
        Senator Thomas. Well, then, why does this change it?
        Ms. Clark. Why does the--I'm sorry?
        Senator Thomas. Why does this bill change? I guess what I'm
    getting to--and you've talked an awfully lot, both of you,
    about cooperation among agencies. What has prohibited you
    having cooperation among agencies now?
        Ms. Clark. I believe we do have tremendous cooperation
    among the agencies.
        Senator Thomas. Well, then, why is this going to be such a
    step forward?
        Ms. Clark. The current bill?
        Senator Thomas. The bill. Yes.
        Ms. Clark. The bill certainly embraces open stakeholder
    involvement. I think it anchors and clarifies the components
    and roles of recovery plans and teams.
        Senator Thomas. I'm just puzzled, because it seems like
    this is reasonable stuff. This is stuff you don't have to have
    a law to do. You all can cooperate now.
        Ms. Clark. And we do.
        Senator Thomas. Yes, sure you do. Why are you doing this?
        Ms. Clark. Why are we doing----
        Senator Thomas. Yes. If you are cooperating so well, why do
    we need this?
        Ms. Clark. I must be confused. Why do we need----
        Senator Thomas. You must be. Well, let it go. It just seems
    to me like almost all of your conversation has been how we can
    cooperate. You can cooperate now. So I'm puzzled a little bit
    on how this is going to change the world for us.
        Mr. Garcia. Senator, could I try?
        Senator Thomas. Try.
        Ms. Clark. Please.
        Mr. Garcia. This does more than just encourage cooperation
    amongst the Federal agencies. We're doing that. Obviously, more
    could be done. But the focus on recovery is important.
        This bill focuses where we should be focusing our energy
    on--recovering the species, not just listing, not just----
        Senator Thomas. I understand.
        Mr. Garcia.--receiving petitions.
        Senator Thomas. Why don't you do that now?
        Mr. Garcia. We attempt to do that now, and hopefully this
    bill is going to allow us to do that job.
        Senator Thomas. OK. All right.
        Mr. Garcia. The other thing that it does is to encourage
    States, regional entities, to come forward and work with us at
    the recovery----
        Senator Thomas. Sure.
        Mr. Garcia.--planning process.
        Senator Thomas. I'll tell you my concern.
        Mr. Garcia. We don't have that now.
        Senator Thomas. My concern is this is all great talk, and
    I'm for it. Everyone is for it. But I don't know that it's
    going to change. You could be doing it now.
        Governor, we're talking a lot about partnerships. How are
    your partnerships working?
        Governor Racicot. Well, there are challenges on occasion.
        [Laughter.]
        Senator Thomas. Tell us about New World Mine. Tell us about
    Buffalo. Tell us about Brucellosis. And then tell us about
    partnerships.
        Governor Racicot. Well, I think that, quite frankly, the
    challenge here is borne out of a certain lack of familiarity
    with the same culture that we share, and I guess what I see the
    Act as doing, even though it is not perfect in my reflection,
    either, is that it creates a different flow of events from the
    very beginning, from the listing decision all the way through
    recovery, and it has time lines on the recovery, and it
    creates, all the way from the beginning till the completion, an
    active participatory role for the States and for the public.
        As a result, it changes the dynamics in terms of presenting
    an opportunity for these things to----
        Senator Thomas. Let me just cite an issue that distresses
    me a little bit. NEPA. We're going to cooperate with the
    States, but it doesn't say ``States'' in there. It says the
    cooperating agencies are Federal, and therefore the States
    aren't included.
        Now, this doesn't specifically say how States are going to
    participate. It just says we're going to cooperate. We have
    been saying that. And I'm a little discouraged that just saying
    it doesn't----
        Senator Baucus. If I might jump in here, you know, it does
    more than that.
        Senator Thomas. May I finish, please?
        Senator Baucus. Yes. It does more than that.
        Senator Thomas. May I finish? Isn't your Governors' group
    concerned about that a little bit?
        Governor Racicot. Well, there is no question but that we
    would like stronger language that reflected only our
    perspective, but if you're asking whether or not this is a
    substantial improvement over what is there presently, then
    unanimously it is.
        Senator Thomas. Yes. It just seems like--I mean, I
    understand, you know--and my red light is on--but we've got to
    do better, and we haven't. And to use broad language doesn't
    get it.
        Senator Chafee. With that, let's go to Senator Sessions,
    the final questioner, and at the conclusion of Senator
    Sessions, then we will have to recess and we'll see how things
    come along for 20 minutes thereafter, and then I can get word
    to whether the next panel--it's my understanding--just raise
    your hands. I see most of them are in the front row. Senator
    McClure, can you all come back tomorrow at 9:30? OK.
        Senator Sessions?
        Senator Sessions. Mr. Chairman, I tend to share Senator
    Thomas' thoughts. Basically, I think this language is in there
    because people felt like consultation hadn't been working
    effectively, and I think it is a little bit healthy for the
    Senator to point out that this should provide legal protections
    to the States in some ways, and it shouldn't be really
    necessary.
        Mr. Chairman, with regard to the question of funding, I am
    a little confused about how much. There is a planned increase
    in this bill. Can you share with us what that would be over the
    previous funding levels? Maybe Senator Kempthorne has that
    figure.
        Senator Chafee. Yes. Fish and Wildlife goes from $70
    million to $165 million, and NMFS goes from about $20 million
    to $70 million. We're talking millions of dollars, not
    billions.
        Senator Sessions. Well, I would just say that is the
    largest increase of any budget item I think I've seen since
    I've been in this Senate. That's a really significant increase
    in funding. Is that not enough, Mr. Garcia?
        Mr. Garcia. We've submitted estimates on what would be
    required to adequately fund the activities at the Agency to
    carry out the new requirements in the bill. There are a number
    of new deadlines. There are deadlines within deadlines. There
    is a certain complexity to the bill that simply is going to
    require increased manpower.
        So we are close, but we need additional resources in order
    to be able to adequately carry out our responsibilities. We are
    short-staffed now.
        Senator Sessions. Well, how much more do you need?
        Mr. Garcia. I'll be happy to submit it for the record. I
    have a chart.
        Senator Sessions. I think we're having a markup next week.
    You ought to share with us how much you'd like.
        Mr. Garcia. I will be happy to.
        Senator Sessions. Over three times, as I--over three times
    increase in your budget is pretty significant, I think.
        When I became attorney general, we had a crisis. My
    predecessor had been--a financial crisis--been saying he needed
    more money, and we couldn't get it, and it was worse than I
    thought, and we faced the problem of having to terminate all
    the non-married employees in the office, one-third of the
    office.
        We reorganized that office and increased the productivity
    of it, and it's doing more and better legal work than it was
    before I took office.
        I don't know if you all have--what you are doing with
    regard to really managing.
        Ms. Clark, you're starting over now in this position. Do
    you have any plans to really evaluate your office from a
    management point of view to make sure your resources are
    properly applied so that they can reach the highest level of
    productivity for the taxpayers?
        Ms. Clark. Absolutely, Senator. Our agency has been
    undergoing an internal evaluation for quite some time. The
    endangered species program has certainly been among those
    programs that are being evaluated.
        A couple things I will say. When you have over 1,000 listed
    species, when you have a program that is grounded in science,
    and when you have a program that demands technical assistance
    and participation of stakeholders, it is labor intensive and
    very important. And our resources are stretched to the max, and
    our people work very hard at all levels of the agency to----
        Senator Sessions. Well, you would agree that this committee
    has been pretty generous----
        Ms. Clark. Absolutely.
        Senator Sessions.--in increasing your funding, would you
    not?
        Ms. Clark. Yes, I would.
        Senator Sessions. Let me ask this question. I'm concerned a
    little bit about the--my yellow light is on--the situation in
    which the EPA has delegated point source discharge authority to
    State environmental agencies, and that they are now requiring
    the Fish and Wildlife Service to also approve the plans of the
    States, and that is causing some significant delay in the
    process. Are you familiar with that?
        Ms. Clark. I know that we are currently working with EPA to
    look at ways to streamline the State delegating process. I
    don't think we're there yet.
        Senator Sessions. The problem I have is it appears to me,
    from Congressman Moore's testimony, that, as a good legal case,
    that that's not appropriate. And it is not--and I think a
    lawsuit is pending on that.
        I would just say to the Federal agencies it seems to me
    that you've got to--with this host of lawyers that you have,
    you ought not to take a position that is not justifiable
    legally. I assume you think you are justifiable, but if he's
    correct, it would be unfortunate that they have to go to court
    to file this lawsuit and expend a lot of money to just make
    sure the law is properly administered.
        So I would ask you to look at that, if you think that's not
    justified, to change your position on it.
        Mr. Chairman, that's all.
        Senator Chafee. Thank you, Senators. And, Senator
    Kempthorne, you had a quick comment you wanted to make?
        Senator Kempthorne. Yes.
        Mr. Chairman, with regard to Senator Thomas' point about
    the de-listing, the bill language includes for the first time a
    direction in the law that the Secretary must initiate the de-
    listing process when the recovery goal is met. Now, that isn't
    in the law today, and so the species, such as was referenced
    here, it has been falling in there.
        I would also add, Mr. Chairman, as you well know, that the
    listing decision, the biological goals that are established for
    the recovery plan and the de-listing, is all peer reviewed, and
    the National Academy of Sciences provides a list of scientists,
    three of which are chosen, so you do have peer review for the
    first time in this process.
        Senator Chafee. Thank you very much.
        Now, if Senators Wyden and Sessions can get their
    toothbrushes and be prepared to go off in shackles----
        [Laughter.]
        Senator Chafee.--the rest of us will just recess here. It
    may be the final recess, but I'll just come back in a few
    minutes and see if any progress has been made.
        [Recess.]
        Senator Chafee. This is what I'd like to do. I recognize
    that we've got witnesses who have made considerable effort to
    be here, and it may be that this will be resolved at the
    conclusion of the caucuses, which the conclusion will be at 2.
    I suggest that everybody, all the witnesses, go about your
    business, and let us know where we can get you.
        I would then, if the thing is lifted by 2, I then would
    call each of you and ask you to be back up here by 2:30. I
    think most of you can do that from your offices. And that takes
    care of everybody but the gentleman from Arizona.
        Candidly, I think the chances are probably pretty slim that
    we'll be able to proceed, but I'm anxious to get going here.
        So that's--if you make sure that somebody here has your
    office numbers, or where you're going to be where we can call
    you at two or very close thereto, and then a half an hour.
    Let's make it 2:45.
        Now, I think, being candid, I think the chances are slim
    that this is going to be resolved and the thing lifted by 2. If
    it's not lifted then, then we'll call you anyway and tell you,
    and we won't continue it any more. That's over with.
        But we will meet at 9:30 tomorrow. This will be a
    continuation, so that's no notice required for that. So this
    would be a continuation of the hearing we started this morning,
    and that would be at 9:30 tomorrow morning. If that panel would
    please be here at 9:30, we'll start right off, and I guarantee
    you we'll finish in 2 hours.
        Any questions from the witnesses or anybody?
        [No response.]
        Senator Chafee. All right. You're all satisfied? Well, I
    won't ask if you're satisfied. I'll ask if everybody
    understands it.
        OK. We will call each of your offices very close to 2, and
    you will have 45 minutes to get up here. But, being candid, I
    think it is unlikely to occur.
        Thank you.
        [Whereupon, at 12:15 p.m., the committee was recessed, to
    reconvene at 9:30 a.m. on Wednesday, September 24, 1997.]
        [The bill, S. 1180, and additional statements submitted for
    the record follow:]

     Statement of Jamie Rappaport Clark, Director, U.S. Fish and Wildlife
                      Service, Department of the Interior
        Mr. Chairman and members of the Committee, thank you for the
    opportunity to speak with you today about this very important
    legislation to reauthorize the ESA. It is fitting that I would be
    appearing before you today at my first legislative hearing after my
    confirmation to give our views on the Endangered Species Recovery Act
    of 1997. Having served as the lead program manager for the Endangered
    Species Program, I have, along with many of you, been deeply involved
    with the 5-year quest for a reauthorized and strengthened Endangered
    Species Act. I would like to pay tribute to you Mr. Chairman and
    Senators Kempthorne, Baucus, and Reid and your staffs for the
    dedication and hard work that made the introduction of this bill
    possible.
        I am very encouraged that bipartisan legislation has been
    introduced to reauthorize one of the nation's premier conservation
    laws. For too long, we heard only complaints from parties on all sides
    of this issue and there were precious few who offered constructive
    solutions. Instead of more of the same, the leadership of the
    Environment Committee rolled up their sleeves in a serious effort to
    address concerns associated with current implementation of the Act. We
    appreciated your inviting staff from the Departments of the Interior,
    Commerce and Justice to provide technical assistance and support to the
    process. We also welcomed the opportunities the Committee provided to
    Secretary Babbitt, myself and other officials to work with you during
    this process. We are also pleased that another bipartisan bill, H.R.
    2351 has been introduced in the House by Congressman Miller and that
    the leadership of the House Resources Committee has begun tentative,
    bipartisan discussions in an effort to seek common ground on
    reauthorization. All of these events are positive developments and
    suggest that at long last, legislative gridlock on ESA reauthorization
    is coming to an end.
        The result of your efforts in the Senate is legislation that has
    been carefully crafted to maintain the essential strengths of the
    current law while taking steps to make it work better for species
    conservation, the States, and affected landowners. The Administration
    is very pleased that the bill maintains as the foundation of the
    listing process the requirement that decisions be grounded solely on
    biological considerations and sound science; that the essential
    protections under Sections 7 and 9 remain intact; that the opportunity
    for participation by the States, affected landowners, and the general
    public is increased; and foremost, that species recovery receives
    enhanced recognition as the centerpiece of the Act.
        On balance, we believe that S. 1180 will strengthen our ability to
    conserve endangered, threatened and declining species. The
    Administration supports enactment of the bill subject to the
    reconciliation of several issues set forth in this testimony. Prior to
    the Committee markup of S. 1180, the Administration will provide the
    Committee with a list of other technical and clarifying amendments, as
    well as suggested report language to accompany key provisions of the
    bill. We will also provide additional technical amendments as the other
    Federal agencies complete their review.
        Reform of the implementation of the Endangered Species Act has been
    a major focus of this Administration and we were pleased to see that
    your bill contains many of the reforms and policies that the
    Administration has proposed and carried out over the past few years to
    improve the Act's effectiveness in species conservation and fairness
    for landowners. When the Departments of the Interior and Commerce
    announced our 10 point plan to improve implementation of the Endangered
    Species Act in March 1995, we recognized that the Act needed to be more
    effective in conserving species and that we needed to engage landowners
    as partners in conservation, not as adversaries. We acknowledge that we
    must provide landowners with greater certainty and work with them in a
    more open, flexible manner with new incentives to increase their
    involvement in conservation actions. After 5 years of developing a
    ``new ESA'' through Administrative reforms, we would welcome the
    codification of many of the reforms we have now established.
        We believe S. 1180 will strengthen our ability to conserve
    threatened and endangered species by including provisions that:
        Enhance Recovery.--Twenty-three years of experience has taught us
    that conserving multiple species in a comprehensive programmatic
    fashion is not only more efficient, it is better for the species. This
    bill authorizes and encourages conservation plans that address multiple
    species associated with the same habitat such as the Natural
    Communities Conservation Planning (NCCP) program currently being
    implemented in southern California. Since 1991 this innovative
    ecosystem based management program has been successfully balancing the
    need to preserve the unique species of the coastal sage scrub ecosystem
    with the desired economic development of the area. The bill also:
    provides for increased Federal, state and public involvement in the
    recovery planning and implementation process; clarifies the role of
    Federal agencies in species recovery efforts; specifies deadlines for
    the completion of both draft and final plans; and provides for
    biological benchmarks to measure progress on the road to recovery.
        Ensure the Use of Sound Science.--The use of sound science has been
    highlighted by our reforms through the addition of peer review to
    listing decisions, new petition management guidelines, and increased
    information sharing with states. The bill's incorporation of peer
    review and enhanced state involvement recognizes the importance of
    these measures in decisionmaking. Although we support the peer review
    requirement in the bill for listing decisions, we remain concerned that
    requiring that the National Academy of Sciences produce a list from
    which qualified experts are chosen is unnecessary and potentially
    costly and burdensome. We would suggest requiring that three,
    independent and qualified experts be chosen by the Secretary, in
    keeping with our current procedure.
        Provide incentives and certainty for landowners.--Many private
    interests are willing to help conserve species, but landowners and
    businesses need regulatory certainty upon which they can base long-term
    economic decisions. Such certainty is vital to encouraging private
    landowners to participate in conservation planning. The bill addresses
    one of the major concerns regarding conservation plans and the ``no
    surprises'' policy by requiring monitoring of conservation plans to
    better assess their impacts on species conservation. S. 1180 also
    adopts a number of important Administration reforms, including our ``no
    surprises'' policy, candidate conservation agreement policy and ``no-
    take'' agreement program, thereby providing incentives for public
    support and involvement in species conservation.
        The Act has been criticized for inadvertently encouraging
    landowners to destroy wildlife habitat because they fear possible
    restrictions on the future use of their property if additional
    endangered species are attracted to improved habitat. S. 1180
    incorporates the Administration's ``safe harbor'' policy, which removes
    the regulatory disincentive associated with enhancing habitat for
    endangered species and thus encourages pro-active conservation efforts.
    We interpret the language in the bill as being consistent with our
    ``safe harbor'' policy. This policy has already generated considerable
    success in the southeast where 20,000 acres have been improved as
    endangered red-cockaded woodpecker habitat under these agreements.
    Similar agreements are in place in Texas and are helping to restore the
    Aplomado falcon to Texas for the first time in 50 years. The bill also
    authorizes a number of incentive programs to encourage landowners to
    participate in species conservation, including conservation and
    recovery planning, that if adequately funded could greatly aid species
    conservation efforts.
        Improve Governmental and Public Involvement.--Involvement of other
    Federal agencies, states, the tribes, affected public landowners and
    environmental and scientific communities is key to endangered species
    conservation and has been a cornerstone of our 10 point plan. S. 1180
    furthers this goal by enhancing public participation processes and by
    emphasizing State-Federal partnerships for endangered species
    conservation especially in the areas of recovery and conservation
    planning, as well as many others.
        Eliminate threats to species.--Species are conserved most
    efficiently and least expensively when we can remove threats facing
    them through conservation measures undertaken before they have declined
    to very low numbers. We can act before species require listing and
    before recovery options are limited, and sometimes expensive. This bill
    endorses our candidate conservation agreement initiative which
    encourages Federal agencies and our partners to reach agreement on
    measures to conserve candidate and proposed species that remove threats
    to species and that can preclude the need to list these species in the
    future. The Department has a number of these agreements including an
    agreement in Utah which removed the threats facing the Virgin River
    spinedace and avoided the need to list this fish due to the efforts of
    local governments working closely with the Service. In the Midwest, a
    successful conservation agreement is bringing together the States of
    Kentucky, Illinois, and Indiana with the Farm Bureau and the coal
    industry to protect the copper belly watersnake.
        A key factor leading to our support of this legislation has been
    the willingness of the sponsors to make a number of improvements since
    the January draft. The Committee leadership is to be commended for
    allowing technical comment and discussion upon the January draft and
    responding to many concerns that were raised through that process. For
    example, the bill no longer includes a water rights provision, which
    avoids changing the status quo on the interrelationship of the Act and
    state water laws, thereby minimizing conflicts between the Act and
    water projects in the West. The recovery section has been greatly
    improved by requiring that recovery goals be based solely on sound
    science. Then, within this biological context, social and economic
    factors will be considered as we work together to find ways to
    expeditiously achieve the species' recovery goal. Retaining the current
    emergency listing standard is appropriate since this is an extremely
    important tool in the very few crisis situations where we may need it.
    After thorough examination of the Section 9 take standard by your
    Committee, we are pleased to see that the bill has reaffirmed the
    current law. Your bill does not waive other environmental statutes and
    we commend you for this decision. Finally, the bill contains no
    compensation provision or other problematic property rights language;
    we would strongly object to such provisions.
        These are all very positive parts of a bill that maintains and
    actually improves the essential protections and integrity of the Act
    while also seeking to make the Act work better for the affected public
    and landowners. I would now like to discuss the Administration's
    recommendations on the bill, which we believe are important to our
    ability to implement a comprehensive ESA.
        Securing adequate funding to support this legislation will be the
    greatest challenge facing all of us. This legislation calls for an
    authorization level that is more than double the current resource
    agencies' ESA budgets. Even if this level of increase is realized in
    appropriations, we remain concerned that the cost and complexity of
    some of the changes, particularly process changes, may actually exceed
    the authorized levels. Without adequate appropriations, we will face
    significant litigation backlogs, and some species' recovery may be
    stalled. In addition, response and technical assistance to landowners,
    applicants, and Federal action agencies will be delayed. Also, a number
    of agencies will require additional funds to adequately implement this
    bill because of increased responsibilities for land management agencies
    such as the Forest Service, the Bureau of Land Management and the Fish
    and Wildlife Service. In short, absent adequate funding or a reduction
    in the complexity of some of the processes, we can not support this
    bill.
        The greatest strength of this bill is its increased emphasis on
    recovery, but this comes with additional requirements that will be
    expensive to implement and new deadlines that may be difficult to meet
    even with adequate funding. The bill should be amended directing the
    Secretary to develop and implement a biologically based recovery
    planning priority system using the biological priorities as set forth
    in S. 1180 as a template for this system. Also, the Administration
    would like to see the recovery process streamlined as explained below.
        One method for streamlining the bill's process requirements is to
    consolidate the designation of critical habitat with the development of
    recovery plans. Although the bill allows for the regulatory designation
    of critical habitat at the time of recovery rather than listing, a
    significant improvement, we remain concerned that the cost and
    administrative burden of designating critical habitat by regulation in
    this bill is not warranted. Habitat is ``the key'' for all species and
    as such needs to be thoroughly addressed in all recovery plans.
    Continuing to carry out a regulatory critical habitat designation
    process simultaneously with the new recovery plan development process
    is duplicative and escalates costs for little resource or stakeholder
    benefit. Both processes include consideration of economic costs and
    provide for public participation. The two should be integrated into one
    process. We will be glad to suggest the necessary technical changes
    that would better incorporate this process into recovery planning and
    save time and money, while ensuring protection of species and habitat.
        The bill provides that a Federal agency can go forward with an
    action if the agency makes a determination that the action is not
    likely to adversely affect the species and the resource agencies do not
    object. The bill provides an increased role for Federal agencies in
    species conservation by requiring inventories of species present on
    federally managed lands, recovery implementation agreements, and
    increased responsibility for their decisions under Section 7. We
    believe we can work with other agencies to make the new trigger and the
    plan consultations work well for the involved agencies, applicants and
    the resource. However, an endorsement of our recent practice of working
    together with other Federal agencies early in the consultation process
    in a pro-active manner that is both more efficient and better for
    species conservation needs should be codified. Even where early
    coordination occurs, the bill could be read to require that action
    agencies wait an additional 60 days for resource agencies to object to
    their findings. Language that stresses the importance of early
    proactive coordination and cooperation among Federal agencies and the
    ability of agencies to still request and receive expedite concurrence
    letters would alleviate these concerns.
        Finally, I would like to urge that the spirit of cooperative
    discussion that produced this bill extend to the development of the
    Committee report, so that our mutual understandings of these complex
    issues are strengthened, not eroded, as the bill proceeds through the
    legislative process.
        I am very encouraged that the Senate is moving forward to
    reauthorize the ESA. We in the Administration stand ready to continue
    to assist in any way possible in seeing the process through to
    completion. We are optimistic that we can reach closure on these issues
    before final consideration of this bill in the Senate so that the
    Administration can support its enactment. Together, we can make the Act
    work even better for species and people and get on with conserving our
    resources for future generations.

    Statement of Terry D. Garcia, Acting Assistant Secretary for Oceans and
    Atmosphere, National Oceanic and Atmospheric Administration, Department
                                  of Commerce
        Mr. Chairman and members of the committee, I am pleased to be here
    today on behalf of the National Oceanic and Atmospheric Administration
    (NOAA) of the Department of Commerce. NOAA is a partner with the
    Department of Interior in administering the Endangered Species Act
    (ESA) and working with other Federal agencies on aspects of its
    implementation. We are responsible for the protection of many
    endangered plants and animals that live in the ocean and coastal waters
    of our nation. Some of the more familiar species we protect are the
    Pacific and Atlantic salmon, steelhead trout, sea turtles, whales and
    stellar sea lions.
        I welcome the opportunity to discuss with you today the Endangered
    Species Recovery Act of 1997 (S. 1180) as introduced by Senators
    Chafee, Baucus, Kempthorne and Reid. First, I would like to
    congratulate the Senators on reaching a bipartisan consensus on the
    very difficult issues involved in conserving threatened and endangered
    species and conserving the ecosystems upon which they depend.
        I am very pleased that there is such a strong emphasis in this
    legislation on the recovery of species that are in trouble. Recovery of
    listed species, including the conservation of the ecosystems upon which
    they depend, simply must be the goal of our efforts in this area.
    Current law requires it, common sense calls for it, and our own
    experience about what makes for a strong economy and healthy ecosystems
    dictates it.
        Let me be very clear. Extinction of our nation's living resources
    is not an option. Similarly, merely maintaining species on the brink of
    extinction is not acceptable. The return of ecosystems and habitats to
    their full function so that they can sustain species must be the
    outcome of this legislation. This should be the goal of all our
    efforts--from low effect permits, to large scale long term habitat
    conservation plans, to inter-agency consultations under Section 7, to
    recovery plans for entire species and groups of species. I agree
    completely with Senator Chafee when he said last week Ait is time to
    make recovery, rather than mere survival, the standard by which we
    measure our actions.
        Indeed, the principal unfinished business of the current ESA
    program relates to our ability to enlist non-Federal activities and
    landowners in the important job of recovery. Look at the map of the
    Pacific coastline and the job of saving salmon across a geography
    stretching from the Canadian border to Los Angeles. Then you will
    understand the essential role of non-Federal parties in getting the job
    done. One crucial opportunity for filling the gaps in the law is in the
    area of incentives to landowners, counties and other entities to enter
    into long-term conservation agreements--an area where the
    Administration has made great strides that are addressed in the bill.
        Of the species under NOAA's jurisdiction, salmon species have been
    one of the most frequent lightening rods for criticism of the ESA.
    Their highly migratory nature places them in many states, involving
    large numbers of stakeholders, many of whom are private citizens and
    corporations that hold large tracts of land valued as both commercial
    property and prime salmon habitat.
        Long-term management of habitat rather than short-term piecemeal
    efforts has proven to be the most effective means of recovering
    species. Landowners are concerned, however, that conservation measures
    on their land will create future restrictions and that they could be
    penalized for their efforts. To address these concerns, the
    Administration reached out to landowners with the ``no surprises''
    policy. Under, ``no surprises'' in return for entering into agreements
    to conserve the species, landowners are given assurances that the
    government will not impose additional requirements in the future. Such
    certainty allows landowners to plan for the future with the knowledge
    that a ``deal is a deal,'' and promises that the Services will not
    require financial or regulatory commitments beyond those in the
    agreements.
        NOAA has been involved in negotiating a number of these agreements,
    both with states and private landowners. The Departments of Interior
    and Commerce recently signed a 1.14 million acre multi-species habitat
    conservation plan with the Washington Department of Natural Resources
    to protect spotted owl and salmon for 70 to 100 years. The Fish and
    Wildlife Service and the National Marine Fisheries Service (the
    Services) have also worked with the Plum Creek Timber Company to
    conclude a 170,000 acre multi-species habitat conservation plan with
    strong riparian habitat protections. The plan will provide protection
    for 50 years, with an option to extend another 50 years. Both Plum
    Creek and the State of Washington said they came to the table to gain
    certainty and predictability with respect to ESA action on their lands.
        The Administration developed two additional incentives policies to
    encourage landowners to protect prime habitat--``Safe Harbor
    Agreements'' and ``Candidate Conservation Agreements.'' ``Safe harbor''
    agreements allow landowners to engage in conservation measures without
    concern that attracting new listed species to their land could restrict
    future use. Candidate Conservation Agreements encourage landowners to
    take voluntary proactive measures on their land for species that are
    not yet listed, but show signs of decline.
        These agreements attempt to get species out of the ``emergency
    room,'' and provide preventative treatment before the conservation and
    recovery of the species becomes a crisis. We are pleased to see that
    the bill codifies provisions similar to the Administration's policies,
    and even goes further toward species protection in certain instances.
    The ``safe harbor'' provision ensures that the agreement will, at a
    minimum, maintain existing condition for the species. In addition, non-
    listed species receive a higher standard of protection in multi-species
    conservation plans.
        Another important area is in the role of state conservation
    planning, whereby the full panoply of state authorities and
    capabilities can be enlisted in the task of recovery B thereby filling
    those gaps in Federal capabilities that I referenced above. Earlier
    this year, NOAA and the State of Oregon literally broke the mold in the
    adoption of the Oregon Plan in lieu of listing coho salmon in northern
    and central Oregon.
        The Oregon Plan is not perfect, and more work must be done to
    improve it; but it is a fully funded suite of aggressive programs
    directed to improvements in all aspects of the salmon life cycle. The
    bi-partisan effort at the state level has our full support. We are
    working day-by-day and side-by-side on its implementation, and we
    remain optimistic that it will help save salmon and chart a new course
    for the next generation of ESA efforts in this country.
        The Oregon Plan is also a good example of NOAA's efforts to involve
    stakeholders in ESA decisionmaking. Involvement of stakeholders creates
    ``ownership'' of the process; our efforts in the Pacific Northwest to
    involve diverse groups have been amply rewarded. In developing the
    Oregon Plan, NOAA coordinated with the general public, tribal
    governments, the Watershed Councils, the timber industry, other Federal
    agencies, and the state agencies, including the Governor's office.
        This dynamic process brought all the interested parties to the
    table with the goal of preserving the area's natural resources and
    economic stability, and provide greater certainty that the parties
    would accept and support the end result. Such cooperation ensures that
    our collective energies will not be squandered on litigation and delay,
    but will go toward real species protection.
        Allow me to give you another example to demonstrate our commitment
    to public involvement. Prior to the recent steelhead trout listing
    decision (which involved the states of California, Oregon, Washington,
    and Idaho), NOAA held 16 public hearings, heard 188 witnesses, and
    analyzed 939 comments. The public participation provisions of the new
    bill mirror NOAA's already extensive efforts to fully involve the
    affected interests.
        The Clinton Administration has another goal that goes hand-in-hand
    with preventing the extinction of species. We believe that we must
    create strong economies in conjunction with our efforts to protect the
    environment. The conviction that healthy environments and sustainable
    economies are inextricably linked is the bedrock upon which our efforts
    to implement the Endangered Species Act are founded.
        Finally, we at NOAA firmly believe that in order to succeed in
    identifying and recovering threatened and endangered species and the
    ecosystems upon which they depend, our efforts must be grounded in good
    science. In our experience, there are no short cuts to or end runs
    around good science.
        As a science-based agency, NOAA welcomes the bill's emphasis on
    using good science. Basing actions on good science eliminates
    unnecessary delay over biological issues, enhances species protection,
    and reduces unnecessary litigation. NOAA is pleased to see the bill
    codify NOAA's existing policy basing its listing, de-listing, recovery,
    consultation, and permitting decisions on the best scientific and
    commercial data available. NOAA also acknowledges the value of peer
    review, as the agency has followed a peer review policy since 1994.
    Although NOAA biologists are among the best scientists in the world,
    peer review helps the agency maintain an unbiased biological
    perspective.
        Good science is the compass that will help us chart our course in
    the complex and controversial arena of species protection. NOAA
    especially applauds S. 1180's requirement recovery plans contain a
    biological recovery goal. The heart of a recovery plan must be
    biological or the stakeholder process cannot function.
        NOAA supports S. 1180's requirement that recovery plans be
    periodically reviewed to determine if new information warrants a
    revision of the plan. In some cases, new information may dictate that a
    plan needs new goals or conservation measures to achieve recovery, or
    instead, indicate that certain measures are overly broad or no longer
    appropriate. The plans will evolve along with the science, and
    stakeholders can be confident that the plans are based on the most up-
    to-date information available. Such fine-tuning will maintain faith in
    the process, and ensure that the recovery plan is the best ``road-map''
    possible to recover the species.
        We are concerned, however, about certain provisions of the bill.
    For example, the new consultation provisions may have the unintended
    effect of putting species at risk. Under current law, the burden is on
    the Services to object within 60 days or the proposed action can go
    forward. This language reverses the current Act's precautionary
    approach that requires action agencies to obtain concurrence from the
    Services before an action can proceed.
        We recognize this language only applies to informal consultation,
    and formal consultation is required if the Services object to the
    finding of ``Not Likely to Adversely Affect.'' However, this provision
    may be misinterpreted to mean that the highly successful, streamlined
    consultation process currently underway in the Northwest is not
    working. The provision also creates another unrealistic and arbitrary
    deadline.
        Moreover, the listing and recovery planning processes required in
    the bill are highly complex and are driven by very specific deadlines.
    As I mentioned earlier, most of NOAA's species are highly migratory,
    and every action, from listing to recovery to de-listing, could require
    data from vast areas, and involve stakeholders from several states.
        It will be difficult to meet many of the interim deadlines given
    the active role stakeholders and peer reviewers will play in each
    process. We worry that there may not be sufficient time and flexibility
    built in to these processes so that NOAA can obtain the good science
    necessary to make informed decisions. Rather than avoiding litigation,
    this bill may actually increase it by creating new, unworkable
    obligations for the involved agencies, including the Federal land
    management agencies.
        Finally, if this Act is to live up to its purpose and conserve
    species, adequate resources must be provided. Without sufficient
    funding, the cycle of litigation, conflict and crisis will haunt this
    Act into the next century, delaying recovery of our invaluable living
    resources.
        The land management agencies also will need additional funding in
    order to carry out their new responsibilities under this bill. The
    funding issue involves more than mere authorization levels. It will
    require firm commitments from Congressional leaders that appropriations
    increase above current baseline levels for all the agencies that
    implement the Act and live by it will be provided.
        This bill has made tremendous progress since the discussion draft
    circulated last January. Many particularly troublesome provisions
    contained in that draft bill, such as a provision on water rights, have
    been removed all together. Other provisions have been constructively
    modified, such as the consideration of social and economic impacts in
    recovery plans.
        However, in the Administration's view, some additional changes are
    required. For example, with respect to consultation, legislative
    language to stress the importance of early coordination and cooperation
    among Federal agencies and the ability of agencies to still request and
    receive concurrence letters is necessary. In addition, there must be a
    significant reduction in the complexity of the process if Congress does
    not provide adequate funding to carry out the many prescriptive
    requirements in this bill. The Administration will provide to the
    Committee later this week a detailed list of technical and clarifying
    amendments to S. 1180, as well as suggested report language to
    accompany key provisions of the bill.
        If all our concerns are addressed, then this bill will have the
    Administration's support. Even as it stands now, this legislation is a
    tremendous achievement, and deserves serious consideration by all the
    members of the Committee, the Senate and the House of Representatives.
        As you know, members of my staff have provided you extensive
    technical assistance in preparing this legislation. If, however, our
    remaining concerns are not addressed, or this bill is saddled with
    amendments on takings or water rights, NOAA will be forced to oppose
    the bill. I am certain that with the leadership of these four sponsors,
    that result is extremely unlikely. We look forward to working with the
    Committee to discuss the Administration's remaining concerns. Thank you
    again for the opportunity to share with you my views, and the views of
    my agency, on this important legislation.
                                   __________
    Statement of Governor Marc Racicot, State of Montana, on behalf of the
     National Governors' Association and the Western Governors' Association
    Appreciation and Representation (WGA/NGA)
        Mr. Chairman, Senator Baucus, Members of the Committee. My name is
    Marc Racicot, Governor of the State of Montana. I am here today
    representing the Western Governors' Association (WGA) and the National
    Governors' Association (NGA). I also serve as the vice-chairman of the
    NGA Natural Resources Committee. I appreciate the opportunity to talk
    with you about the Governors' perspectives on this unique legislation
    and its impact on our efforts to protect the nation's conservation
    resources.
    Commendation and History of Governors' Involvement
        We support the consensus, bipartisan approach and recommend you
    move the bill forward. You have made major progress in this bill. We
    know it is a delicate consensus that has produced the provisions of S.
    1180. The Western Governors know well what you and your staffs have
    endured to reach this point. We started a similar debate in the early
    years of this decade. As a group we had never experienced a more
    acrimonious debate--so acrimonious in fact that we had to initially
    back off our attempt. However, with the leadership of Montana's
    Governor Stan Stephens on one side of the debate and Idaho's Governor
    Cecil Andrus on the other, the Governors became convinced that the only
    way the Endangered Species Act (ESA) could be improved was through a
    consensus process. That leadership and and that consensus resulted in
    an outstanding proposal which would strengthen the role of states,
    streamline the Act, and provide increased certainty and assistance for
    landowners and water users while at the same time enhancing its
    conservation objectives. The consensus has since been endorsed by the
    Western Governors Association, the National Governors Association and
    the 50 state fish and wildlife agencies through their International
    Association of Fish and Wildlife Agencies. It was forwarded to you
    first in the form of legislative principles in 1993 and then in
    legislative language in September 1995.
    Comments on S. 1180
        The consensus principles that the Western Governors' Association
    and National Governors' Association developed on ESA reform are
    reflected in S. 1180. While none of our members would draft the bill in
    this exact form, it deserves our active support. Because such consensus
    on both our parts was difficult and hard fought, it is worth a few
    minutes to outline here those areas in which we do agree in substance
    and which we encourage you to retain in the bill and to work with us as
    you move toward conference committee consideration:
        A. A greater State role has been acknowledged in recovery planning,
    and the bill reflects the strong intent to make states partners in
    achieving the objectives of the Act by inclusion of language calling
    for ``in cooperation with the States``in the major sections of the Act
    as well as a strong definition of what that is to entail. (As a
    technical point, we suggest the committee may have inadvertently missed
    inserting that phrase in the sections on ``safe harbor,'' Candidate
    Conservation Agreements, Section 7, and Implementation Agreements.);
        B. Inclusion of strong incentives for private landowners like
    ``safe harbor'' and ``no surprises,'' Habitat Conservation Planning
    Fund, technical assistance to enable landowners and water users to be
    true partners in reversing the decline of species and their habitat,
    and, in the companion bill, tax incentives for land owners;
        C. Peer review of listing decisions;
        D. Greatly enhanced public comment and involvement in all aspects
    of the Act;
        E. Elevating the Recovery of Species to a central focus of the Act
    and the incorporation of Implementation Agreements with Federal
    agencies and other entities to ensure that recovery plans are not only
    comprehensive and inclusive in their effort to conserve species, but
    also carried out;
        F. Multispecies Habitat Conservation Plans and a Streamlined HCP
    process for small landowners with small impacts;
        G. Designation of critical habitat at recovery planning stage where
    it is most sensible and practical;
        H. Increase rigor in the listing process; and
        I. Increased funding authorization to carry out the new and
    expanded requirements of the Act.
        As I'm sure you can appreciate, there were issues upon which the
    Governors could not reach consensus--areas which I know caused you
    difficulty as well: water rights, Section 7, and a narrower definition
    of ``take''. Each Governor is working on those particular issues from
    the unique perspectives of their states and their needs. However, just
    as the Governors were able to move ahead and reach overall consensus,
    we are encouraged that this Committee did the same. We strongly
    encourage you to retain the consensus you have reached and to move
    ahead with this legislation. The vital natural resources which we all
    wish to see sustained and conserved depend upon the incentives, the
    streamlining and the acknowledgment of partnership that are integral to
    this legislation.
        I want to note that you were able to reach consensus on Section 7
    which eluded us in our deliberations. The Governors cannot specifically
    endorse that consensus because it is beyond the scope of our own
    agreement, but we encourage you to keep up your effort.
        There were also four areas in which the Governors did reach
    consensus and on which you did not. We believe they would be very
    important and effective additions to your legislation. We understand
    that you have a consensus bill here and that you need to move it
    basically intact, so we request the opportunity to work with you and
    all the parties that are necessary to consensus prior to conference to
    try to meld in these four areas of gubernatorial consensus: State-
    initiated Conservation Agreements, adequate funding, a more rigorous
    and less costly delisting process, and reconfirmation of the intent of
    Congress to have a statutory and regulatory distinction between a
    species listed under the Act as threatened or as endangered.
        I would like to highlight the most critical of those four for you.
    In my state, we have pulled together a broad-based group representing
    the major stakeholders with an interest in Bull Trout conservation.
    This Bull Trout Restoration Team has been working to develop a
    conservation plan for this candidate species which would provide the
    basis for conservation and recovery. The type of agreements we can
    forge and the flexibility we need to forge those agreements are
    possible with a candidate species, but next to impossible if listing
    were to occur under the ESA. Yet, litigation and the deadline triggered
    by that petition is forcing the Fish and Wildlife Service toward that
    very listing--to the detriment, we believe, of our cooperative efforts
    and the Bull Trout.
        At the heart of our recommendations is preventative conservation
    and that is why our states are actively engaged in developing
    conservation plans to restore declining species before they need the
    protections of the Act. Your bill provides for Candidate Conservation
    Agreements under Section 10 of the Act and that is a step in the right
    direction. However, human nature makes it difficult for most of us to
    notice the gradual loss in the number and habitat of species. We often
    need a wake up call, especially to mobilize resources on a large scale.
    Unfortunately the alarm is often a petition to list a species, which
    triggers a listing deadline that often can not be met in time as is
    likely to occur with the Bull Trout. If the petition has merit, the
    listing needs to proceed in order to bring the protections of the Act
    into play. The listing forces Federal agencies to consult on actions
    that may affect the species, yet the listing brings less protection to
    the majority of species using private lands. While your bill will make
    it more likely that individual land owners and water users will become
    partners in conservation, all Federal and state officials know that a
    listing chills voluntary efforts to conserve species on private lands.
        This is why my colleagues and I urge you incorporate state-
    initiated conservation agreements under Section 4 of the Act into your
    bill. Under these agreements a listing would proceed. However, if an
    agreement was close to being implemented, the effects of the Act would
    be suspended for the state or states where they were being developed
    or, if later, once the agreements were implemented. If the effort
    falters or if the parties do not fulfill their obligations, then the
    full effect of the listing would be triggered. That threat in fact is a
    spur to action.
        The benefits can be enormous. A Governor can use the wake-up call
    to rally a coalition of state, Federal, private and non-profit
    interests to conserve species through voluntary, but scientifically
    reviewed, monitored and reported, efforts. The financial and other
    resources of the parties are leveraged that would otherwise be
    scattered by the listing. More importantly, threats to the species are
    addressed and efforts are mobilized to remove the need to list the
    species. If all goes well, this could be accomplished in nearly the
    time that the Secretary takes to determine whether or not to list the
    species. Without such agreements, it would take two additional years to
    develop a Recovery Plan and additional time to fully implement recovery
    agreements. Also, states and their communities can retain control over
    their destiny instead of the courts; large political capital is
    expended and conservation is made a clear priority. Additional
    safeguards also exist: the Secretary must concur that the agreements
    will conserve the species and the Secretary's emergency listing
    authority remains in place.
        The recent Oregon Coastal Coho Restoration Plan in which Governor
    Kitzhaber has leveraged $15 million in state and private funds and the
    current collaborative effort of the Governors of Washington, Oregon,
    Idaho, and California to conserve the steelhead trout are examples of
    the energy and leadership that exists among the nation's Governors.
    Other such examples include the recent conservation agreement in
    Kentucky, Illinois, and Indiana to conserve the Copperbelly Water
    Snake, and in Texas to conserve the Barton Springs Salamander.
        My colleagues in Oregon and Texas invite the members of your
    committee and the House Resources Committee and staff and other
    interested groups to visit them and see how these Conservation
    Agreements work on the ground. Naturally, Montana or any other state in
    the West would be pleased to act as host as well. We encourage you to
    accept this invitation and learn why incorporation of State-initiated
    Conservation Agreement language in your legislation is so critical to
    species conservation and to getting active, early state participation.
        Inadequate funding has been a major impediment to the success of
    the ESA and to the public's support of the Act. Funding must match the
    design of a reauthorized Act with its increased role for the states,
    its incentives and assistance for private landowners, and its emphasis
    on recovery. Without adequate funding, burdens are unfairly placed on
    local communities and owners of private property. We are pleased that
    the bill doubles the authorization for carrying out the Act, but we
    note that the funding must be stable and actually appropriated. If a
    stable funding source can not be found, then we suggest that the bill
    establish a national task force composed of Federal, state, local
    representatives and the general public to identify creative and
    equitable funding strategies.
        We encourage your consideration of a change very high on the
    priority list of the Governors. That in the listing process, there be a
    rebuttable presumption that the state assessment is accurate when the
    Secretary is making the final listing determination. Very, very often
    listing is based on incomplete science and conclusions not supported by
    the evidence. Despite the improvements in S. 1180 regarding the listing
    process, it does not provide for those circumstances when data is
    sketchy or unavailable--the instances which are causing poor listing
    decisions under the current Act.
        The bill provides for an effective trigger to initiate the
    delisting process when recovery goals have been met. But the cost,
    complexity and probability of delisting will remain unless an
    alternative to use of the Section 4(a) criteria--in reverse--is
    developed. The Governors advocate a simplified process utilizing
    rulemaking that would take advantage of the wealth of information and
    progress already made through accomplishment of the recovery goals. As
    the Governor of the state of Montana, I also strongly encourage the
    Committee to consider including provisions whereby delisting could
    occur by state boundaries or other boundaries based on standards and
    criteria developed by the Secretary in cooperation with the states.
    This is particularly important as flexibility to list a species more
    precisely based on existing efforts have not been incorporated. We all
    agree that incentives to private landowners are important. This is one
    incentive that is imperative to state involvement so that good efforts
    will be rewarded without being held hostage to efforts by others.
        Congress originally intended but court cases and rulemaking have
    completely blurred, a distinction between a ``threatened'' and an
    ``endangered'' species. Such a distinction also provides incentives for
    states and private landowners to work to down-list a species to take
    advantage of increased flexibility and greater management freedoms. We
    strongly encourage you to reconfirm the listing distinction originally
    included in the Act.
        Thank you very much for the opportunity to provide these written
    comments on behalf of the nation's Governors. Please contact my office
    or the Western Governors Association if we can provide any additional
    clarification or detail about our testimony.
                                   __________
                               Office of the Governor, State of Montana
                                                         September 26, 1997

        Hon. John Chafee, Chairman,
        Committee on Environment and Public Works,
        Dirksen Senate Office Building,
        U.S. Senate, Washington, DC
        Dear Senators Chafee and Baucus: want appreciated the opportunity
    to appear before the Senate Environment and Public Works Committee on
    Tuesday concerning the reauthorization of the Endangered Species Act
    (ESA). There were at least two issues we discussed that would benefit
    from further clarification in S. 1180--issues exceptionally important
    to the Governors.
        Your legislation meets one of the chief concerns of the states by
    providing a substantial increase in funding for ESA activities.
    However, all of the funds provided are directed to the two Federal
    services. It is not clear that any portion of those funds or other
    funding was dedicated to Section 6 funding for the states and the
    legislation lacks explicit authority for and direction to the Secretary
    to channel funds to states to complete recovery planning
    responsibilities he would otherwise perform. Further imbalancing
    funding between the Federal and state partners will result in greatly
    increased Federal activities and Federal employees which will
    unalterably change the parity necessary between states and the Federal
    Government in ESA activities. In order for the strong language in the
    legislation calling for state authority to develop recovery plans to be
    effective want would ask you to consider an explicit requirement that
    such funding flow through to a state assuming recovery planning
    authority.
        The second area of key significance to the Governors is state-
    initiated conservation agreements to encourage preventative efforts by
    states in species and habitat conservation. This is the surest avenue
    to reduced long-term recovery planning and implementation costs under
    the ESA for the Federal Government, states and private landowners.
    There must be an incentive and consistent, dedicated funding for the
    states to initiate such proactive undertakings. Without precise ESA
    authority that recognizes the legal basis for such agreements should
    listing occur, there is absolutely no incentive to initiate them and
    every cost and resource disincentive to do so.
        Though S. 1180 includes language on conservation agreements, the
    qualification of that language by the term ``non-Federal person'' and
    its inclusion in Section 10 concerns us greatly. Inclusion in Section
    10 strongly implies that such conservation agreements are only valid
    when tied to a Habitat Conservation Plan for a listed species.
    Effective state initiated conservation agreements must be authorized in
    Section 4(a) of the Act because such agreements must not be set aside
    by the decision to list or preempted by the time-lines required by the
    listing process. The language now in S. 1180 would suffice if included
    in Section 4(a).
        The Western Governors Association (WGA) will, this afternoon,
    provide technical amendments addressing the inclusion of the ``in
    cooperation with the states'' language in the provisions dealing with
    Safe Harbor Agreements, Candidate Conservation Agreements,
    Implementation Agreements, and Habitat Reserve Program Agreements.
        Because funding dollars are so scarce, we would suggest your
    serious consideration of the Teaming With Wildlife proposal now being
    circulated by the International Association of Fish and Wildlife
    Agencies as a means to provide the dedicated funds.. The States have
    demonstrated remarkable conservation success with sport fish and game
    wildlife through the Wallop-Breaux and Pittman-Robinson programs.
    Teaming With Wildlife may offer an opportunity to utilize that same
    formula for success in non-game wildlife efforts critical to conserving
    species prior to a need to list under the ESA. Providing such secure
    funding in combination with the changes identified in your consensus
    bill and by the Governors would represent a significant milestone in
    rich conservation history of this nation.
        Thank you for your good work and for the courtesy you extended to
    me during my testimony. i believe that the information in this letter
    will help to clarify that testimony and promote strong reauthorization
    of the Act.
        If want can provide any additional information about the issues
    discussed here, please contact me.
                Sincerely,
                                                          Marc Racicot.
                                                                  Governor.

                    ENDANGERED SPECIES RECOVERY ACT OF 1997

                                  ----------

                         WEDNESDAY, SEPTEMBER 24, 1997

                                           U.S. Senate,
                     Committee on Environment and Public Works,
                                                        Washington, DC.
        The committee met, pursuant to recess, at 9:30 a.m. in room
    406, Dirksen Senate Office Building, Hon. John H. Chafee
    (chairman of the committee) presiding.
        Present: Senators Chafee, Thomas, Kempthorne, Sessions,
    Wyden, and Baucus.

    OPENING STATEMENT OF HON. JOHN H. CHAFEE, U.S. SENATOR FROM THE
                         STATE OF RHODE ISLAND

        Senator Chafee. We want to welcome everyone this morning.
    We appreciate the panel taking the trouble to come back today.
        As always, there are conflicts, particularly this morning.
    As you know, the Finance Committee is having a hearing on the
    IRS, and there are, I think, a total of five members on this
    committee, or four, who are on the Finance Committee, so that
    makes life somewhat difficult. Senator Baucus is one of those,
    and I expect Senator Baucus will be here shortly.
        Obviously, your testimony will be included in the record in
    full, as will many of the statements and so forth that take
    place here.
        Now, if the next panel, panel two, would please come
    forward to the table--again, I want to thank you for taking the
    trouble to come back again today.
        The first witness on the panel will be former Senator James
    McClure, who served with distinction on this committee for a
    number of years. When I first came on the committee, Senator
    McClure was here, and we worked together on a whole series of
    matters. I can remember working on the Lacy Act, which he knew
    a lot more about than I did. Even when we were finished, he
    knew a lot more about it than I did.
        So we welcome you, Senator. Why don't you proceed?

        STATEMENT OF HON. JAMES A. MC CLURE, CHAIRMAN, NATIONAL
                ENDANGERED SPECIES ACT REFORM COALITION

        Mr. McClure. Thank you very much, Mr. Chairman.
        I am very familiar with the kind of conflicts you have up
    here. I vaguely remember how disruptive it is to your life and
    to your plans.
        Let me start by stating my real appreciation for the
    opportunity to appear here on behalf of the membership of
    National Endangered Species Act Reform Coalition, NESARC, which
    I have the honor to chair. I appreciate the efforts, and I
    really do appreciate the efforts of the four of you who have
    drafted this proposed legislation. I recognize how difficult it
    is in the polarized and often contentious areas in which you
    must work, how difficult it is to achieve a consensus that
    allows you to do anything more than minimal. This bill is more
    than minimal.
        It would also be certainly candid on my part to confess
    that it isn't the bill I would have drafted or would personally
    desire, nor is it exactly the kind of legislation that our
    coalition would desire, but we recognize it as a significant
    improvement over the status quo. Certainly the Act needs to be
    reauthorized. Congress should work its will with respect to
    this legislation, as difficult as that is.
        I was an active participant in the Senate debates in this
    committee and on the floor at the time the Act was passed in
    the first place, and I remember some of the difficulties we had
    and some of the ambiguities that we consciously left.
        Senator Chafee. I think it passed unanimously in the Senate
    on the floor of the Senate.
        Mr. McClure. Yes. But that does not mean that there was a
    unanimous understanding about exactly what we had done.
        [Laughter.]
        Senator Chafee. There frequently seems to be wisdom,
    particularly, I notice, on foreign relations matters, to leave
    things a little vague.
        Mr. McClure. Once in a while an artful ambiguity is useful.
    In this case it was an ambiguity because we simply couldn't
    resolve some of the issues and, second, because we weren't
    quite sure what it was we were setting in motion, but it was
    very clear that Congress intended to revisit the Act when we
    had had more experience with it, and we have not done that as
    well as we should have because it is very difficult.
        Good morning, Senator Kempthorne. Glad to have you here
    this morning and to recognize your leadership, in particular,
    in bringing this to the point where we are today.
        Senator Kempthorne. Thank you, Senator McClure.
        Mr. McClure. So NESARC does support this legislation. We
    would also urge some improvements, and I say that not for 1
    minute derogating or diminishing the difficulty of making those
    improvements. I recognize how difficult it has been to get
    here.
        We also support S. 1180, which is another bill by Senator
    Kempthorne to provide a number of important incentives,
    including several tax breaks and compensation for regulatory
    takings.
        We believe it's just not fair for society to take
    somebody's property and make no compensation for it. It just
    isn't fair. And when you get down to the core of some of the
    programs we have in the application of the Act, it is a
    recognition that the burden of society's policy is put on a
    few. That isn't the way it ought to be. If society wants to do
    something that impairs somebody else's property values, then
    that person ought to be compensated for that diminution of
    value.
        That's easy to say and harder to do, and I recognize that,
    as well.
        Let me turn for a moment to some of our specific concerns
    regarding the implementation of ESA and the steps that S. 1180
    takes to address our concerns.
        Citizen participation, especially those whose livelihoods
    are most affected by the conservation measures, should have a
    greater stake in the ESA decisionmaking, and we support the
    citizen participation provisions of S. 1180.
        Shared burdens--ESA is supposed to be for the benefit of
    all citizens. That may be true, but our members bear a
    disproportionate amount of the costs. Costs should be borne
    more even-handedly, particularly where the Act limits perfectly
    legal activities--indeed, necessary activities in our society--
    and we urge their full funding and support.
        On water rights, Mr. Chairman, we believe that Congress
    should take action to ensure that the ESA is in harmony with
    and recognizes the primacy of State water law. I know this
    issue is important to Senator Kempthorne and other members of
    the committee, and I hope we can come to a resolution. I can
    make a suggestion or two if you'd like.
        On consultation, we support provisions in S. 1180 to find
    the scope of measures that may be imposed during consultation.
    NESARC also supports provisions that allow the action agency to
    determine, in limited situations, that a proposed action is not
    likely to adversely affect listed species. There are more than
    enough adequate safeguards to ensure the biological integrity
    of this process, and we also support more-cooperative,
    consolidated consultations.
        We support broader reforms than this, but we recognize
    improvements in the bill.
        Definition of take--finally, Mr. Chairman, we support
    amending the definition of take. We believe ESA originally was
    intended to prohibit activities directed toward an identifiable
    member of a species as the word ``take'' was understood in the
    common law on game and wildlife.
        We understand that the co-sponsors of S. 1180 had not come
    to an agreement on this issue; nevertheless, our views have not
    changed. We do support provisions that require, before
    initiating a take enforcement action, a scientific
    determination that a take actually would occur.
        I would particularly call attention in my prepared
    testimony to my reference to my last appearance before this
    committee on this subject in 1994, and I've attached a copy of
    that testimony. It indicates, I believe, that we have been
    consistent in our position.
        I want to, just for the record, state a couple of things,
    as Senator Baucus did yesterday, what NESARC is not, as Senator
    Baucus indicated what this bill is not yesterday.
        NESARC is not just an industry group. We have a broad
    coalition of different kinds of groups representing millions of
    Americans, and it has sometimes been described as an industry
    group, which I think is inaccurate.
        I want to very strongly indicate, as the name of our
    organization indicates, we are not advocating the repeal or
    destruction of ESA. We support its objectives. We support
    strengthening those objectives. We support making this bill
    more workable. We commend you for what you've done and would
    look forward to whatever questions you might wish to ask.
        Senator Chafee. Thank you very much, Senator. I appreciate
    your testimony.
        What we'll do is we'll hear from each of the five
    witnesses, and then we'll have questions.
        As you know, the Senate is not going in today until later
    on, so there's no problem with that 3-hour rule, 2-hour rule,
    and we want every witness to be able to have his statement
    submitted and a good question period.
        Mr. Michael Bean, director of the wildlife program for the
    EDF, Environmental Defense Fund.
        Mr. Bean, we welcome you here. Won't you proceed?

        STATEMENT OF MICHAEL BEAN, DIRECTOR, WILDLIFE PROGRAM,
                       ENVIRONMENTAL DEFENSE FUND

        Mr. Bean. Thank you, Mr. Chairman, members of the
    committee.
        I'm Michael Bean, testifying this morning on behalf of the
    Environmental Defense Fund, for which I work, the Center for
    Marine Conservation, and the World Wildlife Fund.
        I recognize that for the last 6 years Congress has been
    deadlocked on what to do about the Endangered Species Act, and
    in panels like the one you have before you this morning you've
    heard two widely divergent views about what you should do.
        From the environmental community, you've heard that the Act
    has to be strengthened, that it's not doing as effective a job
    as it needs to do. And from those in the regulated community
    you've heard that it has to be relaxed, that it's too
    burdensome, it's too onerous, and so forth. And Congress has,
    frankly, been unable to choose between those two points of view
    and has done nothing. And, having done nothing, it has served
    the interests of neither of those two camps, nor has it served
    the interests of our declining wildlife.
        I believe that the solution to this impasse is to recognize
    that what is needed is not to choose between those two points
    of view, but to find a solution that accomplishes both goals,
    that makes the Act more effective in protecting endangered
    species, while making it less onerous for those that it
    regulates.
        Having said that, however, I have to emphasize that that's
    a lot easier to say than it is to do. It is not so simple as
    just relaxing restrictions and the Act will automatically
    become more effective, but neither, I would acknowledge, is it
    so simple as saying that by tightening restrictions the Act
    automatically does a better job at protecting species.
        There are, I think, significant differences of opinion--
    you've heard them yesterday and you'll hear them today--about
    how well you have done in trying to meet those two objectives,
    but I believe, and I very much appreciate the fact that I think
    the four of you, with Senator Reid, have really tried to do
    that, and that is something that has not often been tried in
    the last 6 years. So I think you are deserving of credit for
    that, as is Secretary Babbitt, with whom you've worked.
        Let me turn to the substance of what you've produced.
        I think there are many positive features of this bill.
    There are also features that give me some concern. I want to
    address both of those.
        First, I think one of the most positive features in this
    bill are the new incentive programs, new cost-sharing
    assistance programs for private landowners, and there are a
    couple of simple reasons why those are so important.
        First, most endangered species have most of their habitat
    on private land. Second, those species, in general, are not
    faring very well. And, third, many of those species absolutely
    depend upon active management of their habitat if they are to
    persist. Without cost-sharing assistance, many landowners can't
    implement the needed management measures, and without those
    management measures the continued decline of many species is
    virtually assured.
        For those reasons, I think the financial assistance
    provisions of your bill are extremely important, but there is
    one big caveat: those have got to be funded. Without funding,
    the potential of those programs to do some positive good for
    endangered species won't be realized.
        I'd like, if I may, Mr. Chairman, to enter into the record
    a letter that I provided your staff yesterday signed by the
    American Farm Bureau Federation, Environmental Defense Fund,
    and Center for Marine Conservation. I should add that both
    Defenders of Wildlife and World Wildlife Fund wish to be
    associated with this letter, as well. This calls upon you to
    make a very earnest effort to find a secure source of assured
    funding for these incentive programs, because we all believe--
    the Farm Bureau and the environmental organizations I named--
    that these are vitally important measures for improving the
    conservation of endangered species and for improving the
    relations between landowners and conservation agencies. So, if
    I may, I'd like to have that entered into the record.
        Senator Chafee. Yes. Definitely.
        Mr. Bean. I think the bill also deserves credit for
    improving the standards for approval of habitat conservation
    plans that pertain to listed and unlisted species. I commend
    that aspect of the bill.
        With respect to the ``no surprises'' policy which your bill
    codifies, I think it is extremely important to bear in mind
    that, while that policy lifts burdens in the sense of removing
    uncertainty from regulated interests, absent some mechanism to
    ensure that the Government can pick up the slack when
    necessary, when unforeseen circumstances do arise, the risk is
    shifted that we will not effectively save a species. And so I
    would encourage you again to think very creatively about ways
    to make sure the Secretary has the resources to step in when
    necessary, in light of the``no surprises'' policy.
        I have also addressed in my testimony, Mr. Chairman, what I
    believe are some serious resource problems stemming from the
    requirements with respect to recovery planning.
        As you know, this bill imposes some substantial new
    requirements for recovery planning and requires that an
    existing backlog of species that current lack recovery plans be
    eliminated over 5 years. There are now 389 species that are
    listed that don't have recovery plans, and another 99 that are
    proposed for listing and likely to be listed soon.
        At the rate of recovery plan preparation over the last 5
    years, it will take 8 years of effort to eliminate that
    backlog. Put differently, to do what this bill requires, to
    eliminate that backlog in 5 years would require a 40 percent
    increase over current levels of resources, and that's assuming
    no change in procedures, but your bill does make procedural
    changes that are difficult. And it also assumes that nothing
    else gets listed in the meantime. So I want to underscore what
    I think is a very serious resource limitation problem that this
    bill will create.
        Senator Chafee. That gets to your first point about the
    funding.
        Mr. Bean. Yes. That's correct.
        Let me just conclude this way, because I see I have
    exceeded my time already, for which I apologize. My written
    testimony ends with a quotation from William Beebe, who was a
    close friend of Teddy Roosevelt, but let me just very briefly
    describe what I think is an important lesson for this, one of
    the last Congresses of this century, to learn from our first
    President of this century, and in my opinion our greatest
    American President.
        Teddy Roosevelt was very bold about a conservation vision
    for the future. We can enjoy today and will enjoy over the next
    century the 51 national wildlife refuges, the five national
    parks, the literally scores of national forests that he
    created, and the 232 million acres of land that he set aside
    for various forms of protection.
        He had a bold vision for conservation for the future that
    has endured, and I think the challenge you face today in
    recognizing the threats to endangered species is no less a
    challenge than he faced then, and I hope that you will
    understand the gravity of that challenge and that you will set
    in motion some programs and new ideas that can sustain a
    conservation vision for the next century as effectively as that
    first republican President of this century did.
        Thank you.
        Senator Chafee. Thank you very much, Mr. Bean. I was about
    to discuss that Teddy Roosevelt television series that was on
    last evening----
        Mr. Bean. I have to confess I watched it and that's where I
    got these facts.
        [Laughter.]
        Senator Chafee. And it went right into everything you
    discussed, particularly about his founding of the first Fish
    and Wildlife refuge, which was in Florida.
        Thank you very much. We'll get into questions.
        I noticed in your testimony you have some suggestions of
    where you think the funding might be.
        Senator Chafee. Mr. Henson Moore was a distinguished Member
    of the House of Representatives.
        Mr. Moore, we're delighted to have you here.

     STATEMENT OF HON. W. HENSON MOORE, PRESIDENT, CHIEF EXECUTIVE
     OFFICER, AND CO-CHAIR, AMERICAN FOREST AND PAPER ASSOCIATION,
        ON BEHALF OF THE ENDANGERED SPECIES COORDINATING COUNCIL

        Mr. Moore. Thank you, Mr. Chairman. I'd like to ask that my
    written testimony be made a part of the record.
        Senator Chafee. It will be.
        Mr. Moore. I'm here representing the American Forest and
    Paper Association, which represents the timber and paper
    industry, but also the Endangered Species Coordinating Council,
    which represents another 200 organizations and companies,
    including labor, ranching, mining, fishing, and other
    agricultural groups.
        I think I'm going to say with sincere conviction, as Mr.
    Bean did, that I don't think any of us thought anything was
    going to happen with Endangered Species Act updating--and it
    needed to be updated--until you all got involved. And I think
    that you have my complete and all of the organizations I
    represent complete respect and complete gratitude for the fact
    you're willing to tackle this issue.
        You, Mr. Chairman, Senator Baucus, Senator Reid, certainly
    Secretary Babbitt, and especially Senator Kempthorne have
    decided to take on an issue that certainly nobody is marching
    in the street saying it needs to be done. It certainly doesn't
    register on anybody's poll of issues that have to be done. But
    it is a very profound law that has a tremendous impact or could
    on the nature and the environment of this country, as well as
    on human beings who happen to be in conflict with that.
        The fact that this law has been in effect now some 23 or 24
    years, we've learned--and most anybody that deals with the Act
    knows there are some things that need to be done to update it
    and make it work more fairly and more effectively. The fact
    that you all took this on and took on essentially extremists
    from both ends is a fact of legislative leadership that I think
    is all too rare today, and I compliment you for having done
    that.
        You have ignored the extremes, those that say, ``Don't do
    anything, or increase the burdens, get out more bayonets, let's
    get more rifles out, we'll make this thing work yet.'' You've
    also ignored the extremes who say, ``Let's gut the law. Let's
    do away with the law. Let's find some new regime that we've yet
    to try that might make all this work.''
        You have really approached this, the point of view that, in
    our opinion, the statute hasn't really worked as it should
    have, it hasn't really--only four species, according to the
    numbers we see, out of 1,500 listed have been de-listed because
    of recovery.
        We spend hundreds of millions of dollars, and there is
    angst in communities and in families and in landowners across
    the country coming into conflict with this statute.
        What you have done, we find it rather incredulous to find
    difficulty with--the idea that we're going to have better
    science, the idea that you put stakeholders and communities at
    the table, the idea you consider alternative recovery plans,
    that you do codify provisions that we have to compliment the
    Administration for initiating, that may be in danger because
    they do not have a statutory background or may not be
    considered that by a court.
        We think all of these make the law work more fairly, make
    the law work better, and certainly update the statute.
        Nobody is going to be 100 percent happy with this statute.
    You're already hearing that and seeing that in news clips this
    morning of the testimony yesterday. But the polls we just
    recently saw show that 70 percent of the American people would
    approve of what you're doing--of updating the statute in a very
    limited way to make it work better.
        Will it work better? It is our considered opinion, from
    looking at these provisions in this bill, that it definitely
    will work better than the existing statute on both camps that
    Mr. Bean so adequately described--trying to protect nature, and
    also at the same time trying to be fairer to those people who
    ultimately bear the burden of this protection.
        We're not going to ever give up on the comment that Senator
    McClure made, that we do need to ultimately have the question
    of property rights and compensation dealt with, but we also
    realize that this probably isn't the time politically to be
    able to do that.
        We also think that there are new issues that this bill
    could have taken up, and it didn't, such as the attempt by EPA
    and the Fish and Wildlife Service to impose Endangered Species
    Act on the Clean Water Act, which we think is something that
    the Congress ought to do, not something that ought to be done
    administratively. But there, again, we recognize that's
    probably something that can't be done now.
        Overall, this legislation is not earth-shaking. We look at
    it as being marginal changes to procedures, not to the
    substance of the law. Those marginal changes need to be made to
    make it work better and to make it work more fairly. And at
    this particular moment in history, with this Administration and
    perhaps even this Congress, that may be the best that can be
    done, is make procedural changes to make the law work better,
    and that's the position that we've come to. While we'd like to
    see more, we just don't think that's probably possible at the
    present time.
        You all have done what we hoped we'll see happen, is find a
    consensus. Any time you have a complicated--in my observation--
    and a very controversial and a very emotional piece of
    legislation, which this one certainly is, or this law certainly
    is, you have to have consensus to be able to address it, and it
    seems to me that you've found grounds for consensus, common
    ground. You found it in a bipartisan way, and even with
    assistance from the Administration, and that to us gives us
    hope that yet this law can be made to work effectively and, at
    the same time, more fairly.
        Therefore, Mr. Chairman, while we do have some
    reservations, we put those reservations aside to work with you
    in the course of the markup and say, without any equivocation,
    we strongly support your efforts and we strongly support the
    legislation.
        Senator Chafee. Thank you very much, Mr. Moore.
        Mr. Mark Van Putten is president of the National Wildlife
    Federation and has brought great energy to that job. Indeed, he
    hired away our staff director.
        [Laughter.]
        Senator Chafee. But we'll forgive him for that.
        Mr. Van Putten, we're delighted you're here. Won't you
    proceed?

       STATEMENT OF MARK VAN PUTTEN, DIRECTOR, NATIONAL WILDLIFE
                               FEDERATION

        Mr. Van Putten. Thank you, Senator Chafee and members of
    the committee. I appreciate the opportunity to appear before
    you today on behalf of the National Wildlife Federation,
    America's largest conservation education and advocacy
    organization. But, in addition to being big, I'd like to
    emphasize the fact that we are diverse and we represent
    mainstream American values. Our ranks include hikers, birders,
    outdoor enthusiasts, hunters, and anglers--the diverse set of
    Americans who enjoy our out-of-doors and appreciate the
    importance of species.
        For our membership, the protection of species and the
    interests of private property owners are not at odds with one
    an other. Our ranks include State affiliates, such as: the
    Environmental Council of Rhode Island, the Montana Wildlife
    Federation, the Idaho Wildlife Federation, and the Wyoming
    Wildlife Federation--independent State affiliates that send
    delegates that elect our board and establish our conservation
    policies.
        I'd like to join all of the witnesses who have testified
    over the past 2 days in commending Senator Chafee, Senator
    Baucus, Senator Kempthorne, and Senator Reid for your
    accomplishment in working on a consensus basis to produce a
    bill.
        I think the touchstone for measuring that bill, from our
    perspective, was best articulated by Senator Baucus in his
    opening remarks yesterday when he said, ``The measure of this
    bill should not be what it does not do, but what it does do,''
    and I agree entirely with that, and was also heartened to hear
    Senator Baucus characterize this bill as a starting point.
        Given some of the rhetoric and the polarization around this
    issue over the past few years, I acknowledge that, from a
    damage control point of view, this bill is an accomplishment in
    not doing as much damage to the Endangered Species Act as some
    of the radical anti-environmental proposals would have
    accomplished. But, measured against Senator Baucus' standard,
    which we believe is the right one, and noting the improvements
    in the bill that we have identified in our section-by-section
    analysis attached to my written testimony, we have concluded
    that, on balance, this bill does not enhance the conservation
    of endangered species and their habitat.
        Throughout this discussion, the National Wildlife
    Federation has clearly and consistently articulated four goals
    for Endangered Species Act reauthorization, and I would like to
    briefly speak about each of those and our assessment of this
    bill against those goals.
        First of all, funding. There has been a lot said about
    funding over the last 2 days, and I will not repeat it other
    than to say that we share the concerns of all witnesses on
    that, and that noting there are really three different funding
    issues. They are: the issue of adequately funding the agencies,
    Federal and State, charged with implementing the bill; second,
    the issue of when HCPs go bad, when they don't work out right,
    how will the necessary changes be funded; and, third, the issue
    of funding landowner incentives. We look forward to a creative
    discussion about ways in which to come up with a dedicated
    revenue stream for those areas. We think leaving it up to the
    appropriation committees is not a satisfactory approach.
        The second issue that we've consistently identified as
    critical is habitat conservation plans. We recognize and join
    with others who have testified in acknowledging the critical
    importance of private lands for endangered species. The issue
    for us is not to be for or against habitat conservation plans;
    it is how to learn from the experience so far and distill from
    that the improvements that need to be made.
        We have convened two conferences over the last year of
    stakeholders and individuals and groups who have been involved
    in the HCP process--one in the Pacific Northwest and a national
    conference this May in Washington.
        And, based on our assessment of HCPs developed to date, we
    have concluded that the bill that you have drafted is deficient
    in two respects.
        First of all, it does not require that the approval of HCPs
    not undermine the recovery of endangered species. Second, we
    believe that the Administration's ``no surprises'' policy that
    would be enshrined in law in your bill does not adequately
    provide for adaptive management and adequate biological
    monitoring. In my written statement we have made specific
    proposals to address that.
        The third touchstone that we have articulated for the
    Endangered Species Act is the enhancement of citizen
    participation and fairness in the process. To date, it has been
    our experience and the experience of our members, State
    affiliates, and other like-minded organizations, that citizens
    are routinely excluded from the HCP process, or they are only
    there at the sufferance of the permit applicant. We think it's
    important that the legislation ensure adequate citizen
    participation in the HCP process so they are not merely
    presented with fait accompli at its end.
        The final point that we have identified as a touchstone for
    measuring the adequacy of any efforts to reauthorize the
    Endangered Species Act is to increase agency effectiveness and
    accountability. And here, too, I would echo the concerns that
    many witnesses have articulated previously about the additional
    procedural requirements that will be placed on the agencies. We
    think, particularly given the vagaries of the funding at this
    point, it may result in setting up the Act and the agencies for
    further failure and further discrediting of their efforts to
    conserve endangered and threatened species.
        Having said that, on balance we conclude that this bill
    does not enhance the conservation of endangered species and
    their habitat.
        I would end by noting that I believe you have provided a
    framework for doing so. You have identified, in our view, the
    critical issues. You have made efforts to address those issues.
    And we look forward to working with this committee and
    throughout the process of considering this legislation to
    address the issues that we have identified.
        Thank you very much, Mr. Chairman.
        Senator Chafee. Well, thank you very much, Mr. Van Putten,
    for that constructive testimony. We appreciate your having
    submitted it, and we'll obviously be asking you some questions
    as we go along here.
        Mr. Duane Shroufe, who is director of the Arizona
    Department of Game and Fish--again, we want to thank you for
    coming here. I realize you had to stay an extra day. I'm sorry
    that occurred.
        Won't you proceed?

      STATEMENT OF DUANE SHROUFE, DIRECTOR, ARIZONA DEPARTMENT OF
                             GAME AND FISH

        Mr. Shroufe. Thank you, Mr. Chairman, for the opportunity
    to appear before you today to share the perspectives of the
    International Association of Fish and Wildlife Agencies on S.
    1180, the Endangered Species Recovery Act of 1997.
        My name is Duane Shroufe, and I'm director of the Arizona
    Game and Fish Department and immediate past president of the
    Association. I'd like to commend you, Senator Kempthorne,
    Senator Baucus, and Senator Reid for your persistence and
    dedication to producing this consensus proposal on a difficult
    but extremely important conservation issue.
        On behalf of the Association, I bring to you today the firm
    support of S. 1180. The Association believes that this bill
    improves the effectiveness of the Endangered Species Act for
    both the conservation of fish, wildlife, and plant species, and
    with regards to appropriate certainty for the regulated
    community.
        While we offer some suggested improvements in our written
    statement to sharpen these aspects and will strongly encourage
    a commitment to securing robust appropriations for the
    implementation of this bill, the Association reiterates its
    firm support of the bill.
        I'd like to start by recognizing and thanking the bill
    sponsors for grounding this bill in the collective legislative
    recommendations from our Association and the nation's
    Governors, under the leadership of the Western Governors
    Association, which we shared with you starting in the first
    session of last Congress.
        We believe you, as did we, recognized that over the 25
    years of the Endangered Species Act, we have a much better
    understanding of what works under the Act, what doesn't, and
    how it can be improved.
        The State Fish and Wildlife Agencies' objectives are fairly
    straightforward: to successfully carry out our responsibilities
    as public trust agencies to our citizens to ensure the vitality
    of our fish and wildlife resources for present and future
    generations, and to encourage, facilitate, and enhance the
    opportunities, means, and methods available to all citizens,
    and especially landowners in our States, to contribute to
    meeting this conservation objective, in cooperation with our
    agencies and our Federal counterparts.
        Much of this involves solving problems and the
    reconciliation of differences, and we believe that this bill
    provides new and useful tools, opportunities, and directions to
    achieve both of these objectives.
        Let me first strongly urge Congress and the conservation
    community to collectively dedicate ourselves to securing the
    appropriations necessary to fulfill these improvements. All of
    these changes will require the additional time and attention of
    Federal and State wildlife agencies and need to be adequately
    funded in order to meet the objectives to improve the
    effectiveness of the Act to achieve conservation objectives,
    and with regards to the appropriate certainty for the regulated
    community.
        We firmly believe that S. 1180 goes a long ways toward
    reaffirming the State fish and wildlife agencies' role in all
    aspects of ESA, reflecting our concurrent jurisdiction over
    listed species, as we believe Congress originally intended
    under the Act, and sets the stage for more efficient and
    effective administration of the endangered species programs.
        Also, we believe that the affirmation of the true
    partnership between the State Fish and Wildlife Agencies and
    the U.S. Fish and Wildlife Service and National Marine
    Fisheries Service will take full advantage of the expertise in
    fish, wildlife, and plant conservation that exists at both the
    State and Federal level, while minimizing duplicative processes
    and administrative burdens, in a relief that we can hardly
    afford to ignore in these times of constrained natural resource
    budgets.
        The Association encourages you and your staff to accept
    Governor Racicot's invitation to visit any of our States, to
    experience first-hand the value of preventive conservation
    measures long before the need to list a species occurs.
        This just makes good common sense and good biological sense
    to avoid the crisis of listing. The Association reaffirms its
    commitment to prudent conservation of fish, wildlife, and
    natural communities that they depend on, so that the need to
    impose the rigors of the ESA is minimized.
        And I'd also like to personally invite you to Arizona,
    where we can show you examples of how these conservation
    agreements--we have several species, or small native fish--the
    Virgin spinedace, the Ramsey Canyon leopard frog, and the flat-
    tailed horned lizard, on which we have put together
    conservation agreements in lieu of listing that are working
    very, very well.
        We can also show you an example of one that didn't quite
    make it, the jaguar. That was a conservation agreement attempt,
    in my opinion, that brought our communities in Arizona closer
    together, working better with the ESA and toward a common
    purpose of conservation of the species.
        Further, there needs to be a major thrust, distinct from
    this ESA reauthorization, to broaden the highly successful user
    pay/user benefit concept under Pittman-Robertson, and Wallop-
    Breaux programs to meet today's broader conservation
    challenges, enabling State/Federal programs for the
    conservation of the vast majority of non-game fish and wildlife
    currently receiving less than adequate attention, and thereby
    providing means to prevent species from becoming endangered.
        We have such a proposal, ``Teaming with Wildlife,''
    supported by the conservation community, all 50 State fish and
    wildlife agencies, and over 2,300 businesses and organizations
    across the country, and we look forward to visiting with you
    further on this proposal.
        The Association applauds and fully supports your efforts in
    S. 1180 to energize recovery plans through implementation
    agreements, to restore the focus in ESA not just to listing
    species but carrying out actions that restore species and their
    habitats.
        As the bill provides, State Fish and Wildlife Agencies must
    be given the opportunity to take the lead in recovery plans.
    The utility of a team approach not only provides for
    application of a broad base of knowledge and perspectives, but
    also better inter-governmental coordination regarding
    biological, social, economic, and environmental factors.
        Finally, we fully support the incentive provisions of S.
    1180, the financial assistance, regulatory certainty, and
    technical assistance, and education for private landowners to
    facilitate their stewardship of their land and associated
    resources. The provision of incentives seems to be an area of
    general agreement on which most parties can agree.
        Much of these policies grew out of those of Secretary
    Babbitt in March 1995, and the Association supports the
    codification of these ``no surprises,'' ``safe harbor,'' and
    candidate conservation agreement policies in statute to affirm
    the Secretary's authority in offering and implementing these
    policies.
        Thank you, Mr. Chairman, for the opportunity to share the
    Association's firm support and the perspectives on S. 1180, and
    I'd be pleased to address any questions you might have.
        Senator Chafee. Thank you very much, Mr. Shroufe, for
    making this long trip here. We appreciate it and look forward
    to having the opportunity to visit some of your members in
    their States and see what's happening.
        There are three points I would like to make here. First,
    the points you've made about the money is recognized here. I
    think each and every one of you have stressed that--that there
    has got to be appropriate funding for this--and we realize
    that.
        I'm glad that each of you mentioned that, because it spurs
    us on, and we've just got to get a constant source of funding.
        Now, that's, as you all know, easier said than done.
    Dedicated funds are difficult. But, nonetheless, the sums we're
    talking about in the big picture aren't that much, so we're
    aware of that.
        Second, I think all of us have to recognize--and I'm not
    suggesting you don't, but I want to stress it--the importance
    of private lands, and that's where these endangered species
    are. The statistics we have show that \2/3\ of these endangered
    species depend, to a considerable extent, to a major extent, on
    private lands. And so we've got to do everything we can to
    encourage the private landholders to participate in this, and I
    don't think the current law does that.
        As I've mentioned before, when Senator Kempthorne held the
    hearings out west, I think it was in his State--or maybe it was
    in Oregon--where the individual came forward and said, as far
    as he was concerned, he believed in the three S's: shoot,
    shovel, and shut up. And that's hardly a constructive attitude
    toward saving endangered species, but he was recognizing that
    what--how detrimental it was to him as a landowner if an
    endangered species showed up on his property.
        And, finally, I'd like to stress that there is great danger
    in doing nothing here. There is some thought that, well, the
    bill isn't so bad. It's being fixed up administratively, in the
    views of some, by the Department of Interior and Fish and
    Wildlife. And so just drift along the way we are.
        Well, I'd like to stress that this was last authorized in
    1988 and that expired in 1992, and Senator Baucus and I, to a
    considerable degree, and the others on the committee, likewise,
    are under tremendous pressure on the floor of the Senate to
    hold off not only amendments, moratoriums on listings, and so
    forth, which we've seen, but also cutting all funding.
        It's through the appropriation process that those who are
    dissatisfied with this Act are going to take their actions and
    their dissatisfactions.
        Senator Baucus and I have, to date, been fairly successful
    in holding people off. We're trying to reauthorize this, but
    that song we can only sing for so long, and we've got to
    product action.
        And if we fail to reauthorize this Act, I think there are
    going to be very grave consequences to the Act, both through
    outright amendments and through the appropriations process, as
    I previously mentioned.
        Now, I'd just like to--I've taken a good deal of my time. I
    would like to ask Mr. Van Putten a question.
        In your statement, on page 6, you talked about increase the
    agency's accountability and ability to achieve recovery. That's
    on page 6, item 3 there. And then you say, ``For example, the
    bill's provisions governing recovery implementation agreements
    would insulate those agreements from judicial review.''
        Now, I know this is rather technical, but that gives us
    trouble because it would turn over all power to those who write
    the recovery plans. In other words, the recovery plan comes up,
    being written, and by those--I guess the scientists would write
    it, and that comes before Fish and Wildlife.
        And under your suggestion here, that would be it. In other
    words, we would be turning over--``we,'' the Federal
    Government, would be turning over to these scientists complete
    powers.
        I'm not enthusiastic about that. Could you enlarge upon
    that a bit, please?
        Mr. Van Putten. Yes, Senator.
        I would also like to point out that in the section-by-
    section analysis on page 3, with respect to each of the four
    goals I articulated, we have identified both the positive and
    the negative features we see in this bill.
        Responding specifically to your question, as we read the
    provision concerning the implementation agreement between the
    Federal agency and the Fish and Wildlife Service, or NMFS,
    whomever it would be, by providing that the agreement is in the
    discretion of those agencies, it effectively insulates it from
    judicial review. You can see the cross reference on page 3 of
    the section-by-section.
        Senator Chafee. I'll have to study that a little more,
    because it does present problems to me.
        Mr. Van Putten. OK.
        Senator Chafee. You know, Senator McClure, you touched
    briefly on the takings. Obviously, that is a subject that is
    going to come up, perhaps in the markup, perhaps on the floor.
    Who knows? But, to me, as I mentioned yesterday, to put the
    takings in this provision, when the whole concept of takings
    crosses a whole swath of areas way beyond endangered species,
    whether you have Section 404 of the Clean Water Act and the
    wetlands or under mining, restoration of the mining areas, why
    restrict it to this bill? I mean, the Judiciary Committee has
    considered this. Last Congress they reported a bill out. They
    never brought it up, recognizing it was in heavy weather.
        So I just feel very strongly that it is unfair to tack a
    takings provision onto this bill.
        Mr. McClure. Mr. Chairman, I understand that dilemma. But,
    again, the perfect is the enemy of the good. It may be perfect
    to try to get the whole thing done for ever the Federal
    Government and/or State governments may do, but sometimes the
    good is what is achievable now.
        We have this Act before us. It has impact upon private
    property rights. It has impact upon people's lives. It just
    strikes me that it's not fair for society to selectively impose
    burdens, crushing financial burdens, on a few for the benefit
    of society.
        It is something that needs to be addressed.
        Senator Chafee. Well, you and I would--I would have a
    vastly different interpretation of the good under that
    particular provision, but----
        Mr. McClure. I would hope we don't have a disagreement on
    the idea that private property rights, and being secure in your
    private property, is essential to freedom as we know it in this
    country. And we have always honored the idea that Government
    may have the power and maybe even have the right to take
    private property for public uses, but we have always followed
    the idea that if we do that, appropriate compensation is also
    in order.
        Senator Chafee. That's a long subject, and the Fifth
    Amendment addresses that, as you know.
        Mr. McClure. And some say, ``Don't touch it. Just let the
    Fifth Amendment do it.''
        Senator Chafee. We shouldn't have brought the subject up.
        [Laughter.]
        Mr. McClure. I'm glad you did.
        Senator Chafee. Senator Baucus?
        Senator Baucus. For that very reason, Mr. Chairman and
    Senator McClure, don't you think it's wise that it not be
    brought up? That is, if bringing up property takings and state
    water rights jeopardizes this bill so that there is no bill,
    then do you think it should not be brought up?
        Mr. McClure. Senator, I understand that point, and I don't
    disagree with you at all. But you're familiar with cases--I
    know one particular one, the New World Mine in Montana right
    now, in which this very issue is very central. Is the lady who
    owns the property entitled to compensation?
        Senator Baucus. We're not talking about New World Mine.
    We're talking about this bill.
        [Laughter.]
        Senator Baucus. We're talking about this bill and we're
    talking about whether it is--do you agree that it is not wise
    to take up takings on this bill----
        Mr. McClure. No, I----
        Senator Baucus. Let me finish please.
        Mr. McClure. Surely.
        Senator Baucus. Or water rights on this bill if doing so
    would jeopardize the passage of this bill?
        Mr. McClure. If, as a matter of fact, it would have that
    result, I would agree. But I'm not sure that it is necessarily
    true that that's the answer.
        Senator Baucus. But if.
        Mr. McClure. Yes.
        Senator Baucus. Well, in my judgment that is the case,
    because I think the President would veto it.
        Mr. McClure. I'd echo that, too.
        Senator Baucus. That it would not pass. This bill would not
    pass if either of those provisions are on this bill.
        So if that's the case, then, and if you agree it would not
    pass, then you're saying it should not be brought up?
        Mr. McClure. That would be too bad.
        Senator Baucus. Yes. I know from your bill it would be too
    bad. That's a different issue, too.
        Mr. McClure. But it's too bad.
        Senator Baucus. That's not the question I was asking you.
        Let me ask a question of Mr. Bean.
        Going to funding, we're all concerned about the funding. My
    guess is, though, that the Administration will come up with the
    proper amount of funding in its budget next year. I mean, if
    this becomes law, and when the Administration puts together its
    fiscal year 1999 budget, that it probably--at least the Fish
    and Wildlife Service is sure going to be in there pitching for
    its fair share, and if Administration supports this bill, as it
    basically does, but for a few technical changes, I think we're
    off to a pretty good start. Then it's up to the Congress to
    make sure that we don't cut, again further assuming that the
    funds are there.
        You mentioned in your testimony something in a nature of
    maybe an insurance fund of some kind. Could you elaborate on
    that and what the sources might be and what we might do to
    further ensure that we're going to have enough funds to make
    this thing work?
        Mr. Bean. Yes, Senator. In my testimony I actually
    suggested two separate needs for some secure funding. One is a
    source of funding for the new incentive provisions in this
    bill, the cost-sharing assistance to private landowners. That's
    the subject of the letter I handed out from the Farm Bureau
    Federation and us and others.
        There are a number of potential sources of funding that
    ought to be looked at. In my testimony I suggested as one
    possible source some of the revenues from the impending sale of
    the Elk Hills Naval Petroleum Reserve, expected to bring a
    couple billion dollars into the U.S. Treasury next year, a
    Federal facility that has a lot of endangered species on it,
    and those endangered species will receive substantially less
    protection once that facility is transferred to private
    ownership.
        There is an $11 or $12 billion unexpended balance in the
    land and water conservation fund that I earnestly hope will
    some day be spent for the purposes for which it was put there,
    but in the meantime, in recognizing that that's probably an
    overly optimistic hope, it might be possible to take some very
    small fraction of that to fund the sorts of incentive programs
    proposed here.
        The insurance fund addresses a separate matter, which is
    the effect of the ``no surprises'' policy upon the Secretary of
    the Interior, who, through this policy, is assuming the burden
    that the habitat conservation plans he approves will work out
    as planned. If they fail to work out as planned, then the ``no
    surprises'' policy shifts responsibility entirely to the
    Secretary's shoulders.
        Senator Baucus. Right.
        Mr. Bean. The burden of doing what's necessary.
        Senator Baucus. What about some dedicated fund of some
    kind?
        Mr. Bean. That is my suggestion, that there be some source
    of revenue available for that purpose, as well, so that the
    Secretary will, in fact, be able to respond to those situations
    which may never arise, but if they do arise there will be a
    need for him to take some action to avoid loss of those
    species.
        Senator Baucus. Is there something like the Pittman-
    Robertson Act, or something like that?
        Mr. Bean. Well, the Pittman-Robertson and Dingell-Johnson
    laws are classic examples of how much can be accomplished
    through a dedicated funding mechanism. Currently I believe
    about $400 million of Federal excise tax receipts are made
    available to the States to support largely successful
    conservation programs. That's a legacy of the other President
    Roosevelt in the 1930's. It has been a fabulously successful
    program at doing what it does, but it has a somewhat different
    focus than what is needed here.
        Senator Baucus. Mr. Van Putten, I was a little surprised at
    your statement that you think the bill does not further protect
    species, in view of Jamie Clark's testimony yesterday that she
    felt that it does, the bill does advance the protection of
    species. I don't want to put words in Mr. Bean's mouth, but I
    think he reached the same conclusion, albeit it he has some
    suggestions.
        What accounts for their different reading of this compared
    with yours? Or let me ask the question differently. What
    accounts for your different reading compared to theirs?
        Mr. Van Putten. Thank you, Senator.
        I think one way in which our evaluation differs from Ms.
    Clark's evaluation is that this bill essentially enshrines in
    law the habitat conservation planning process that the
    Administration has had underway, but we do not feel that it
    reflects the experience to date and some of the criticisms to
    date of that process.
        As Senator Chafee noted yesterday in his questioning, we
    have made significant progress in the number of plans agreed to
    on paper, but the longer-term and more important issue is the
    success of those plans for the species that they are designed
    to protect.
        Senator Baucus. What about recovery plans? Isn't putting
    teeth in recovery plans a major advance?
        Mr. Van Putten. Senator, there are some significant
    advances in the bill in that regard, and we have noted them,
    basing recovery plans on science, for example. We've noted some
    of our concerns about the process itself, the role of States,
    etc., but we have acknowledged a significant improvement in
    that regard.
        Senator Baucus. Is your organization working with us to
    improve and make this bill work, or are you opposing this bill?
        Mr. Van Putten. Senator, we're very eager to work with this
    committee, with this bill, as a starting point to improve it
    and to continue the discussions we've had underway on that
    point.
        Senator Baucus. So you look forward to supporting the bill?
        Mr. Van Putten. We would look forward to supporting it if
    the concerns we've identified could be addressed.
        Senator Baucus. Thank you.
        Thank you, Mr. Chairman.
        Senator Chafee. Thank you, Senator.
        Senator Kempthorne?
        Senator Kempthorne. Thank you, Mr. Chairman. That was the
    reciprocal of Senator Allard in the discussions with the
    Administration yesterday.
        [Laughter.]
        Senator Baucus. The true reciprocal was my getting Jamie
    Clark to say the Administration truly supports the bill.
        Senator Kempthorne. That's right, and you did well.
        [Laughter.]
        Senator Kempthorne. Senator McClure, may I first
    acknowledge your tremendous service to Idaho and the nation as
    the former U.S. Senator, and I note that your dedication to
    good government continues. Specifically, I believe yesterday
    was your 47th wedding anniversary, and you were here and Louis
    was back in Idaho.
        Mr. McClure. My wife noted that, too.
        [Laughter.]
        Senator Kempthorne. Well, happy anniversary.
        Mr. McClure. Thank you.
        Senator Kempthorne. Best to Louis.
        And the discussion that you had with Senator Chafee and
    Senator Baucus on property rights was deja vu for me, because
    I've had the same spirited discussion with them.
        Senator Baucus. With the same results.
        Senator Kempthorne. Yes.
        [Laughter.]
        Senator Kempthorne. Only we had Senator Reid there at the
    time, as well.
        Senator McClure, if I may point out, of course, that nobody
    knows better than you the importance of State water rights to
    the west and, of course, to Idaho.
        We were unable to come to an agreement at this point on
    language concerning water. We're still going to continue
    efforts, but at this point we just have not been able to find
    that language.
        As I visited with Idahoans, they told me that, while water
    was critical to our State, that they supported the bill. And,
    in the words of John Rosholt, who you and I both know is one of
    the leading water attorneys, he said, ``The bill is good for
    America and needs to pass.''
        So, Senator McClure, can you share your view on this
    subject as a veteran legislator and an Idahoan?
        Mr. McClure. Well, I agree with Mr. Rosholt in his
    conclusion that the bill is good and needs to pass. I also
    recognize that the water community in Idaho, as it is
    throughout the west, is divided on this issue. They would like
    to find a solution, but they don't know what that solution is
    and they haven't been able to identify it.
        Same thing is true of our membership. Our membership is
    divided on the issue as to whether or not the issue should be
    raised and resolved, and I have my own views on that, which are
    not necessarily reflective of the organization that I head.
        It is a difficult--very, very difficult issue. My first
    venture into public life was as a prosecuting attorney for my
    county, and I learned very quickly in the first year in that
    office that I could tell within about 15 minutes when the water
    got in the ditches in the spring, because fine, Christian,
    upright gentlemen, community leaders in every respect, and fine
    family men would cheerfully kill their neighbor if he was
    steeling their water.
        It is that kind of an emotional, basic issue to many, many
    people, but I approach it from this standpoint: the Federal
    Government may, in this instance, as in others, have the
    authority and perhaps the right to take private property, but
    if they take private property they ought to pay for it, and if
    they're going to take water they ought to pay for it.
        There is nothing more fundamental to the value of land in
    an arid area than the water that it takes to make it valuable.
    And the Government, by taking water, can make land valueless.
        So I think it is extremely important that we recognize by
    some mechanism, as we do in the State of Idaho, but not in
    every State, that a water right is a property right, and to
    interfere with it or take it demands compensation.
        Senator Kempthorne. All right. Thank you very much.
        Also, in your testimony you state that you believe that
    there should be greater public notice throughout the Endangered
    Species Act. That sounds a lot like the issue that we had with
    the Safe Drinking Water Act, which was the community right to
    know provision. Do you believe that there should be a community
    right to know provision in the Endangered Species Act?
        Mr. McClure. I think any of the mechanisms that will
    guarantee that there is widespread public knowledge of the
    actions being proposed would be an improvement. The Corps of
    Engineers does a number of things already.
        We fall back on the idea that publication in ``The Federal
    Register'' is sufficient public notice. I don't know anybody
    that reads ``The Federal Register,'' certainly not any ordinary
    citizen. So there needs to be a better mechanism.
        Senator Kempthorne. And any suggestion what that might be?
        Mr. McClure. Well, we did in the testimony parallel the
    notice requirement, the notice manner in which the Corps of
    Engineers approaches this, and that would be an improvement.
        Senator Kempthorne. OK. Good.
        To Henson Moore, may I say, too, I salute the distinguished
    service that you had in the House of Representatives and
    appreciate the comments that you've made today.
        Let me ask you, some have suggested that the Section 7
    consultation process works well as it currently exists, and
    that we should, therefore, leave it the way that it is.
        Why do you believe and why do those that belong to your
    organization believe that the consultation process needs to be
    streamlined?
        Mr. Moore. Senator, there's no doubt that the consultation
    process may work well in some cases, or has worked well in some
    cases, but we've seen others, from the experience we've
    gathered anecdotally of our members in the vast coalition we
    represent, that's not the case many times.
        It is very confusing. It takes an awful lot of time. It is
    very bureaucratic. You can find one agency hold and gum the
    whole thing up by not going through the consultation process as
    they should.
        We find that there are often back room discussions during
    the informal consultations between the Fish and Wildlife
    Service or the National Marine Fisheries Service that result in
    larger set-asides or other concessions than the Federal
    agency's own people thought were really appropriate.
        We think that there can be improvements made, and certainly
    we understand this is a sensitive area. There are people who
    think it works just fine. So you had to craft a very narrow
    area of where you could make improvements that would find the
    consensus that you've found.
        While we think you could probably go further in the
    consultation area, we think that probably you couldn't get
    consensus if you did.
        We think that what you've found in the bill, what you've
    done in the bill, would make this work better than the way it
    works now, and so we have--I think the last time Mr. Bean and I
    testified, this issue came up over on the House side, and we
    had some evidence then and made comments then on where the
    consultation process--anecdotal examples we elicited that
    didn't work well.
        Senator Kempthorne. Let me ask you, Mr. Bean, I want to
    acknowledge you've been a great service on this, and I remember
    you helped us lead the effort on identifying incentives with
    the Keystone Group.
        If you eliminate the ``no surprises'' policy, won't the
    result be that landowners will no longer be willing to enter
    into HCPs and preserve habitat?
        Mr. Bean. I certainly think that is true for some
    landowners, and the whole rationale for the ``no surprises''
    policy is to meet the, I think, legitimate concern of
    landowners for some certainty that the commitments they make
    will stick.
        The thrust of my testimony has not been to suggest that the
    policy doesn't serve a worthy purpose, but rather the policy
    can have an unanticipated and undesirable effect, and that is
    to make it impossible to effectively conserve species unless
    you simultaneously give the Secretary of Interior the resources
    he needs to keep his end of the bargain--that is, to take the
    mitigation that proves necessary if what the landowner commits
    to do proves insufficient.
        Senator Kempthorne. My time has expired.
        I would just note, Senator McClure, things haven't changed
    around here. Last week I celebrated my 20th anniversary, and we
    spent it right here because we voted until 10 p.m.
        [Laughter.]
        Mr. McClure. I understand that. I hope Patricia did.
        Senator Kempthorne. Yes. She talked to Louise.
        Senator Chafee. Senator Sessions?
        Senator Sessions. Thank you, Mr. Chairman.
        Mr. Van Putten, on the--and I guess Mr. Bean--I think both
    of you, it would be fair to say, favor programs that would
    encourage landowners on their own to take those extra efforts,
    sometimes not too great, if they are working positively, to
    preserve endangered species. Is that right?
        Mr. Van Putten. Yes.
        Senator Sessions. I liked, Senator McClure, your comments
    on that in your remarks. I thought you point that up well.
        I grew up in the country, and where I grew up the home
    there is on a creek bank, and on that creek bank is a little
    rush area, maybe 2 or 3 acres. The Government couldn't afford
    to manage that property. There is no way a Fish and Wildlife
    officer could go out there and try to preserve the violets that
    grow every year. I saw them this spring, and they were growing
    when I was a kid. I've never seen them anywhere else, and
    salamanders and things.
        So I just think, as a nation, we ought to see what we can
    do to encourage them to monitor that, themselves. And sometimes
    that takes some compensation. If the land is covered with
    timber or it has been farmed for a long time and it brings in a
    certain amount of income, it could be a modest expenditure.
        Would you support--I think as Senator McClure does--that
    kind of voluntary effort with some compensation that could
    result in very cost-effective environmental benefits?
        I guess, Mr. Van Putten, your comments on that.
        Mr. Van Putten. Senator, we strongly encourage the kinds of
    voluntary efforts that you describe. We have also encouraged
    and made specific suggestions for providing education and
    incentives for landowners.
        Where we may differ--and I think it is more than just
    semantic--is when you start talking about compensation. To the
    extent that you are, through that, suggesting takings and some
    of the interpretations of takings, I would probably disagree
    with you. But we certainly agree with the need to encourage
    voluntary action by landowners having educational programs,
    technical assistance, and appropriate financial incentives.
        Senator Sessions. Let me just say this about that subject
    of private present. When the Senator referred to the Fifth
    Amendment, and Senator Chafee did, I know there are a lot of
    people in the environmental movement that are more committed to
    endangered species than they are of the Constitution of the
    United States, but we represent this nation and we are bound by
    that document, and it perfectly and rationally states that you
    cannot take private property without paying just compensation.
    You cannot take people's beneficial use of their property
    without compensating them for it. That is a fundamental
    American right.
        It's not going to go away, and it's something we've got to
    deal with.
        Senator McClure has said, ``Well, we can't put this in the
    bill.'' I know some of them have been huddling over there. I
    haven't been in the huddle. And they've decided not to put it
    in the bill, for reasons I respect and I understand and I know
    you do, but do you think at some point we need to have Members
    of this body vote on this issue?
        Mr. McClure. Certainly I do believe that.
        I recognize the definition of a taking or the question of
    what is a diminution of value are complex and difficult issues.
    I don't brush that aside. But I think there needs to be a
    recognition of that American principle that is embedded in our
    Constitution that people cannot be truly free if Government can
    take their property.
        I think at some point Congress will have to stand up and
    reaffirm that principle by a vote in the Congress of the United
    States.
        Senator Sessions. I agree, and I think de minimis
    regulations, we don't need to have compensation commissions for
    every zoning or regulatory body, but when there is a
    significant diminution of value----
        Mr. McClure. Well, there are complexities that we don't
    need to go into today, but the relocation of a highway greatly
    reduces the value of the property that was on the old location.
    Is that a taking?
        Senator Sessions. Right.
        Mr. McClure. Those are the kind of problems that kind of
    paralyze us as we look at this issue. But, while we are being
    paralyzed, we are also doing grave injustice to the individual
    people in this country, and I don't think we can just say,
    ``Gee, this is tough. Let them bear the burden by losing their
    property.'' We need to do better than that.
        Senator Sessions. Well, I appreciate that.
        Do any of you--and, Mr. Chairman, something that concerned
    me yesterday when we were looking at the substantial
    increases--and I believe increases are needed, funding
    increases, but would any of you comment on the ability--I'll
    ask Congressman Moore and Senator McClure, from their
    experience--about doubling or more than doubling an agency's
    budget in 1 year, whether they can wisely assimilate that and
    use it well, and maybe whether or not we ought to consider
    phasing in those increases, along with some sort of management
    plan to utilize the resources wisely? Do you think that might
    be something we should consider?
        Mr. McClure. Senator, I think it is something you have to
    be concerned about. I think this committee has to look very
    carefully at the budget requests, as does the Appropriations
    Committee, to determine whether or not that money is really
    needed and if it can be used effectively.
        I don't think that I'm in a position to make a judgment at
    this point as to how much money is appropriate or how much
    should be appropriated.
        Senator Sessions. Congressman Moore?
        Mr. Moore. I'd have to agree with the Senator's statement.
    I'm not trying to dodge the question. I've found that in my
    years in an administration it's very hard to ramp up a program
    and spend a vast new sum of money very quickly. On the other
    hand, it serves no purpose whatsoever to pass this legislation
    and complicated it or confound it but not funding what has to
    be funded in it. I don't think anybody thinks that's the best
    interest of individuals, humans, communities, States, or
    protecting species.
        And so that's the question you guys are going to have to
    figure out, is what's the right amount of money, and I'm afraid
    I can't help you much with that.
        Senator Sessions. Well, in the scheme of things it's not
    tremendous, but we've got to manage every dollar that we spend.
        Briefly, Congressman Moore, on your--I was a Federal
    attorney and represented Federal agencies at various times
    consistently for 12 years, and your concern is about delegation
    of programs to the State and that a lawsuit has been filed
    concerning whether or not there is an abuse of the review
    process by EPA which is putting conditions upon a source
    discharge pollution or discharges, that that perhaps exceeds
    the law as it is stated.
        I believe sometimes that agencies, in their zeal to do what
    they like to do, sometimes exceed their authority. Would you
    comment on that?
        Mr. Moore. Senator, you commented on that yesterday, and I
    think you have it right, as far as we're concerned. We are in
    court on this issue. We think it's very clearly a case where
    the Fish and Wildlife Service has exceeded existing legislative
    authority.
        This is something this very committee and the Congress
    needs to deal with is this intersection of the Clean Water Act
    and what we have the States doing with what now the Fish and
    Wildlife wants to do to graft the Endangered Species Act on top
    of that as an additional permit, and that's a decision you all
    haven't made, it's a decision that, if you look at what's going
    on in the Clean Water Act application or enforcement at the
    State level, you have they say, ``What's broken?'' Is there any
    evidence something's not working there? Are there endangered
    species being imperiled by the existing permitting process
    under the Clean Water Act?
        We've seen no evidence of any of that.
        This is a decision that we simply thought that, since this
    statute that you're dealing with or this bill deals with
    Endangered Species Act, that was a good time to deal with that
    issue, recent issue. It's only maybe several months old and
    growing.
        On the other hand, I have to respect, as Senator Baucus
    said, if this is something you can't find consistence on right
    now, we're certainly not going to urge you to scuttle the bill
    over that, but it is an increasing issue that at some point the
    Congress really needs to take a look at. We thought the point
    was now, the time.
        Senator Sessions. Thank you.
        Senator Chafee. Thank you, Senator.
        Senator Wyden?
        Senator Wyden. Thank you, Mr. Chairman. And let me also
    thank the witnesses. I think all of you have been helpful. And
    I share the view of the sponsors that this bipartisan effort
    has a lot of positive features in it, and let me see if I can
    just kind of flesh out a couple.
        Start maybe with you, Mr. Putten, with respect to what I
    think the biggest single challenge is with the Endangered
    Species Act.
        I think the problem here is that we largely don't get after
    it until there is a crisis on our porch, and once there is a
    crisis on our porch, we've got a species endangered, then we
    set about through this process that doesn't seem to be very
    satisfying to people Mr. Moore and Mr. McClure represent, nor
    the folks that you're trying to represent.
        What we have tried in Oregon--and we are the first State to
    have gotten this precedent-setting waiver from the Endangered
    Species Act--tries to deal with this issue of getting there
    early, trying to get out in front, bringing together folks from
    all of the different approaches, and getting there early, and
    we're very optimistic about it.
        But I wonder if either of you have any other suggestions
    for how to encourage this kind of early mobilization, bringing
    together folks from an environmental perspective, from an
    industry perspective, and others so that you don't later have
    to play catch-up ball with recovery processes and the like.
        Questions for you two to start with.
        Mr. Bean. Thank you, Senator.
        I think that you've put your finger on a very important
    problem. Most endangered species, by the time they reach the
    endangered species list, have been so reduced in numbers or
    range that there is little realistic prospect of recovering
    them, and many of the cheaper options that might have existed
    earlier have been lost. So I think it is critically important
    to find ways to direct resources to those species earlier.
        I would note, part of the task is simply identifying the
    species that are likely to be candidates for future listing
    early enough so that we know which ones to target our resources
    to, and, second, to offer some incentives to landowners and
    others so that they are willing to take steps to head off some
    of the threats to those species, rather than creating for those
    landowners the sense that they would be better off if they got
    rid of those species on their property so that they wouldn't
    have to deal with them when they were later listed.
        I think the bill, to its credit, does have some mechanisms
    that will improve our ability to do that. I think the candidate
    species conservation agreement is an example of that, and the
    tougher standards that are in the bill with respect to habitat
    conservation plans that encompass unlisted species, but species
    that are clearly potential candidates in the future, those are
    big improvements.
        But I would suggest that in order to accomplish what you
    are suggesting, a serious effort needs to be focused on
    providing resources to identify the species that we need to get
    out ahead for, and providing the resources to encourage
    landowners and others to take the steps necessary.
        Mr. Van Putten. Senator, I agree with the premise of your
    question and would associate myself with Michael's answer. I
    would only supplement it to say that the teaming with wildlife
    effort that Dwayne mentioned is one way in which to build on
    the Pittman-Robertson, Dingell-Johnson model and enhance the
    funding and capability of States to play precisely the role
    that you described, and the National Wildlife Federation serves
    on the Steering Committee with the International Association of
    Fish and Wildlife Agencies in developing and advancing that
    proposal.
        So I would only supplement Michael's answer with that
    observation.
        Senator Wyden. Mr. Moore, on the HCPs and the whole
    question of private land, what is your sense of what is right
    to ask of private landowners on this issue?
        I think that right at the heart of some of the debate at
    home in the west is you want to do something, obviously, that,
    you know, is doable, and at the same time you want to push as
    hard as you can so that all parties kind of maximize this.
        And we're going to have to wrestle with, you know, the
    whole question of a standard here, and should the standard be
    sort of no negative harm? Should the standard be some sort of
    affirmative progress?
        Obviously, when you're talking about somebody's private
    land you're not talking about government property, so you're
    dealing with a different standard.
        What, in your judgment, is right to ask of private
    landowners on that HCP standard?
        Mr. Moore. Senator, I go back and endorse 100 percent
    everything that Senator McClure said. The more onerous you want
    to make a recovery plan on private land, the more you're coming
    into conflict with the question, ``Then what do you to do the
    private landowner?''
        This legislation has largely escaped that or gotten away
    from that by dealing strictly with the question of making the
    law work more fairly, and we will accept that as being all that
    can be done at the present time, and at the same time having
    the provisions in there we've all talked about, about funding,
    to help very small landowners find a way to get there.
        If you are contemplating something that would be more
    onerous on landowners than is in the legislation and existing
    law, then I think you are going to run right head-on into how
    are we going to define taking and how are we going to deal with
    compensation, because you just--as I said earlier, there are
    not enough bayonets in the country to make this law tougher on
    private land than it is.
        I think that's something that the Senators who crafted this
    bill have realized that and have said, ``Look, let's go make
    the thing procedurally work better and leave this question for
    another day,'' and that will give relief both to protecting
    endangered species and, we believe, in giving relief also to
    landowners.
        But to take it further than it is, I don't know how you get
    to there without dealing with the subject.
        Senator Wyden. I don't see this as being a tougher or
    weaker kind of question; I see this as a question of coming up
    with something creative along the lines of what we've done in
    Oregon, and that's why I asked the question of what you think
    the standard ought to be.
        Maybe our environmental representatives, Mr. Van Putten or
    Mr. Bean, are interested in talking about that, as well.
        Mr. Van Putten. Senator, I think that is a very penetrating
    question, and as you were asking it I was thinking of Aldo
    Leopold and defining a thing as right when it enhances the
    stability and viability of the biotic community, grossly
    paraphrasing.
        Now, Aldo Leopold was no fuzzy-headed environmental
    radical. He was one of the most well-respected and renowned
    scientists of his time. And I think the issues that we've
    raised concerning adaptive management and the need to integrate
    biological standards for adaptive management into HCPs is
    speaking to precisely that issue of what is the right standard.
        What is right to ask in return for the certainty of HCPs is
    that there are actions taken that do enhance the stability and
    viability of that biotic community, and that we monitor it and
    we have appropriate opportunities to adjust that plan as
    science indicates necessary.
        I think that's an excellent and penetrating question that
    gets to the heart of the entire HCP issue.
        Mr. Bean. Senator, I would only add that it seems to me it
    is also important to keep in mind the context. That is, the
    answer to your question sort of depends upon what other tools
    you have at your disposal in order to achieve conservation and
    recovery of endangered species.
        If we seriously invest in incentive programs for
    landowners, the question of precisely how we define the duty of
    landowners under HCPs becomes less significant than if we are
    putting all of our eggs in the basket that we're going to try
    to recover endangered species on the backs of HCP participants.
        The worry I have is that many of the threats to endangered
    species are not addressed by those HCPs and probably won't be,
    and therefore you need a whole mix of other tools, and if
    you've got those other tools then you can have a little more
    flexibility and creativity in figuring out what the right
    standard for HCP participants is.
        Senator Wyden. Let me see if I can get one other question
    in.
        Senator McClure, on the question of funding, I think it is
    clear that one of the things that has brought people together
    on this has been the additional funding, because it clearly
    increases our options. It's kind of like having something else
    in the tool bag.
        I have been wrestling with what happens if the funding
    isn't there. We talked yesterday about some kind of fallback
    mechanism, which I think might well be appealing, sort of
    across the board. You have a set of processes that are in place
    now. You don't have adequate funding. You work with industry,
    environmental folks, scientists. You scale some of that back.
        What's your thought in terms of what to do if the good work
    that Chairman Chafee and Senator Baucus doesn't go forward, and
    especially because you don't want to blow the constructive
    progress that is being made here.
        I mean, you and I go back to the days when in the Northwest
    we were running a lawyers' full employment program over the
    spotted owl. That's all that happened. Any side would go out
    and sue the other side, and it was great for the children of
    lawyers, but not much for either protecting species or for
    communities. It wasn't much for either side.
        So here we are. We're making some progress now, and I'd be
    interested in your thoughts on what happens if the funding
    piece goes awry, say in the third year.
        Say John Chafee and Max Baucus can continue this roll
    they're on, they keep the money in place for the first couple
    years, and the third year something happens. What would be your
    thoughts on that?
        Mr. McClure. First of all, you've got great concern on both
    sides, great concern on the part of the environmental
    community, that not enough is being done. You have great
    concern on the part of the private landowner that their rights
    are being confiscated without compensation.
        I would hope that there is enough pressure from those two
    communities in our country to keep the Congress conscious of
    the need to provide adequate funding.
        Now, I recognize that there is a hazard that that might not
    occur, but I think, just beyond that response is the underlying
    question of, If it fails, who bears the burden?
        The environmental community said the species should not.
    People that I represent said the individual should not. And I
    think that's a fundamental question you have to deal with is
    what happens if the funding mechanism fails? Do we then again
    reimpose the burdens on the individual property owner? That's
    what we've done in the past in this legislation is put the
    burden of society's demands squarely on the shoulders of the
    individual property owner.
        I think that's totally wrong. If society wants to take care
    of this problem, let society generally pay the bill of taking
    care of this problem.
        You're talking about how do you make things like the Oregon
    experiment work. If there is a hazard that you get into it and
    it fails and the burdens then imposed by that attempt fall on
    the backs of the property owner, how in the world will you
    expect the property owner to engage in the process of getting
    into it in the first place?
        And I think it----
        Senator Wyden. My time is up. But just before we leave this
    point, just so we're clear, in Oregon the industry folks
    deserve great credit because they were the ones who put up the
    money. That's No. 1.
        No. 2, I think what we heard yesterday from Jamie Clark is
    she said if the money wasn't in place she would look at a
    process where, in effect, all sides would have to give.
        She said, ``You're going to have to make some changes in
    the process,'' which I interpreted as saying all sides are
    going to have to give, not putting it just on the private
    landowner.
        Mr. McClure. I would agree with that, but I would also
    caution you that, whether it's the Oregon effort or the
    Administration's effort on the ``no surprises'' policy, it's
    not clear to me that the law permits either one. If somebody
    challenges that, you may get both of them upset.
        Senator Wyden. Yesterday----
        Senator Chafee. Wait. The time is up. We've got others
    here. I'll put Senator McClure down on the takings issue as
    undecided.
        [Laughter.]
        Senator Chafee. Now Mr. Moore has to go. It's my
    understanding he's due over on the other side to testify. And
    so therefore I'd yield to anybody here who had a question for
    Mr. Moore.
        Senator Kempthorne. While you're here, Congressman Moore,
    would you just, from your perspective, what are some of the key
    provisions that you like and you think are significant that are
    included in this language?
        Mr. Moore. Senator, there are a great number. Certainly we
    think the better science provision will help see to it we
    really spend our resources on the things that we really have
    data and information on that need to be saved. At the same
    time, it gives the assurance to the people who bear the burden
    of this that this is being seriously looked at and it really is
    good science that says we have to make this sacrifice.
        Second, the whole notion of putting stakeholders at the
    table is an American kind of a thing. It's very un-American to
    have a group of bureaucrats sit down and make a decision
    affecting your property. You can't even get in the room. I
    think you've changed that. That makes a big difference. It is
    very important.
        Looking at alternative recovery plans--you should, in the
    decisionmaking process, look at every alternative, and the fact
    that you've put that in legislation makes sense.
        The notion that you've got to have a recovery plan from a
    certain time period I think makes a lot of sense. The notion
    that you codified the provisions of Secretary Babbitt's
    administrative proposals we think is really key to seeing to it
    that those will be able to withstand, surely, more lawsuits in
    the future to try to confound the Act from those who have a
    different viewpoint.
        The consultation process improvements that are in the bill
    are there.
        I could really go on. I virtually think almost every
    section of the bill is a vast improvement over the way the
    existing law works.
        There are some questions in there we're all concerned
    about. We're confident that the committee and the staff will
    work to resolve those questions as you go through things.
        I just keep thinking that the nit-picking that goes on with
    this bill--not here, but just outside with the press and
    everything else--boy, if there had been that level of scrutiny
    leveled at the Endangered Species Act, it never would have
    passed to begin with.
        We're looking at really moderate changes, and look at the
    degree of scrutiny they're getting compared to not touching the
    substance of a law, which is being left for another day. They
    have some serious questions in people's minds one way or the
    other.
        So I compliment, as I said earlier, the four Senators and
    Secretary Babbitt for really taking on this chore, as you've
    done something for which you will get very little credit. And
    I'll do my best to see to it that people we represent
    understand the good work that you're doing and how important
    this is to move on and get this done.
        It is good. It does need to pass.
        Senator Chafee. Congressman Moore, you're all set. You can
    leave if you so choose, and we appreciate your coming.
        Mr. Moore. Thank you, Senator.
        Senator Chafee. I'd like to ask Mr. Shroufe about the role
    of the State.
        As you know, we have increased the role of the State rather
    substantially here, and we're glad you're going to be in on
    the--consulted on the listing, and we delegate the recovery
    planning to the states, so you're going to have--now what's
    that going to mean financially to you if you take on these
    added burdens? Just take your particular situation in Arizona.
        Mr. Shroufe. Well, Mr. Chairman, I think there is going to
    be an added burden, and it is going to be a financial added
    burden.
        I suspect with Arizona, as with many other State wildlife
    agencies, they will be looking for some moneys to help in that
    recovery effort.
        That money, of course, can come from a lot of sources. Some
    States right now, Arizona for one, has some money to dedicate
    toward this process, but we'd still be looking for probably
    Federal money from Congress to implement this.
        The aspects of including the State in the listing process
    really puts a lot more emphasis on making sure that the
    available, up-to-date science is there, intact, for perusal and
    use in the listing process.
        So many times now that science is not being used to its
    fullest extent from State governments.
        On the other hand, the burden of trying to ensure that that
    species doesn't get to the point that we're talking about now
    does fall on most State governments. The State statutes, in
    fact, dictate that States are in charge of managing those
    wildlife species. And more work has to be done there. We talked
    today in comments that we need to first of all know the status
    of those species, and that's something that we're terribly
    short on right now.
        We have not had the money to work on those species, and
    we've not done that, and we're finding out that the ESA now is
    being really litigated in court before we--based on little
    science or no science, because we've not done the work on the
    species.
        That's where I think we and Congress have to get together
    and look at some sort of dedicated funding in order to ensure
    that the number of species that reach the crisis of listing is
    at a minimum, and we've not been able to do a good job of that
    on the non-game species at this time.
        The ``Teaming with Wildlife'' proposal is one such
    alternative to that.
        Senator Chafee. Thank you very much.
        I'd just ask a question here of Mr. Bean and Mr. Van
    Putten.
        I had our folks from this bill make a list of the species
    protections that we include in this bill, and I just--if you
    could kind of jot them down, I'll go through them kind of
    quickly, and then see--it makes a pretty impressive list.
        Mr. Van Putten, I know that you didn't endorse what we've
    done. You gave us some praise for what we've accomplished, but
    you had some reservations.
        But, on balance, I'm curious as to how you weigh these
    factors, whether you'd agree with them: improvements over the
    existing law for protection, overhauling a recovery mandate,
    the mandatory implementation for Federal agencies, the
    biological recovery goal, incentives for private persons, the
    deadlines--Senator Kempthorne has talked about this several
    times--the deadlines that we put in here for the recovery plan
    development. True, it needs money, but at least there is a
    deadline in there. Now nothing much happens. The funding for
    implementation, the protection for non-listed species, the
    standards in the HCPs--I know I'm going kind of fast, rather
    fast here--the incentives for private landowners, streamlining
    the permit process, and the low-effect permits, and new
    policies to encourage permit applications in conservation
    measures, namely the ``no surprises,'' the ``safe harbor,'' the
    candidate conservation, and financial incentives, plus the
    technical assistance in education.
        Now, I didn't go into every detail of these, I know, and I
    kind of gave it to you rather fast, but it seems to me this is
    a pretty impressive list, and I'm curious as to what your
    comments are.
        Mr. Van Putten, do you want to take a crack at it?
        Mr. Van Putten. Yes, sir.
        Senator as you were reading the list, I was both trying to
    jot it down and comparing it to the positive features in the
    bill that we identified on pages 2-4 of our section-by-section
    listing, and I think many of the features that you described
    are features that we acknowledge as being positive features.
        There are significant concerns, however, that we have.
    Funding there has been a lot of discussion about, so I will
    just----
        Senator Chafee. We've got to set some funding aside. We all
    agree on that, that that's very, very important.
        Mr. Van Putten. So, having some kind of dedicated revenue
    stream over the long term for the funding.
        The other very significant issue that we have identified is
    the HCP process, because as, I think, Senator Session correctly
    pointed out, enlisting the aid of private landowners in
    conserving species is so critical.
        As I said in my response to Senator Wyden's question, doing
    so in a way that incorporates emerging science, that has
    appropriate adaptations, that sets biological goals for those
    HCPs, so we know, to the best of our ability, that the measure
    of success for HCPs isn't the number of documents produced, but
    rather the actions on the ground for species.
        That is, in addition to the funding, one of our primary
    concerns. As I indicated in my opening comments, we view this
    bill as essentially enshrining the Administration's policy at
    the beginning of the process and not appropriately reflecting
    the experience of the HCPs and the HCP process as it has played
    out on the ground.
        Senator Chafee. I think it is fair to say that you are
    complaining about the existing policy under the existing law,
    and we believe we'd improve that.
        Mr. Bean, I really am over my time, but if you----
        Mr. Bean. I'll be brief, Senator.
        I think your list is more or less the same list I would
    come up with of positive features in this bill. I, in
    particular, would emphasize the extreme importance of the new
    incentive provisions. I think that there are lots of landowners
    in Alabama, Senator Sessions, like those we have worked with in
    North Carolina and South Carolina and Georgia who would be
    willing to manage, for example, their long-leaf pine forests in
    ways that would be beneficial to endangered species if there
    were some financial incentive available to help them do that.
        That, in my judgment, is the most important positive in
    this bill. But, as you've noted, without funding for it, it
    will really be a mirage. So I must return to that, although I
    know you've heard it many times.
        Senator Chafee. Senator Baucus, you have no questions?
        Senator Baucus. No, thank you.
        Senator Chafee. Senator Kempthorne?
        Senator Kempthorne. OK. Mr. Van Putten, let me--I would
    genuinely be interested, Mark, in your thoughts. You've heard
    Senator McClure's eloquent views on takings and compensation
    when a property owner has lost the use or significant value of
    the land.
        Why is that of such great concern that your organization
    opposes the idea of it being addressed?
        Mr. Van Putten. Senator, the National Wildlife Federation
    has never advocated the repeal of the Fifth Amendment to the
    U.S. Constitution, and I want to make that clear. I was
    thinking that as Senator McClure was answering your previous
    question.
        Our concern is, first of all, a concern similar to that
    which Senator Chafee articulated, and one that we saw played
    out in the 104th Congress, where an attempt to take what we
    viewed as an ideological meat axe to our environmental laws
    under the guise of takings fell short.
        We are concerned about efforts to then try to introduce
    that issue into a particular bill such as the Endangered
    Species Act and to use that as a vehicle to address that issue.
        Second, without getting into a long discussion of
    Constitutional law, as Senator McClure pointed out, there are
    many subtleties in terms of defining what is, in fact, a taking
    of private property, For example, it is generally understood
    that there is a commensurate burden to the public good that
    comes along with the ownership of private property.
        It is, as Senator McClure acknowledged, a much more subtle
    issue than it sometimes seems to be.
        Senator Kempthorne. All right. Let me also ask you, as the
    chairman has pointed out, there's no question. Everyone agrees
    that there needs to be the funding, adequate funding.
        Do you believe that today there is adequate funding for the
    endangered species program?
        Mr. Van Putten. Senator, it is our view that additional
    funding is required in the three areas that identify both the
    implementation by agency, State, Federal, in the preventative
    context, as well as in the context we're talking about here.
        Second, as Michael has identified the need to assure
    funding for when--to assure that HCPs work and what to do when
    they don't work.
        And, third, to provide funding for the incentives for
    private landowners.
        So the short answer is no, we don't believe there is enough
    funding in those three areas.
        Senator Kempthorne. Even under the existing Act, status
    quo, there is not sufficient funding today for endangered
    species activity?
        Mr. Van Putten. Senator, we believe that, as the list of
    species indicates, there is not adequate funding at this time.
        Senator Kempthorne. So could we agree that this new bill
    that is being proposed may be the catalyst toward highlighting
    and achieving additional funding?
        Mr. Van Putten. I think I can agree with that.
        Senator Kempthorne. So would it be worth supporting this
    legislation in order to achieve----
        [Laughter.]
        Mr. Van Putten. I knew where you were going, but I was
    willing to go there anyway.
        Sir, as suggested by Senator Wyden a few minutes ago,
    through the good offices of you and others on this committee,
    we might get appropriations 1, 2, 3 years out. But, as Senator
    Chafee has noted, the last time this bill was reauthorized was
    10 years ago, and the bill you are writing today may be the law
    we live with for more than a decade, and we need to have an
    assured revenue stream to fund these programs. So it's not just
    a matter of getting the appropriation this year or next year.
        And, as I've reiterated, we've identified what we believe
    to be some significant problems with the way in which the good
    concept of HCPs has been incorporated in this bill.
        Senator Kempthorne. OK. And, with regard to HCPs--because I
    know you have some concerns about that, but shouldn't we
    acknowledge that with HCPs--and I think of Plum Creek, for
    example, that has been very innovative in dealing with HCPs--
    that, as they deal with the issue and as they collect
    biological data concerning their particular project, isn't that
    just a tremendous value to the Secretary to have that sort of
    data that can help us in other areas dealing with that
    particular species that we will gain that information from
    those HCPs?
        Mr. Van Putten. Senator, I believe the development of that
    additional understanding of the needs of species in their
    habitats is beneficial, but it may not be to the advantage of
    particular species of concern if the habitat conservation plan
    does not provide for the incorporation of that emerging
    information in an appropriate and adaptive fashion.
        Senator Kempthorne. OK. Senator McClure, would you, if you
    could, too--and I appreciate we do have your written testimony,
    but just could you highlight some of the significant
    improvements you believe that are derived from this
    legislation?
        Mr. McClure. Well, I can tick them off pretty quickly.
    Indeed, we think the citizen participation is improved. It
    could be improved further, we believe. And we would support
    additional strengthening in that area.
        We certainly support including a broader range of
    interests, including the States on the recovery teams.
        And I think the public notice question is improved, but
    could be improved further. I think the addition of the
    mandating for good science and the means by which it is done is
    an extremely important aspect of this legislation.
        The incentives to conserve habitat--and let me mention the
    ``no surprises'' policy, the ``safe harbor'' agreements, the
    low-effect conservation plans and candidate conservation plans.
        We also very strongly support the habitat reserve program,
    as proposed. That's an area where we also need assured funding
    to make that one work well, and it can work very well, I
    believe.
        Cost-effective recovery plans, I would like to get into
    that a little bit more because--and I can understand why people
    would react to the term ``least-cost plan'' as being a bad
    directive, but I can't understand why anybody wants to object
    to having cost-effective plans. We ought to be able to do the
    best we can with the money that we have, and I think you move
    in that direction.
        Those are the things that I would look at. The consultation
    process is improved. It could be improved further. And I would
    hope, as you go through this process, and I would expect, as
    you go through this process----
        Senator Kempthorne. You're kind of tough to please, aren't
    you?
        [Laughter.]
        Mr. McClure. Never satisfied.
        [Laughter.]
        Senator Kempthorne. I appreciate that.
        Mr. McClure. When I got 51 percent of the vote, you should
    have thought I'd be happy. Would you be? Well, you'd be
    satisfied, but you're really after more than that.
        Senator Kempthorne. Yes.
        And, too, Mr. Chairman, if I may just make this comment to
    Mr. Shroufe, I did have some questions for you, but if you
    could perhaps provide for the record, because there was the
    question about what can we do earlier to help species, and I
    really think you're someone that--your information would be
    invaluable. You're one of those that is on the ground. You are
    one of the stewards that works with this, and so I think you
    have invaluable input, which I would appreciate, and I
    appreciate your being here.
        Senator Chafee. Thank you, Senator.
        Senator Sessions?
        Senator Sessions. Mr. Chairman, the question of deadlines,
    I ran into that as attorney general. We were trying to get
    trials tried more speedily, and the argument came back, the
    judges and all said that if you would double the budget they
    could do that, and I always inquired as to why it costs more to
    try a 1-day burglary case, trying it 60 days from arrest rather
    than 2 years from arrest. In fact, sometimes it costs more
    because more complications come up.
        We do need to get caught up. I'm sure the agency is behind
    in a lot of these matters. But essentially it's not a big cost
    increase to get timely in your decisionmaking process, to me.
    it's just tough management and realistic hard work.
        With regard to the voluntary compliance, I really do think
    that has great potential. You may have a 500-acre tract, and
    only 2 or 3 acres really involve an endangered species. The
    Federal Government cannot manage a one-acre tract in the heart
    of a private landowners' property, and they need that landowner
    to set it aside, and maybe some advice on how to manage it and
    monitor it, can provide a habitat there that would preserve
    that species.
        I think we are on to something with that.
        Mr. Chairman, I'm not aware--and I should know--how much of
    the increased funding we're talking about will go for that kind
    of project and how much will be going to the actual
    administrative staff of the agencies involved.
        Senator Chafee. I'm informed that most of it goes to the
    recovery planning and the implementing of it.
        Senator Sessions. That is more justifiable to me than just
    adding to our bureaucracy, and I think we've got to be careful
    how we manage it.
        And cost is a factor. If you can do a project for half the
    cost, you can do two projects instead of one. That's so basic.
    We need to know that.
        Mr. Chairman, I am due at another meeting at this time. I
    want to say that I think there are many good things in this
    bill. I think it is a major step forward. It has eliminated a
    number of things that everybody has agreed is irrational and
    has not furthered the preserving endangered species, but has
    burdened the process, has burdened landowners and private
    businesses unnecessarily, and if we can eliminate those
    unnecessary costs and apply our resources wisely, we can
    increase the number of endangered species we can preserve.
        I do appreciate the extremely dedicated service you and
    Senator Kempthorne and Senator Baucus and others have given to
    this bill. It presents some very difficult issues. You've
    worked through them. I support this legislation. I think we
    could improve it. There were some things in it I would like to
    see, but nothing is perfect.
        So thank you for your leadership and for conducting this
    hearing.
        Senator Chafee. Thank you, Senator Sessions. Your concern
    about the costs and how they work is, of course, not an
    original concern in the Government.
        My predecessor as Secretary of the Navy developed what he
    called--his name was Paul Ignatius. He developed the Ignatius
    rule for the purchase of aircraft. And that is, if you buy
    fewer, they cost more per plane. And if you buy more, they cost
    more per plane.
        [Laughter.]
        Senator Chafee. Now, Mr. Van Putten, it appears to me--and
    I'm open to correction--that the Wildlife Federation's
    principal complaint about the bill is that it codifies the ``no
    surprises'' policy. But I believe that the ``no surprises''
    policy has made the HCPs an effective mechanism to work with
    landowners. I believe in the ``no surprises'' policy.
        But I know you have some concerns, and obviously we want to
    learn more about them, but it seems to me that you are opposing
    the bill because of your concerns about a policy that is going
    to go on even if we don't pass the bill. I mean, that policy is
    going to stay, regardless of what we do here. Could you explain
    that?
        Mr. Van Putten. Yes, Senator. We do not oppose the concept
    of ``no surprises,'' per se. That is, we acknowledge the need
    to grant some degree of certainty to private landowners. We've
    identified two very significant features of the current policy
    that they can undermine the recovery of species and that they
    fail to reflect adaptive management strategies, and we've made
    very specific suggestions there.
        Senator I think enshrining it in law will make it much more
    difficult in the future to have HCPs that are, in fact,
    measured by what they achieve on the ground, as opposed to a
    bean counting approach of the number of plans we have.
        It is because we acknowledge the critical role of private
    lands, it is because we acknowledge the need to provide some
    regulatory certainty to private landowners that we focus on the
    HCP provisions as being so critical to our support for the
    bill.
        Senator Chafee. I'm not sure I understood the answer there.
        Mr. Van Putten. Sir, it is real important to us that the
    HCP process actually work on the ground, and we think that
    enshrining in the law an approach that does not provide for
    adaptive management as we learn more about the needs of species
    subject to HCPs and an approach that would allow HCPs that
    undermine recovery is an approach that will not achieve the
    goals for conserving species and their habitat.
        So it may sound like we're picking one thing out of a bill
    with many positive features, but, in addition to some of the
    other complaints we have, this HCP issue is critical to us
    because of the importance.
        Senator Chafee. But suppose we do nothing. Suppose we give
    up, we say we can't get this bill passed, and so that's it. We
    end it. All of that ``no surprises'' and the existing policy is
    going to continue, are they not?
        Mr. Van Putten. Well, the existing policy might continue.
    The existing policy might evolve over time. There is a
    significant difference, in our view, to enshrining or freezing
    in the law the policy essentially as the Administration began
    this experiment and not reflecting what we believe we've
    learned from this experiment with HCPs.
        Senator Chafee. What do you say to that, Mr. Bean?
        Mr. Bean. I think that the existing policy is troubling in
    a number of respects, and the most significant troubling aspect
    of it is that it sets no outer limit for the duration of these
    assurances to private landowners in setting no outer----
        Senator Chafee. You mean in years?
        Mr. Bean. Yes, in years. That's right.
        Senator Chafee. You mean it can be whatever--but there is a
    limit set in each respective HCP, but it could----
        Mr. Bean. That's right.
        Senator Chafee.--it could go for 80 years.
        Mr. Bean. That's correct, and because the policy itself
    sets no limit, the landowners have an understandable desire to
    seek as long an assurance as possible, and the longer the
    assurance the greater the likelihood that you're going to learn
    something during that period of time that's different from what
    you thought you knew when you began.
        It seems to me that the solutions to that are either one of
    two things. One, giving the Secretary the resources, the
    insurance fund, if you will, to step in when necessary when
    things don't turn out as expected. Or to do what neither the
    policy nor this bill does, which is to have some safeguards as
    to the duration of those assurances, have the duration of those
    assurances somehow keyed to the strength of the science
    underlying the plan, keyed to the inclusion in the plan of
    contingent measures or adaptive management measures or so on.
        That's a problem that we've had with the policy, although
    it seems to me it can be addressed in either of those two ways.
    I've chosen to emphasize in my testimony this morning giving
    the Secretary an insurance fund that allows him to step in and
    do what's necessary. That seems to me to be a doable approach
    that would largely eliminate much of the controversy about the
    policy.
        Senator Chafee. Well, I think, yes, I understand that. But,
    on the other hand, it is true that if we do nothing and this
    bill doesn't pass, all those problems are going to continue
    anyway.
        Mr. Bean. You're correct about that, sir.
        Senator Chafee. Senator Kempthorne?
        Senator Kempthorne. Mr. Chairman, thank you.
        I, too, have to go to another meeting, but I just want to
    thank this panel. I think it has been an excellent panel. All
    of you have provided us good input, plus you've been part of
    this whole process.
        Mr. Chairman, I want to thank you again for sticking with
    it and sticking with me, and I appreciate it greatly, and to
    acknowledge the significant role of the staff of you and
    Senator Baucus, Senator Reid and my staff. We greatly
    appreciate it. We're set for next Tuesday for markup.
        Again, I just--it's time that we solve this issue.
        Senator Chafee. Yes, and it's going to require work between
    now and then, obviously. We've gotten some good thoughts here,
    and to consider those thoughts and what to do about them,
    whether to incorporate, whether to not in the chairman's mark.
    So obviously we'll be working closely together.
        I will say that there is not much time, particularly if we
    are going to get in amendments and the amendments have to be in
    24 hours in advance. We want a chance to look at them.
        So I would say to all the staff here, ones that are left,
    and their bosses to please get any amendments in as quickly as
    possible, because we don't want to have to wrestle with all
    this at the last minute.
        Mr. Van Putten, I've got a question here. You interpret the
    bill's waiver section of Section 7 as a ``no surprises''
    policy, is that correct?
        Mr. Van Putten. Yes, sir.
        Senator Chafee. And I'd like to point out that the waiver
    applies only to those activities that promote the recovery of
    the species and that are carried out during the term of the
    agreement, that are in compliance with the agreement, and which
    there is sufficient information on the scope of the activity.
        The bill explicitly requires that plans are to be reviewed
    every 10 years and agreements must be reviewed and revised as
    necessary on a regular basis.
        Now, that doesn't sound like ``no surprises'' to me. Could
    you explain that?
        Mr. Van Putten. Senator, I think we addressed this in page
    9 and 10 of the side-by-side--excuse me, in the section-by-
    section analysis. And if you get beyond that, you've gotten
    beyond my capacity to respond, but I would welcome the
    opportunity to submit a response for the record.
        Senator Chafee. All right. That would be fine if you could
    do that.
        You argue that recovery implementation agreements would
    seriously harm species. I'm not sure I understand that. The
    biological standard on which such agreements are approved is
    that they ``must promote the recovery of the species.'' It
    can't be approved unless each party has the capability to carry
    it out. It can't be approved without provisions for regular
    review and revision. All of these must be approved by the
    Secretary. There must be sufficient information so the
    Secretary can evaluate the scope and duration of the project.
        The Section 7 consultation provides a lower standard, one
    that is tied to no jeopardy, which, itself, ensures that
    species are not seriously harmed.
        Did you follow all that?
        Mr. Van Putten. Yes, sir.
        Senator Chafee. Could you explain it?
        Mr. Van Putten. Sir, we've acknowledged some of the
    positive aspects of the recovery planning, but we've also
    identified some of the problems we see.
        One of them that was discussed somewhat earlier is, as we
    read the bill, the provision that would allow the States, at
    their desire, to play the lead role, and then put the Secretary
    in the position of having to approve or disapprove it at the
    end of the process.
        We are concerned about that process. We think it may
    exacerbate tensions between the State and Federal Government.
    We think it introduces an element of brinksmanship into this.
        And I would say, based on my nearly twenty-year history
    with the implementation of the Clean Water Act and delegating
    programs to the State, that I have seen that phenomena repeated
    time and time again and fear that we may be setting in place a
    similar dynamic here that doesn't enhance collaboration but
    really results in confrontation, and we've identified that as
    one of our concerns with the processes set out in the bill.
        Senator Chafee. OK. Again, here is--we have some testimony
    that has been submitted--I've put it in the record--from the
    Evangelical Environmental Network, which is a coalition on the
    environment and Jewish life and the National Council of
    Churches. We'll put this in the record and appreciate their
    having submitted it.
        Thank you all very much for coming. We appreciate it.
        Mr. Shroufe, safe journey home.
        Mr. Shroufe. Thank you.
        [Whereupon, at 11:31 a.m., the committee was adjourned, to
    reconvene at the call of the Chair.]
        [Additional statements submitted for the record follow:]
       Statement of Hon. James A. McClure, Chairman, National Endangered
                          Species Act Reform Coalition
        Mr. Chairman, Senator Kempthorne, Senator Baucus, Senator Reud and
    other members of the Committee, I appreciate this opportunity to appear
    before you today as you consider legislation to reauthorize the
    Endangered Species Act. I come before you to share the perspective I
    gained as an active participant in the Senate debates regarding
    enactment of the original Endangered Species Act of 1973, as well as
    subsequent debates on reauthorization and amendments. I also appear
    here today, more specifically, as a representative of those who are
    directly affected by the Endangered Species Act.
        I especially want to extend my congratulations to the chairmen and
    ranking members of the full Committee and the Subcommittee on Drinking
    Water, Fisheries and Wildlife for their efforts in drafting S. 1180,
    the bill we are here to discuss today. Their diligence, patience, good
    faith and hard work are to be commended. As one who served 24 years in
    the Senate and the House of Representatives, including a number of
    years on this Committee, I know that your efforts toward bipartisanship
    and consensus represent a very appropriate method, and perhaps the only
    successful method, for dealing with the difficult issues that surround
    reauthorization of the Endangered Species Act. We must recognize that
    consensus legislation, by its very nature, will not provide all things
    to all people, but often times does provide an opportunity for real
    change, and in this case improvements, to current law.
        There is a temptation in long struggles like efforts to reauthorize
    the ESA to say ``enough is enough, we have fought long enough.'' While
    I understand this sentiment, it should not be allowed to override the
    need to find solutions to the problems that gave rise to the struggle
    in the first place. Long after action is taken on the legislation
    before us today, the Endangered Species Act will continue to affect
    thousands of species and millions of Americans, so we must not shy away
    from making the difficult choices associated with this issue. It is our
    hope and belief that the ESA can work to protect species better without
    causing unfair or unjustified disruption in the lives of individuals
    and communities directly affected by the requirements of this law.
        That is the challenge that faces each of us appearing before you
    today. We must cast aside the emotions of the legislative struggle and
    make good judgments that will recast the Endangered Species Act in ways
    which will allow the ESA to withstand the test of time and the strain
    of more species listings. We are certain that more communities will be
    brought into the world of ESA decisionmaking. The challenge facing you
    in this reauthorization is to ensure that they are brought into a
    process that is more positive, more certain and more constructive in
    the preservation of species and economic necessity than the
    decisionmaking process our communities face today. When the process is
    more fair, private individuals and state and local governments will
    become more active and dedicated partners in the effort to conserve
    species and their habitat. The ultimate beneficiaries of this
    partnership will be the endangered and threatened species themselves.
        Mr. Chairman, I currently serve as Chairman of the National
    Endangered Species Act Reform Coalition (NESARC). The membership of the
    Coalition consists of more than 200 organizations representing diverse
    sectors of the economy including agriculture, water districts,
    manufacturers, electric utilities, builders, municipal government,
    small businesses and individual land owners. Some of our members are
    themselves coalitions or organizations representing large numbers of
    individuals, such as the American Farm Bureau Federation, the National
    Rural Electric Cooperative Association, and the National Association of
    Home Builders. The Coalition represents, directly or indirectly,
    millions of individuals whose livelihoods and property are affected by
    the implementation of the Endangered Species Act. It is important to
    note that no one has a greater interest in providing for the recovery
    of threatened and endangered species than the members of this
    coalition, for when a species is recovered, it can be removed from the
    list and regulatory restrictions can be lifted.
        The primary purpose of my testimony today is to present the initial
    views of the Coalition on S. 1180, the Endangered Species Recovery Act
    of 1997. By necessity, our views will be preliminary. Our coalition
    members are reviewing S. 1180 which was introduced just 1 week ago and
    a more detailed review of the bill is underway. Before addressing the
    bill, however, I would like to call the attention of the Committee to
    testimony I delivered just over 3 years ago to the subcommittee now
    chaired by my friend and fellow Idahoan, Senator Dirk Kempthorne. My
    testimony in 1994 outlined my views, as one who voted in favor of the
    Endangered Species Act of 1973 and subsequent amendments to the Act,
    regarding the intent of Congress when it established this very
    important program to conserve our biological resources nearly a quarter
    century ago. I recently reviewed this statement, and I find it to be as
    relevant today as it was 3 years ago. Mr. Chairman, I would be pleased
    to provide a copy of this statement, and I request that you include it
    in the record of this hearing.
    NESARC Position on S. 1180
        I will state the position of NESARC regarding S. 1180 in two parts.
    First, NESARC supports S. 1180; and second, we also urge certain
    improvements to the bill. We believe the consensus-based approach the
    authors of this bill have undertaken is the only way to move ESA
    reauthorization legislation in the Senate at the present time. We
    support this approach and the legislation it produced. At the same
    time, this Coalition, since its inception almost 6 years ago, has taken
    clear, consistent and strong positions on a number of key issues. While
    S. 1180, as a compromise measure, does not fully address all of our
    priorities in the manner we prefer, it does recognize that the ESA is
    in need of significant improvements and seeks to address the need for
    better scientific processes, greater citizen participation in ESA
    decisionmaking and more incentives for cooperative conservation
    efforts. S. 1180 is a positive change in the law, and we urge the
    committee to act favorably upon it. Additionally, we urge the
    Administration, which has sought to make this law work better, to
    support the legislation.
        Along these lines, I wish to commend to this Committee another bill
    that Senator Kempthorne has introduced, S. 1181, the Endangered Species
    Habitat Protection Act. This legislation provides land owners with a
    number of important incentives which give them a real reason to want to
    join in the effort to conserve the habitat of endangered and threatened
    species. This bill would codify several notable tax incentives and,
    perhaps more significantly, provide compensation to those who suffer
    partial regulatory takings. Mr. Chairman, it is simply not fair to take
    people's property that is, to destroy the value of their property, in
    whole or in part without compensation. NESARC strongly believes that
    there must be a reliable mechanism to compensate property owners who
    suffer full or partial regulatory takings. I urge the members of this
    Committee to consider with a fair and open mind how greatly this kind
    of compensation program would assist in the important task of
    protecting this country's biological diversity. I urge the members of
    this Committee to support S. 1181.
        I will now turn to NESARC's specific concerns with respect to the
    Endangered Species Act and the steps S. 1180 takes to address our
    concerns.
    Citizen Participation
        We believe that private citizens, and especially those most
    directly affected by conservation measures in a social or economic
    manner, should have a greater stake and more prominent role during ESA
    decisionmaking. S. 1180 includes a number of very positive reforms in
    this area which NESARC supports strongly. I might add that, in my view,
    this is one area in which we share considerable common ground with
    environmental advocacy groups.
        In particular, NESARC supports the following reforms, which are
    contained in S. 1180:
          More opportunities for public hearings on listing
    decisions and recovery plans.
        For some time, the members of NESARC have called for public
    hearings on recovery plans which should be the heart of recovery
    efforts. Public notice and hearings will assist in investing
    communities in our nation's efforts to conserve species. Under S. 1180,
    recovery planning and critical habitat designations occur concurrently.
    We suggest that the Committee consider adding new language to call for
    hearings on critical habitat designations. Alternatively, the
    legislation, which appears to provide for critical habitat designation
    ``after consultation and in cooperation with the recovery team,'' could
    further provide that the required hearings on recovery plans also must
    address critical habitat designations.
          Making information on which conservation decisions are
    based publicly available.
        S. 1180 includes a clarification regarding the circumstances under
    which the Secretary may withhold information to prevent acts of
    vandalism. On this point, NESARC believes the legislation should
    include stronger language clearly stating that the public should have a
    right to this information unless the Secretary presents evidence that
    the information must be withheld.
          Inclusion of a broader range of interests in the recovery
    planning and implementation process, and inclusion of the applicant
    during a Section 7 consultation.
          A greater role for states and local governments during
    major ESA processes, particularly listing and recovery planning and
    implementation. In particular, we find the increased role of states to
    be a positive improvement in the law.
        We recognize that the recovery team, which includes a
    representative of an affected state agency, recommends the designation
    of critical habitat. Nevertheless, we would support a stronger
    statement of the Secretary's duty to cooperate with states or consider
    state information at time of critical habitat designation, as well as
    provide recommendations during the peer review process.
        Finally, I want to make a broader statement regarding the public's
    right to know. Under current law, the Secretary must publish a notice
    of certain actions in the Federal Register and a newspaper of general
    circulation. While this may be sufficient notification for some, most
    common folk don't read the Federal Register or the legal notice section
    of the newspaper. For this reason, too often actual notice to affected
    parties does not occur.
        We believe it is possible to develop, on a consensus basis, a
    mechanism to provide the public better notice of ESA actions. We
    recommend a system of mailed or electronic notification for those who
    request to be placed on a notice list, similar to an existing mechanism
    that the Army Corps of Engineers administers with respect to the
    wetlands program.
    Good Science
        To ensure fair, sensible and biologically effective ESA actions,
    scientific information must be as accurate and as thorough as possible.
    S. 1180 includes a number of very good reforms to ensure the use of
    high quality scientific information and we strongly support these
    reforms:
          Greater weight for data that is empirical, field-tested
    or peer-reviewed.
        The bill qualifies this preference by applying it only ``when
    evaluating comparable data.'' While this may be a matter of semantics,
    we see no need to qualify the preference for better scientific
    information.
          Minimum documentation standards for petitions to change
    the listing status of the species.
          Automatic peer review of listing decisions and the
    recovery goal.
        NESARC recommends two additional peer review reforms. First, states
    should have the option of appointing the recovery team. Second, NESARC
    supports peer review of critical habitat designations.
    Incentives to Conserve Habitat
        Most of the habitat of endangered and threatened species occurs on
    non-Federal lands. The owners of these lands must participate fully in
    conservation efforts to ensure the survival and recovery of threatened
    and endangered species.
        Unfortunately, some still believe that the best way to provide for
    the participation of our private citizens and land owners is to
    establish even more restrictive land use and management programs at the
    Federal level and to threaten land owners with punishment, including
    severe criminal penalties, if they do not manage their own land exactly
    as the Federal Government dictates. The members of NESARC take a
    different view.
        We believe that conservation is enhanced when the nation's
    endangered species program not only calls for strict, legalistic
    compliance with Federal standards, but also wins the hearts and minds
    of those who make the day-to-day decisions regarding the land that
    serves as habitat. Private land owners are the first line of defense
    for threatened and endangered species. Imperiled species are best
    protected when land owners are full partners in the programs and
    decisions that affect the value and use of their property. This only
    can be achieved through more positive, not negative, incentives.
        S. 1180 provides these kinds of positive incentives in a number of
    ways, including:
          A ``no surprises'' policy, assuring land owners that if
    they enter into an agreement with the Federal Government to conserve
    habitat, the government cannot break that deal at a later time without
    the land owner's consent. If land owners cannot receive this simple
    assurance that the agreements they make with the government are
    binding, they will be less likely to enter into voluntary agreements to
    conserve habitat.
          A ``safe harbor'' policy to provide incentives for
    private land owners to proactively restore habitat, actually expanding
    areas available for threatened and endangered species.
          Low effect habitat conservation plans, encouraging small
    land owners and others who may take actions having a negligible effect
    on the species to work with the Fish and Wildlife Service or National
    Marine Fisheries Service as they do so.
          Multiple species conservation plans and candidate
    conservation agreements, providing an opportunity and incentive for
    private land owners to work more proactively to conserve species before
    they reach threatened or endangered status.
          A habitat reserve program, similar to the existing
    conservation reserve program, to provide a direct monetary incentive to
    conserve habitat, particularly for farmers, without requiring loss of
    title to property or involuntary conversion of property uses.
        Mr. Chairman, many of the reforms I have just described have been
    developed administratively over the past few years. This coalition does
    not support every action of the Clinton Administration with respect to
    the Endangered Species Act, however, we want to acknowledge that the
    Administration has worked hard to make this Act work in a more positive
    and cooperative fashion in the area of habitat conservation plans.
    Cost-Effective Recovery Plans
        Recovery plans can be very expensive to develop and implement. In
    the past, the Services have occasionally attempted to document their
    own costs associated with a recovery plan, but they did not
    systematically consider the costs to other parties such as the
    individuals and organizations NESARC represents.
        When choosing between a number of alternative recovery plans that
    achieve recovery within a reasonable amount of time, we believe the
    Secretary should be required to approve and implement the least costly
    or most cost efficient recovery plan. Frankly, I cannot see any
    principled basis upon which to oppose this common sense notion.
        S. 1180 includes a number of methods to improve the recovery
    planning and implementation process. NESARC notes the following
    significant improvements to current law:
          Representation of those who are socially or economically
    impacted on the recovery team.
          The requirement that both the recovery team and the
    Secretary achieve an ``appropriate balance'' among the effectiveness in
    achieving recovery, the time to achieve recovery, and social and
    economic impacts.
        On this point, we believe that S. 1180 could provide stronger
    encouragement for the Secretary to approve only least costly or most
    cost efficient recovery measures among reasonable alternatives.
          The requirement of a detailed description of the economic
    effects of a recovery measure.
        Mr. Chairman, S. 1180 requires the Secretary to give priority to
    recovery plans that have certain characteristics. For example, the
    Secretary would be required to give priority to recovery plans that
    ``reduce conflicts with construction, development projects, jobs or
    other activities,'' as well as to plans that ``have the greatest
    likelihood of achieving recovery of the endangered species or the
    threatened species,'' among other things. On its face, we view this
    language as positive. Based on my years of experience as a legislator,
    however, I want to recommend that the authors of this legislation
    clarify their intent.
        We believe this language is intended to ensure that the Secretary
    determine whether a recovery plan meets each one of the criteria
    specified. Too often in the past, when Congress has required the
    Secretary to consider economic factors, the agency has ignored
    Congressional intent by arguing that the conservation values expressed
    elsewhere in the Act are more important. We believe that you, the
    authors of this bill, did not intend that result in this case, and we
    would recommend minor changes in the legislative language to reflect
    that intent.
    Shared Burdens
        Just from reading the ``findings and policy'' section of the ESA,
    one might conclude that the ESA calls for ``encouraging'' states and
    private parties, through a system of incentives, to implement a program
    to conserve fish, wildlife and plants ``for the benefit of all
    citizens.'' In practice, those who live in certain areas, particularly
    rural areas and the West, and those who work in natural resource
    intensive businesses, bear the brunt of the costs to implement the ESA.
        It is the residents of these areas that, by engaging in perfectly
    legal activities that are necessary to meet our nation's needs for
    power, water, food, and other goods and services, are most affected by
    the Endangered Species Act. I refer to those men and women who engage
    in such activities as the farming and ranching from which we get our
    food; harvesting the timber which is necessary for, among other things,
    construction of new houses; building the homes in which we live, the
    markets where we shop and the businesses where we work and earn our pay
    check; and generating and transmitting the electricity without which
    artificial lights--not to mention our voice mails, facsimiles and
    computers--would not exist.
        Protecting endangered species is an endeavor in which we engage for
    the benefit of all people. If additional costs associated with
    conservation efforts are imposed on specific activities, we believe the
    costs of species protection should be shared more even handedly. In
    this respect, S. 1180 includes a number of programs through which
    grants may be made available for those seeking to implement
    conservation measures. We urge the Committee to continue to support
    these programs, and we also urge the members of the Committee to work
    to ensure full funding of these programs in the appropriations process.
    Water Rights
        The water law of the various states is a complex matter that often
    establishes property rights to water. There are significant problems
    and concerns associated with this area of the law as it relates to the
    Endangered Species Act. Maybe some of the controversy and conflicting
    decisions can be addressed through the improvements made by S. 1180.
    NESARC urges the Congress to take action to ensure that the Endangered
    Species Act is in harmony with, and recognizes the primacy of, state
    water law.
    Consultation
        NESARC supports provisions in S. 1180 that require reasonable and
    prudent alternatives to be consistent with the action that is the
    subject of consultations; within the scope of the Federal agency's
    legal authority and jurisdiction; and economically and technologically
    feasible. NESARC also supports the requirement that reasonable and
    prudent measures be related both in nature and extent to the proposed
    activity that is the subject of the consultation. I strongly believe
    that these provisions represent the original intent of Congress when it
    codified and amended Section 7. Obviously, they represent the intent of
    the four original cosponsors of this bill.
        NESARC appreciates the provisions of S. 1180 that allow the action
    agency to determine, in certain limited situations, that a proposed
    action is not likely to adversely affect listed species. We believe S.
    1180 contains more than adequate safeguards to ensure the biological
    integrity of this process. Frankly, we would support broader reforms
    than this, but this amendment will help eliminate unnecessary paperwork
    and administrative costs for certain low impact activities.
        Finally, NESARC supports provisions to:
          encourage consolidated consultations where more than one
    agency is involved;
          encourage consolidated consultations where a single
    agency proposes more than one action; and
          provide, in the event of a newly listed species, only as
    much disruption of previously approved plans and activities as is
    strictly necessary to allow consultation regarding that species.
    Definition of ``Take''
        It consistently has been the position of NESARC that Congress
    intended the Endangered Species Act to prohibit direct ``takes'' of
    endangered species, as the word ``take'' traditionally has been
    understood in the common law dealing with game and wildlife. In other
    words, we believe the ESA originally was intended to prohibit
    activities directed toward an identifiable member of certain species,
    not perfectly legal land use actions that may happen to have some
    indirect impact on species. Accordingly, we have supported amending the
    definition of ``take'' to clarify that habitat modification is not a
    ``take,'' so long as there is no direct action against an identifiable
    member of the species.
        We understand that the original cosponsors of S. 1180 could not
    come to an agreement that would address the legality of habitat
    modification. We simply note for the record that our views on this
    subject have not changed.
        We do support provisions in S. 1180 that require the Secretary and
    others to establish, using scientifically valid principles, that an
    action actually would cause a ``take.'' Unfortunately, in certain
    instances, we believe that some persons--especially small land owners
    who cannot easily afford a lawyer--have been pressured into paying
    unreasonable mitigation costs as a condition for an incidental take
    permit for an otherwise lawful activity, without an adequate
    demonstration of the risk of an actual ``take.'' It appears that S.
    1180 would require verification of a ``take'' before demanding
    mitigation or bringing an enforcement action, and we support this
    provision.
    Citizen Suits
        In the past, NESARC has taken the position that our members should
    not be excluded from court based on our point of view. Specifically,
    NESARC opposed decisions of some courts, particularly those in the
    ninth Federal circuit, that held that parties alleging economic
    injuries had no legal standing to bring a citizen suit under the
    Endangered Species Act. This issue is no longer part of our legislative
    agenda because of the Supreme Court's unanimous decision in Bennett v.
    Spear. The Supreme Court's decision in that case completely vindicated
    our point of view, and we support the decision of the authors of S.
    1180 not to offer new legislative language to address this issue.
    Conclusion
        Mr. Chairman and members of the Committee, thank you again for this
    opportunity to testify on behalf of NESARC. We commend the efforts of
    Senators Kempthorne, Chafee, Baucus and Reid, and their staff, to draft
    S. 1180. In our view, S. 1180 would bring needed balance to ESA
    decisionmaking. Enactment of the legislation would improve
    significantly ESA scientific and public involvement processes and
    provide incentives for cooperative agreements. S. 1180 represents a
    significant improvement in the law. We support the bill, and we urge
    favorable action on the legislation by this Committee and the full
    Senate.
                                     ______

                      National Endangered Species Act Reform Coalition,
                                        Washington, DC, September 24, 1997.

        Hon. John Chafee, Chairman,
        Committee on Environment and Public Works,
        Dirksen Senate Office Building,
        U.S. Senate, Washington, DC.

        Dear Chairman Chafee: I again want to thank you for allowing me, on
    behalf of the National Endangered Species Act Reform Coalition, to
    testify in favor of S. 1180, The Endangered Species Recovery Act of
    1977.
        During your remarks today, you alluded to an important point upon
    which want would like to further comment for the record, if possible.
    want feel particularly qualified to do so as a former Chairman of the
    Interior Appropriations Subcommittee, and as the current Chairman of
    this Coalition, which has tried to attach amendments to appropriations
    bills dealing with the ESA reform.
        I very much agree with your statements which implied, perhaps even
    warned, that should the ESA not be reauthorized by the Congress, the
    pressure to change the current law through the appropriations process
    will increase each year. As you know, the recent moratorium on the
    listing of additional species was accomplished through this manner.
        Although NESARC did not initiate that specific amendment, we did
    support it as method to build pressure so that Congress would review
    the underlying Act. Additionally, over the past few years, we have
    instigated, although ultimately unsuccessfully, several amendments to
    appropriations bills which would have strengthened the public's right
    to know about species listings, designation of critical habitat and
    upon what information those decisions were based. We also initiated
    amendments to codify the no-surprises policy and to require that the
    least cost alternative be implemented in recovery plans.
        Iwant to echo your statement that there are other forums by which
    changes to the ESA might be attempted, should your Committee, and the
    Congress not proceed with addressing reauthorization of the Act. That
    is why your effort, and that of Senators Kempthorne, Baucus and Reid
    are so important.
        In short, your comments were right on mark. want hope, that by
    including this letter in the hearing record, want might bring
    additional attention to them.
        Again thank you and your colleagues for bringing S. 1180 to this
    point. We are currently working very hard to perfect this bill, and to
    help garner the support needed to secure its passage.
                Sincerely,
                                                      James A. McClure,
                                                                  Chairman.
                                   __________
       Statement of Michael J. Bean, on behalf of the Center for Marine
     Conservation, the Environmental Defense Fund, and the World Wildlife
                                      Fund
        For the past 6 years, Congress has been deadlocked over the future
    of the Endangered Species Act. Two camps have put two quite starkly
    different views of the Act before you. The environmental camp my camp--
    has argued that the existing law must be strengthened, that it is not
    accomplishing its vitally important goal of conserving rare species as
    effectively as it must if it is to stave off a flood of extinctions.
    The other camp has argued that the existing law is unduly onerous for
    those whose activities it regulates, and must be made less so. Unable
    to choose between these two divergent views, Congress has done nothing,
    an outcome that furthers the goals of neither camp and serves the
    interests of our nation's wildlife not at all.
        The solution to breaking this impasse is to recognize that what is
    needed is not to choose between these two views, but to find the
    solutions that accomplish both goals. By making the Act more effective
    at conserving species and less onerous for those it regulates, real
    progress can be accomplished. That, however, is much easier said than
    done. Improvement in the conservation of rare species doesn't flow
    automatically from loosening the regulatory screws, as some in the
    regulated community have argued, but neither does tightening those
    screws guarantee better conservation results. The task before all of us
    is much more difficult than that. It is to build a much larger
    endangered species conservation toolbox than that which now exists, one
    that has enough different tools in it to address effectively the many
    varied challenges that declining species and landowners face.
        There are significant differences of opinion about the extent to
    which you succeeded in accomplishing what I have just outlined, but I
    want to be very clear that I recognize and appreciate that you--
    Senators Chafee, Kempthorne, Baucus, and Reid, as well as Secretary
    Babbitt have genuinely tried to do so. For that, you are deserving of
    much credit.
        Let me turn now to the substance of your effort. I don't think I
    can offer a better summary than that of my colleague John McCarthy of
    the Idaho Conservation League. As he noted, ``There are some definite
    improvements, and there are some definite danger zones. A lot depends
    on whether there is funding for the good things.'' Among the most
    important of the improvements are three new programs to offer financial
    incentives to private landowners who agree to implement beneficial
    management practices on their land. There are three inescapable facts
    that underscore how urgently such incentive programs are needed. First
    is the fact that most endangered species have most of their habitat on
    non-Federal land, especially private land. Second, in general species
    that depend heavily on private land are faring poorly. And third, some
    of the most significant threats to these species can only be addressed
    through active management measures, in particular control of invasive
    exotic species, and replication of natural disturbance regimes that no
    longer function, especially fire disturbance regimes. Without cost
    sharing assistance, many landowners can't implement the needed
    management measures. Without such active management, the continued
    decline of many of these species is inevitable.
        For these reasons, the provisions of this bill that authorize
    financial assistance to landowners implementing the active management
    measures called for by ``safe harbor'' agreements, recovery plan
    implementation agreements, and agreements to enroll land in the new
    endangered species habitat reserve program are vitally important. But
    let me add one major caveat. The promise of these new programs will
    never be realized unless they are funded. Your bill authorizes
    appropriations for each of these programs, but the experience of seeing
    other promising conservation programs, including some under the Farm
    Bill, go underfunded, or even unfunded, is too recent and too clear to
    permit me to regard these new programs as anything more than a mirage
    at this time. If you are serious about these new incentive programs,
    you must find a means of assuring funding for these programs. One idea
    among many that ought to be seriously considered would be to dedicate a
    portion of the expected receipts from the sale next year of the Elk
    Hills Naval Petroleum Reserve to a special trust fund that would be
    available, without further appropriation, for expenditure in support of
    these new landowner incentive programs. The Elk Hills Reserve supports
    a number of endangered species, all of which will receive substantially
    less protection as a result of its transfer to private ownership; thus,
    it is appropriate to reserve at least some of the more than $2 billion
    expected from its sale for the purpose of encouraging endangered
    species conservation on private land. Other possibilities ought to be
    seriously explored as well.
        On a related topic, your bill contains new standards for the
    approval of multi-species habitat conservation plans, standards that
    are significant improvements over those now in the law. The bill would
    also shift certain burdens to the Federal Government, however, that we
    are concerned will not be met because of lack of funding. Specifically,
    the bill would codify the ``no surprises'' policy that the
    Administration promulgated 3 years ago. That policy guarantees
    landowners certainty that the agreements they make will not be subject
    to unilateral changes in mitigation requirements. In light of this, it
    is very important to ensure that the government has the resources to
    respond to the risks that this policy places upon it. We urge you to
    create an ``insurance fund'' to cover the costs of additional
    mitigation measures for which the government itself may be responsible
    under this policy. The creation of such a fund would go a long way
    toward resolving much of the recent controversy over the ``no
    surprises'' policy.
        There is another risk entailed in this bill that concerns me
    deeply. It is the risk that the new procedural requirements imposed by
    the bill with respect to the development of recovery plans and, to a
    lesser extent, the listing of species, will overwhelm the Fish and
    Wildlife Service and the National Marine Fisheries Service. The new
    procedural requirements imposed on the recovery planning process are
    complex, costly, and, in my judgment, unduly burdensome. The result, I
    believe, will be the opposite of what is apparently intended. Instead
    of getting recovery plans that play a vital and central role in the
    implementation of the Act, you will get a major diversion into
    unproductive bureaucratic procedures of scare resources that could have
    gone into on-the-ground conservation, a paucity of recovery plans, and
    a proliferation of litigation over non-compliance with deadlines and
    content requirements.
        These, I realize, are strong words, but they are carefully chosen,
    and I think they are justified. I base them on the following: The bill
    requires that recovery teams be constituted as they have never been
    constituted before, including as team members people who have no prior
    recovery planning experience; it requires these new teams to develop
    plans substantially more complex than those that have been done
    heretofore; it requires the plans they develop to be subjected to new
    public hearing requirements not found in present law; it requires that
    plans be produced at a pace the government has been unable to achieve
    thus far; and it simultaneously requires that a substantial existing
    backlog of unfinished recovery plans be eliminated by preparing plans
    in accordance with these procedures for all listed species that
    currently lack them. Ignore all of the other changes and just focus for
    a moment on this last requirement. At present, there are 389 listed
    species that do not yet have recovery plans, plus an additional 99
    species proposed for listing. Over the last 5\1/2\ years, the
    government has produced, on average, 27 final recovery plans per year,
    encompassing an average of 62 species. Even assuming no changes in the
    recovery planning process, at these rates the existing backlog of
    recovery plans for already listed or proposed species would require
    nearly 8 years to eliminate. To eliminate this backlog in 5 years would
    necessitate a 40 percent increase in resources currently devoted to
    recovery planning, assuming no other species were added to the list in
    the meantime. In reality, the resource demands will be even greater,
    since the new procedures applicable to recovery planning are
    substantially more complex and demanding than existing procedures.
        Absent a very substantial increase in funding for recovery
    planning, this is a prescription for paralysis. One partial solution to
    ameliorate some of this impact would be to allow recovery plans to be
    developed in accordance with existing procedures for those species that
    are already listed as of the date of the law if a recovery team for
    such species has already been appointed and begun work. In other words,
    limit the applicability of the new procedures to newly listed species
    and to those already listed species for which recovery planning is not
    yet under way.
        Even this partial solution, however, does not address the larger
    question of whether the new planning procedures in this bill are
    worthwhile. I understand that the expectation underlying these new
    requirements is that they will lead to recovery plans that have a
    substantial degree of ``buy-in'' from affected interests and plans that
    are taken more seriously than present plans often are. These are worthy
    goals, but they won't be achieved by loading up recovery planning
    processes with a host of new procedural requirements. That ``easy
    solution'' reminds me of H. L. Mencken's comment that ``There is always
    an easy solution to every human problem neat, plausible, and wrong.'' I
    urge you to rethink them carefully, with a critical eye on the resource
    demands they entail.
        For similar reasons, I think it a mistake for Congress to require
    independent scientific review of every listing decisions and to
    prescribe how that review is to be accomplished. Many listing decisions
    generate no real controversy, and to require independent review of them
    is a make-work exercise. When independent review is needed., the
    National Research Council may or may not be the best source of
    qualified reviewers, and it may or may not be able to respond promptly
    to the needs of the government for such reviewers. It is much better,
    in my view, to direct the Secretary to institute a mechanism that
    assures independent scientific review and is free from the appearance
    of conflict of interest, but leave it to him to determine how that
    should best be accomplished.
        Finally, the bill makes a number of changes to the provision of the
    Act that governs how Federal agencies are to carry out their
    obligations toward endangered species. That provision, Section 7, has
    been in many ways the cornerstone of the Act. Its procedures are well
    known, having changed little in the last two decades. Its results have
    been generally quite positive, as measured both by the infrequency of
    irreconcilable conflicts, and by the fact that species found on Federal
    lands are generally faring much better than those not found there. In
    general, I favor the philosophy that ``if it ain't broke, don't fix
    it.'' In my view, Section 7 ain't broke.
        I hope that you will address these and other concerns seriously. As
    I have noted at the outset, I think it is legitimate and appropriate to
    try to reduce the burdens this Act imposes on those it most directly
    affects, but it is essential to do so in a way that actually improves
    the prospects for survival of the species at risk of extinction. I urge
    you to keep in mind what William Beebe, a scientist, explorer, and
    friend of Theodore Roosevelt, wrote more than 90 years ago: ``The
    beauty and genius of a work of art may be reconceived, though its first
    material expression be destroyed; a vanished harmony may yet again
    inspire the composer; but when the last individual of a race of living
    things breathes no more, another heaven and another earth must pass
    before such a one can be again.'' In his lifetime, Beebe saw the once
    most abundant bird on earth, the passenger pigeon, disappear into
    extinction. He saw the heath hen of the Northeast pass forever from
    this earth, and the Carolina parakeet of the Southeast vanish not long
    thereafter. None of us will ever see these creatures or hear their
    voices. As you consider this bill, I hope you will seek to ensure that
    those who come after us will be able to see and hear the species that
    we still have the power to save.
                                     ______

                                        American Farm Bureau Federation
                                        Park Ridge, IL, September 22, 1997.

        Hon. Dirk Kempthorne,
        Committee on Environment and Public Works,
        Senate Office Building,
        Washington, DC.

        Dear Senator Kempthorne: We applaud the provisions in your
    Endangered Species Recovery Act of 1997 that authorize financial
    assistance to landowners in implementing the active management measures
    called for by ``safe harbor'' agreements, recovery plan implementation
    agreements, and agreements to enroll land in the new endangered species
    habitat reserve program. These are vitally important measures for
    improving the conservation of endangered species and for improving the
    relations between landowners and conservation agencies.
        But the promise of these new programs will never be realized unless
    they are funded. Although the bill authorizes appropriations for each
    of these programs, we are painfully aware of other promising
    conservation programs that never achieved their potential because they
    were underfunded, or even unfunded.
        Accordingly, we urge you to explore every possible opportunity to
    provide a secure, assured source of funding for these new incentive
    programs. We pledge to work with you to make such an assured source of
    funding a reality. We believe that it will put many of this nations
    endangered species more securely on the road to recovery and will
    enlist the cooperation of the farmers and other landowners who share
    your concern for conservation.
                Respectfully submitted,
                                                         Dean Kleckner,
                                President, American Farm Bureau Federation.

                                                      Wm. Robert Irvin,
        Acting Vice President for Programs, Center for Marine Conservation.

                                                        Michal J. Bean,
                    Chairman, Wildlife Program, Environmental Defense Fund.
                                   __________
    Statement W. Henson Moore, President and CEO, American Forest and Paper
     Association, on behalf of the Endangered Species Coordinating Council
        Mr. Chairman and members of the Committee, thank you for the
    opportunity to testify today on S. 1180, the ``Endangered Species
    Recovery Act of 1997.''
        I am W. Henson Moore, President and CEO of the American Forest &
    Paper Association (AF&PA). AF&PA is the national trade association of
    the forest, pulp, paper, paperboard, and wood products industry. We
    represent approximately 150 member companies which grow, harvest and
    process wood and wood fiber; manufacture pulp, paper and paperboard
    products from both virgin and recovered fiber; and produce solid wood
    products. The association is also the umbrella for more than 60
    affiliate member associations that reach out to more than 10,000
    companies. AF&PA represents an industry which accounts for more than 8
    percent of total U.S. manufacturing output. It directly employs about
    1.4 million people and ranks among the top 10 manufacturing employers
    in 46 states.
        I am also here today representing the Endangered Species
    Coordinating Council (ESCC). The ESCC is a coalition of more than 200
    companies, associations, individuals and labor unions involved in
    ranching, mining, forestry, manufacturing, fishing and agriculture. A
    current list of members is attached. The labor unions alone represent
    over 2 million working Americans. We seek to provide workable
    procedures and positive incentives in the Endangered Species Act which
    promote conservation of wildlife in a way that considers economic
    factors and respects the rights of private property owners without
    impairing the law's fundamental commitment to protect listed species.
        First, I would like to thank Chairman John Chafee and Sens. Dirk
    Kempthorne, Max Baucus and Harry Reid for drafting and introducing S.
    1180, the Endangered Species Recovery Act of 1997. Given the challenge
    in reaching a consensus on these complex and sometimes contentious
    issues, it is understandable that the bill takes a modest approach at
    updating the law. I think we can all agree that the changes contained
    in S. 1180 are procedural only, which, while important, effect no
    substantive change in the statute or in species protection.
        Congress enacted the Endangered Species Act to protect endangered
    and threatened species, a goal which we support. We believe the
    principles behind the Endangered Species Act represent those qualities
    which make our society the finest in the world. However, believing in
    these principles and writing a law that works are two entirely
    different matters.
        As its operating premise, the Endangered Species Act mandates
    protection of the species to the point of its recovery, without regard
    to the interaction of these steps with the rest of society. Humans are
    part of the diversity of nature and are one of the natural elements
    that is capable of causing changes, sometimes dramatic change, in the
    environment. Humans have modified the natural environment in North
    America for hundreds, if not thousands, of years. A recent example is
    the virtual elimination of wildfire from the environment in the
    Southeast. A number of species, some of which are now listed under the
    Endangered Species Act, were dependent on these fires for their
    existence. Recovery of these species by restoration of their original
    habitat would mean the return of the widespread fires upon which the
    species thrive, a circumstance which would have devastating
    consequences for the people who live and work in this area. Yet, some
    would argue that is the literal mandate of the Endangered Species Act.
        There is growing momentum within the American public for updating
    the ESA. A May 1997 national survey conducted by Market Strategies
    found that over 70 percent of the respondents favored updating the ESA.
    This is an substantial increase from the 42 percent who in a 1995
    national survey believed the ESA needed to be amended.
        When presented with the fact that 1,500 species have been listed
    and only 27 have been removed from the list since ESA's inception in
    1973, a mere four due to recovery, 60 percent of those surveyed in May
    agreed that the law was under performing. Furthermore, 62 percent
    believed they are not getting their money's worth from the law as
    currently written. We have spent hundreds of millions of dollars in the
    name of preserving threatened and endangered plants and animals, but
    really have little to show for these expenditures in the way of
    recovered species.
        The American public has strong opinions on how they would like to
    see the ESA updated. When presented with various options to consider,
    they overwhelming agreed with a number of the provisions included in
    the legislation currently being considered:
          88 percent approve of requiring sound science and a well
    defined set of scientific criteria that is peer-reviewed when
    evaluating data concerning an endangered plant or animal.
          85 percent want to include private landowners in the
    process through incentives that allow them to work cooperatively with
    the government to protect listed species that inhabit their land.
          81 percent agree that the government should consider
    alternative methods for protecting an endangered animal or plant which
    may be less disruptive in terms of its social and economic costs;
          80 percent support providing the specific incentive of
    certainty--specifically that when the government and a private
    landowner agree on a plan to protect an endangered plant or animal on
    the landowner's property, neither party can change that plan without
    the consent of the other.
          77 percent believe state government should have a bigger
    role in the identification and protection of animals and plants.
        I. S. 1180 updates the Endangered Species Act in several key areas
    which we believe are essential to provide for a workable law. For
    example, this legislation would:
          improve the quality of the science to be used for
    listings and recovery plans;
          enhance the recovery process;
          remove the inefficiencies and inequities from
    programmatic consultation on public lands;
          provide a strong legislative foundation for Secretary
    Babbitt's policies which recognize the importance of including, rather
    than excluding, private landowners in species conservation efforts;
          create mechanisms to assist smaller landowners faced with
    the complexities of the Endangered Species Act; and
          establish reasonable sideboards on enforcement which are
    consistent with Supreme Court precedent.
        Quality Science.--We applaud the provisions in Section 2 which
    assure that listings are based on quality science. While we have
    disagreed on occasion with the quality of the science which has been
    used, we nonetheless believe the listings must be kept in the
    scientific arena. We have long supported the concept that proposed
    listings should be subject to independent peer review, the normal
    process for scientific studies, a concept with which 88 percent of
    Americans agree. S. 1180 directs this, and as an important component,
    requires the Secretary to summarize and respond to the peer review in
    the final listing. We recognize that many criticize peer review of
    listing as a process which will unduly delay listings. We disagree,
    provided two things occur. First, the Secretary and the agencies must
    consider peer review as helping their deliberations on the status of a
    species, rather than as a hindrance. They must begin planning for peer
    review early in the process of preparing a proposed listing. Second,
    Congress must demonstrate its commitment to quality science through
    peer review by annually appropriating sufficient funds.
        We believe the bill would be strengthened with a more rigorous
    requirement for the identification, and subsequent collection, of data
    which is necessary to determine whether the assumptions on which the
    Secretary based the listing remain valid. However, the provision in S.
    1180 which requires identification of data which would assist in
    recovery, and of steps to acquire the data, at least recognizes that
    data, assumptions and conclusions are not set in concrete at the time
    of listing.
        Finally, the bill focuses the agency on use of empirical and field
    tested data. In the past, the agency has relied too readily on computer
    models and assumptions. While these tools have a role, we believe that
    the damage to the Secretary's credibility from overreliance on computer
    models and assumptions far outweighs any benefit provided by listings
    which lack hard data.
        Enhanced Recovery Process.--Section 5 of the bill presents a
    completely revised process for the development and implementation of
    recovery plans. We have long advocated that recovery plans should be
    the focus of conservation efforts by the Federal Government, These
    plans should address the biologic needs of the species, the economic
    and social consequences of fulfilling those needs, and the financial
    and scientific capabilities of achieving recovery. S. 1180 goes a long
    way toward accomplishing this.
        We particularly support the expanded membership of the recovery
    team required in the bill. We believe it is essential to include not
    only scientific experts, but representatives of all relevant fields and
    affected interests, particularly landowners who are likely to have
    specific information about habitat conditions. We also agree with the
    authors that each recovery plan should consider alternative measures to
    achieve the goal and the benchmarks, which balance biology, timeframes
    and economic dislocations. These provisions will require the Secretary
    to consider the impacts of recovery and to analyze strategies which
    will lessen or avoid social and economic disruptions. In the recent
    Market Strategies survey, 81 percent of those polled supported the
    consideration of recovery alternatives which could have less social and
    economic impact.
        Programmatic Consultation.--Section 4 of the bill contains a much
    needed improvement for management of public lands. A decision by the
    U.S. Court of Appeals for the Ninth Circuit, Pacific Rivers Council v.
    Thomas, needlessly complicated this management by requiring a halt to
    all site-specific activity on a national forest when a new species is
    listed until the Forest Service consults with the Secretary on the need
    to amend the existing forest plan. Even though site-specific activities
    would undergo individual consultation on their affect on the newly
    listed species, the Ninth Circuit interpreted the Endangered Species
    Act to require they be halted until the plan-level consultation was
    completed. The bill would allow the site-specific activity to proceed,
    provided it meets the criteria of ESA Section 7(a)(2), that is, it is
    not likely to jeopardize the continued existence of the listed species
    or destroy or adversely modify designated critical habitat.
        Legislative Foundation for Private Landowners.--S. 1180 would enact
    into law several existing Administration policies adopted by Secretary
    of the Interior Bruce Babbitt which are critical to the continued
    involvement of private landowners in conservation of listed species--
    ``no surprises,'' multiple species habitat conservation plans (HCPs),
    candidate species conservation agreements, and ``safe harbor''
    agreements. The bill also provides new opportunities for landowner
    participation in recovery planning and consultation.
        Many landowners intend to use or manage their land for a period of
    years. Forest landowners, for example, will establish a management
    strategy designed to produce income over the growing cycle of the
    trees, called a rotation, which in some cases may be as long as 80 or
    100 years. These landowners are willing to discuss how this land will
    be managed, provided they receive the certainty that the business
    decision they make today is likely to be constant for the life of the
    intended use, such as the rotation of the affected trees. Indeed, they
    might be willing to adjust their management in return for more
    certainty.
        Prior to 1993, a landowner had no certainty with respect to the
    Endangered Species Act. Then Secretary Babbitt announced he would sign
    agreements, habitat conservation plans authorized by the ESA, which
    would contain a ``no surprises'' commitment. In other words, landowners
    could rely on the fact that the lands they agreed to set aside for the
    species would remain constant over the life of a plan. If more land, or
    other changes, becomes necessary, it is the government's responsibility
    to fund what is needed. With this change, the number of approved plans
    increased by over 1000 percent in 3 years. This incentive of certainty
    is supported by 80 percent of those polled by Market Strategies.
        This policy must be put into the statute, and S. 1180 would do so.
    The Secretary has been sued once over its adoption and will likely be
    sued again. This concept of certainty has given protection to hundreds
    of endangered species. This successful concept should be protected from
    litigation by enactment into law.
        The bill provides a standard for approval of multiple species
    agreements and candidate species conservation agreements which appears
    confusing at first, but which we find ingenious in its simplicity. The
    standard measures whether the landowner's proposed management
    activities, if undertaken by all similarly situated persons, would
    eliminate the need to list the species based upon these activities. It
    recognizes that no one person may be able to protect a species and that
    species face risks from a variety of sources. It then focuses on the
    risk within the applicant's control and measures it as if undertaken by
    all persons who could control that risk. This provision is likely to
    allow creative use of these agreements and to make them available to
    landowners with only a small amount of habitat but who could
    nonetheless provide a true benefit to a species.
        We do have a concern about the continued reference to
    ``conservation,'' particularly for species not yet listed. The
    Endangered Species Act (ESA) defines ``conservation'' to mean ``to use
    and the use of all methods and procedures'' to remove the need for
    protection under the ESA, i.e. recovery. In particular, a candidate
    species conservation agreement is designed to avoid the need to list
    the species in the first instance. We suggest either the removal of
    references to ``conservation'' where recovery is not intended or an
    explanation in the Committee Report that the use of ``conservation'' is
    intended to identify appropriate methods and procedures, and not to
    require an actual recovery process unless clearly indicated, such as
    the reference to plans for ``the conservation and recovery'' in new
    Section 5(a) added by Section 3 of the bill.
        Assistance to Smaller Landowners.--Small, family owned tree farms,
    ranches and agricultural farms are the backbone of rural America, and
    in many respects, the backbone of the country itself. In the forest and
    paper industry, for example, over 60 percent of forested land in the
    country is owned by some 10 million nonindustrial landowners. As might
    be expected, the needs and philosophies of these landowners are as
    numerous as the individuals. S. 1180 provides several mechanisms to
    encourage these landowners to work with the Endangered Species Act,
    including low effect habitat conservation plans, grants and habitat
    reserve agreements. We certainly recognize the difficulty Congress will
    face in fully funding these programs. We hope that the Committee will
    continue to work with the Finance Committee and others to craft other
    provisions which will present landowners with an array of options and
    thus gain the broadest support for conservation of listed species.
        Enforcement.--If you drive your car in excess of the posted speed
    limit, you know you have broken the law and could legitimately receive
    a ticket. If you break into a building and take goods or money, you
    know you have broken the law and face possible arrest. However, under
    the Endangered Species Act, if you farm your land or harvest your
    trees, you face prosecution if a Federal bureaucrat speculates that you
    might break the law. These bureaucrats will advise you repeatedly that
    you will break the law by managing your land, referring to some vague
    study which may or may not be based on empirical data. They may even
    drag you into a Federal court and try to prove their case to a judge.
    Landowners are usually helpless in the face of these escalating threats
    of prosecution.
        We applaud the effort in Section 6 of the bill to remind the
    bureaucrats, and citizens who would file these lawsuits, that the
    burden is on them to prove a ``take'' has occurred or will occur, using
    ``scientifically valid principles.'' This provision encapsulates the
    Supreme Court's decision in Babbitt v. Sweet Home Chapter of
    Communities for a Great Oregon by requiring proof of an actual
    ``take,'' thus eliminating such concepts as ``reasonably likely'' to
    take, and by emphasizing a causal connection between the action and the
    take.
        The reference to ``scientifically valid principles'' is taken
    directly from the 1993 decision by the Supreme Court in Daubert v.
    Merrell Dow Pharmaceuticals, Inc. However, the court used the phrase,
    509 U.S. at 599, in the context of ``pertinent evidence based on'' such
    principles. On remand, the U.S. Court of Appeals emphasized the
    importance of the evidence being capable of testing. We strongly
    recommend that the Committee avoid confusion on this point and include
    a reference to ``evidence'' in the legislative language, or at least in
    the Committee's report.
        II. Although we believe S. 1180 updates the ESA in a positive
    manner and moves species protection in the correct direction, we are
    concerned that a few provisions run the risk of perpetuating the
    confrontational tone of the existing law. It is possible that proper
    implementation could be achieved. However, we have seen too many
    instances in the past where good intentions failed in the face of
    political pressure or expansive interpretation.
        Consultation.--Section 4 of the bill substantially revises the
    consultation process between Federal agencies and the Secretary. Since
    we do not believe that process works very well at present, particularly
    with regard to the ``informal'' consultation process set out in the ESA
    regulations, the process in the bill may actually improve the
    situation. However, we have three concerns. First, the bill allows the
    Secretary to exclude categories of action from the new process by
    regulation. This strikes us as an invitation to focus on the
    politically out of favor or controversial activities. Second, the bill
    allows the Secretary to object to an agency's conclusion if the
    Secretary finds there is insufficient information. ESA determinations
    are always looking for more information, thus the emphasis in the bill
    on quality science. It should be sufficient to object based on
    disagreement with the adverse affect finding. This at least requires
    the Secretary to analyze the other agency's determination. Finally, we
    believe the objection based on the need for more time beyond 60 days is
    too open-ended. In our experience, Federal agencies never believe they
    have enough time. The bill would allow the Secretary to plead lack of
    personnel, lack of money, crush of other business, or any number of
    excuses that undermine the purpose of the deadline.
        Recovery Goal. We have considerable concern about the manner in
    which the recovery goal is developed. The bill provides that,
    notwithstanding the fact that the goal is subject to peer review, it is
    ``established'' by only those members of the recovery team ``with
    relevant scientific expertise'' and then recommended to the Secretary.
    The bill does not explicitly provide for how or when the Secretary
    reviews this ``recommendation.'' We submit that this establishes two
    classes of membership on the recovery team and renders the
    ``recommendation'' virtually impossible to change. In our view, this
    could defeat the benefits of expanded team membership and once again
    allows a small group of scientists to tie the hands of the Secretary.
        Recovery Plan Implementation Agreements. We are concerned with the
    targeting of Federal agencies in the recovery plan, accompanied by a
    mandatory implementation plan. Even though the bill clearly requires
    identification of a Federal agency in the recovery plan only if the
    agency takes an action ``likely to have a significant impact on the
    prospects for recovering a species,'' such phrases in the Endangered
    Species Act have a history of being read interpreted broadly rather
    than narrowly. We find it questionable to allow one law to impinge on
    every Federal program without, at a minimum, providing strict
    sideboards to require a showing that the agency action be likely to
    prevent recovery. Moreover, the provision exempting the agency action
    from consultation under ESA Section 7(a)(2) requires such specificity
    as to make the exemption difficult to apply for most future actions.
    Most agencies would likely prefer consultation since it also provides
    incidental take protection.
        The bill allows the Secretary to enter implementation agreements
    with private parties as well. The bill provides no encouragement for
    private parties, or state governments, to enter these agreements, so
    their exact purpose is not evident. We are concerned that they will
    somehow be used to attach a recovery goal to habitat conservation plans
    (HCP). We strongly recommend that either the bill or the Committee's
    report emphasize that these are entirely voluntary and should in no way
    be coupled with an HCP. Indeed, the purpose of the HCP, to allow land
    use activity to proceed, while containing any take of listed species
    within acceptable limits and providing offsetting benefits for the
    species to the extent possible, should be set out in the report to
    avoid any confusion with recovery, an entirely separate process.
        Existing Recovery Plans. We would prefer that existing recovery
    plans be required to comply with the provisions of Section 3 of the
    bill by a specific date. The bill exempts both existing plans and plans
    which have been released for public comment but not adopted at the time
    of enactment of the bill into law. This latter provision could cause
    particular mischief since the Secretary may have released a draft plan
    for public comment some years ago but never issued a final plan. For
    example, the recovery plan for the northern spotted owl was released
    for public comment in April 1992 but has never been adopted as final.
    Under the bill, any recovery plan for the owl would be exempt from the
    new procedures.
        III. Finally, there are two areas which we believe should be
    addressed in this legislation.
        NEPA/Biological Opinion Equivalency. The experience of our members
    has been that preparation, negotiation and completion of an habitat
    conservation plan is an expensive and time-consuming process. The HCP
    contains considerable analysis of the species' biology, of the existing
    environment, of impacts and of alternatives. Then, a portion of this
    analysis must be repeated in a document to satisfy the National
    Environmental Policy Act (NEPA), at yet more expense. In addition, the
    Secretary brings in more personnel to conduct consultation under ESA
    Section 7. We certainly do not object to a process that ensures the
    analysis is complete, but we do object to redundant compliance. Since
    the Secretary has as yet been unable to provide an Administration
    solution to these needless frustrations, we urge the Committee to do
    so. A legislative solution would likely be the safest course as well
    since the Federal courts tend to view NEPA and ESA compliance in a
    literal manner, viewing even legitimate streamlining with disfavor.
        Programs Delegated to States. We recognize that S. 1180 updates the
    Endangered Species Act in virtually every program. We have long
    advocated the need to provide comprehensive changes in this law, rather
    than targeting one or two issues. However, one area not addressed by
    the bill is State action. The bill would substantially increase the
    role of States in the conservation of listed species. At the same time,
    the bill does not address the recent efforts by the Secretary and the
    Environmental Protection Agency which enmesh State programs with
    additional Federal bureaucracy and which will dramatically reduce
    States' ability to run their water quality programs.
        Within the past several years, the Environmental Protection Agency
    (EPA) has begun requiring that States, as a condition to obtaining the
    delegation under the Clean Water Act to issue point source discharge
    (NPDES) permits, agree to consult with the U.S. Fish and Wildlife
    Service (FWS) (or the National Marine Fisheries Service) on proposed
    individual state permits which may adversely affect a listed or
    proposed species. If, as a result of the consultation, the FWS and the
    State environmental agency are not able to reach agreement on
    appropriate terms for the proposed permit, FWS will notify EPA. EPA
    agrees to then veto the permit and issue it as a Federal permit with
    conditions acceptable to FWS, or refuse to issue it at all.
        EPA imposed this procedure, which provides FWS with a veto over
    State-issued permits, on Louisiana and Oklahoma as a condition for the
    delegation of the NPDES permit program, with an earlier version imposed
    on Florida and South Dakota. We understand that now EPA and FWS are
    preparing to expand this process to the 40 or so States that have been
    delegated the NPDES program since 1972. The agencies are also
    considering application of the process to State wetlands and sewage
    sludge programs. Moreover, they are planning to provide FWS with a
    prominent role in the development State water quality standards.
        The Clean Water Act and EPA's own regulations require EPA to
    delegate the NPDES program to a state as long as the state program
    meets the enumerated statutory criteria, none of which pertain to the
    ESA. Also, EPA, in its oversight of state permitting, is only
    authorized to veto a proposed state permit that is ``outside the
    guidelines and requirements of the Clean Water Act.'' EPA is not
    authorized to reject a State-issued permit on the basis that it is not
    in compliance with the ESA.
        No one can object to FWS providing the permit-issuing entity
    appropriate information, including the presence of listed species.
    However, Congress has not imposed the ESA on the States, other than
    through the prohibited activities in Section 9, such as take. The Clean
    Water Act is designed to be implemented through State programs, with
    Federal oversight merely to ensure consistency with national water
    quality goals. Federal agencies should not be allowed to impose these
    sort of burdens on States, burdens that neither agency thought were
    appropriate for over 20 years, without careful consideration by
    Congress. We strongly recommend that the Committee include in S. 1180 a
    provision which puts a halt to these bureaucratic efforts. If the
    Committee finds it in the national interest, we suggest you conduct a
    review to determine the appropriate interaction between the Clean Water
    Act and the Endangered Species Act at the State level.
        IV. Conclusion. We support this bill as an important first step to
    update the Endangered Species Act to a law that actually achieves wide
    support for species conservation. I have expressed our concern with
    some of its elements, but overall we believe the bill will improve both
    protection of species and the ability of landowners to manage their
    land in the presence of listed species. We fail to understand how
    anyone can oppose such concepts as peer review, allowing landowners and
    applicants to participate in the process, analysis of alternatives
    recovery measures so as not to miss less disruptive methods, providing
    certainty as an incentive to conserve species and habitat.
        As I indicated, we believe more needs to be done in order to fully
    update the Endangered Species Act. For example, we have not lost sight
    of the need to recognize and protect private property rights. The Fifth
    Amendment to the U.S. Constitution requires that landowners be
    compensated if the government takes their property for a public
    purpose. It is unfair--it is un-American--to impose the cost of the
    public purposes embodied in the Endangered Species Act on a few unlucky
    citizens. In this regard, we applaud the introduction of S. 1181, the
    ``Endangered Species Habitat Protection Act,'' by Senator Kempthorne,
    and urge other Members of the Senate to support this effort.
        On behalf of the American Forest & Paper Association and the
    Endangered Species Coordinating Council, I appreciate the opportunity
    to offer our views on S. 1180, the ``Endangered Species Recovery Act of
    1997.'' I would be happy to answer any questions you may have.
                                   __________
      Statement of Mark Van Putten, President and CEO, National Wildlife
                                   Federation
        Good morning, Mr. Chairman and Members of the Committee. My name is
    Mark Van Putten, President of the National Wildlife Federation, the
    nation's largest conservation education and advocacy organization. I
    would like to thank you for this opportunity to testify on Endangered
    Species Act reauthorization, a subject that is of intense interest to
    NWF's members, affiliates and other constituents.
        What is at stake here today is not just this nation's bountiful
    natural heritage. If the United States, the wealthiest nation on the
    planet, fails now to reaffirm its commitment to endangered species
    conservation because it perceives that the costs are too great, we can
    hardly expect the rest of the family of nations to make the tough
    choices needed to conserve the biological diversity that is rapidly
    disappearing around the world.
        NWF's passionate commitment to endangered species conservation
    should not be confused with zealotry. We recognize the importance of
    bipartisan support for ESA reauthorization and understand that such
    support can only be achieved through compromise. We applaud the
    Senators and their staffs for rolling up their sleeves and trying to
    develop a compromise reauthorization package that could win broad
    support in Congress and across the country.
        Senators Chafee, Baucus, Kempthorne and Reid have devoted a great
    deal of personal time and energy to this effort. Now that we have a
    bill before us, it is time for those of us with constituents who work
    with the Endangered Species Act in their daily lives to size up the
    results. The test is a straightforward one: will the nation's imperiled
    plant and animal species be better off, or worse off, if S. 1180 were
    to become law?
        Based on NWF's expert analysis and on-the-ground experiences, I am
    pleased to note that the bill contains several needed improvements to
    the ESA. These changes are neither ``strengthening'' or ``weakening''
    amendments. They would simply make the Act work better--a goal we
    should all share.
        Despite these improvements, however, we have come to the conclusion
    that the overall effect of the bill, in its current form, would be to
    seriously weaken the ESA's essential protections. It is my sincere hope
    that we can work together in the coming weeks and months to make the
    changes that are needed to mold S. 1180 into a bill that we can
    support. You have before you a base to work with. Our challenge is to
    convert it into a bill that addresses the legitimate concerns of some
    landowners and regulated industries and, at the same time, improves the
    situation for the nation's imperiled plant and animal species. Attached
    to my testimony is a detailed, section-by-section analysis of the bill
    which notes the areas of the bill we applaud and also explains the
    problems we see. I would like to use the balance of my time to
    highlight a few of the biggest problems and to recommend some
    solutions.
                      four priorities for esa improvement
        In the past few years, as we looked around the country to examine
    how the ESA was being implemented, NWF identified four areas where
    improvements to the ESA are most needed:
        (1) Habitat Conservation Plans, or HCPs, need to be better designed
    to work for both landowners and wildlife;
        (2) The Act needs to promote fairness and citizen participation;
        (3) The Act needs to increase the accountability and ability of
    Federal agencies to achieve species recovery; and
        (4) The ESA needs to provide greater incentives for landowners and
    others to conserve wildlife.
        Measuring S. 1180 against each of these needs, we find it to be
    deficient and in need of improvement.
    1. Design HCPs that Work for Both Landowners and Wildlife
        NWF believes that HCPs, particularly large-scale, multi-species
    HCPs, have the potential to address many of our most vexing
    conservation challenges on nonFederal lands. NWF has always supported
    ``place-based'' conservation policies--policies that set a workable
    conservation standard and then empower everyday people to play an
    important role in deciding how wildlife resources will be managed to
    meet that standard. A placed-based approach taps into the wisdom and
    talent of local people and ensures the local buy-in needed for
    successful implementation. By authorizing multispecies HCPs and
    Candidate Conservation Agreements and by setting workable approval
    standards for unlisted species, S. 1180 takes a small but important
    step in this direction.
        Unfortunately, the major thrust of the bill's HCP provisions would
    undermine the ability of people in local communities to develop broadly
    supported multi-species conservation plans. NWF has been carefully
    studying HCPs--we've held two major conferences and have been involved
    with several individual plans--and we have found that two existing
    policies are crying out for change. Not only does S. 1180 fail to
    address either of these problems; in fact, it worsens the situation by
    weakening HCPs in critical areas.
        First, S. 1180 codifies the Fish and Wildlife Service's practice of
    approving HCPs for listed species even if the HCPs would undermine
    species recovery. When Congress enacted the HCP provisions in 1982, its
    model was the San Bruno HCP, which allowed landowners to destroy
    roughly 10 percent of the remaining habitat of two endangered
    butterflies and called for significant active management as mitigation
    for that loss. In contrast with that model, the Service is currently
    approving HCPs in the southeastern United States for red-cockaded
    woodpeckers that allow landowners to destroy all of the habitat on
    their property in exchange for simply building artificial cavities on
    public lands. The sacrifice of private-land woodpecker habitat and the
    failure to include a serious mitigation strategy has been roundly
    criticized by the scientific community as being inconsistent with the
    recovery needs of the woodpecker. To address this problem, we urge the
    Committee to amend S. 1180 to clarify that HCPs cannot be approved if
    they would undermine recovery.
        Second, S. 1180 codifies the Administration's ``no surprises''
    policy, which assures landowners that once they agree to an HCP, their
    ESA obligations will not be revisited at their expense for the duration
    of the HCP, which often is 50 or more years. Leading scientists have
    harshly criticized this hands-off approach, noting that many HCPs are
    based on controversial scientific assumptions that need to be revisited
    and revised to account for new information and changed circumstances.
        We recognize that landowners need certainty and that some form of
    regulatory assurances policy is needed to encourage landowners to
    invest time and money in large-scale conservation planning. But to
    justify giving assurances, the underlying HCPs must be improved. Among
    other things, HCPs must include provisions for monitoring biological
    performance and for funding management changes necessary to prevent
    HCPs from jeopardizing the existence of species. These safeguards can
    be provided while still giving landowners regulatory assurances. H.R.
    2351, the ESA reauthorization bill introduced by Representative Miller
    (D-CA) this summer, includes the safeguards needed for both species and
    landowners--we urge you to consider the approach taken in that bill.
    2. Promote Fairness and Citizen Participation
        Providing meaningful opportunities for citizen participation in key
    ESA decisions is essential to ensure well-grounded decisions and to
    help build community buy-in to those decisions. Although the current
    Administration has made some strides in this direction, a fundamental
    problem with HCPs and other large-scale management plans is that they
    are developed behind closed doors with regulated interests and then
    announced to citizens after meaningful opportunities to contribute have
    long since passed. Members of the Committee should not be surprised to
    hear that environmental and scientific support for HCPs developed under
    these conditions has been lacking. S. 1180 simply codifies the current,
    ineffective approach of letting the regulated interests decide whether
    to invite citizens into the HCP negotiations. At the same time, it
    worsens the situation for Section 7 consultations by creating new
    rights of ``special access'' to regulated interests.
    3. Increase the Agencies' Accountability and Ability to Achieve
            Recovery
        If imperiled species are going to be recovered under the ESA, the
    Act needs to be amended to make all Federal agencies legally
    accountable for achieving recovery and to give them the tools to do the
    job. Unfortunately, S. 1180 contains amendments that would undermine
    the ESA's recovery goal. It weakens agency accountability by creating a
    series of new loopholes in the areas of recovery planning, recovery
    implementation agreements, and Section 7 consultations. For example,
    the bill's provisions governing recovery implementation agreements
    would insulate those agreements from judicial review--an approach we
    thought Congress would abandon after the ``logging without laws''
    debacle. The bill also creates a nightmare of new bureaucratic
    requirements in listings, 4(d) rules, and recovery planning--the
    combined effect of which would be to divert scarce agency resources
    away from actual conservation. All of the new, ambitious procedural
    hoops and hurdles are a recipe for failure. The agencies will not be
    able to recover species under this bill and, as a result, the ESA is
    being set up for future complaints and attacks on the basis that it has
    failed to achieve its recovery goal.
    4. Provide Incentives for Landowners and Others to Conserve Wildlife
        As a participant in the landmark 1995 Keystone dialog on private
    landowner incentives, NWF is aware of the importance of providing
    financial and other encouragement to landowners to take actions
    benefiting species. Many imperiled species simply cannot thrive in our
    highly altered landscapes without active management of their habitats,
    and active management on nonFederal lands can only be secured with
    incentives. We therefore strongly support the grant programs, education
    and technical assistance programs, and revolving loan fund authorized
    in S. 1180. However, we caution anyone who concludes that these
    authorizations will lead to improved species conservation on the
    ground. In the absence of a secure source of funding, the
    appropriations committees ultimately will determine the success or
    failure of these programs. Although we will continue our work in
    advocating before these committees for better funding of endangered
    species conservation, we are not naive about the enormous obstacles
    that lie before us.
        Leaving the success or failure of this bill in the hands of the
    appropriations committees is a recipe for disaster. We look forward to
    continued discussions with the Committee about how we can develop a
    funding mechanism for endangered species conservation that is not
    subject to the vagaries of the appropriations process. It is essential
    that such a fund be created and enacted as part of any ESA
    reauthorization bill, such as this one, that relies so heavily on more
    money to get the job done. As with Superfund and the Transportation
    bills, the program changes and the money to pay for those changes must
    go together.
                                   conclusion
        Looking again at the four priority areas for ESA improvements, I am
    sorry to report that S. 1180 does not significantly improve the
    situation in any of the four areas. The improvements that are in the
    bill are overwhelmed by the numerous provisions that undermine
    essential protections for imperiled species. This readily apparent in
    the priority areas of HCPs, citizen participation and Federal agency
    recovery efforts. Unless S. 1180 is amended to address each of these
    problems, NWF cannot in good faith support this bill. To paraphrase
    biologist E.O. Wilson, if our generation stands by silently while the
    earth's treasure of biological diversity is destroyed, it will be a sin
    for which our descendants will never forgive us.
        We would welcome an opportunity to meet with the Committee and its
    staff to work through our concerns in greater detail.
        Thank you again for this opportunity to testify.
                                     ______

                                   ATTACHMENT
            comments of the national wildlife federation on s. 1180
     By John Kostyack, Counsel, Office of Federal and International Affairs
        Washington, DC, September 22, 1997
        The National Wildlife Federation, the nation's largest conservation
    education and advocacy organization, believes that bipartisan agreement
    on improving and reauthorizing the Endangered Species Act (ESA) is
    essential. Unfortunately, although S. 1180 contains some improvements
    to the ESA, its overall effect would be to seriously weaken this
    nation's most important law protecting endangered wildlife and wildlife
    habitat.
        Considering that 84 percent of Americans want the ESA to be either
    strengthened or retained, Congress will need to make significant
    changes to this bill to bring it in synch with the views of mainstream
    America. Set forth below are the key changes that are needed and a
    section-by-section analysis of the bill.
                               key changes needed
        The National Wildlife Federation has identified four areas where
    improvements to the ESA are most needed:
        A. Design Habitat Conservation Plans that Work for Both Landowners
    and Wildlife.
        B. Promote Fairness and Citizen Participation in Wildlife
    Conservation.
        C. Increase the Accountability and Ability of Federal Agencies to
    Achieve Recovery.
        D. Provide Incentives for Landowners and Others to Conserve
    Wildlife.
        Unfortunately, rather than improving the ESA in these key areas, S.
    1180 would significantly weaken the Act's vital protections.
        The following is a summary of NWF's comments on and recommended
    changes to the most significant features of the bill, both positive and
    negative. The numbers in parentheses are references to the bill; they
    also may be used in locating specific NWF's comments in the section-by-
    section analysis.
    A. Design Habitat Conservation Plans that Work for Both Landowners and
            Wildlife.
        Positive Features.--Establishes Workable Standard for Unlisted
    Species Covered by HCPs (Page 54, Line 5).
        Codifies Administration's Workable New Standards for Candidate
    Conservation Agreements (Page 60, Line 3).
        Negative Features.--Fails to Address Services' Approval of HCPs
    that Undermine Recovery. (Page 53, Line 18).
        Weakens Standards for Reviewing Activities That May or May Not be
    ``Low Effect``(Page 57, Line 2).
        Locks in HCPs and CCAs, Some of Which Will Prove to be Harmful to
    Species and Will Need to be Adjusted. (Page 59, Line 6 and Page 60,
    Line 3).
        Authorizes Safe Harbor Agreements Without Requiring Conservation
    Benefit. (Page 65, Line 1).
        Creates New Obstacle to Enforcement and Habitat Conservation
    Planning. (Page 74, Line 20).
        Authorizes ``No Take'' Agreements That Could Contain Broad ESA
    Exemptions (Page 83, Line 8).
    B. Promote Fairness and Citizen Participation in Wildlife Conservation.
        Positive Features.--Creates Broadly Representative Recovery Teams
    (Page 20, Line 11).
        Negative Features.--Deters Participation on Recovery Teams by
    Creating Unmanageable Tasks (Page 20, Line 11).
        Provides Special Access to Section 7 Consultations to Regulated
    Industries (Page 51, Line 11).
        Fails to Adequately Address Behind-the-Scenes Approach to
    Developing HCPs and CCAs. (Page 64, Line 14 and Page 60, Line 3).
    C. Increase the Accountability and Ability of Federal Agencies to
            Achieve Recovery.
        Positive Features.--Emphasizes that Recovery Goals are to be Based
    Solely on Science (Page 23, Line 20.)
        Calls for Inventory of Species on Federal Lands (Page 43, Line 18).
        Clarifies Duty to Mitigate Harmful Effects of Federal Activities
    (Page 53, Line 6).
        Negative Features.--Creates a Procedural Morass at the Expense of
    On-the-Ground Conservation:
        Places Unwarranted Bureaucratic Obstacles in Front of Listings
    (page 10, Line 14).
        Creates Unnecessary Bureaucratic Steps in Managing Threatened
    Species (Page 16, Line 16.)
        Creates a Burdensome Recovery Planning Process That Would Undermine
    ESA Implementation (Page 24, Line 21.)
        Adds Unwarranted Recovery Planning Obstacles by Delegating to
    States (Pages 33, Line 20).
        Creates a New Loophole for Avoiding Recovery Planning (Page 18,
    Line 22).
        Fails to Address Services' Approval of Federal Activities that
    Undermine Recovery. (Page 53, Line 6).
        Creates Unreviewable ``Recovery Implementation'' Agreements With
    Federal Agencies That Could Seriously Harm Species (Page 31, Line 9).
        Provides Harmful ``No Surprises'' Assurances to Industries Engaged
    in Federal Activities (Page 30, Line 13).
        Removes FWS and NMFS from Key Decisions and Allows the ``Fox to
    Guard the Henhouse'' (Page 44, Line 22).
        Authorizes Potentially Destructive Activities During ESA Review of
    Federal Land Management Plans. (Page 48, Line 20).
    D. Provide Incentives for Landowners and Others to Conserve Wildlife.
        Positive Features.--Authorizes Grants to Private Landowners, States
    and Others to Implement Recovery Plans(Page 30, Line 13).
        Authorizes Education and Technical Assistance Programs (Page 56,
    Line 9 and Page 76, Line 2.)
        Authorizes Habitat Reserve Program. (Page 67, Line 17).
        Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11).
        Increases the Amounts Authorized for Incentives and Other Programs
    (Page 78, Line 4).
        Negative Features.--Identifies No Secure Source of Funding. (Page
    78, Line 4).
                        ii. section-by-section analysis
    Sec. 2. Listing and Delisting Species
        Creates Inflexibility Regarding Contents of Listing Petitions (Page
    5, Line 2.)
        Although it makes sense to set standards regarding the contents of
    listing petitions, these standards should not be designed in a manner
    that enables the Services to reject petitions arbitrarily. Because even
    the most thorough listing petitioner will not likely be able to
    describe all of the available data pertaining to the species, this
    requirement should be qualified with the phrase ``to the maximum extent
    practicable.''
        Limits Tracking of Unlisted Species (Page 9, Line 15.)
        In addition to being required to monitor ``warranted but
    precluded'' species, the Services should be required to maintain a list
    of species for which it has been found that listing may be warranted
    but further research is necessary. When such a list was maintained
    under the name of ``C-2 candidate species,'' it proved extremely useful
    to Federal land managers and others seeking to manage natural resources
    proactively and avoid future ESA listings.
        Places Unwarranted Bureaucratic Obstacles in Front of Listings
    (page 10, Line 14).
        The bill places three new and costly hurdles in front of species
    listings: a requirement of up to five hearings per listing, an added
    comment period for states, and mandatory peer review regardless of
    whether there is a scientific dispute regarding the need to list. The
    overall effect of these changes, and the new 4(d) and recovery planning
    deadlines discussed below, will be that fewer imperiled species will be
    listed and species will wait longer to receive ESA protections.
        Creates Unjustified Bureaucratic Steps in Managing Threatened
    Species (Page 16, Line 16.) The bill adds new and potentially costly
    bureaucratic steps for the Services to follow in managing threatened
    species. Under current law, threatened species automatically receive
    the protections of the full take prohibition unless the Services issue
    a species-specific management plan called a 4(d) rule. Under S. 1180,
    the Services are required to issue a 4(d) rule for each threatened
    species by the time the recovery plan for that species is finalized.
    (The bill requires that recovery plans be finalized within 30 months of
    listing.) Although species-specific 4(d) rules are justified for some
    threatened species, the arbitrary requirement that they be developed
    for all threatened species regardless of whether they are needed will
    divert limited resources away from actual conservation. Moreover, this
    requirement sends a dangerous message that removing the full take
    prohibition is appropriate for threatened species generally, at a time
    when many threatened species are seriously imperiled and rely heavily
    upon the full take prohibition for their survival.
        Fails to Require Meaningful Citizen Participation in Development of
    4(d) Rules (Page 16, Line 16). The bill also fails to identify the
    process that will be used in developing the numerous 4(d) rules that
    will now be required. Large-scale management plans such as 4(d) rules
    should be developed with the input of a wide array of stakeholders, so
    that all relevant information and ideas are assembled. Unfortunately,
    without legislative guidance on this issue, the Services will likely
    develop 4(d) rules behind-the-scenes, with a short comment period
    thereafter, in an effort to meet the statutory deadline.
                       sec. 3. enhanced recovery planning
        Creates a New Loophole for Avoiding Recovery Planning (Page 18,
    Line 22). The bill allows the Services to avoid their obligation to
    prepare a recovery plan for species if ``an existing plan or strategy
    to conserve the species already serves as the functional equivalent to
    a recovery plan.'' This open-ended language would allow the Services to
    sidestep preparation of recovery plans in favor of existing internal
    planning documents developed with little or no scientific guidance or
    public participation. Although it makes sense to avoid unnecessary
    duplication, this goal can be achieved by incorporating previous work
    into the recovery planning process, rather than simply eliminating all
    of the procedural and substantive requirements of recovery planning.
        Sets the Wrong Recovery Planning Priorities (Page 19, Line 1). We
    acknowledge that the Services must choose priorities in allocating
    resources among various recovery plans. But these provisions do nothing
    more than confuse the priority-setting process by suggesting that the
    Services must give priority to plans with four attributes that are
    unlikely to ever be found in a single plan. For example, few if any
    plans will contain both the first attribute (addresses ``significant
    and immediate threats'' to the species) and the third (reduces
    conflicts with construction or other development projects).
        These priority provisions are also problematic because they place
    the objective of reducing conflict with short-term development schemes
    on equal footing with the ESA's fundamental objective of recovering
    species. To further the ESA's recovery goal, Congress should direct the
    Services to give priority to recovery plans that address significant
    and immediate threats, have the greatest likelihood of achieving
    recovery, and address multiple species. Once these priority plans are
    chosen and scientific criteria for recovery are identified, then
    recovery teams should attempt to design implementation strategies that
    minimize social and economic disruptions while achieving timely
    recovery.
        Creates Broadly Representative Recovery Teams, But Deters
    Participation by Creating Unmanageable Tasks (Page 20, Line 11). We
    wholeheartedly endorse the concept of creating ``broadly
    representative'' recovery teams. But in describing potential members of
    the recovery team, the bill includes ``commercial enterprises'' but
    fails to mention conservation organizations. This leaves open the
    possibility that conservation interests will be included, if at all, as
    mere token participants. (A recent habitat conservation planning
    process in Texas included just one conservation member, in contrast
    with six timber industry representatives.) The bill needs to be revised
    to clarify that recovery teams must have a rough balance of
    participation from both those seeking to promote economic activity that
    adversely affects species and those seeking to conserve species. This
    approach--currently utilized in the Marine Mammal Protection Act
    provisions governing take reduction teams and the Federal Land Policy
    and Management Act regulations governing range advisory councils--would
    help ensure that a full range of viewpoints are represented on recovery
    teams.
        Of course, the concept of stakeholder-type recovery teams makes
    sense only if the assigned tasks are manageable. As discussed below, S.
    1180 would need to be revised substantially to make the recovery
    planning process accessible to stakeholders.
        Helps Recovery Team Members Cover Costs (Page 22, Line 16.) We
    applaud the bill's recognition that participation on a recovery team
    will be costly and that the Federal Government should help defray the
    costs. This makes perfect sense, considering that the recovery team
    will essentially be providing advisory services to the Services. To
    limit the budgetary impact of this proposal, Congress should condition
    the reimbursement of expenses upon a demonstration of financial need.
        Emphasizes that Recovery Goals are to be Based Solely on Science
    (Page 23, Line 20.) The bill appropriately calls for scientific members
    of the recovery team to recommend a recovery goal ``based solely on the
    best scientific and commercial data available'' and ``expressed as
    objective and measurable biological criteria.'' This, along with the
    requirement of peer review of the recommended recovery goal, will help
    ensure that political considerations do not intrude into the process of
    resolving the scientific issue of the species' recovery needs. To
    ensure that economic self-interest does not intrude into this
    determination, language should be added to clarify that the term
    ``independent scientific review'' means that peer reviewers may not
    have economic conflicts of interest.
        Creates a Recovery Planning Process That Would Undermine ESA
    Implementation (Page 24, Line 21.) The bill adds numerous bureaucratic
    requirements to the recovery planning process that would essentially
    negate the recovery planning improvements noted in the above three
    paragraphs. These requirements would make development of the recovery
    plan more expensive, difficult, and time-consuming and would create
    numerous litigation opportunities from those seeking to frustrate ESA
    implementation. The new requirements would also delay finalization of
    recovery plans, increasing the likelihood that HCPs and other
    management plans will provide inadequate species protections. Finally,
    the burdensome processes would drain limited agency resources away from
    the on-the-ground conservation activities that determine the success or
    failure of the ESA.
        The following is a summary of the numerous tasks that have been
    added to the existing recovery planning process. Although a small
    handful of these steps are useful, the cumulative effect of these
    requirements would be to undermine ESA implementation.
        1. The bill first requires the Services to assemble a recovery
    team. Although (as noted above) NWF supports making recovery teams
    broadly representative, the bill also mandates that they be developed
    ``in cooperation with the affected states,'' which would create a
    procedural morass. (The bill defines such cooperation as incorporating
    the states' recommendations ``to the maximum extent practicable.'') In
    light of the inherent difficulties of soliciting and incorporating
    state recommendations, the bill's 60-day deadline for appointing
    recovery team members would likely be impossible to meet, especially
    for recovery plans governing species found in multiple states.
        2. The scientific members of the recovery team must then convene to
    recommend a biological recovery goal.
        3. The recovery goal must then be subjected to peer review and the
    comments of the peer reviewers must be considered and, where
    appropriate, incorporated.
        4. Recovery team members must then decide upon the ``recovery
    measures'' for the draft recovery plan, balancing three conflicting
    factors: effectiveness in meeting the recovery goal, the period of time
    in which the goal is likely to be achieved, and the social and economic
    impacts and their distribution across regions and industries.
        5. Recovery team members must then prepare a description of
    alternative recovery measures considered and set forth the reasons for
    their selection or rejection. Presumably, the discussion of reasons for
    selecting and rejecting recovery measures must include an analysis of
    how each of the three factors described above was applied to each of
    the selected and rejected recovery measures.
        6. To add to this already difficult task, the bill then states that
    for recovery measures that impose significant costs, the team must
    somehow prepare a description of ``overall economic effects'' of the
    recovery plan, including effects on employment, public revenues, and
    property values. This assessment would be even more speculative than
    the assessments of regulatory impacts called for in the various
    ``takings'' bills that Congress has considered and rejected. Rather
    than analyzing the effect of a single regulation, the recovery team
    will need to analyze the potential economic effects of a long list of
    broadly defined recovery measures that may or may not be implemented,
    depending on when funding becomes available, over the course of
    decades. This task will produce nothing more than wild speculation
    about potential economic effects, speculation that will become
    available to ESA opponents seeking to block implementation.
        7. In addition, the recovery team must identify objective
    benchmarks to determine whether progress is being made toward the
    recovery goal.
        8. The team must also make recommendations regarding designation of
    critical habitat, including recommendations for special management
    considerations.
        9. The work is far from over once the recovery team's numerous
    recommendations and extensive analyses are completed. At that juncture,
    the Services must review this extensive set of materials and, if they
    find any deficiencies, they must send the package back to the recovery
    team with an explanation.
        10. At that point, the team must convene again to address the
    perceived deficiencies. (Page 28).
        11. Once the Services have received the revised recommendations of
    the recovery team, the Services must publish a draft plan in the
    Federal Register and hold up to 5 public hearings on the draft plan, if
    requested. If this draft plan has not been completed within 18 months
    of listing, the Services must also defend against potential lawsuits
    for failure to meet the new statutory deadline.
        12. The Services must then develop a final plan, and included with
    the plan their responses to any significant comments received from the
    public. If the Services ultimately reject any measures recommended by
    the recovery team, they must publish an explanation along with the
    final plan. If this draft plan has not been completed within 30 months
    of listing, the Services must also defend against potential lawsuits
    for failure to meet the new statutory deadline.
        13. The bill also requires the Services, upon request, to delegate
    to one or more states the authority to develop recovery plans on their
    own (with the exception of final approval of the recovery plan, which
    remains with the Services). As discussed below, this would greatly
    increase the likelihood of inadequate recovery plans and would
    substantially increase the associated costs, complexities and delays.
        14. Because satisfaction of these new procedural requirements and
    preparation of these numerous analyses will be extremely difficult and
    will involve many judgment calls by the Services and the recovery team,
    litigation over recovery planning procedures and recovery plan contents
    will likely expand dramatically.
        As this summary makes clear, the overall effect of the bill's
    recovery planning provisions is not to ``enhance'' recovery planning,
    but to make achieving the ESA's recovery goal more difficult and to set
    up those seeking to implement the ESA for failure.
        Authorizes Grants to Private Landowners, States and Others to
    Implement Recovery Plans (Page 30, Line 13). NWF strongly supports the
    bill's authorization for the Services to develop and provide funds for
    recovery ``implementation agreements'' in which states, tribes, local
    governments and private landowners commit to taking actions that
    promote species recovery. By encouraging landowners and others to take
    actions specified in the recovery plan as beneficial to species
    recovery, this provision will potentially help ensure that recovery
    plans serve a meaningful purpose and help imperiled species move closer
    to the recovery goal. The success of this provision, of course, will
    ultimately be determined by the extent to which funds are appropriated
    by Congress.
        Creates Unreviewable ``Recovery Implementation'' Agreements That
    Could Seriously Harm Species(Page 31, Line 9). We also agree with the
    concept of requiring that Federal agencies with activities
    significantly affecting recovery enter into recovery implementation
    agreements. However, two key features of S. 1180's recovery
    implementation agreements with Federal agencies appear to be designed
    to undermine recovery. The first feature is the language that precludes
    any judicial review of recovery implementation agreements, the very
    kind of ``sufficiency'' language that led to the ``logging without
    laws'' debacle of the 104th Congress. According to the bill, the terms
    of recovery implementation agreements are ``within the sole discretion
    of the Secretary and the head of the Federal agency entering the
    agreement.'' This would make the agencies' judgments regarding what
    promotes or undermines recovery unreviewable, thus opening the door for
    deals that could never stand up to legal or scientific scrutiny and
    that could contribute directly to the extinction of imperiled species.
        Provides Harmful ``No Surprises'' Assurances to Industries Engaged
    in Federal Activities (Page 30, Line 13). The second harmful feature of
    S. 1180's recovery implementation agreements with Federal agencies is
    the Section 7 waiver. By waiving Section 7(a)(2) for actions set forth
    in the implementation agreement, the bill removes an essential ESA tool
    for updating management strategies and modifying them as necessary to
    prevent serious harm to imperiled species.
        At first blush, the bill appears to contain some limited
    safeguards: it states that the waiver applies only to actions
    ``specified in a recovery plan implementation agreement . . . to
    promote recovery and for which the agreement provides sufficient
    information on the nature, scope and duration of the action to
    determine the effect'' on the species or its critical habitat. It also
    calls for the Services to approve the agreement only if they find that
    the agreement will be ``reviewed and revised as necessary on a regular
    basis . . . to ensure that it meets the requirements of this section.''
    However, these safeguards can easily be ignored because, as noted
    above, the bill precludes any challenges to the terms of recovery plan
    implementation agreements.
        Even without the sufficiency language, recovery implementation
    agreements still could be used to authorize activities that prove to be
    harmful to species. The bill's ``duration'' language is sufficiently
    flexible to potentially allow agreements of one or two decades or more.
    (The Services have utilized the similar flexibility of the ESA's
    Section 10 to approve HCPs of up to 100 years.) And the bill's
    ``regular'' review requirement is sufficiently flexible to allow for
    agreements that are reevaluated at intervals of 5 years or more. Thus
    there is a substantial risk that by the time management practices
    approved in the recovery implementation agreement are carried out, they
    will be inconsistent with the current scientific understanding of the
    species' needs. Even if the recovery implementation agreement is
    contributing directly to a species' decline, the Section 7 waiver would
    preclude the Services from reinitiating consultation and revising the
    agreement to conform with the latest science.
        For example, if the Fish and Wildlife Service enters a 10-year
    recovery implementation agreement with the Agriculture Department's
    Animal Damage Control (ADC) agency stating that depredation of the gray
    wolf to protect livestock on Federal grazing allotments is necessary to
    promote wolf recovery (the current FWS view), S. 1180 would waive
    Section 7's applicability to all future wolf depredation authorized by
    the agreement. After 3 years, if new data reveals that wolf depredation
    authorized by the agreement is contributing to the species' rapid
    decline, the bill would preclude FWS from reinitiating consultation
    with ADC and making appropriate changes to save the species.
        In effect, the Section 7 waiver would provide harmful ``no
    surprises'' assurances to Federal agencies and the industries that rely
    upon the agencies' authorizations. This policy is harmful enough as
    applied to nonFederal activities--it would be far more harmful if
    extended to Federal activities.
        Creates Unwarranted Recovery Planning Obstacles by Delegating to
    States (Pages 33, Line 20).
        For at least three reasons, NWF opposes such wholesale delegation
    of recovery plan development to the states. First, most listed species
    are imperiled due to management practices carried out by a wide variety
    of landowners and resource users on lands and waters within the
    jurisdiction of Federal, state, tribal and local government landowners.
    Under our constitutional framework, only the Federal Government has the
    ability to confront these threats. Although the bill suggests that the
    Services and the states can develop ``standards and guidelines'' for
    interstate cooperation, history tells us that such cooperation is quite
    difficult to achieve, especially in cases where neighboring states have
    conflicting economic development and resource conservation strategies.
        Second, state governments are suffering widespread and severe
    funding shortfalls due (among other things) to the devolution of
    numerous Federal programs. Before delegating another costly and complex
    Federal program, Congress should investigate whether the state wildlife
    agencies have the resources, expertise and demonstrated commitment to
    endangered species conservation to undertake the lead role on recovery
    plan development. In an era when (according to a National Audubon
    Society survey) only six state wildlife agencies have staff
    ornithologists, Congress should be particularly hesitant about inviting
    states to take the lead in drafting complex recovery plans for
    migratory birds and other ``multi-jurisdictional'' species.
        Finally, delegation to the states would increase the overall costs
    of recovery planning. States would need to develop separate ESA
    recovery planning bureaucracies and devote substantial resources simply
    toward coordinating amongst themselves and with the Services. The
    Services would retain the responsibility to participate on recovery
    teams, monitor state compliance with the maze of new procedures and
    withdraw state authority when appropriate, review draft plans, and make
    final approval decisions. Even if resources to pay for this additional
    staffing were available, it would be much better utilized doing on-the-
    ground conservation. The benefits, if any, of giving the states the
    lead role in developing recovery plans would be far outweighed by the
    added costs and complexities.
        There are plenty of ways of increasing state involvement in ESA
    recovery efforts without creating undue risks for species. Because
    states already have the ability to participate on recovery teams led by
    the Services, Congress could expand that involvement by increasing
    Section 6 funding. As recognized elsewhere in this bill, states can
    also be encouraged to take the lead in implementing recovery plans.
        Reopens Critical Habitat Loophole (Page 37, Line 21). The bill
    requires final designation of critical habitat only ``to the maximum
    extent prudent and determinable``--a return to the approach that was
    taken prior to 1982, when Congress recognized this as a loophole that
    was enabling the Services to claim arbitrarily that habitat is not
    determinable and to evade their responsibilities to designate critical
    habitat. This provision should be removed and the 1982 amendment
    requiring final designation ``to the maximum extent prudent'' should be
    reinstated.
        Imposes Recovery Plan Deadlines (Page 20, Line 3 and Page 42, Line
    16). NWF supports imposing deadlines for completion of recovery plans.
    However, deadlines should be imposed only after making a realistic
    estimation of the time needed for each of the assigned recovery
    planning tasks given anticipated levels of appropriations. The fact
    that the bill is replete with inordinately complex and burdensome tasks
    that could never be achieved under any near-term deadline suggests that
    this process has not been undertaken. By setting near-term deadlines
    for numerous difficult-to-achieve tasks without any realistic hope that
    appropriators will provide the necessary funding, the bill appears to
    be setting up the Services for failure.
        Calls for Inventory of Species on Federal Lands (Page 43, Line 18).
    The bill calls upon Federal land management agencies to undertake a
    long overdue inventory of listed species, species proposed for listing,
    and candidate species on Federal lands. One of the major obstacles to
    effective management of both Federal and nonFederal lands is the
    paucity of biological data. The success of this program, of course,
    will ultimately be determined by the extent to which funds are
    appropriated by Congress. Considering that most Federal land management
    agencies are already very understaffed, Congress will need to
    appropriate substantial funds to make this program a success.
        Removes FWS and NMFS from Key Decisions and Allows the Fox to Guard
    the Henhouse (Page 44, Line 22). S. 1180 would remove the Services from
    their longstanding roles as the expert biologists charged with ESA
    consultations, i.e., reviewing and potentially modifying Federal
    projects to reduce their harmful impacts on imperiled species. The bill
    instead merely gives the Services the option to perform the
    consultative role: if the ``action'' agency contends that its project
    would not be likely to adversely affect imperiled species, the Services
    may object within 60 days and force a consultation to take place. If
    they fail to object within 60 days, the project moves forward without
    their expert review.
        The risk that the Services will fail to respond to ``not likely to
    adversely affect'' (NLAA) findings by action agencies is substantial,
    especially given the severe staffing shortages currently faced by the
    Services, the many new bureaucratic requirements imposed by this bill,
    and the lack of any evidence that appropriators are committed to
    substantial funding increases. (The new bill gives new incentives to
    regulated industries to oppose such funding increases, since ESA review
    of their projects will be less likely so long as the Services remain
    understaffed.) The risk of inaction by the Services is further
    heightened by the fact that most of the bureaucratic tasks required by
    this bill are mandatory, whereas responding to the agencies' NLAA
    findings is discretionary. As the Services' experience with the listing
    program teaches us, when the understaffed Services are forced to choose
    between legally mandated and discretionary actions, they choose the
    legally mandated actions.
        The bill's requirement that the action agency rely upon a
    ``qualified biologist'' does not provide a sufficient safeguard for
    imperiled species. Agencies such as the U.S. Forest Service (FS) and
    Bureau of Land Management (BLM) routinely rely upon biologists to
    advocate for projects that are deleterious to species. Because the
    missions of these agencies are not oriented toward protecting wildlife,
    allowing them to make key ESA decisions unilaterally would be
    disastrous--no different than the proverbial ``fox guarding the
    henhouse.''
        The Clinton Administration itself has acknowledged that FS and BLM
    cannot be entrusted with making far-reaching decisions concerning
    endangered species. In its October 1996 indictment of the timber
    salvage program, it concluded that ``some FS and BLM personnel do not
    have an understanding of, or a commitment to the goals and requirements
    of the ESA.'' In contrast, FWS and NMFS in recent years have
    successfully maintained their expert roles while consolidating and
    streamlining consultations. There simply is no justification for
    shifting responsibility for implementing the ESA's consultation
    provisions away from these expert agencies.
        Calls for an Unbalanced ESA Study (Page 48, Line 10). The bill
    calls for the GAO to issue a report on the cost to Federal agencies,
    corporations and others of complying with Section 7, without seeking
    any information on the conservation benefits of this provision. The
    result will be ammunition to those seeking to undermine the Act, not a
    balanced appraisal of the results of ESA implementation.
        Authorizes Potentially Destructive Activities During ESA Review of
    Federal Land Management Plans. (Page 48, Line 20). An essential feature
    of the existing ESA is that potentially destructive Federal activities
    do not go forward if the Services cannot rule out the possibility that
    they might jeopardize the existence of an imperiled species. S. 1180
    would undermine this principle by allowing action agencies to go
    forward with their activities while the cumulative harmful effects of
    those activities on newly listed species are being evaluated.
        For example, under the current ESA, if a newly listed salmon
    species is threatened with extinction by timber harvesting, the
    Services must review the FS's land management plan authorizing timber
    harvesting and recommend changes needed to protect the species. At the
    outset of the review process, if the Services find that certain
    harvesting activities authorized by the old plan could threaten the
    very existence of the species, Section 7(d) of the ESA calls for
    delaying those activities pending completion of the review. The bill
    would undermine Section 7(d) protections by allowing those activities
    to go forward before the plan review is completed--even if the
    resulting habitat destruction would irrevocably undermine efforts to
    save the species.
        Although S. 1180 calls for the plan review to be completed within
    15 months of listing, this offers little protection to imperiled
    species. Projects that go forward before the end of 15 months will
    still potentially cause significant harm. Moreover, if the plan review
    is not completed within 15 months, additional harmful projects could
    potentially go forward because the bill fails to provide any remedy for
    failure to meet the statutory deadline.
        The bill should be amended to authorize action agencies to initiate
    a review of their land management plans during the 1-year period in
    which a species has been proposed for listing. This approach, which the
    Administration is in the process of adopting a MOU between key
    agencies, would ensure that the plan review is completed prior to the
    time when the listing goes into effect and that imperiled species
    receive the protections called for in the amended plan immediately upon
    listing.
        Provides Special Access to Section 7 Consultations to Regulated
    Industries (Page 51, Line 11). The National Wildlife Federation
    supports the notion of giving access to stakeholders, including
    regulated industries, to the Section 7 consultation process. However,
    the language proposed here would create a ``special right'' of access
    to regulated industries while shutting out other citizens who have an
    equally legitimate interest in decisions concerning Federal lands and
    other public wildlife resources. This language should be revised to
    give equal access to all citizens to the Section 7 process.
        Clarifies Duty to Mitigate, But Fails to Address Activities that
    Undermine Recovery. (Page 53, Line 6). It is helpful that the bill
    clarifies that the Services, when designing ``reasonable and prudent
    measures'' to reduce take in the Section 7 consultation process, must
    identify mitigation efforts as well as minimization. (In practice, the
    Services were already doing this.) However, this language fails to
    address a critical flaw with the implementation of the minimization and
    mitigation requirements in both Sections 7 and 10: the failure by the
    Services to ensure that the harmful effects of projects are minimized
    and mitigated to point where they do not undermine recovery.
        The Services' current approach to Section 7 is to review Federal
    activities for their impacts on the short-term survival of an imperiled
    species, but not to consider their impacts on the species' recovery
    needs. As a result, many Federal activities are approved even though
    they undermine the ESA's recovery goal. S. 1180 fails to grapple with
    this well-known problem, thus perpetuating the problem of species being
    added to the ESA list but virtually never being removed.
        Limits Mitigation Options (Page 53, Line 8).
        By requiring reasonable and prudent measures for minimizing/
    mitigating take to be ``related both in nature and extent'' to the
    effects of the proposed activity, the bill would potentially limit
    significantly the Services' ability to ensure that the destructive
    effects of Federal activities are fully mitigated. Often, the only
    viable mitigation strategy that arises in a Section 7 consultation is
    the requirement of offsite habitat restoration. By imposing this new
    restriction, S. 1180 would frustrate the Services' ability to ensure
    that Federal activities do not undermine recovery.
                           sec. 5. conservation plans
        Fails to Address the Services' Approval of HCPs that Undermine
    Recovery. (Page 53, Line 18). Habitat Conservation Plans (HCPs)
    represent a potentially powerful mechanism to reconcile the desires on
    nonFederal landowners to undertake economic activities in endangered
    species habitats with the recovery needs of endangered species.
    Unfortunately, in approving HCPs to date, the Services have failed to
    consider the long-term recovery needs and instead have chosen to focus
    on the species' short-term survival needs. By failing to address this
    problem, S. 1180 leaves open the possibility that the Services will
    approve HCPs that undermine the ESA's recovery goal.
        Establishes Workable Standard for Unlisted Species Covered by HCPs,
    But Creates New Obstacle to Multispecies Planning (Page 54, Line 5).
    The bill establishes two positive new approval standards (based largely
    on the Administration's candidate conservation agreement policy) for
    unlisted species that landowners seek to have included in their
    multispecies HCPs. These standards will be helpful in ensuring that any
    inclusion of unlisted species in an HCP is based on sound science.
    However, the addition of these standards without similar improvements
    to the approval standard for listed species could create an unintended
    new obstacle to multispecies planning. Because the bill's new standard
    for candidate species, in essence, requires a contribution to the
    recovery of the species, it is more protective than the standard for
    listed species, which merely requires the HCP to avoid jeopardizing the
    species. A potential result is that landowners will develop HCPs for
    listed species only, and later amend their HCPs once any candidates
    have been listed, thereby benefiting from the lower standard for listed
    species. To ensure early development of ecosystem-oriented plans that
    address multiple listed and unlisted species, the bill should be
    revised to require that the recovery needs of both candidate and listed
    species be addressed in the HCP.
        Authorizes Education and Technical Assistance Programs (Page 56,
    Line 9 and Page 76, Line 2.)
        The availability of education and technical assistance will be
    essential to make the ESA work for both species and landowners.
    However, agency personnel already have the authority to provide
    technical assistance, so it is unclear what effect, if any, this
    additional authorizing language would have. The main hindrance to
    technical assistance has been lack of available funding, and whether
    the funding situation would improve as a result of this bill remains an
    open question.
        Imposes Arbitrary Deadlines for Plan Approval (Page 56, Line 19).
    The timeframes set forth in the bill for approving or disapproving HCPs
    are likely to be impossible to achieve, especially in cases where the
    potentially significant environmental effects of a plan justify full-
    scale NEPA review. Because of the rapidly evolving nature of HCPs and
    other management plans, deadlines for processing proposed plans should
    continue to be set administratively.
        Weakens Standards for Reviewing Activities That May or May Not be
    ``Low Effect'' (Page 57, Line 2). NWF supports offering expedited
    permitting procedures to small landowners with low effect activities.
    However, the procedures set forth in the bill for determining whether
    an activity is truly ``low effect'' are far weaker than the
    Administration's current approach, which itself has been criticized for
    not allowing adequate scientific scrutiny or citizen input. For
    example, the bill states that low-effect permits will automatically be
    issued if no significant adverse comment has been received within 30
    days. This kind of ``auto-pilot'' provision would create unacceptable
    risks to imperiled species. Given the brief period of review and
    limited resources of conservationists and independent scientists, it is
    inappropriate to infer from the absence of citizen or scientific input
    that a permit application is sound.
        The bill also removes Section 10's key protection for species, the
    requirement that harm be minimized and mitigated to the maximum extent
    practicable. This essential safeguard ensures that strategies for
    avoiding unnecessary harm, which are sometimes virtually cost-free,
    have been fully considered.
        To ensure adequate citizen and scientific input into potentially
    ``low effect'' activities, Congress should require that the Services
    propose individual species, along with specific economic activities, as
    eligible for the ``low effect'' permit procedures and invite broad
    public input into the proposals. This would ensure adequate scientific
    scrutiny and citizen input while giving landowners guidance about which
    permitting procedures would be appropriate for their particular project
    proposals.
        Locks in HCPs, Some of Which Will Prove to be Harmful to Species
    and Will Need to be Adjusted. (Page 59, Line 6). S. 1180 would codify
    the Clinton Administration's ``no surprises'' policy, a policy that has
    been roundly criticized by conservationists and scientists. Under the
    ``no surprises'' policy, the Services offer landowners assurances that
    no ESA obligations will be imposed on them beyond those stated in the
    HCP, even if the HCP ultimately proves to be contributing toward
    species decline and possible extinction. As critics from the scientific
    and conservation communities have pointed out, many HCPs are long-term
    plans with numerous questionable assumptions about the adequacy of
    species protections, and thus some HCPs will inevitably fail to perform
    as anticipated. Although giving landowners regulatory certainty makes
    sense, this certainty should only be offered in return for HCPs that
    contain basic safeguards for species.
        In addition to the HCP safeguards recommended elsewhere in these
    comments, S. 1180 needs to be amended to include a credible adaptive
    management strategy. (An adaptive management strategy is a program for
    periodic reevaluations of and adjustments to a management plan;
    reevaluations include measuring biological performance and checking
    assumptions in light of new information and changed circumstances.) To
    ensure that HCPs are adjusted as needed to ensure species recovery, the
    following adaptive management provisions need to be built into any HCP
    assurances policy:
        (a) Monitoring and Biological Goals. The bill should be amended to
    require that the performance of the HCP be carefully monitored. With
    biological indicators established at the outset of the plan, key
    assumptions of the plan can routinely be tested. The landowners should
    be required to generate monitoring data, and the Services should in
    turn be required to evaluate the data and issue regular progress
    reports for public inspection.
        (b) Requirements to Take Corrective Action. The bill should be
    amended to require that the HCP identify all foreseeable changes in
    conditions that would have an adverse effect on species recovery, and
    include the landowner's agreement to undertake specific mitigation
    strategies to address those changes. (The Services acknowledge the need
    for such a strategy, but fail to require it. See 62 Fed. Reg. 29093
    (``HCP planners should identify potential problems in advance and
    identify specific strategies or protocols in the HCP for dealing with
    them'')). The bill should also require the Services to take corrective
    action to address unforeseeable changed conditions that would adversely
    affect recovery.
        (c) Limits on Duration. To ensure that adaptive management
    strategies are credible, the bill should limit the duration of HCPs to
    a time period in which the landowner can reasonably foresee--and design
    mitigation strategies to address--the changed conditions that would
    adversely affect species recovery.
        (d) Reliable Funding. To ensure adequate funding for corrective
    action, the bill should be amended to ensure that responsibility is
    properly divided between private and public sources. As noted earlier,
    the landowner should be required to respond to reasonably foreseeable
    risks in the HCP's adaptive management provisions. A performance bond
    or other evidence of the landowner's ability to carry out this
    responsibility should be required as a condition of plan approval. For
    risks that cannot reasonably be foreseen, Congress should establish a
    trust fund to cover the costs of corrective action.
        By requiring that the ``no surprises'' assurances be provided
    without these conservation safeguards, S. 1180 locks in controversial
    HCP management strategies and removes the tools needed to respond if
    the HCP is found to be contributing to species decline and possible
    extinction.
        Codifies Administration's Workable New Standards for Candidate
    Conservation Agreements, But Leaves Other Basic Flaws with CCAs
    Unaddressed. (Page 60, Line 3). The bill would set a useful standard
    for approving candidate conservation agreements--virtually the same one
    recently proposed by the Administration. This will help ensure that the
    agreements are based on sound science--a significant improvement over
    agreements approved in the past, which have been harshly criticized as
    political deals to avoid listings that fail to address the needs of
    species. However, it would greatly reduce (if not eliminate) the
    potential benefits to be achieved by such agreements by requiring that
    agreements be covered by the flawed ``no surprises'' policy (discussed
    above) and allowing them to continue to be developed with a behind-the-
    scenes process that denies citizens meaningful opportunities to
    participate (discussed immediately below).
        Fails to Adequately Address Behind-the-Scenes Approach to
    Developing HCPs. (Page 64, Line 14). Under the current ESA, many large-
    scale HCPs are developed in closed-door negotiations between the
    Services and regulated interests. Although citizens are given a brief
    period to comment on the final draft of the HCP, this comment period
    does not allow for meaningful input. As a result, many HCPs appear to
    be biased toward the viewpoints of the regulated interests. Because
    HCPs are essentially long-term management plans affecting numerous
    valuable public resources ranging from wildlife to drinking water to
    flood protection, citizens are entitled to a seat at the table as the
    plans are developed.
        S. 1180 fails to address this need for expanded public
    participation. Although it states that citizens may participate in plan
    development with the approval of the permit applicant, it offers
    nothing to citizens in situations where the permit applicant believes
    that it will get a better deal in a closed-door negotiation. This
    voluntary approach is essentially a codification of the approach taken
    by the Administration in its HCP Handbook, which has not succeeded in
    stimulating greater opportunities for citizen participation. The bill
    should be amended to set forth clear standards for balanced
    participation in the development of large-scale HCPs.
        Authorizes Safe Harbor Agreements Without Requiring Conservation
    Benefit. (Page 65, Line 1). Safe harbor agreements are a laudable
    attempt to get conservation benefits from private lands that otherwise
    might not be managed for the benefit of species. These new agreements,
    however, are still in the experimental stage and should be approached
    with caution. The following safeguards should be added to S. 1180 to
    ensure that ``safe harbor'' agreements result in improved conditions
    for species:
        (a) Establish a Net Conservation Benefit Standard. As the
    Administration has stated in its proposed rulemaking on ``safe harbor''
    agreements, such agreements are not necessarily appropriate for all
    species and all habitats. For example, scientists have raised concerns
    that endangered species will move from protected habitat to newly
    created or restored habitat covered by ``safe harbor'' agreements. As a
    result, the abandoned habitat would lose its ESA protection and both
    the abandoned and ``safe harbor'' habitat would be subject to
    development--a net loss of habitat for the endangered species. The bill
    should require that ``safe harbor'' agreements be entered into only if
    (as the Administration has proposed in its recent rulemaking) the
    Services rule out such negative effects and find that the agreement
    will lead to a net conservation benefit.
        (b) Establish a Scientifically Credible Baseline. The fundamental
    premise of ``safe harbor'' agreements is that landowners may improve
    habitat on their land and later destroy those improvements, as long as
    the habitat is left no worse off than it was at the time the agreement
    was initiated. Thus, an accurate baseline measure of existing habitat
    quality and quantity must be identified at the start, to ensure that
    later activities do not result in a net loss of habitat. The bill
    requires use of a baseline, but contains only vague suggestions about
    how the baseline should be defined in the ``safe harbor'' agreement.
    Congress should require that the parties use scientifically defensible
    and measurable data, including the number of species present on the
    land and indicators of habitat quality, to define the baseline that
    must be protected under the ``safe harbor'' agreement.
        (C) Prevent Safe Harbor Agreements From Being Undermined By
    Incidental Take Permits. Some landowners have asserted that they are
    entitled to receive an incidental take permit authorizing habitat
    destruction and, at the same time, to receive a ``safe harbor''
    agreement for restoring habitat just destroyed under the permit. By
    leaving open this possibility, the bill would allow the ``safe harbor''
    agreement to be used as a tool to remove ESA protections from habitat.
    The bill should make clear that habitat sacrificed under a take permit
    is not appropriate for a ``safe harbor'' agreement--it must be restored
    and given the same ESA protection that it had in the first place.
        (d) Don't Subsidize Agreements Lacking Net Conservation Benefit
    Standard. The bill authorizes the Services to provide grants of up to
    $10,000 to private landowners to assist in carrying out a ``safe
    harbor'' agreement. Unless the bill is amended to require that ``safe
    harbor'' agreements provide a net conservation benefit to species, this
    funding would be much better targeted toward other landowner incentives
    programs authorized in the bill.
        (e) Provide Opportunities for Citizen Involvement. Under S. 1180,
    ``safe harbor'' agreements may be developed without any notice to the
    public or opportunity to comment. Public participation opportunities
    must be expanded significantly to ensure that the Service is held
    accountable for setting a credible baseline obligation and providing a
    conservation benefit to the species.
        Authorizes Habitat Reserve Program. (Page 67, Line 17). This
    provision authorizes the Services to pay private landowners for
    managing habitat pursuant to a contract or easement--an important
    financial incentive that would help promote recovery of imperiled
    species on private lands. To ensure that the maximum conservation
    benefit will be realized for the taxpayer's incentives dollars, the
    bill should give priority to habitat management that is identified in
    an approved recovery plan. (Like the other incentives programs
    authorized by this bill, the success of this program depends completely
    on whether necessary funds are appropriated.)
        Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11).
    This revolving loan fund, which will provide financial incentives to
    states and localities to develop HCPs, would provide an important
    stimulus for comprehensive, region-wide planning. Again, the success of
    this program will depend entirely upon whether sufficient funds are
    appropriated.
        Creates New Obstacle to Enforcement and Habitat Conservation
    Planning. (Page 74, Line 20). The effectiveness of HCPs and other
    conservation planning tools depends on a credible enforcement threat.
    For example, the Clinton Administration has used a combination of the
    threat of ESA enforcement and positive incentives to convince
    landowners to ``come to the table'' and develop HCPs that balance their
    desire to undertake economic activities with the needs of imperiled
    species. According to NWF's sources, the negotiators of S. 1180 have
    agreed to include report language that would require proof that the
    landowners' activities are the ``proximate cause'' of harm to imperiled
    species. This would reduce the Administration's ability to convince
    landowners to engage in conservation planning and increase the
    difficulty of protecting the numerous imperiled species that are
    threatened by the indirect effects of urbanization, intensive
    agriculture and resource extraction.
        Increases the Amounts Authorized for Incentives and Other Programs,
    But Identifies No Secure Source of Funding. (Page 78, Line 4). The bill
    laudably provides for substantial (and long overdue) increases in the
    authorizations for appropriations to the agencies charged with
    implementing the ESA and includes new authorizations for important
    incentives programs. Unfortunately, the actual dollar amounts that will
    fund these programs will be decided in the appropriations committees,
    and those committees historically have starved ESA programs of funding.
    Spending targets under the recent budget agreement call for a steady
    decline in most discretionary spending. Thus, without a new, guaranteed
    source of funding, this bill will likely be underfunded and the bill's
    provisions benefiting imperiled species will not be implemented. A
    bipartisan effort to create a trust fund for endangered species
    conservation, not subject to the vagaries of the appropriations
    process, is badly needed.
        Authorizes ``No Take'' Agreements That Could Contain Broad ESA
    Exemptions (Page 83, Line 8). NWF strongly supports the use of ``no
    take'' agreements and other written understandings between the Services
    and landowners regarding how habitat can be managed to avoid take of
    imperiled species. Presumably, the bill's drafters merely intended to
    codify the Administration's policy and practice of entering such
    agreements. However, the bill language is so vaguely worded that
    virtually any land management practice could be authorized under a ``no
    take'' agreement, regardless of its impact on species and regardless of
    whether it would ordinarily violate the ESA. Rather than simply
    authorizing the Services to declare activities identified in the
    agreement as not in violation of the ESA, the bill should identify what
    biological and other standards must be met to justify a finding of ``no
    take.'' To ensure agency accountability, notice of such agreements
    should be placed in the Federal Register.
        Statement of Duane L. Shroufe, Director, Arizona Game and Fish
     Department and Immediate Past President, International Association of
                           Fish and Wildlife Agencies
        Thank you, Mr. Chairman, for the opportunity to appear before you
    today to share the perspectives of the International Association of
    Fish and Wildlife Agencies on S. 1180, the Endangered Species Recovery
    Act of 1997. I am Duane Shroufe, Director of the Arizona Game and Fish
    Department, and Immediate Past President of the Association, and I
    would like to commend you, Senator Kempthorne, Senator Baucus, and
    Senator Reid for your persistence and dedication to producing this
    bipartisan centrist and consensus proposal on a difficult but extremely
    important conservation issue. I bring to you today the firm support for
    S. 1180. While this proposal does not have everything we advocated for
    in an ESA reauthorization bill, the Association believes that S. 1180
    is a bill that improves the effectiveness of the ESA for both the
    conservation of fish, wildlife and plant species and with regards to
    appropriate certainty for the regulated community; it appropriately
    restores Congress' original intent to respect throughout the Act the
    concurrent jurisdiction of state fish and wildlife agencies with the US
    Fish and Wildlife Service (USFWS) and National Marine Fisheries Service
    (NMFS) for listed species; restores the focus in the ESA to what we
    endorse as its most important perspective and that is recovering listed
    species to a level and vitality where the measures under the Act are no
    longer necessary; and provides incentives in the form of financial
    assistance, certainty, and the provision of technical education and
    assistance to landowners to facilitate their stewardship of their land
    and associated resources. While we will offer some suggested
    improvements to S. 1180 to sharpen these aspects and will strongly
    encourage a commitment to securing robust appropriations to implement
    S. 1180, the Association reiterates its firm support of this bill.
        The International Association of Fish and Wildlife Agencies was
    founded in 1902 as a quasi-governmental organization of public agencies
    charged with the protection and management of North America's fish and
    wildlife resources. The Association's governmental members include the
    fish and wildlife agencies of the states, provinces, and Federal
    Governments of the U.S., Canada, and Mexico. All 50 states are members.
    The Association has been a key organization in promoting sound resource
    management and strengthening Federal, state, and private cooperation in
    protecting and managing fish and wildlife and their habitats in the
    public interest.
        I would like to start by recognizing and thanking the bill sponsors
    for grounding S. 1180 in the collective legislative recommendations
    from our Association and the nation's Governors under the leadership of
    the Western Governors' Association which we shared with you starting in
    the first session of the last Congress. Governor Racicot has shared
    with you the process of our consensus building in conjunction with the
    Administration which culminated in our recommendations, and we
    sincerely appreciate the validation of our work as reflected in S.
    1180. We believe you, as did we, recognize that over the 25 years of
    the ESA, we have a much better understanding of what works under the
    Act, what doesn't, and how it can be improved. The State fish and
    wildlife agencies' objectives are fairly straightforward: to
    successfully carry out our responsibilities as public trust agencies to
    our citizens to ensure the vitality of our fish and wildlife resources
    for present and future generations; and to encourage, facilitate and
    enhance the opportunities, means and methods available to all citizens
    and especially landowners in our states to contribute to meeting this
    conservation objective in cooperation with our agencies and our Federal
    counterparts. Much of this involves solving problems and reconciling
    differences, and we believe S. 1180 provides new and useful tools,
    opportunities and direction to achieve both of these objectives.
        Let me first strongly urge Congress and the conservation community
    to collectively dedicate ourselves to securing the appropriations
    necessary to fulfill the improvements contained in S. 1180. All of
    these changes will require the additional time and attention of the
    Federal and state fish and wildlife agencies to satisfy these mandates.
    Additional listing process requirements, public participation,
    energized recovery plans through implementation agreements, assistance
    to private landowners and other provisions are significant improvements
    which need to be adequately funded in order to meet the objectives of
    S. 1180 to improve the effectiveness of the Act in achieving
    conservation objectives and with regards to appropriate certainty for
    the regulated community. Therefore, the Association strongly urges that
    Congress and the conservation community make a commitment to securing
    the robust appropriations necessary to implement these improvements to
    the Act.
        We firmly believe that reaffirming the role of the State fish and
    wildlife agencies in all aspects of the ESA reflecting our concurrent
    jurisdiction over listed species sets the stage for more efficient and
    effective administration of endangered species programs. The State fish
    and wildlife agencies have broad statutory responsibility for the
    conservation of fish and wildlife resources within their borders,
    including on most Federal public lands. The states are thus legal
    trustees of these public resources with a responsibility to ensure
    their vitality and sustainability for present and future citizens of
    their States. State authority for fish and resident wildlife remains
    the comprehensive backdrop applicable in the absence of specific,
    overriding Federal law. As Secretary Babbitt said before this Committee
    2 years ago, ``the States are the presumptive front line managers of
    fish and wildlife within their borders,'' a perspective with which we
    fully concur, and which we believe S. 1180 reflects.
        Also, we believe that the affirmation of the true partnership
    between the State fish and wildlife agencies and the USFWS and NMFS
    contemplated in S. 1180 will take full advantage of the expertise in
    fish, wildlife and plant conservation that exists at both the state and
    Federal level, while minimizing duplicative processes and
    administrative burdens, a relief that we can hardly afford to ignore in
    these times of constrained natural resources budgets.
        We would be happy to work with your staff on the one area where we
    believe there needs to be enhanced deference to State fish and wildlife
    conservation responsibility: the review of listing petitions. We would
    urge you to consider directing the Secretary to give greater weight to
    the recommendations of the State fish and wildlife agencies than in the
    existing language, which simply calls for the Secretary to consider the
    States' recommendations. We believe the State fish and wildlife
    agencies have experience and expertise that the Secretary should avail
    himself of as a first level of ``peer review'' of listing petitions.
    Our preference is to give favor to the State recommendations in the
    form of a rebuttable presumption which the Secretary can overturn, but
    we are also happy to work with staff on other alternatives.
        Also, we respectfully bring to your attention other areas where we
    believe the ``in cooperation with the States'' construct should appear
    in the Candidate Conservation and Safe Harbors agreements, and would
    ask for your consideration of those changes. We will work with your
    staff on the specifics of these recommendations.
        The Association encourages you and staff to accept Governor
    Racicot's invitation to visit any of our States to experience firsthand
    the value of preventative conservation measures long before the need to
    list species (or even designate candidate species) occurs. This just
    makes good common sense and good biological sense to avoid the crisis
    of listing. The Association reaffirms its commitment to prudent
    conservation of fish, wildlife and the natural communities that they
    depend on, so that the need to impose the rigors of the ESA is
    minimized. We do not advocate avoiding the application of the Act;
    rather, we advocate addressing species and habitat declines before a
    crisis situation is reached. We need, where possible, to anticipate
    impacts (from development and other projects) on species and habitats,
    and address those comprehensively, rather than reacting to them.
        The ESA can and will play a role in our preventive management
    programs, but should remain primarily as the necessary tool of last
    resort for protecting against extirpation. Through the use of
    preventive management actions, the ESA could then fulfill a more
    appropriate role of dealing with species undergoing precipitous
    decline.
        Federal and State conservation agencies should cooperate in
    coordinating the application of the many existing Federal statutes
    relating to public lands management (NFMA, FLPMA, etc.), habitat
    conservation (CWA, CAA), and project impact review (NEPA, etc.);
    comparable State laws (State nongame and endangered species laws; State
    environmental review statutes and programs); and county and local land
    use planning ordinances and programs. A more comprehensive integration
    of the relevant statutes at all levels will enhance their utility for
    the conservation of fish and wildlife and their habitats, ensure the
    sustainability of ecological communities, and preclude the need to list
    species.
        Further, there needs to be a major thrust (distinct from ESA
    reauthorization) to broaden the highly successful user-pay/user-benefit
    concept under the Pittman-Robertson and Wallop-Breaux programs to meet
    today's broader conservation challenges, enabling State/Federal
    programs for the conservation of the vast majority of nongame fish and
    wildlife currently receiving less than adequate attention, and thereby
    providing the means to prevent species from becoming endangered. Based
    programmatically on the highly successful Sportfish and Wildlife
    Restoration Programs under the Wallop-Breaux and Pittman-Robertson
    Acts, the Fish and Wildlife Diversity Funding Initiative, ``Teaming
    with Wildlife,'' supported by the IAFWA and conservation community, by
    all 50 State fish and wildlife agencies, and by a substantial (over
    2300 businesses and organizations) grassroots coalition across the
    country, is designed to secure permanent, dedicated funding, based on
    user fees in the form of an excise tax, to provide among other things,
    the prevention of species becoming endangered, through the provision of
    routine fish and wildlife management practices. We look forward to
    visiting with you further on this proposal.
        Further, the Association encourages the use of legally binding
    Conservation Agreements for declining or candidate species in lieu of
    listing as threatened or endangered, where management actions specified
    under such an agreement remove the threat(s) to the species, and where
    the Agreement is enforced. Comprehensive habitat based agreements
    should be encouraged. Clarification of the Endangered Species Act to
    support such Conservation Agreements is required and affirmation of
    State authority for pre-listed species must be legislatively assured.
    The role of the State fish and wildlife agencies in this process must
    be affirmed and institutionalized. By requiring the Secretary to concur
    with State-led conservation agreements involving affected
    jurisdictional entities and private landowners (where appropriate), the
    Secretary will be legally shielded from a requirement to impose certain
    regulatory implications through suspension of the consequences of
    listing. Private landowners should be given legal assurances that, once
    they commit to certain responsibilities under the agreement, no
    additional liabilities under Section 9 will be imposed upon them. The
    incentive for Federal agencies to participate is that they obviously
    incur no liability under Section 7 if actions to recover declining
    species are taken prior to listing. This provision is detailed further
    in the legislative recommendations from the WGA/IAFWA/NGA, and we look
    forward to continuing to represent to you the merits of such a proposal
    through a review of on-the-ground successes.
        The Association applauds and fully supports your efforts in S. 1180
    to energize recovery plans through implementation agreements to restore
    the focus in the ESA to not just listing species, but to carrying out
    actions that restore species and habitat to a sustainability level
    where the measures under the Act are no longer necessary. As S. 1180
    provides, State fish and wildlife agencies must be given the
    opportunity to take the lead on recovery plans. The utility of a team
    approach not only provides for application of a broad base of knowledge
    and perspectives, but also better intergovernmental coordination
    regarding biological, social, economic and environmental factors. State
    fish and wildlife agency lead or affirmed participation brings in
    experience in working with both private landowners and local land use
    regulatory agencies (county Planning and Zoning agencies, for example)
    both of which are vital to the success of recovery programs.
        Finally, we fully support the provisions of financial assistance,
    regulatory certainty, and education for private landowners in S. 1180.
    The provision of incentives seems to be an area of general agreement on
    which most parties can agree. As you are aware, Mr. Chairman, the ``no
    surprises,'' ``safe harbors,'' and ``candidate conservation
    agreements'' policies were contained in Secretary Babbitt's March 1995
    ten-point policy articulation of administrative improvements to the
    ESA. The Association heartily supported that proposal, and participated
    in the consensus building between the States and the Department of the
    Interior, which culminated in the Secretary's policy. The Association
    supports the codification of these policies in statute to affirm the
    Secretary's authority in offering and implementing these policies.
        Thank you for the opportunity to share the Association's firm
    support for and perspectives on S. 1180, and I would be pleased to
    address any questions you might have.
                                   __________
          Response by Mark Van Putten to Question from Senator Chafee
        Question: That doesn't sound like ``no surprises'' to me. Could you
    explain that?
        Answer: The Section 7 waiver in S. 1180 effectively precludes the
    Services from reopening recovery implementation agreements (RIAs)
    except pursuant to the terms of the RIAs. This is a``no surprises''
    feature in the sense that Federal agencies are given assurances that
    the Services cannot unilaterally call for changes in the agreement even
    if those changes are needed to address the rapid decline of an
    imperiled species.
        The committee partly addressed NWF's concern by amending S. 1180 at
    markup to require that RIAs provide opportunities to reopen at 5-year
    intervals. However, the bill still reduces the Services' management
    flexibility from the current ESA, which authorizes the Services to
    reinitiate consultation whenever ``new information reveals effects of
    the action that may affect listed species or critical habitat in a
    manner or to an extent not previously considered.'' 50 C.F.R.--
    402.16(b).
        This new inflexibility would be harmful to imperiled species. To
    protect species, management strategies need to be updated continually
    to incorporate new information and address changed circumstances. For
    example, if the Fish and Wildlife Service enters a 5-year recovery
    implementation agreement with the Agriculture Department's Animal
    Damage Control (ADC) agency stating that depredation of the gray wolf
    to protect livestock on Federal grazing allotments is necessary to
    promote wolf recovery (the current FWS view), S. 1180 would waive
    Section 7's applicability to all future wolf depredation authorized by
    the agreement. After 3 years, if new data reveals that wolf depredation
    authorized by the agreement is contributing to the species' rapid
    decline, the bill would preclude FWS from reinitiating consultation
    with ADC and making appropriate changes to save the species.
        This new inflexibility is particularly harmful considering that a
    ``no surprises'' policy is already being applied to nonFederal
    activities covered by Habitat Conservation Plans (HCPs). With the
    Services' management options already reduced on nonFederal lands, it
    makes no sense to restrict them further on Federal lands.
        In summary, there is a significant risk that by the time management
    practices approved in the recovery implementation agreement are carried
    out, they will be inconsistent with the current scientific
    understanding of the species' needs. Even if the recovery
    implementation agreement is contributing directly to a species'
    decline, the Section 7 waiver would preclude the Services from
    reinitiating consultation and revising the agreement to conform with
    the latest science. NWF strongly recommends removing the Section 7
    waiver.
                                   __________
         Statement of the Coalition on the Environment and Jewish Life
        The Endangered Species Act encodes into law a biblical precept
    common to the Jewish, Christian, and Moslem faiths and record by the
    vast majority of Americans that creation in all its diversity is good''
    and that it is wrong for human beings to knowingly cause the extinction
    of a unique form of life. This core moral principle is the foundation
    for what has become a significant public policy priority for the
    Coalition on the Environment and Jewish life, an organization
    encompassing 26 national Jewish organizations including the
    Conservative, Orthodox, and Reform movements as well as the major
    Jewish public affairs agencies in the U.S.; the Jewish Council for
    Public Affairs, (formerly the National Jewish Community Relations
    Advisory Council), which is an umbrella organization for 13 national
    agencies and 125 Jewish public affairs councils; and the Union of
    American Hebrew Congregations, representing 1.5 million Reform Jews. We
    have been working together, and with major groups from other faiths
    that comprise the National Religious Partnership for the Environment,
    to advocate stronger protections for endangered species. We welcome
    efforts to reauthorize the Endangered Species Act and applaud the
    positive proposals included in the Senate Endangered Species Recovery
    Act of 1997; however, we are profoundly concerned that provisions in
    this bill fall far short of goals to strengthen protections for
    endangered species sufficiently to ensure their full recovery.
        Sources from the Bible to contemporary Jewish theologians teach us
    about our obligations to--in the words of Genesis--``Serve and
    protect'' the creation and all of its constituent life forms. Nothing
    was created in vain, the Talamud (Shabbat 77b) teaches us. Our sages
    taught that human beings were created last in order to remind us, lest
    we grow too proud, that God's entire world preceded us, that God
    declared the world good before we arrived, and that we could not have
    been created had all the rest of it not been formed first (Sanhedrin
    38a).
        Science and religion alike agree that there is a profound integrity
    to the natural order, a marvelous ecological complexity and
    interdependence that even now, with all our growing scientific
    understanding, rant beyond our comprehension We stand in awe of
    creation's integrity, humbled by our limited knowledge of it and our
    awesome responsibility to protect it.
        Today we are confronted with a challenge similar to that of Noah:
    we must ensure that all of God's creatures have safe passage from one
    epoch of human history to another. We have a solemn obligation to
    ensure that as our society grows and develops, that all of the plants
    and measures with which we share the earn survive into the fixture.
        The Endangered Species Act serves as a contemporary Noah's ark. Yet
    it is an ark in need of major repair. While the provisions of He Act
    have rescued many species from extinction, less than \1/2\ of 1 percent
    of endangered species have recovered sufficiently to be removes from
    the list of threatened and endangered species.
        As the Congress considers the reauthorization of the Endangered
    Species Act, we welcome efforts to address the shortcomings of the Act
    lay strengthening provisions to recover threatened and endangered
    species on both public and private lands. In July 1997, eve
    enthusiastically endorsed the Endangered Species Recovery Act
    introduced by Representative George Miller (CA) as a constructive and
    proactive effort to recover declining species by setting recovery goals
    and providing incentives.
        We welcome the provisions included in the Senate Endangered Species
    Recovery Act, S. 1180, introduced by Senators Baucus, Chafee,
    Kempthorne, and Reid, which would improve the chances for species to
    recover, including:
        Recovery plans that require the establishment of recovery teams
    which will set biologically based recovery goals using the best
    scientific and commercial data available, and which will be reviewed
    every 10 years;Financial assistance, incentives, and technical
    assistance for private property holders, including grants to implement
    conservation plans, the creation of habitat reserves on private
    property, and a revolving fund for habitat conservation planing; and
        Substantially increased appropriations for endangered species
    programs.
        However, we are gravely concerned about a number of provisions
    which we believe are not in the best interests of the recovery of
    threatened and endangered species:
        The proposed recovery teams are too heavily weighted in favor of
    vested economic interests. While we agree that those parties that have
    a stake in the outcome of land use decisions should have an opportunity
    to present their views, we believe that those developing recovery plans
    should, to the greatest degree practicable, be citizens without a
    vested interest other than the common good of the community.
        Too much weight is given to economic interests in the selection of
    recovery measures and the designation of critical habitat. Critical
    habitat should be determined solely on the bow of scientific analysis.
        Interests utilizing Federal lands whose activities are the subject
    of review by the Department of Interior are given inappropriate access
    to decisionmakers in the Department.
        Overly broad discretion is given to the Secretary of Interior
    regarding the creation of recovery teams, the designation of critical
    habitat, and the provision of wholesale exemptions to species
    protections.
        The consultation process for Federal agencies natures the Secretary
    of Interior to object to planned actions within a 60 day period. We
    believe that the current process, whereby an agency must obtain
    positive permission from the Department of Interior, is superior as it
    is a more cautious approach.
        ``No surprises'' assurances would require the government to lock
    into place for long periods of time conservation agreements between the
    Department of Interior and private landowners regardless of new
    scientific information that may invalidate the ecological assumptions
    of those agreements. We favor the approach taken in the House bill
    which would require the creation of performance bonds by recipients of
    land use permits to cover the costs of changes in conservation
    agreements due to reasonably foreseeable circumstances.
        The Senate Endangered Species Recovery Act of 1997 as currently
    proposed may, in many cases, risk species recovery, and the common good
    of the community, in favor of short term economic interests. While we
    agree that the economic and social costs of species protection should
    be calculated, and in cases of overwhelming human need be considered.
    when developing conservation plans, we believe that our solemn
    obligation to protect the integrity of creation requires us, whenever
    possible, to integrate human affairs into the larger patterns of
    creation rather than relegate to the margins of our human-conceived
    society the creation whose ecosystems all life, including our own,
    depends. A precautionary principle should be applied to protect life
    forms from extinction: we must err on the side of caution.
        We must fulfill our long term responsibilities to our children, to
    creation, and to the Creator. In the greater scheme of things, the
    requirements for economic security, human health and well-being, and
    ecological integrity are consistent. By making difficult choices today,
    we will not only fulfill our overriding moral obligations, we will
    provide a sounder basis for long term economic vitality. Consistent
    with a religious perspective humility not arrogance must be the byword
    in assessing our obligations to the multiplicity of creations with
    which we have been blessed by the Creator.
                                   __________
     Statement of the Evangelical Environmental Network, Coalition on the
     Environment and Jewish Life, and the National Council of Churches of
                                  Christ, USA
        We are gravely disappointed that the perspectives of faith and
    values, as shared by religious people throughout the United States,
    have not been invited into the Committee's discussions today. Where
    could the need for these be more self-evident than when reflecting upon
    the condition of God's creation? Failure to consider religious
    teachings has led to the destruction of God 's creatures in the first
    place, and the decision not to hear them is happening again here today.
        This is not about the exclusion of an interest group but of a way
    of looking at the world --one shared by tens of millions of people of
    faith. As the perspectives of science, commerce, environmentalism, and
    government bring unique insights, so too does that of religious
    thought. But that is not here today. And without it, these
    deliberations present to our nation a circumscription of vision and
    values.
        We appreciate that the Committee intends no disrespect to people
    and communities of faith as such. We are confident that, as always,
    many Members of Congress will listen to the views of religious
    denominations across this country. But we wish the Committee to
    understand the depth and breadth of the religious community's
    convictions here --unanimous not always on the intricate details of
    environmental policy but on the inescapably religious and moral
    principles which policy must clearly embody. People of faith in this
    nation will respond with great resolve if action on the Endangered
    Species Act is hastily moved through the Congress without due
    consideration of their views.
        Though our traditions are diverse, we together have understood the
    value of care for creation from the beginnings of Scripture: ``And God
    said, 'Let the waters swarm with swarms of living creatures, and let
    fowl fly above the. earth, across the expanse of heaven.' And God
    created the great sea-beasts, and all the living creatures of every
    kind that creep, which the waters brought forth in swarms, and all the
    winged birds of every kind. And God saw that this was good.'' (Genesis
    1: 2021) God's affirmation of all creation sets the standard for our
    protection of it. We ask ourselves, as a result of this legislation
    will the condition of life and habitat be more or less likely to be
    ``good''?
        At the end of the Noah story, we read of God's rescue and recovery
    of all species, as God establishes ``the covenant which want make
    between Me and you and every living creature that is with you, for all
    future generations.'' (Genesis 9: 12) In this legislation, will we seek
    less than rescue and recovery? With ``every living creature'' and ``for
    all future generations''? And underlying this standard is the
    proclamation from Psalms: ``The Earth is the Lord's and the fullness
    thereof'' (Psalm 24: 1). God owns it, not us. Will this legislation,
    then, help us live up to our obligations to be good stewards of God's
    creation?
        Increasingly, people of faith from all the world's great traditions
    are coming to understand afresh how care for the diversity of creation
    is a standard of faithfulness, at the heart of what it must mean to be
    religious. We are relearning what our sages have taught for millennia.
    Sages such as St. Basil the Great, who wrote in the 4th century: ``May
    we realize that our brothers and sisters the animals live not for us
    alone, but for themselves and for You, God, and that they love the
    sweetness of life.'' Talmudic sages writing at roughly the same time
    noted (Shabbat 77b, Sanhedrin 38a) that even those species we might
    consider unnecessary or a nuisance have value to God and to the world--
    and that Genesis relates, ``lest we grow too proud, that even the fleas
    took precedence over us in the order of creation.'' St. Thomas Aquinas
    wrote, ``The whole universe together participates in the divine
    goodness more perfectly, and represents it better, than any single
    creature whatever.'' The 1 3th century sage, Nachmanides, in his
    commentary on Deuteronomy, wrote that ``The Bible does not permit a
    killing that would uproot a species, even when it has permitted the
    killing of individuals of that species.''
        Scripture and perennial teachings such as these have led
    increasingly of late to a distinctively religious vision and voice on
    issues of environmental justice and sustainability --a vision and voice
    that have been lifted up in ardent support of the Endangered Species
    Act. The National Council of Churches of Christ has distributed ``A
    Call to Defend God's Creation'' to 50,000 mainline Protestant, historic
    African-American, and Orthodox Christian congregations. Across the
    broadest spectrum, from Reform to Orthodox, members of the Jewish
    community worked together on ``Operation Noah,'' celebrating how the
    Endangered Species Act has served as a modern day Ark, preserving and
    nurturing the remnants of God's creation until they, like the Bald
    Eagle, can soar on their own again. After much prayer and reflection,
    members of the Evangelical Environmental Network took on the defense of
    the Endangered Species Act as its very first public policy initiative.
    Representatives of the faith community have testified in formal
    hearings and met with senior Congressional leaders of both parties in
    private deliberations.
        We are eager, therefore, to continue this spirit of dialog as
    discussion of new legislation, such as S. 1180 and H.R. 2351, move
    forward in this Congress. In this light, we wish to make clear that
    there are a number of provisions in S. 1180 that we believe will serve
    the common good of human community and natural habitat alike. The
    Landowner's Education and Technical Assistance program, the revolving
    fund to assist with Habitat Conservation Plans, and the inventory of
    Federal lands are all positive steps in the right direction. They will
    help the restoration of species even as they provide added flexibility
    and clarity of law.
        We do believe, however--for is this not the standard set before us
    by God's covenant in Genesis--that this legislation needs to focus more
    firmly on the recovery of endangered species. To this end, we are
    concerned that certain elements in the bill as it now stands will
    actively hinder that goal. For example, while we welcome the mandating
    of public hearings in a number of provisions, we are concerned that
    industries which apply for the use of Federal lands are granted
    private, unlimited access to the consultation process, without the
    opportunity for public comment. S. 1180 also requires in-depth analyses
    of the costs of recovery plans, without seeking to set this in the
    comprehensive context of the economic and health benefits, ecosystem
    services, and moral value of species recovery. We also fear that the
    less stringent, extremely timebound consultation requirements for
    Federal agencies would result in weakened protection of endangered
    species on public lands.
        Along with these specifics, which we are eager to discuss with the
    authors of this legislation, we are, however, most deeply concerned
    that adequate time be given for people across the United States,
    including religious communities, to be informed about, and to share
    their views on, this legislation as proposed.
        In the 104th Congress, efforts were made to rush final action on
    ill-considered revisions of the Endangered Species Act. Not again. The
    religious community played perhaps some small role in preventing that
    action and the pace with which it was undertaken. The cordial and
    cooperative relationship we have been steadily building with Members of
    Congress and the Administration over the past several years should
    prevent this from happening once more. Indeed, we look forward not
    simply to avoiding past failures but to amplifying new visions.
        The biological integrity of the world and its spiritual integrity
    are stunningly intertwined, and it is no small thing that we are
    invited --more than invited, that we are called --to work as God's
    partners in tending this exquisite garden, this precious planet whose
    stewards we are. Our commitment to the endangered species of this
    planet is one way, one indispensable way, in which we choose to respond
    to that call, and we do so with love, with gratitude, and with
    reverence. As you consider your actions, it is our prayer that this
    same reverence will enter into your deliberations.
                                   __________
             Statement by the National Association of Home Builders
                                  introduction
        This statement is presented on behalf of the National Association
    of Home Builders (NAHB). NAHB and its 800 state and local affiliate
    organizations comprise over 195,000 member firms that employ over
    8,000,000 people. Many of our members have been involved in efforts to
    make the Endangered Species Act (ESA) work better for landowners while
    at the same time protect endangered and threatened species.
    Unfortunately, while there have been successes, the Act's often
    unwieldy and inflexible nature has more often than not frustrated these
    efforts.
        NAHB's members recognize the importance of maintaining our
    country's rich natural heritage. However, they also recognize the
    importance of economic growth and, of course, the investment in the
    future that purchasing one's own home represents. Therefore, NAHB has
    continued to call for improvements to the ESA that can better balance
    species protection efforts with goals for economic progress.
        The commitment of NAHB's members to making the ESA work better is
    illustrative of the impact this law has had on the home building
    industry. Indeed, while residential construction represents over 7
    percent of our nation's GDP, NAHB is primarily a small business
    organization, and as such can be dramatically affected by the Act's
    sometimes sweeping prohibitions. Specifically, over half of the members
    of NAHB build fewer than 10 homes per year, and nearly \3/4\ build 25
    or fewer homes.
                  overview and the need for legislative reform
        The ESA imposes some of the most stringent restrictions on the use
    of private property of any Federal statute. The Act's provisions are
    mandatory, inflexible, and absolute. Indeed, unlike most legislative
    schemes, the statute's requirements are not moderated by ``where
    practicable'' or ``where the benefits exceed the costs.'' This
    inflexibility is manifested by the Act's imposition of restrictions on
    private land due to the listing of a particular species which have
    often been based on questionable scientific data. Little opportunity
    for public involvement in the listing process exists, and the burden of
    proof often falls to the landowner where alleged violations are
    concerned.
        As an example of the kinds of impacts the Act can have on
    communities and regions around the country, consider the listing of the
    Golden-cheeked Warbler as an endangered species. The listing
    effectively imposed a development moratorium in Travis County, Texas.
    The county appraisal district estimated that land values in the area
    fell from over $335 million to less than $57 million after the Warbler
    was listed. Moreover, estimates reflected a reduction in property tax
    revenues from almost $7 million to $302,000. These figures do not
    include lost revenues from abandoned business ventures, and foregone
    taxes to the city, school districts, and county government. Similarly,
    the listing of the California Gnatcatcher was accompanied by
    prohibitions that severely restricted or prohibited the use of more
    than 300,000 acres of private property in Southern California, an area
    six times larger than Washington, DC. Clearly, it is cases such as
    these, which have the potential to devastate communities, that
    illustrate the dramatic need for an improved ESA that is both accurate
    and sensitive to the concerns of the citizens of this nation. Moreover,
    while we should protect the environment from harm, Congress should
    ensure that the Act's significant land use prohibitions are exercised
    only when accurate and reliable scientific data demonstrates a species
    is truly endangered. Congress should guarantee that the Act's
    burdensome costs are distributed equitably with minimal disruption to
    local and regional economies, and without expecting a few landowners to
    foot the large costs of species protection and habitat preservation.
    Congress should also guarantee that the public has a much greater role
    in the ESA process than it currently does, and that the Federal
    Government is held much more accountable for how the Act is
    implemented.
        At the same time, however, NAHB clearly recognizes that species
    preservation is a worthy national objective and the Act's goals are
    beyond censure. Our nation's diversity of fish, wildlife and plants are
    part of our cultural and historical heritage, and the Act's aspirations
    to nurture and preserve a biodiverse environment are laudable. To be
    certain, the ESA is not without its successes. Indeed, most recently
    the Bald Eagle was ``downlisted'' from the endangered to the threatened
    category, an action that many hail as the result of the Act's
    effectiveness. Unfortunately, the Eagle is one of a few rare
    exceptions, as the Act has largely failed to achieve its ultimate goal
    of species recovery. Even in the case of the Eagle, although it was
    downlisted under the ESA, much of the credit for its recovery must be
    attributed to the 1972 Bald Eagle Protection Act, which banned the use
    of DDT.
        Unquestionably, the ESA can be a much more effective vehicle for
    species preservation than it has been to date. Even the environmental
    community has recognized the Act's shortcomings, and has gone on record
    in support of significant changes to the Act. Peter A.A. Berle,
    President of the National Audubon Society, has acknowledged publicly
    that ``the Act is not working well enough to accomplish its purpose.''
    One of the Act's drafters and a former Sierra Club president, Douglas
    Wheeler, was succinct in his criticism: ``The Endangered Species Act
    just doesn't work.'' His sentiments reflect the exasperation felt in
    both the industry and the environmental community. Consequently, the
    statute's legislative scheme should be made more effective, more
    efficient and more equitable. Accordingly, ESA implantation must be
    improved in five key areas: the listing process, critical habitat
    designation, habitat conservation plans, recovery planning, and public
    involvement in the process.
        S. 1180, the Endangered Species Recovery Act of 1997, addresses
    each of these areas in some fashion, and this testimony will place its
    focus there. Clearly, the bill does not reflect NAHB recommendations in
    all of these areas, and does not address each and every aspect of the
    Act that NAHB believes needs improvement. Accordingly, this testimony
    will also note those areas where NAHB believes the bill falls short and
    could be improved by some additional language that, in the opinion of
    NAHB, should not be so controversial as to stall the progress of this
    legislation. However, NAHB believes S. 1180 makes some very important
    strides toward making the ESA a law that is much more equitable and
    workable for landowners, but which maintains the underlying goal of
    species protection.
                              the listing process
        Controversial decisions have become far too commonplace in the
    listing process, and have served to taint it. Clearly, the Fish and
    Wildlife Service (FWS) should extend the Act's protections to only
    those species that genuinely confront endangerment. Currently, there is
    no congressional or regulatory directive to guide FWS in their listing
    decisions. Predictably, the agency routinely renders unreliable listing
    decisions with no basis in science or fact. The harmful results from
    FWS's current listing practices are twofold: either the agency reviews
    and accepts petitions to list species that contain too little or
    unreliable data to determine if the species is in danger of extinction,
    or, more importantly, FWS may fail to list a species that is truly
    endangered.
        Under current law, a species secures the Act's formidable
    protections upon FWS's official conclusion that it is in danger of
    extinction. The criteria for determining that a species is threatened
    or endangered are broad, and include: destruction, modification, or
    curtailment of habitat or range; disease or predation; and inadequate
    existing regulatory mechanisms. Considering the broad statutory
    proscription of a ``take,'' reliable listing decisions are imperative.
    Although Congress directed that economic considerations play no role
    during species listing, it is hard to ignore the exorbitant costs
    inherent to the listing process. The ministerial act of listing a
    species is estimated at $60,000 per species.
        [The Endangered Species Program--U.S. Fish and Wildlife Service
    Audit Report, Report No. 90-98, September 1990 at 6]. Based on this
    figure, well over $81 million has been spent merely to queue species
    and signal they deserve some protection. As high as these costs are,
    however, they pale in comparison to the costs that flow from the
    listing decision.
        Considering the Act's significant land use prohibitions and the
    excessive costs associated with listing a species, it would be
    reasonable to expect FWS's listing process to be based upon rigorous
    science and accurate, reliable data that demonstrates a species is
    truly endangered. Unfortunately, it is not. The listing process should
    be open to the public at all stages. Today it is not. The listing
    process should include the identification of critical habitat. Today it
    routinely does not.
        Currently, the agency bases its listing decision upon ``best
    scientific or commercial data available,'' vague language prescribed by
    the Act but not defined anywhere by law or regulation. The
    ramifications of Congress' failure to provide definitive language
    explaining what constitutes acceptable data has become a recurring
    source for dispute. FWS has accordingly been left with inadequate data,
    in the absence of a congressional directive, on which to base its
    listing decisions. Predictably, recurring debate and prolonged
    litigation regarding the validity of certain listing decisions has
    arisen.
        The vernal pool Fairy Shrimp exemplifies the faulty listing
    process. In 1991, Ms. Roxanne Bitmann, an ``interested'' citizen, sent
    a one-paragraph petition to the Fish and Wildlife Service requesting
    the Fairy Shrimp be listed as endangered. The petition claimed that the
    shrimp were being threatened by urban development, and agricultural
    land conversion. The petition did not contain any data documenting
    these threats to the Fairy Shrimp. The petition did not contain any
    scientific evidence that the Fairy Shrimp's population was diminishing,
    even marginally.
        Nevertheless, Fish and Wildlife determined the petition contained
    ``substantial scientific data'' and shortly proposed to list the Fairy
    Shrimp. FWS's proposal to list the Fairy Shrimp was based on two
    unproven assumptions: that the species is solely reliant on vernal
    pools as habitat and that California vernal pools are in imminent
    danger of eradication. In fact, the actual evidence presented to FWS is
    insufficient to indicate that either Fairy Shrimp or vernal pools are
    endangered. During the public comment period on the proposed listing,
    an independent biologist, widely recognized in the scientific
    community, sampled over 3,000 vernal pools. The biologist found the
    shrimp to be hardy, adaptable and ubiquitous throughout California. In
    addition, California already has strict conservation measures
    protecting wetlands such as vernal pools. In contrast, Fish and
    Wildlife accepted a study of only 120 vernal pools to reach the
    conclusion that the shrimp is threatened and listed the species in
    September 1994. The impacts of the Fairy Shrimp's listing are not
    minor. Vernal pools cover roughly 1 million acres in California. The
    Sacramento municipal utility district was notified by Fish and Wildlife
    that they were required to preserve 117 acres of land because a
    pipeline would impact on 2 acres of vernal pools.
        Congress must ensure that FWS extends the Act's protections only to
    those species, which are truly threatened or endangered, based upon all
    appropriate documentation and research. The listing process, therefore,
    should be reformed to require a stricter scientific basis for listing
    species. Ideally, NAHB believes that Congress should define ``best
    available science'' to include: the minimum viable population of the
    species, the minimum habitat necessary for the species survival, the
    species geographic distribution, population, and percentage decline,
    and the actual threats to the species. NAHB also believes that an ideal
    formal, systematic peer review process would require evaluation of the
    methodologies used in the collection of the data. This would assure
    that researchers follow appropriate methodologies for gathering and
    analyzing data.
        While S. 1180 does not go as far as NAHB's recommendations, it does
    indeed define what constitutes ``best scientific and commercial data
    available.'' The legislation requires that the Secretary, when
    evaluating scientific data, give greater weight to that which is
    ``empirical, field-tested, or peer-reviewed.'' While NAHB believes that
    all data should be field-tested, verifiable, and peer-reviewed, this
    language is an important step toward ensuring that the data on which
    listing and delisting decisions are made is as accurate as possible. In
    an effort to hold the Secretary further accountable, the legislation
    also requires that he or she publish a summary of the data utilized for
    the listing decision, and that the Secretary publish in the Federal
    Register a description of additional scientific and commercial data
    that would assist in recovery plan preparation. The Secretary would
    then be required to issue a schedule for obtaining that data. Finally,
    by replacing ``or'' with ``and'' in the phrase ``best scientific and
    commercial data available,'' the legislation expands the universe of
    data from which it will be necessary to draw. S. 1180 makes some
    important changes to the listing process that would at once restore
    much of the credibility that has been lost in the process, and
    eliminate at least some of the controversy surrounding many of the
    listing decisions.
        Also, NAHB believes that Congress should require FWS to establish
    professional standards for the researchers who prepare the best
    available data. It is imperative that the scientists and biologists
    that compile the required data have no financial interest in the
    outcome of the research. Expert biologists stand to gain substantial
    financial rewards once their petition listing a species as endangered
    or threatened is accepted by FWS. Large research grants and lucrative
    consulting contracts with government agencies and developers are the
    foreseeable outcomes once a researcher's listing becomes official. S.
    1180 appears to have done that. The legislation requires that the
    independent referees chosen for peer review ``do not have, or represent
    any person with, a conflict of interest with respect to the
    determination that is the subject of the review.'' NAHB applauds this
    provision.
        Finally, in an effort to further tighten the listing process and
    prevent the sort of ``back of the envelope'' listing petitions
    referenced here, S. 1180 takes what NAHB believes to be some very
    important steps in requiring minimum documentation for undertaking the
    listing process. The requirements include: 1) documentation that the
    fish, wildlife, or plant is a species as defined by the ESA; 2)
    description of the available data on the historical and current range
    and distribution of the species; 3) appraisal of the available data on
    the status and trends of all extant populations; 4) appraisal of the
    available data on the threats to the species; and 5) identification of
    what data or information has been peer-reviewed. NAHB would encourage
    that the legislation take the additional step of establishing a public
    docket with all of the information received or generated internally and
    make it available to any interested person.
                                critical habitat
        FWS routinely fails to designate critical habitat for listed
    species. Congress mandated that the critical habitat of a species
    should be identified at the time the listing decision is made ``to the
    maximum extent prudent and determinable.'' Only those areas essential
    to the protection and recovery of the focal species are considered its
    critical habitat. Furthermore, Section 4 of the Act directs FWS to
    consider economic and other relevant impacts when it designates
    critical habitat, and the Secretary may exclude any area from a
    species' critical habitat if the detriments of inclusion outweigh the
    benefits. FWS's routine failure to designate critical habitat for
    endangered and threatened species compromises the Act's chances for
    success. Opponents of reform rely on the statutory language contained
    in Section 4 to defend their position that the Act sufficiently
    considers economic impacts. This argument is deficient. As of September
    1991, FWS had not designated critical habitat for 84 percent of all
    listed species. [Endangered Species Act: Types and Number of
    Implementing Actions, Briefing Report to the Chairman, Committee on
    Science, Space, and Technology, House of Representatives at 29 (U.S.
    General Accounting Office, May 1992).] This poor track record suggests
    that the FWS has not met the statute's mandate in designating critical
    habitat or fulfilling the congressional mandate.
        FWS's consistent failure to designate critical habitat
    unquestionably subverts one of the few areas in the Act where
    legislative intent is clear. The legislative history for the Act's 1978
    amendments evidences Congress's intent that:
        . . . in most situations the Secretary will, in fact, designate
    critical habitat at the time that a species is listed as either
    endangered or threatened. It is only in rare circumstances where the
    specification of critical habitat concurrently with the listing would
    not be beneficial to the species. [Act of Nov. 10, 1978, Pub. L. No.
    95-632, 11(1), 92 Stat. 3751, 3764. H.R. Rep. No. 1625, 95th
    Cong. 2d. sess. (1978)] [emphasis added].
        The agency's failure to designate critical habitat creates severe
    and unnecessary problems for private landowners. As a result of FWS'
    failure to designate critical habitat, FWS regulates development on all
    potential habitat. Moreover, since the Act does not require
    notification of property owners that they own potential habitat of a
    listed endangered species, many individuals are unaware of their
    responsibilities. Congress should require that FWS provide much greater
    notice to potentially affected landowners. NAHB includes a
    recommendation on how this can be improved later in this statement.
        Without critical habitat designation, we face more unnecessary
    conflicts like the one between the Delhi Sands Flower-Loving Fly and
    the San Bernardino County Medical Center. The Medical Center was
    required to spend over $3.28 million to preserve land that might be
    occupied by 8 flies--a cost of over $410,000 per Fly.
        FWS often asserts that there is insufficient scientific data to
    support the designation of critical habitat. If deficiencies in the
    data exist at the time of the species listing, Congress should require
    FWS to collect and consider all necessary data. Too often the task of
    collecting and analyzing biological data is expected from the landowner
    at great expense. Furthermore, it is imperative that the information
    upon which a critical habitat is designated be based upon the best
    scientific and commercial data available. Locking up thousands of acres
    of land based upon questionable determinations of critical habitat is
    simply unacceptable.
        Congress, therefore, needs to make collection of sufficient and
    appropriate data for critical habitat designation a requirement, and a
    priority, of FWS.
        With one consideration, S. 1180 makes solid improvements in
    requiring that critical habitat be designated concurrently with the
    listing of a species. The legislation requires that within 9 months the
    team designated to develop the recovery plan provide the Secretary with
    a recommendation of any habitat that should be designated as critical.
    The Secretary must then propose the designation of critical habitat to
    the maximum extent prudent and determinable within 18 months of the
    listing. The final regulation is due within 30 months of the final
    listing. S. 1180 also requires that the critical habitat be based on
    the best scientific and commercial data available.
        NAHB's chief concern in this provision is the continued use of the
    phrase ``to the maximum extent prudent and determinable.'' This is the
    same as current law, and has been used by FWS to avoid listing critical
    habitat.
        Additionally, NAHB believes that the Federal Government must weigh
    the socio-economic consequences before critical habitat designations
    are made. These considerations are not part of the listing process.
    Congress should strengthen the mandate that critical habitat be
    designated at the time of listing and condition the Act's restrictions
    on these determinations. There should be no exceptions. Listings should
    not be permitted without critical habitat designation. This is an area
    where S. 1180 falls short. While the legislation requires that the
    Secretary ``consider'' the economic impacts of critical habitat
    designation and describes them in the proposed designation, there is no
    requirement that the designation be based in any way on this
    information. The legislation also requires that in the event the
    recovery measures proposed in a draft recovery plan would impose
    ``significant costs'' on a municipality, region, county, or industry,
    the recovery team shall prepare a description of the overall effects on
    the public and private sectors. Finally, the legislation would require
    that recovery measures ``achieve an appropriate balance'' between the
    effectiveness of achieving the recovery goal, the time period to
    achieve the goal, and the social and economic impacts of the measures.
    Unfortunately, the terms ``consider,'' ``significant costs,'' and
    ``appropriate balance'' are not defined. This leaves far too much up to
    interpretation.
                           habitat conservation plans
        Congress needs to revise the Section 10(a) incidental take permit.
    The Section 10(a) permit is critical, as it is a landowner's sole
    remedy to the Act's land use prohibitions when no other Federal action
    is necessary. The Act's statutory language vaguely describes the
    necessary components of a Habitat Conservation Plan (HCP), and FWS
    regulations merely reiterate the Act's imprecise criteria. Meaningful
    and detailed HCP guidelines should be developed to advise participants
    on the essential elements of any plan, on what value the FWS ascribes
    to habitat enhancement or other conservation measures, and how to
    measure the success or failure of the plan.
        Although the HCP concept originated in the Act's 1982 amendments,
    it has rarely been utilized. In the past 12 years, FWS has approved
    fewer than forty HCPs nationwide, a number that belies the claim that
    the HCP concept has been employed extensively. Ironically, even FWS
    recommends that private parties seeking HCP approval evaluate whether a
    proposed project contains a Federal nexus that would qualify it for
    Section 7. Unfortunately, many Federal agencies refuse to perform
    Section 7 consultations when granting permits because of the shortage
    of staff or the paperwork requirements. Thus many private landowners
    are left in an untenable position with few acceptable alternatives.
    Before HCPs are widely accepted as the Act's panacea, several reforms
    are essential.
        In the past, FWS has been unwilling to offer definitive guidelines
    in crafting an acceptable HCP. Although the FWS has routinely attended
    all HCP planning sessions, the agency typically refuses to indicate
    whether it will find the plan acceptable or whether a particular
    component will prevent their approval of the HCP. Meaningful FWS
    involvement at all stages can introduce reliability, equality, and
    efficiency to the HCP process. Without FWS commitment, local officials
    and landowners alike face Federal regulations that impose stringent
    land use restrictions based on loosely defined criteria.
        Congress should require FWS to furnish definitive guidelines,
    specific to the focal species, as to what constitutes an acceptable
    habitat conservation plan. HCP guidelines should be developed to advise
    participants on the essential elements of any plan, on what value the
    FWS ascribes to habitat enhancement or other conservation measures, and
    how to measure the success or failure of the plan.
        Unfortunately, S. 1180 needs to go much further in this regard.
    NAHB advocates that the legislation do the following:
        Provide the applicant with the opportunity to engage in a
    preapplication consultation procedure similar to informal consultation
    under Section 7; mandatory pre-application and application processing
    timeframes to incorporate a consultation and permit processing
    timeframe procedure like those procedures applied under Section 7;
        Require FWS to approve or deny any complete Section 10 application
    that does not require an environmental impact study within 180 days of
    receiving such application, and should FWS not meet that deadline,
    require that the permit be deemed approved;
        Require FWS to approve or deny any complete Section 10 permit that
    requires an environmental impact study within 1 year of receiving such
    application, and should FWS not meet that deadline, require that the
    permit be deemed approved;
        Provide that should FWS deny an application, it must do so in
    writing within the review period and concurrently provide the applicant
    with those minimum necessary mitigation or compensation measures which,
    if incorporated into the applicant's permit application, would result
    in the approval of the permit application by FWS;
        Require that a Section 10 application be deemed complete unless FWS
    has notified the applicant in writing within 20 days of receipt of the
    application that the application is incomplete and has clearly
    identified which aspects of the application are incomplete; notice to
    the applicant of the acceptability of the measures within the 180 day
    review period, FWS should be required to issue the local permit within
    45 days of providing notice of acceptance of the mitigation measures;
        Should FWS decide that the applicant's proposed mitigation and
    compensation measures are not sufficient to issue a Section 10 permit,
    the applicant should be immediately entitled to bring suit in the U.S.
    Court of Claims for a determination of damages suffered as a result of
    any regulatory taking.
        Another area in which improvement is necessary is that of setting
    out the criteria for Section 10(a) permit issuance. Indeed, the current
    criteria are vague and subject to agency abuse, particularly in terms
    of what constitutes ``indirect take.'' Permit applicants have little in
    the way of guidance on whether or not the action they are proposing
    would constitute a ``take'' under current law. While NAHB clearly is of
    the belief that the current definition of take is unfairly broad, that
    may be a fight for another day. However, at the very least, it should
    be incumbent upon the FWS to identify in any rule listing a species as
    endangered or threatened those activities that would constitute a take
    of that listed species.
        Fortunately, the administration has set a precedent along these
    lines. Responding to public criticism that the FWS was being
    uncooperative in responding to landowner requests for information about
    the impact of their actions on listed species, the FWS and National
    Marine Fisheries Service (NMFS) introduced a new policy in 1994 in an
    attempt to stave off some of that criticism. They announced that in all
    future listings they will ``identify, to the maximum extent known at
    the time a species is listed, specific activities that will not be
    considered likely to result in violation of Section 9.'' Notice of
    Interagency Cooperative Policy for Endangered Species Act Section 9
    Prohibitions, 59 Fed. Reg. 34272 (July 1, 1994). This policy also
    identifies agency contact personnel for landowners seeking further
    guidance. The agencies have used these policies in a number of listings
    for which the prior practice of providing no ``take/no take'' guidance
    would have left regulated entities in the dark over what actions might
    trigger ESA liability. The listing of the Barton Springs Salamander is
    perhaps the best-known of these instances. NAHB believes that this
    administration policy should be codified in S. 1180.
        In the same vein, another improvement to current law would be a
    requirement that FWS define the basic standards by which they judge
    permit applications. This would provide potential permit applicants
    with at least a framework within which they can prepare their permit
    applications. Additionally, FWS should be required to provide
    scientific documentation to substantiate any decision made to grant or
    deny a permit.
                               public involvement
        One of the great inadequacies of the current ESA is the lack of
    public involvement in the listing and critical habitat designation
    process, especially the members of the public most likely to be
    dramatically affected by these actions.
        Clearly, it is the landowner that faces the most significant impact
    as a result of a listing, and it is the landowner that, therefore,
    should be immersed in the process from beginning to end. Current law
    has no public notice requirement outside of a Federal register notice
    of proposed listing, and the requirement that a hearing be held in each
    affected state if requested within 45 days of final notice.
    Unfortunately, S. 1180 does not appreciably improve upon this scenario.
    It does require that a hearing be held on a draft recovery plan, which
    includes proposed critical habitat, if requested by any person.
        NAHB strongly believes that this must be improved. NAHB recommends
    that a system be established whereby the FWS would maintain a mailing
    list of interested parties who would receive notification of any and
    all petitions to list, proposed listings and draft recovery plans.
    Currently, the Army Corps of Engineers maintains such a list for
    proposed actions under the Section 404 program. In this way,
    landowners, environmental organizations, and other interested parties
    would have sufficient opportunity to comment on these proposed agency
    actions.
                               recovery planning
        The ESA will be effective only if it sets a course for species
    recovery. All of the effort associated with the Act's implementation is
    ultimately directed at a single goal--the recovery of endangered
    species to the point where their continued existence is no longer in
    doubt. Surprisingly, only a minority of listed species boasts recovery
    plans, and few of these plans have been implemented. The Act mandates
    the Secretary to develop and implement recovery plans for all listed
    species, unless, as the statute states, ``a plan will not promote the
    conservation of the [particular] species.'' Yet nowhere has Congress
    explained how a recovery plan could ever fail to promote species
    conservation. Where the language of the statute itself is unclear, as
    it is here, it is impossible for divergent groups to agree on
    congressional intent, much less for FWS to successfully implement.
        The recovery plan concept is crucial for several reasons. Unless
    the Act is successful in rescuing species from extinction, the ESA's
    reputation will be an ever-burgeoning catalog of rare species.
    Moreover, the recovery planning process directs FWS to give priority to
    those species ``that are most likely to benefit from such plans,
    particularly those species ... in conflict with construction or other
    development activity.'' The Act's legislative direction seems clear:
    Federal resources should be aimed at recovering the maximum number of
    species that pose the minimum amount of conflict with development.
    Recovery plans are also required to include a description of site-
    specific management actions; objective, measurable standards on which
    to judge the appropriateness of delisting; and a timetable and cost
    estimates for attainment of the plan's goals. Recovery plans therefore
    empower Americans to effectively gauge desired results against the
    Act's costs.
        Recovery plans also assume a great degree of urgency given that the
    Act boasts a recovery rate of about two species per decade. Of the
    1,354 species listed since 1966, only 19 species have ever been removed
    from the list of species covered by the Act. Seven of these 19 were de-
    listed due to extinction. Eight were de-listed after subsequent
    information proved their initial listing was erroneous. Only four were
    de-listed because they had recovered and no longer warranted protection
    under the Act. Three of these recovered species were birds native to an
    island in the western Pacific (the other was a plant indigenous to
    Utah). Even the recovery of the three birds is questionable. FWS
    conceded that the birds' population counts may have been mistakenly
    low.
        Another problem with the current recovery planning process is that
    FWS routinely adopts fiscally irresponsible recovery plans and then is
    not held accountable for implementing them. Consequently, FWS requires
    the private sector to bear the costs of recovery. For example, FWS
    requires Section 10(a) permits to achieve recovery for species. This
    requires property owners to implement excessively costly mitigation and
    preservation requirements, which exceed the impacts of the project.
        NAHB believes Congress should fortify the recovery planning process
    envisioned in the Act by requiring the preparation and use of timely,
    comprehensive, effective and cost-efficient recovery plans. S. 1180
    makes significant improvements in this direction by requiring that for
    each listed species, a recovery plan be drafted and finalized under a
    strict deadline. However, NAHB would also advocate that the requirement
    for peer review of the biological goals within a recovery plan be at
    least as stringent as that for listing and delisting decisions.
    Furthermore, there should be a requirement that the critical habitat
    designated as part of the recovery plan be peer reviewed in the same
    fashion. Finally, FWS should be required to adopt the ``least-cost''
    alternative in recovery plans, and be prohibited from adopting a plan
    until all financial expenditures are identified.
                 no surprises/candidate conservation agreements
        NAHB applauds the sponsors of S. 1180 for taking the important step
    of codifying two important administration policies: ``no surprises''
    and ``candidate conservation agreements.'' Both of these policies
    provide much needed assurances that when a deal is struck between
    landowners and their local, state or Federal Government that provide
    for both species conservation and the ability of the landowner to use
    his or her property, the government cannot come back with new
    information that requires further mitigation. This is a critical
    component in getting the landowner to the table and providing him or
    her with a much-needed incentive to preserve species.
                      other important nahb recommendations
        NAHB believes that S. 1180 can be substantially improved in other
    important ways by addressing the following issues:
    Defining ``Knowing'' Violation
        Currently, the ESA provides for criminal conviction of illegal
    taking or possession of listed species, even if the violator doesn't
    know the species is listed or that the conduct is illegal. Criminal
    penalties are severe and can be up to $50,000 and 1 year of
    imprisonment for a ``knowing'' violation of any provision of the Act,
    or any permit, or of Section 9 regulations. The ESA also authorizes
    civil penalties of $25,000 per ``knowing'' violation.
        NAHB would propose two changes to this language. First, while
    clearly NAHB supports the concept that those who have the intent to
    take an endangered or threatened species should face penalty, current
    law does not limit prosecution to those who intend to commit this
    unlawful action. Indeed, ``knowing'' is defined nowhere in the ESA, and
    is left up to broad interpretation. As a result, an individual who had
    no knowledge that an endangered species might reside on his or her
    property, and who had no knowledge that his or her action might result
    in the take of such a species, can be held just as liable as the
    individual who fully intended to commit a take of a listed species.
    NAHB recommends that ``knowing'' be defined as a knowledge that one's
    action would result in the take of a listed species. This would mean
    that the alleged violator would have to have been aware that a species
    they might have taken was in fact on the endangered or threatened list.
        Additionally, as is the case in other instances, NAHB recommends
    that the threshold for imposing criminal penalties on an individual
    found guilty of a violation under the ESA be higher than that for civil
    penalties. Indeed, the criminal penalties as spelled out in the Act are
    more severe, including jail time, and therefore should at the very
    least be held to the threshold that their actions ``proximately and
    forseeably'' would have resulted in the take of a listed species. S.
    1180 is silent in this area.
    Cost Sharing
        Species preservation exacts a heavy financial burden on the local
    community. The Federal Government should share the cost. If species
    preservation is deemed a worthy national goal the Federal Government
    should share in the responsibility for the cost.
        Recently, for example, FWS has asserted that the Federal Government
    should not share the financial burden of developing an HCP, since an
    HCP's purpose is to allow for the incidental taking of wildlife
    species, which are a ``public commodity.'' FWS's reasoning suggests
    that landowners should continue to bear the sole financial burden of
    developing the conservation plans solely because the plan will enable
    landowners to realize some value from their land. Landowners already
    contribute significantly to species preservation by donating thousands
    of acres of essential habitat. Landowners are also the largest
    financial contributors to HCP development and implementation. It is
    important for Congress and FWS to recognize that private property
    owners are often instrumental in preserving crucial habitat for
    species, but they can not shoulder the financial burden alone.
        Interestingly, FWS did not always adopt such a frugal opinion
    regarding species preservation. One of the earliest HCPs, the Coachella
    HCP, which consistently receives praise from a diverse group of
    admirers as model for compromise and cooperation between builders,
    developers, environmental organizations, government agencies, and
    private landowners, relied heavily upon government funding. Land
    acquisition costs for preserve lands totaled approximately $25 million.
    The majority of the funds ($15 million) were derived from the Federal
    Land and Water Conservation Fund and through land trades conducted by
    the Bureau of Land Management. Developer mitigation fees comprised only
    25 percent of the HCP's cost. Unfortunately, since 1986 when the
    Coachella plan was approved and Congress used it as a model for the
    1986 ESA amendments, FWS has largely refused to use the funds
    appropriated by Congress to further species preservation in areas that
    need it most.
        S. 1180 does not address this problem. NAHB advocates that the Land
    and Water Conservation Fund continue to provide funding for habitat
    acquisition for approved HCP's.
                                   conclusion
        NAHB supports S. 1180, and recommends that the Senate move the
    legislation to the floor. While it does not accomplish everything that
    NAHB seeks in terms of reforms to the Endangered Species Act, it makes
    some extremely important strides in the direction of making the Act
    work better for all concerned.
                                   __________
               Statement of the National Association of Realtors
                                  introduction
        Thank you for the opportunity to submit the National Association of
    Realtors' comments for the record on S. 1180, the Endangered Species
    Recovery Act. The National Association of Realtors, comprised of nearly
    720,000 members involved in all aspects of the real estate industry,
    has a keen interest in a balanced Endangered Species Act which
    accommodates both species protection and economic opportunity and
    vitality.
        NAR believes that development should be encouraged as it is a
    stimulus to the economy, it increases the tax base, provides places to
    live and work, and offers opportunities that would not otherwise exist.
    However, we also realize the responsibility we have to educate and work
    with local, state, and Federal Government officials to develop
    responsible growth planning that is equitable and considers the
    divergent needs of transportation, housing, agriculture, commercial,
    industrial, and environmental concerns.
                           endangered species policy
        The National Association of Realtors believes the way in which the
    Endangered Species Act (ESA) is implemented is of major importance. We
    support the addition of amendments to the Threatened and Endangered
    Species Act that recognize socio-economic considerations and urge that
    compensation be required in cases where the value of private property
    has been unduly diminished by government action under the Act.
        We believe that any legislation or regulation should include the
    following concepts:
        Compensation to property owners whose land is adversely affected by
    implementation of any provision of the ESA.
        Use of incentives to private property owners for species protection
    rather than relying solely on restrictions and penalties.
        A listing as threatened or endangered must be based on verifiable,
    scientific evidence.
        A strict limitation on how far down the chain of sub-species will
    be allowed in listings.
        Provisions to protect private property rights and narrow the reach
    of the ESA on private lands, to include, but not limited to,
    notification of private property owner of potential listings which
    impact their property.
        Increased local involvement in creating and implementing recovery
    plans.
        Support for the concept of substantial equivalency for states that
    currently have adequate legislation.
        No implementation of a National Biological Survey of private
    property without express written permission of the property owner.
        Independent peer review committees should review both the
    scientific evidence and economic impacts of all listings.
        Periodic review and expedited delisting of species when supported
    by verifiable scientific evidence.
                               s. 1180 provisions
        Considering that nearly 90 percent of all listed species are found
    on private property, the concerns of private landowners are vitally
    important in this nation's efforts to protect our endangered plants and
    animals. The National Association of Realtors strongly supports S. 1180
    for its focus on conserving and recovering endangered species by
    recognizing economic considerations, removing regulatory burdens, and
    encouraging landowners to conserve species and preserve biodiversity.
    We support the following elements of S. 1180:
        A streamlined Habitat Conservation Plan (HCP) process which
    minimizes the cost to small landowners for activities having a
    negligible impact on a listed species.
        Incentives to preserve species and habitat by ensuring landowners
    who develop HCPs or who voluntarily agree to conserve species that they
    will not be required to spend more money or set aside additional land,
    nor subject to additional liability.
        Consideration of the economic impact of recovery measures by
    requiring an assessment of significant effects on employment, public
    revenues and the value of property.
        A greater state role by soliciting state agency input in the
    listing process and allowing states to assume responsibility for
    development of recovery plans.
        The creation of species recovery teams including local government,
    business and citizen representation.
        Establishment of a process for independent scientific peer review
    for all listing and delisting decisions.
        The delisting of species when recovery goals have been met.
                              public notification
        We urge the inclusion in S. 1180 of a process for notifying the
    public about proposed listing and habitat designation decisions.
    Citizens have a right to know about government actions which may impact
    their community or their property. A targeted notification system
    designed to apprise landowners of proposed listing and critical habitat
    designation decisions would improve the species protection process by
    broadening public notice and enhancing public participation.
                     financial incentives and compensation
        We also urge the inclusion of financial incentives, such as the tax
    credit, deduction, estate and capital gains provisions provided in S. 1
    181, which provide landowners with additional incentives to actively
    participate in the protection of endangered species.
        The National Association of Realtors has worked for years to
    encourage a balanced approach to environmental protection that
    accommodates the important needs for conservation as well as economic
    opportunity and vitality. To balance the efforts of government to serve
    the public well-being with the economic and property rights secured by
    the Constitution, we believe that the cost of the benefits to the
    general public achieved by environmental regulation should be borne by
    the beneficiaries--the general public.
        However, our primary interest is a reformed and improved Endangered
    Species Act which achieves recovery of endangered species through a
    cooperative effort between government and its citizens. Accordingly, we
    support S. 1180 despite the absence of a regulatory takings
    compensation provision.
                                   conclusion
        The National Association of Realtors supports the reauthorization
    and reform of the Endangered Species Act represented by S. 1 180 as a
    significant forward step toward the recovery of endangered species
    through sound science, government and citizen participation, and
    cooperation with landowners.
        Thank you for the opportunity to express our views.