[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
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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
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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
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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.