[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
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               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
                              ----------                              

                           SEPTEMBER 24, 1997
                           OPENING STATEMENT

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

                               WITNESSES

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

                          ADDITIONAL MATERIAL

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



                ENDANGERED SPECIES RECOVERY ACT OF 1997

                              ----------                              


                      TUESDAY, SEPTEMBER 23, 1997

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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


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

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


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

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

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

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

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

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

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

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

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










































































































































































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








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

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

 
                ENDANGERED SPECIES RECOVERY ACT OF 1997

                              ----------                              


                     WEDNESDAY, SEPTEMBER 24, 1997

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

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

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

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

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

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

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

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

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

   STATEMENT OF MARK VAN PUTTEN, DIRECTOR, NATIONAL WILDLIFE 
                           FEDERATION

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

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

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

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

    Dear Chairman Chafee: I again want to thank you for allowing me, on 
behalf of the National Endangered Species Act Reform Coalition, to 
testify in favor of S. 1180, The Endangered Species Recovery Act of 
1977.
    During your remarks today, you alluded to an important point upon 
which want would like to further comment for the record, if possible. 
want feel particularly qualified to do so as a former Chairman of the 
Interior Appropriations Subcommittee, and as the current Chairman of 
this Coalition, which has tried to attach amendments to appropriations 
bills dealing with the ESA reform.
    I very much agree with your statements which implied, perhaps even 
warned, that should the ESA not be reauthorized by the Congress, the 
pressure to change the current law through the appropriations process 
will increase each year. As you know, the recent moratorium on the 
listing of additional species was accomplished through this manner.
    Although NESARC did not initiate that specific amendment, we did 
support it as method to build pressure so that Congress would review 
the underlying Act. Additionally, over the past few years, we have 
instigated, although ultimately unsuccessfully, several amendments to 
appropriations bills which would have strengthened the public's right 
to know about species listings, designation of critical habitat and 
upon what information those decisions were based. We also initiated 
amendments to codify the no-surprises policy and to require that the 
least cost alternative be implemented in recovery plans.
    Iwant to echo your statement that there are other forums by which 
changes to the ESA might be attempted, should your Committee, and the 
Congress not proceed with addressing reauthorization of the Act. That 
is why your effort, and that of Senators Kempthorne, Baucus and Reid 
are so important.
    In short, your comments were right on mark. want hope, that by 
including this letter in the hearing record, want might bring 
additional attention to them.
    Again thank you and your colleagues for bringing S. 1180 to this 
point. We are currently working very hard to perfect this bill, and to 
help garner the support needed to secure its passage.
            Sincerely,
                                                  James A. McClure,
                                                              Chairman.
                               __________
   Statement of Michael J. Bean, on behalf of the Center for Marine 
 Conservation, the Environmental Defense Fund, and the World Wildlife 
                                  Fund
    For the past 6 years, Congress has been deadlocked over the future 
of the Endangered Species Act. Two camps have put two quite starkly 
different views of the Act before you. The environmental camp my camp--
has argued that the existing law must be strengthened, that it is not 
accomplishing its vitally important goal of conserving rare species as 
effectively as it must if it is to stave off a flood of extinctions. 
The other camp has argued that the existing law is unduly onerous for 
those whose activities it regulates, and must be made less so. Unable 
to choose between these two divergent views, Congress has done nothing, 
an outcome that furthers the goals of neither camp and serves the 
interests of our nation's wildlife not at all.
    The solution to breaking this impasse is to recognize that what is 
needed is not to choose between these two views, but to find the 
solutions that accomplish both goals. By making the Act more effective 
at conserving species and less onerous for those it regulates, real 
progress can be accomplished. That, however, is much easier said than 
done. Improvement in the conservation of rare species doesn't flow 
automatically from loosening the regulatory screws, as some in the 
regulated community have argued, but neither does tightening those 
screws guarantee better conservation results. The task before all of us 
is much more difficult than that. It is to build a much larger 
endangered species conservation toolbox than that which now exists, one 
that has enough different tools in it to address effectively the many 
varied challenges that declining species and landowners face.
    There are significant differences of opinion about the extent to 
which you succeeded in accomplishing what I have just outlined, but I 
want to be very clear that I recognize and appreciate that you--
Senators Chafee, Kempthorne, Baucus, and Reid, as well as Secretary 
Babbitt have genuinely tried to do so. For that, you are deserving of 
much credit.
    Let me turn now to the substance of your effort. I don't think I 
can offer a better summary than that of my colleague John McCarthy of 
the Idaho Conservation League. As he noted, ``There are some definite 
improvements, and there are some definite danger zones. A lot depends 
on whether there is funding for the good things.'' Among the most 
important of the improvements are three new programs to offer financial 
incentives to private landowners who agree to implement beneficial 
management practices on their land. There are three inescapable facts 
that underscore how urgently such incentive programs are needed. First 
is the fact that most endangered species have most of their habitat on 
non-Federal land, especially private land. Second, in general species 
that depend heavily on private land are faring poorly. And third, some 
of the most significant threats to these species can only be addressed 
through active management measures, in particular control of invasive 
exotic species, and replication of natural disturbance regimes that no 
longer function, especially fire disturbance regimes. Without cost 
sharing assistance, many landowners can't implement the needed 
management measures. Without such active management, the continued 
decline of many of these species is inevitable.
    For these reasons, the provisions of this bill that authorize 
financial assistance to landowners implementing the active management 
measures called for by ``safe harbor'' agreements, recovery plan 
implementation agreements, and agreements to enroll land in the new 
endangered species habitat reserve program are vitally important. But 
let me add one major caveat. The promise of these new programs will 
never be realized unless they are funded. Your bill authorizes 
appropriations for each of these programs, but the experience of seeing 
other promising conservation programs, including some under the Farm 
Bill, go underfunded, or even unfunded, is too recent and too clear to 
permit me to regard these new programs as anything more than a mirage 
at this time. If you are serious about these new incentive programs, 
you must find a means of assuring funding for these programs. One idea 
among many that ought to be seriously considered would be to dedicate a 
portion of the expected receipts from the sale next year of the Elk 
Hills Naval Petroleum Reserve to a special trust fund that would be 
available, without further appropriation, for expenditure in support of 
these new landowner incentive programs. The Elk Hills Reserve supports 
a number of endangered species, all of which will receive substantially 
less protection as a result of its transfer to private ownership; thus, 
it is appropriate to reserve at least some of the more than $2 billion 
expected from its sale for the purpose of encouraging endangered 
species conservation on private land. Other possibilities ought to be 
seriously explored as well.
    On a related topic, your bill contains new standards for the 
approval of multi-species habitat conservation plans, standards that 
are significant improvements over those now in the law. The bill would 
also shift certain burdens to the Federal Government, however, that we 
are concerned will not be met because of lack of funding. Specifically, 
the bill would codify the ``no surprises'' policy that the 
Administration promulgated 3 years ago. That policy guarantees 
landowners certainty that the agreements they make will not be subject 
to unilateral changes in mitigation requirements. In light of this, it 
is very important to ensure that the government has the resources to 
respond to the risks that this policy places upon it. We urge you to 
create an ``insurance fund'' to cover the costs of additional 
mitigation measures for which the government itself may be responsible 
under this policy. The creation of such a fund would go a long way 
toward resolving much of the recent controversy over the ``no 
surprises'' policy.
    There is another risk entailed in this bill that concerns me 
deeply. It is the risk that the new procedural requirements imposed by 
the bill with respect to the development of recovery plans and, to a 
lesser extent, the listing of species, will overwhelm the Fish and 
Wildlife Service and the National Marine Fisheries Service. The new 
procedural requirements imposed on the recovery planning process are 
complex, costly, and, in my judgment, unduly burdensome. The result, I 
believe, will be the opposite of what is apparently intended. Instead 
of getting recovery plans that play a vital and central role in the 
implementation of the Act, you will get a major diversion into 
unproductive bureaucratic procedures of scare resources that could have 
gone into on-the-ground conservation, a paucity of recovery plans, and 
a proliferation of litigation over non-compliance with deadlines and 
content requirements.
    These, I realize, are strong words, but they are carefully chosen, 
and I think they are justified. I base them on the following: The bill 
requires that recovery teams be constituted as they have never been 
constituted before, including as team members people who have no prior 
recovery planning experience; it requires these new teams to develop 
plans substantially more complex than those that have been done 
heretofore; it requires the plans they develop to be subjected to new 
public hearing requirements not found in present law; it requires that 
plans be produced at a pace the government has been unable to achieve 
thus far; and it simultaneously requires that a substantial existing 
backlog of unfinished recovery plans be eliminated by preparing plans 
in accordance with these procedures for all listed species that 
currently lack them. Ignore all of the other changes and just focus for 
a moment on this last requirement. At present, there are 389 listed 
species that do not yet have recovery plans, plus an additional 99 
species proposed for listing. Over the last 5\1/2\ years, the 
government has produced, on average, 27 final recovery plans per year, 
encompassing an average of 62 species. Even assuming no changes in the 
recovery planning process, at these rates the existing backlog of 
recovery plans for already listed or proposed species would require 
nearly 8 years to eliminate. To eliminate this backlog in 5 years would 
necessitate a 40 percent increase in resources currently devoted to 
recovery planning, assuming no other species were added to the list in 
the meantime. In reality, the resource demands will be even greater, 
since the new procedures applicable to recovery planning are 
substantially more complex and demanding than existing procedures.
    Absent a very substantial increase in funding for recovery 
planning, this is a prescription for paralysis. One partial solution to 
ameliorate some of this impact would be to allow recovery plans to be 
developed in accordance with existing procedures for those species that 
are already listed as of the date of the law if a recovery team for 
such species has already been appointed and begun work. In other words, 
limit the applicability of the new procedures to newly listed species 
and to those already listed species for which recovery planning is not 
yet under way.
    Even this partial solution, however, does not address the larger 
question of whether the new planning procedures in this bill are 
worthwhile. I understand that the expectation underlying these new 
requirements is that they will lead to recovery plans that have a 
substantial degree of ``buy-in'' from affected interests and plans that 
are taken more seriously than present plans often are. These are worthy 
goals, but they won't be achieved by loading up recovery planning 
processes with a host of new procedural requirements. That ``easy 
solution'' reminds me of H. L. Mencken's comment that ``There is always 
an easy solution to every human problem neat, plausible, and wrong.'' I 
urge you to rethink them carefully, with a critical eye on the resource 
demands they entail.
    For similar reasons, I think it a mistake for Congress to require 
independent scientific review of every listing decisions and to 
prescribe how that review is to be accomplished. Many listing decisions 
generate no real controversy, and to require independent review of them 
is a make-work exercise. When independent review is needed., the 
National Research Council may or may not be the best source of 
qualified reviewers, and it may or may not be able to respond promptly 
to the needs of the government for such reviewers. It is much better, 
in my view, to direct the Secretary to institute a mechanism that 
assures independent scientific review and is free from the appearance 
of conflict of interest, but leave it to him to determine how that 
should best be accomplished.
    Finally, the bill makes a number of changes to the provision of the 
Act that governs how Federal agencies are to carry out their 
obligations toward endangered species. That provision, Section 7, has 
been in many ways the cornerstone of the Act. Its procedures are well 
known, having changed little in the last two decades. Its results have 
been generally quite positive, as measured both by the infrequency of 
irreconcilable conflicts, and by the fact that species found on Federal 
lands are generally faring much better than those not found there. In 
general, I favor the philosophy that ``if it ain't broke, don't fix 
it.'' In my view, Section 7 ain't broke.
    I hope that you will address these and other concerns seriously. As 
I have noted at the outset, I think it is legitimate and appropriate to 
try to reduce the burdens this Act imposes on those it most directly 
affects, but it is essential to do so in a way that actually improves 
the prospects for survival of the species at risk of extinction. I urge 
you to keep in mind what William Beebe, a scientist, explorer, and 
friend of Theodore Roosevelt, wrote more than 90 years ago: ``The 
beauty and genius of a work of art may be reconceived, though its first 
material expression be destroyed; a vanished harmony may yet again 
inspire the composer; but when the last individual of a race of living 
things breathes no more, another heaven and another earth must pass 
before such a one can be again.'' In his lifetime, Beebe saw the once 
most abundant bird on earth, the passenger pigeon, disappear into 
extinction. He saw the heath hen of the Northeast pass forever from 
this earth, and the Carolina parakeet of the Southeast vanish not long 
thereafter. None of us will ever see these creatures or hear their 
voices. As you consider this bill, I hope you will seek to ensure that 
those who come after us will be able to see and hear the species that 
we still have the power to save.
                                 ______
                                 
                                    American Farm Bureau Federation
                                    Park Ridge, IL, September 22, 1997.

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

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

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

                                                    Michal J. Bean,
                Chairman, Wildlife Program, Environmental Defense Fund.
                               __________
Statement W. Henson Moore, President and CEO, American Forest and Paper 
 Association, on behalf of the Endangered Species Coordinating Council
    Mr. Chairman and members of the Committee, thank you for the 
opportunity to testify today on S. 1180, the ``Endangered Species 
Recovery Act of 1997.''
    I am W. Henson Moore, President and CEO of the American Forest & 
Paper Association (AF&PA). AF&PA is the national trade association of 
the forest, pulp, paper, paperboard, and wood products industry. We 
represent approximately 150 member companies which grow, harvest and 
process wood and wood fiber; manufacture pulp, paper and paperboard 
products from both virgin and recovered fiber; and produce solid wood 
products. The association is also the umbrella for more than 60 
affiliate member associations that reach out to more than 10,000 
companies. AF&PA represents an industry which accounts for more than 8 
percent of total U.S. manufacturing output. It directly employs about 
1.4 million people and ranks among the top 10 manufacturing employers 
in 46 states.
    I am also here today representing the Endangered Species 
Coordinating Council (ESCC). The ESCC is a coalition of more than 200 
companies, associations, individuals and labor unions involved in 
ranching, mining, forestry, manufacturing, fishing and agriculture. A 
current list of members is attached. The labor unions alone represent 
over 2 million working Americans. We seek to provide workable 
procedures and positive incentives in the Endangered Species Act which 
promote conservation of wildlife in a way that considers economic 
factors and respects the rights of private property owners without 
impairing the law's fundamental commitment to protect listed species.
    First, I would like to thank Chairman John Chafee and Sens. Dirk 
Kempthorne, Max Baucus and Harry Reid for drafting and introducing S. 
1180, the Endangered Species Recovery Act of 1997. Given the challenge 
in reaching a consensus on these complex and sometimes contentious 
issues, it is understandable that the bill takes a modest approach at 
updating the law. I think we can all agree that the changes contained 
in S. 1180 are procedural only, which, while important, effect no 
substantive change in the statute or in species protection.
    Congress enacted the Endangered Species Act to protect endangered 
and threatened species, a goal which we support. We believe the 
principles behind the Endangered Species Act represent those qualities 
which make our society the finest in the world. However, believing in 
these principles and writing a law that works are two entirely 
different matters.
    As its operating premise, the Endangered Species Act mandates 
protection of the species to the point of its recovery, without regard 
to the interaction of these steps with the rest of society. Humans are 
part of the diversity of nature and are one of the natural elements 
that is capable of causing changes, sometimes dramatic change, in the 
environment. Humans have modified the natural environment in North 
America for hundreds, if not thousands, of years. A recent example is 
the virtual elimination of wildfire from the environment in the 
Southeast. A number of species, some of which are now listed under the 
Endangered Species Act, were dependent on these fires for their 
existence. Recovery of these species by restoration of their original 
habitat would mean the return of the widespread fires upon which the 
species thrive, a circumstance which would have devastating 
consequences for the people who live and work in this area. Yet, some 
would argue that is the literal mandate of the Endangered Species Act.
    There is growing momentum within the American public for updating 
the ESA. A May 1997 national survey conducted by Market Strategies 
found that over 70 percent of the respondents favored updating the ESA. 
This is an substantial increase from the 42 percent who in a 1995 
national survey believed the ESA needed to be amended.
    When presented with the fact that 1,500 species have been listed 
and only 27 have been removed from the list since ESA's inception in 
1973, a mere four due to recovery, 60 percent of those surveyed in May 
agreed that the law was under performing. Furthermore, 62 percent 
believed they are not getting their money's worth from the law as 
currently written. We have spent hundreds of millions of dollars in the 
name of preserving threatened and endangered plants and animals, but 
really have little to show for these expenditures in the way of 
recovered species.
    The American public has strong opinions on how they would like to 
see the ESA updated. When presented with various options to consider, 
they overwhelming agreed with a number of the provisions included in 
the legislation currently being considered:
      88 percent approve of requiring sound science and a well 
defined set of scientific criteria that is peer-reviewed when 
evaluating data concerning an endangered plant or animal.
      85 percent want to include private landowners in the 
process through incentives that allow them to work cooperatively with 
the government to protect listed species that inhabit their land.
      81 percent agree that the government should consider 
alternative methods for protecting an endangered animal or plant which 
may be less disruptive in terms of its social and economic costs;
      80 percent support providing the specific incentive of 
certainty--specifically that when the government and a private 
landowner agree on a plan to protect an endangered plant or animal on 
the landowner's property, neither party can change that plan without 
the consent of the other.
      77 percent believe state government should have a bigger 
role in the identification and protection of animals and plants.
    I. S. 1180 updates the Endangered Species Act in several key areas 
which we believe are essential to provide for a workable law. For 
example, this legislation would:
      improve the quality of the science to be used for 
listings and recovery plans;
      enhance the recovery process;
      remove the inefficiencies and inequities from 
programmatic consultation on public lands;
      provide a strong legislative foundation for Secretary 
Babbitt's policies which recognize the importance of including, rather 
than excluding, private landowners in species conservation efforts;
      create mechanisms to assist smaller landowners faced with 
the complexities of the Endangered Species Act; and
      establish reasonable sideboards on enforcement which are 
consistent with Supreme Court precedent.
    Quality Science.--We applaud the provisions in Section 2 which 
assure that listings are based on quality science. While we have 
disagreed on occasion with the quality of the science which has been 
used, we nonetheless believe the listings must be kept in the 
scientific arena. We have long supported the concept that proposed 
listings should be subject to independent peer review, the normal 
process for scientific studies, a concept with which 88 percent of 
Americans agree. S. 1180 directs this, and as an important component, 
requires the Secretary to summarize and respond to the peer review in 
the final listing. We recognize that many criticize peer review of 
listing as a process which will unduly delay listings. We disagree, 
provided two things occur. First, the Secretary and the agencies must 
consider peer review as helping their deliberations on the status of a 
species, rather than as a hindrance. They must begin planning for peer 
review early in the process of preparing a proposed listing. Second, 
Congress must demonstrate its commitment to quality science through 
peer review by annually appropriating sufficient funds.
    We believe the bill would be strengthened with a more rigorous 
requirement for the identification, and subsequent collection, of data 
which is necessary to determine whether the assumptions on which the 
Secretary based the listing remain valid. However, the provision in S. 
1180 which requires identification of data which would assist in 
recovery, and of steps to acquire the data, at least recognizes that 
data, assumptions and conclusions are not set in concrete at the time 
of listing.
    Finally, the bill focuses the agency on use of empirical and field 
tested data. In the past, the agency has relied too readily on computer 
models and assumptions. While these tools have a role, we believe that 
the damage to the Secretary's credibility from overreliance on computer 
models and assumptions far outweighs any benefit provided by listings 
which lack hard data.
    Enhanced Recovery Process.--Section 5 of the bill presents a 
completely revised process for the development and implementation of 
recovery plans. We have long advocated that recovery plans should be 
the focus of conservation efforts by the Federal Government, These 
plans should address the biologic needs of the species, the economic 
and social consequences of fulfilling those needs, and the financial 
and scientific capabilities of achieving recovery. S. 1180 goes a long 
way toward accomplishing this.
    We particularly support the expanded membership of the recovery 
team required in the bill. We believe it is essential to include not 
only scientific experts, but representatives of all relevant fields and 
affected interests, particularly landowners who are likely to have 
specific information about habitat conditions. We also agree with the 
authors that each recovery plan should consider alternative measures to 
achieve the goal and the benchmarks, which balance biology, timeframes 
and economic dislocations. These provisions will require the Secretary 
to consider the impacts of recovery and to analyze strategies which 
will lessen or avoid social and economic disruptions. In the recent 
Market Strategies survey, 81 percent of those polled supported the 
consideration of recovery alternatives which could have less social and 
economic impact.
    Programmatic Consultation.--Section 4 of the bill contains a much 
needed improvement for management of public lands. A decision by the 
U.S. Court of Appeals for the Ninth Circuit, Pacific Rivers Council v. 
Thomas, needlessly complicated this management by requiring a halt to 
all site-specific activity on a national forest when a new species is 
listed until the Forest Service consults with the Secretary on the need 
to amend the existing forest plan. Even though site-specific activities 
would undergo individual consultation on their affect on the newly 
listed species, the Ninth Circuit interpreted the Endangered Species 
Act to require they be halted until the plan-level consultation was 
completed. The bill would allow the site-specific activity to proceed, 
provided it meets the criteria of ESA Section 7(a)(2), that is, it is 
not likely to jeopardize the continued existence of the listed species 
or destroy or adversely modify designated critical habitat.
    Legislative Foundation for Private Landowners.--S. 1180 would enact 
into law several existing Administration policies adopted by Secretary 
of the Interior Bruce Babbitt which are critical to the continued 
involvement of private landowners in conservation of listed species--
``no surprises,'' multiple species habitat conservation plans (HCPs), 
candidate species conservation agreements, and ``safe harbor'' 
agreements. The bill also provides new opportunities for landowner 
participation in recovery planning and consultation.
    Many landowners intend to use or manage their land for a period of 
years. Forest landowners, for example, will establish a management 
strategy designed to produce income over the growing cycle of the 
trees, called a rotation, which in some cases may be as long as 80 or 
100 years. These landowners are willing to discuss how this land will 
be managed, provided they receive the certainty that the business 
decision they make today is likely to be constant for the life of the 
intended use, such as the rotation of the affected trees. Indeed, they 
might be willing to adjust their management in return for more 
certainty.
    Prior to 1993, a landowner had no certainty with respect to the 
Endangered Species Act. Then Secretary Babbitt announced he would sign 
agreements, habitat conservation plans authorized by the ESA, which 
would contain a ``no surprises'' commitment. In other words, landowners 
could rely on the fact that the lands they agreed to set aside for the 
species would remain constant over the life of a plan. If more land, or 
other changes, becomes necessary, it is the government's responsibility 
to fund what is needed. With this change, the number of approved plans 
increased by over 1000 percent in 3 years. This incentive of certainty 
is supported by 80 percent of those polled by Market Strategies.
    This policy must be put into the statute, and S. 1180 would do so. 
The Secretary has been sued once over its adoption and will likely be 
sued again. This concept of certainty has given protection to hundreds 
of endangered species. This successful concept should be protected from 
litigation by enactment into law.
    The bill provides a standard for approval of multiple species 
agreements and candidate species conservation agreements which appears 
confusing at first, but which we find ingenious in its simplicity. The 
standard measures whether the landowner's proposed management 
activities, if undertaken by all similarly situated persons, would 
eliminate the need to list the species based upon these activities. It 
recognizes that no one person may be able to protect a species and that 
species face risks from a variety of sources. It then focuses on the 
risk within the applicant's control and measures it as if undertaken by 
all persons who could control that risk. This provision is likely to 
allow creative use of these agreements and to make them available to 
landowners with only a small amount of habitat but who could 
nonetheless provide a true benefit to a species.
    We do have a concern about the continued reference to 
``conservation,'' particularly for species not yet listed. The 
Endangered Species Act (ESA) defines ``conservation'' to mean ``to use 
and the use of all methods and procedures'' to remove the need for 
protection under the ESA, i.e. recovery. In particular, a candidate 
species conservation agreement is designed to avoid the need to list 
the species in the first instance. We suggest either the removal of 
references to ``conservation'' where recovery is not intended or an 
explanation in the Committee Report that the use of ``conservation'' is 
intended to identify appropriate methods and procedures, and not to 
require an actual recovery process unless clearly indicated, such as 
the reference to plans for ``the conservation and recovery'' in new 
Section 5(a) added by Section 3 of the bill.
    Assistance to Smaller Landowners.--Small, family owned tree farms, 
ranches and agricultural farms are the backbone of rural America, and 
in many respects, the backbone of the country itself. In the forest and 
paper industry, for example, over 60 percent of forested land in the 
country is owned by some 10 million nonindustrial landowners. As might 
be expected, the needs and philosophies of these landowners are as 
numerous as the individuals. S. 1180 provides several mechanisms to 
encourage these landowners to work with the Endangered Species Act, 
including low effect habitat conservation plans, grants and habitat 
reserve agreements. We certainly recognize the difficulty Congress will 
face in fully funding these programs. We hope that the Committee will 
continue to work with the Finance Committee and others to craft other 
provisions which will present landowners with an array of options and 
thus gain the broadest support for conservation of listed species.
    Enforcement.--If you drive your car in excess of the posted speed 
limit, you know you have broken the law and could legitimately receive 
a ticket. If you break into a building and take goods or money, you 
know you have broken the law and face possible arrest. However, under 
the Endangered Species Act, if you farm your land or harvest your 
trees, you face prosecution if a Federal bureaucrat speculates that you 
might break the law. These bureaucrats will advise you repeatedly that 
you will break the law by managing your land, referring to some vague 
study which may or may not be based on empirical data. They may even 
drag you into a Federal court and try to prove their case to a judge. 
Landowners are usually helpless in the face of these escalating threats 
of prosecution.
    We applaud the effort in Section 6 of the bill to remind the 
bureaucrats, and citizens who would file these lawsuits, that the 
burden is on them to prove a ``take'' has occurred or will occur, using 
``scientifically valid principles.'' This provision encapsulates the 
Supreme Court's decision in Babbitt v. Sweet Home Chapter of 
Communities for a Great Oregon by requiring proof of an actual 
``take,'' thus eliminating such concepts as ``reasonably likely'' to 
take, and by emphasizing a causal connection between the action and the 
take.
    The reference to ``scientifically valid principles'' is taken 
directly from the 1993 decision by the Supreme Court in Daubert v. 
Merrell Dow Pharmaceuticals, Inc. However, the court used the phrase, 
509 U.S. at 599, in the context of ``pertinent evidence based on'' such 
principles. On remand, the U.S. Court of Appeals emphasized the 
importance of the evidence being capable of testing. We strongly 
recommend that the Committee avoid confusion on this point and include 
a reference to ``evidence'' in the legislative language, or at least in 
the Committee's report.
    II. Although we believe S. 1180 updates the ESA in a positive 
manner and moves species protection in the correct direction, we are 
concerned that a few provisions run the risk of perpetuating the 
confrontational tone of the existing law. It is possible that proper 
implementation could be achieved. However, we have seen too many 
instances in the past where good intentions failed in the face of 
political pressure or expansive interpretation.
    Consultation.--Section 4 of the bill substantially revises the 
consultation process between Federal agencies and the Secretary. Since 
we do not believe that process works very well at present, particularly 
with regard to the ``informal'' consultation process set out in the ESA 
regulations, the process in the bill may actually improve the 
situation. However, we have three concerns. First, the bill allows the 
Secretary to exclude categories of action from the new process by 
regulation. This strikes us as an invitation to focus on the 
politically out of favor or controversial activities. Second, the bill 
allows the Secretary to object to an agency's conclusion if the 
Secretary finds there is insufficient information. ESA determinations 
are always looking for more information, thus the emphasis in the bill 
on quality science. It should be sufficient to object based on 
disagreement with the adverse affect finding. This at least requires 
the Secretary to analyze the other agency's determination. Finally, we 
believe the objection based on the need for more time beyond 60 days is 
too open-ended. In our experience, Federal agencies never believe they 
have enough time. The bill would allow the Secretary to plead lack of 
personnel, lack of money, crush of other business, or any number of 
excuses that undermine the purpose of the deadline.
    Recovery Goal. We have considerable concern about the manner in 
which the recovery goal is developed. The bill provides that, 
notwithstanding the fact that the goal is subject to peer review, it is 
``established'' by only those members of the recovery team ``with 
relevant scientific expertise'' and then recommended to the Secretary. 
The bill does not explicitly provide for how or when the Secretary 
reviews this ``recommendation.'' We submit that this establishes two 
classes of membership on the recovery team and renders the 
``recommendation'' virtually impossible to change. In our view, this 
could defeat the benefits of expanded team membership and once again 
allows a small group of scientists to tie the hands of the Secretary.
    Recovery Plan Implementation Agreements. We are concerned with the 
targeting of Federal agencies in the recovery plan, accompanied by a 
mandatory implementation plan. Even though the bill clearly requires 
identification of a Federal agency in the recovery plan only if the 
agency takes an action ``likely to have a significant impact on the 
prospects for recovering a species,'' such phrases in the Endangered 
Species Act have a history of being read interpreted broadly rather 
than narrowly. We find it questionable to allow one law to impinge on 
every Federal program without, at a minimum, providing strict 
sideboards to require a showing that the agency action be likely to 
prevent recovery. Moreover, the provision exempting the agency action 
from consultation under ESA Section 7(a)(2) requires such specificity 
as to make the exemption difficult to apply for most future actions. 
Most agencies would likely prefer consultation since it also provides 
incidental take protection.
    The bill allows the Secretary to enter implementation agreements 
with private parties as well. The bill provides no encouragement for 
private parties, or state governments, to enter these agreements, so 
their exact purpose is not evident. We are concerned that they will 
somehow be used to attach a recovery goal to habitat conservation plans 
(HCP). We strongly recommend that either the bill or the Committee's 
report emphasize that these are entirely voluntary and should in no way 
be coupled with an HCP. Indeed, the purpose of the HCP, to allow land 
use activity to proceed, while containing any take of listed species 
within acceptable limits and providing offsetting benefits for the 
species to the extent possible, should be set out in the report to 
avoid any confusion with recovery, an entirely separate process.
    Existing Recovery Plans. We would prefer that existing recovery 
plans be required to comply with the provisions of Section 3 of the 
bill by a specific date. The bill exempts both existing plans and plans 
which have been released for public comment but not adopted at the time 
of enactment of the bill into law. This latter provision could cause 
particular mischief since the Secretary may have released a draft plan 
for public comment some years ago but never issued a final plan. For 
example, the recovery plan for the northern spotted owl was released 
for public comment in April 1992 but has never been adopted as final. 
Under the bill, any recovery plan for the owl would be exempt from the 
new procedures.
    III. Finally, there are two areas which we believe should be 
addressed in this legislation.
    NEPA/Biological Opinion Equivalency. The experience of our members 
has been that preparation, negotiation and completion of an habitat 
conservation plan is an expensive and time-consuming process. The HCP 
contains considerable analysis of the species' biology, of the existing 
environment, of impacts and of alternatives. Then, a portion of this 
analysis must be repeated in a document to satisfy the National 
Environmental Policy Act (NEPA), at yet more expense. In addition, the 
Secretary brings in more personnel to conduct consultation under ESA 
Section 7. We certainly do not object to a process that ensures the 
analysis is complete, but we do object to redundant compliance. Since 
the Secretary has as yet been unable to provide an Administration 
solution to these needless frustrations, we urge the Committee to do 
so. A legislative solution would likely be the safest course as well 
since the Federal courts tend to view NEPA and ESA compliance in a 
literal manner, viewing even legitimate streamlining with disfavor.
    Programs Delegated to States. We recognize that S. 1180 updates the 
Endangered Species Act in virtually every program. We have long 
advocated the need to provide comprehensive changes in this law, rather 
than targeting one or two issues. However, one area not addressed by 
the bill is State action. The bill would substantially increase the 
role of States in the conservation of listed species. At the same time, 
the bill does not address the recent efforts by the Secretary and the 
Environmental Protection Agency which enmesh State programs with 
additional Federal bureaucracy and which will dramatically reduce 
States' ability to run their water quality programs.
    Within the past several years, the Environmental Protection Agency 
(EPA) has begun requiring that States, as a condition to obtaining the 
delegation under the Clean Water Act to issue point source discharge 
(NPDES) permits, agree to consult with the U.S. Fish and Wildlife 
Service (FWS) (or the National Marine Fisheries Service) on proposed 
individual state permits which may adversely affect a listed or 
proposed species. If, as a result of the consultation, the FWS and the 
State environmental agency are not able to reach agreement on 
appropriate terms for the proposed permit, FWS will notify EPA. EPA 
agrees to then veto the permit and issue it as a Federal permit with 
conditions acceptable to FWS, or refuse to issue it at all.
    EPA imposed this procedure, which provides FWS with a veto over 
State-issued permits, on Louisiana and Oklahoma as a condition for the 
delegation of the NPDES permit program, with an earlier version imposed 
on Florida and South Dakota. We understand that now EPA and FWS are 
preparing to expand this process to the 40 or so States that have been 
delegated the NPDES program since 1972. The agencies are also 
considering application of the process to State wetlands and sewage 
sludge programs. Moreover, they are planning to provide FWS with a 
prominent role in the development State water quality standards.
    The Clean Water Act and EPA's own regulations require EPA to 
delegate the NPDES program to a state as long as the state program 
meets the enumerated statutory criteria, none of which pertain to the 
ESA. Also, EPA, in its oversight of state permitting, is only 
authorized to veto a proposed state permit that is ``outside the 
guidelines and requirements of the Clean Water Act.'' EPA is not 
authorized to reject a State-issued permit on the basis that it is not 
in compliance with the ESA.
    No one can object to FWS providing the permit-issuing entity 
appropriate information, including the presence of listed species. 
However, Congress has not imposed the ESA on the States, other than 
through the prohibited activities in Section 9, such as take. The Clean 
Water Act is designed to be implemented through State programs, with 
Federal oversight merely to ensure consistency with national water 
quality goals. Federal agencies should not be allowed to impose these 
sort of burdens on States, burdens that neither agency thought were 
appropriate for over 20 years, without careful consideration by 
Congress. We strongly recommend that the Committee include in S. 1180 a 
provision which puts a halt to these bureaucratic efforts. If the 
Committee finds it in the national interest, we suggest you conduct a 
review to determine the appropriate interaction between the Clean Water 
Act and the Endangered Species Act at the State level.
    IV. Conclusion. We support this bill as an important first step to 
update the Endangered Species Act to a law that actually achieves wide 
support for species conservation. I have expressed our concern with 
some of its elements, but overall we believe the bill will improve both 
protection of species and the ability of landowners to manage their 
land in the presence of listed species. We fail to understand how 
anyone can oppose such concepts as peer review, allowing landowners and 
applicants to participate in the process, analysis of alternatives 
recovery measures so as not to miss less disruptive methods, providing 
certainty as an incentive to conserve species and habitat.
    As I indicated, we believe more needs to be done in order to fully 
update the Endangered Species Act. For example, we have not lost sight 
of the need to recognize and protect private property rights. The Fifth 
Amendment to the U.S. Constitution requires that landowners be 
compensated if the government takes their property for a public 
purpose. It is unfair--it is un-American--to impose the cost of the 
public purposes embodied in the Endangered Species Act on a few unlucky 
citizens. In this regard, we applaud the introduction of S. 1181, the 
``Endangered Species Habitat Protection Act,'' by Senator Kempthorne, 
and urge other Members of the Senate to support this effort.
    On behalf of the American Forest & Paper Association and the 
Endangered Species Coordinating Council, I appreciate the opportunity 
to offer our views on S. 1180, the ``Endangered Species Recovery Act of 
1997.'' I would be happy to answer any questions you may have.
                               __________
  Statement of Mark Van Putten, President and CEO, National Wildlife 
                               Federation
    Good morning, Mr. Chairman and Members of the Committee. My name is 
Mark Van Putten, President of the National Wildlife Federation, the 
nation's largest conservation education and advocacy organization. I 
would like to thank you for this opportunity to testify on Endangered 
Species Act reauthorization, a subject that is of intense interest to 
NWF's members, affiliates and other constituents.
    What is at stake here today is not just this nation's bountiful 
natural heritage. If the United States, the wealthiest nation on the 
planet, fails now to reaffirm its commitment to endangered species 
conservation because it perceives that the costs are too great, we can 
hardly expect the rest of the family of nations to make the tough 
choices needed to conserve the biological diversity that is rapidly 
disappearing around the world.
    NWF's passionate commitment to endangered species conservation 
should not be confused with zealotry. We recognize the importance of 
bipartisan support for ESA reauthorization and understand that such 
support can only be achieved through compromise. We applaud the 
Senators and their staffs for rolling up their sleeves and trying to 
develop a compromise reauthorization package that could win broad 
support in Congress and across the country.
    Senators Chafee, Baucus, Kempthorne and Reid have devoted a great 
deal of personal time and energy to this effort. Now that we have a 
bill before us, it is time for those of us with constituents who work 
with the Endangered Species Act in their daily lives to size up the 
results. The test is a straightforward one: will the nation's imperiled 
plant and animal species be better off, or worse off, if S. 1180 were 
to become law?
    Based on NWF's expert analysis and on-the-ground experiences, I am 
pleased to note that the bill contains several needed improvements to 
the ESA. These changes are neither ``strengthening'' or ``weakening'' 
amendments. They would simply make the Act work better--a goal we 
should all share.
    Despite these improvements, however, we have come to the conclusion 
that the overall effect of the bill, in its current form, would be to 
seriously weaken the ESA's essential protections. It is my sincere hope 
that we can work together in the coming weeks and months to make the 
changes that are needed to mold S. 1180 into a bill that we can 
support. You have before you a base to work with. Our challenge is to 
convert it into a bill that addresses the legitimate concerns of some 
landowners and regulated industries and, at the same time, improves the 
situation for the nation's imperiled plant and animal species. Attached 
to my testimony is a detailed, section-by-section analysis of the bill 
which notes the areas of the bill we applaud and also explains the 
problems we see. I would like to use the balance of my time to 
highlight a few of the biggest problems and to recommend some 
solutions.
                  four priorities for esa improvement
    In the past few years, as we looked around the country to examine 
how the ESA was being implemented, NWF identified four areas where 
improvements to the ESA are most needed:
    (1) Habitat Conservation Plans, or HCPs, need to be better designed 
to work for both landowners and wildlife;
    (2) The Act needs to promote fairness and citizen participation;
    (3) The Act needs to increase the accountability and ability of 
Federal agencies to achieve species recovery; and
    (4) The ESA needs to provide greater incentives for landowners and 
others to conserve wildlife.
    Measuring S. 1180 against each of these needs, we find it to be 
deficient and in need of improvement.
1. Design HCPs that Work for Both Landowners and Wildlife
    NWF believes that HCPs, particularly large-scale, multi-species 
HCPs, have the potential to address many of our most vexing 
conservation challenges on nonFederal lands. NWF has always supported 
``place-based'' conservation policies--policies that set a workable 
conservation standard and then empower everyday people to play an 
important role in deciding how wildlife resources will be managed to 
meet that standard. A placed-based approach taps into the wisdom and 
talent of local people and ensures the local buy-in needed for 
successful implementation. By authorizing multispecies HCPs and 
Candidate Conservation Agreements and by setting workable approval 
standards for unlisted species, S. 1180 takes a small but important 
step in this direction.
    Unfortunately, the major thrust of the bill's HCP provisions would 
undermine the ability of people in local communities to develop broadly 
supported multi-species conservation plans. NWF has been carefully 
studying HCPs--we've held two major conferences and have been involved 
with several individual plans--and we have found that two existing 
policies are crying out for change. Not only does S. 1180 fail to 
address either of these problems; in fact, it worsens the situation by 
weakening HCPs in critical areas.
    First, S. 1180 codifies the Fish and Wildlife Service's practice of 
approving HCPs for listed species even if the HCPs would undermine 
species recovery. When Congress enacted the HCP provisions in 1982, its 
model was the San Bruno HCP, which allowed landowners to destroy 
roughly 10 percent of the remaining habitat of two endangered 
butterflies and called for significant active management as mitigation 
for that loss. In contrast with that model, the Service is currently 
approving HCPs in the southeastern United States for red-cockaded 
woodpeckers that allow landowners to destroy all of the habitat on 
their property in exchange for simply building artificial cavities on 
public lands. The sacrifice of private-land woodpecker habitat and the 
failure to include a serious mitigation strategy has been roundly 
criticized by the scientific community as being inconsistent with the 
recovery needs of the woodpecker. To address this problem, we urge the 
Committee to amend S. 1180 to clarify that HCPs cannot be approved if 
they would undermine recovery.
    Second, S. 1180 codifies the Administration's ``no surprises'' 
policy, which assures landowners that once they agree to an HCP, their 
ESA obligations will not be revisited at their expense for the duration 
of the HCP, which often is 50 or more years. Leading scientists have 
harshly criticized this hands-off approach, noting that many HCPs are 
based on controversial scientific assumptions that need to be revisited 
and revised to account for new information and changed circumstances.
    We recognize that landowners need certainty and that some form of 
regulatory assurances policy is needed to encourage landowners to 
invest time and money in large-scale conservation planning. But to 
justify giving assurances, the underlying HCPs must be improved. Among 
other things, HCPs must include provisions for monitoring biological 
performance and for funding management changes necessary to prevent 
HCPs from jeopardizing the existence of species. These safeguards can 
be provided while still giving landowners regulatory assurances. H.R. 
2351, the ESA reauthorization bill introduced by Representative Miller 
(D-CA) this summer, includes the safeguards needed for both species and 
landowners--we urge you to consider the approach taken in that bill.
2. Promote Fairness and Citizen Participation
    Providing meaningful opportunities for citizen participation in key 
ESA decisions is essential to ensure well-grounded decisions and to 
help build community buy-in to those decisions. Although the current 
Administration has made some strides in this direction, a fundamental 
problem with HCPs and other large-scale management plans is that they 
are developed behind closed doors with regulated interests and then 
announced to citizens after meaningful opportunities to contribute have 
long since passed. Members of the Committee should not be surprised to 
hear that environmental and scientific support for HCPs developed under 
these conditions has been lacking. S. 1180 simply codifies the current, 
ineffective approach of letting the regulated interests decide whether 
to invite citizens into the HCP negotiations. At the same time, it 
worsens the situation for Section 7 consultations by creating new 
rights of ``special access'' to regulated interests.
3. Increase the Agencies' Accountability and Ability to Achieve 
        Recovery
    If imperiled species are going to be recovered under the ESA, the 
Act needs to be amended to make all Federal agencies legally 
accountable for achieving recovery and to give them the tools to do the 
job. Unfortunately, S. 1180 contains amendments that would undermine 
the ESA's recovery goal. It weakens agency accountability by creating a 
series of new loopholes in the areas of recovery planning, recovery 
implementation agreements, and Section 7 consultations. For example, 
the bill's provisions governing recovery implementation agreements 
would insulate those agreements from judicial review--an approach we 
thought Congress would abandon after the ``logging without laws'' 
debacle. The bill also creates a nightmare of new bureaucratic 
requirements in listings, 4(d) rules, and recovery planning--the 
combined effect of which would be to divert scarce agency resources 
away from actual conservation. All of the new, ambitious procedural 
hoops and hurdles are a recipe for failure. The agencies will not be 
able to recover species under this bill and, as a result, the ESA is 
being set up for future complaints and attacks on the basis that it has 
failed to achieve its recovery goal.
4. Provide Incentives for Landowners and Others to Conserve Wildlife
    As a participant in the landmark 1995 Keystone dialog on private 
landowner incentives, NWF is aware of the importance of providing 
financial and other encouragement to landowners to take actions 
benefiting species. Many imperiled species simply cannot thrive in our 
highly altered landscapes without active management of their habitats, 
and active management on nonFederal lands can only be secured with 
incentives. We therefore strongly support the grant programs, education 
and technical assistance programs, and revolving loan fund authorized 
in S. 1180. However, we caution anyone who concludes that these 
authorizations will lead to improved species conservation on the 
ground. In the absence of a secure source of funding, the 
appropriations committees ultimately will determine the success or 
failure of these programs. Although we will continue our work in 
advocating before these committees for better funding of endangered 
species conservation, we are not naive about the enormous obstacles 
that lie before us.
    Leaving the success or failure of this bill in the hands of the 
appropriations committees is a recipe for disaster. We look forward to 
continued discussions with the Committee about how we can develop a 
funding mechanism for endangered species conservation that is not 
subject to the vagaries of the appropriations process. It is essential 
that such a fund be created and enacted as part of any ESA 
reauthorization bill, such as this one, that relies so heavily on more 
money to get the job done. As with Superfund and the Transportation 
bills, the program changes and the money to pay for those changes must 
go together.
                               conclusion
    Looking again at the four priority areas for ESA improvements, I am 
sorry to report that S. 1180 does not significantly improve the 
situation in any of the four areas. The improvements that are in the 
bill are overwhelmed by the numerous provisions that undermine 
essential protections for imperiled species. This readily apparent in 
the priority areas of HCPs, citizen participation and Federal agency 
recovery efforts. Unless S. 1180 is amended to address each of these 
problems, NWF cannot in good faith support this bill. To paraphrase 
biologist E.O. Wilson, if our generation stands by silently while the 
earth's treasure of biological diversity is destroyed, it will be a sin 
for which our descendants will never forgive us.
    We would welcome an opportunity to meet with the Committee and its 
staff to work through our concerns in greater detail.
    Thank you again for this opportunity to testify.
                                 ______
                                 
                               ATTACHMENT
        comments of the national wildlife federation on s. 1180
 By John Kostyack, Counsel, Office of Federal and International Affairs
    Washington, DC, September 22, 1997
    The National Wildlife Federation, the nation's largest conservation 
education and advocacy organization, believes that bipartisan agreement 
on improving and reauthorizing the Endangered Species Act (ESA) is 
essential. Unfortunately, although S. 1180 contains some improvements 
to the ESA, its overall effect would be to seriously weaken this 
nation's most important law protecting endangered wildlife and wildlife 
habitat.
    Considering that 84 percent of Americans want the ESA to be either 
strengthened or retained, Congress will need to make significant 
changes to this bill to bring it in synch with the views of mainstream 
America. Set forth below are the key changes that are needed and a 
section-by-section analysis of the bill.
                           key changes needed
    The National Wildlife Federation has identified four areas where 
improvements to the ESA are most needed:
    A. Design Habitat Conservation Plans that Work for Both Landowners 
and Wildlife.
    B. Promote Fairness and Citizen Participation in Wildlife 
Conservation.
    C. Increase the Accountability and Ability of Federal Agencies to 
Achieve Recovery.
    D. Provide Incentives for Landowners and Others to Conserve 
Wildlife.
    Unfortunately, rather than improving the ESA in these key areas, S. 
1180 would significantly weaken the Act's vital protections.
    The following is a summary of NWF's comments on and recommended 
changes to the most significant features of the bill, both positive and 
negative. The numbers in parentheses are references to the bill; they 
also may be used in locating specific NWF's comments in the section-by-
section analysis.
A. Design Habitat Conservation Plans that Work for Both Landowners and 
        Wildlife.
    Positive Features.--Establishes Workable Standard for Unlisted 
Species Covered by HCPs (Page 54, Line 5).
    Codifies Administration's Workable New Standards for Candidate 
Conservation Agreements (Page 60, Line 3).
    Negative Features.--Fails to Address Services' Approval of HCPs 
that Undermine Recovery. (Page 53, Line 18).
    Weakens Standards for Reviewing Activities That May or May Not be 
``Low Effect``(Page 57, Line 2).
    Locks in HCPs and CCAs, Some of Which Will Prove to be Harmful to 
Species and Will Need to be Adjusted. (Page 59, Line 6 and Page 60, 
Line 3).
    Authorizes Safe Harbor Agreements Without Requiring Conservation 
Benefit. (Page 65, Line 1).
    Creates New Obstacle to Enforcement and Habitat Conservation 
Planning. (Page 74, Line 20).
    Authorizes ``No Take'' Agreements That Could Contain Broad ESA 
Exemptions (Page 83, Line 8).
B. Promote Fairness and Citizen Participation in Wildlife Conservation.
    Positive Features.--Creates Broadly Representative Recovery Teams 
(Page 20, Line 11).
    Negative Features.--Deters Participation on Recovery Teams by 
Creating Unmanageable Tasks (Page 20, Line 11).
    Provides Special Access to Section 7 Consultations to Regulated 
Industries (Page 51, Line 11).
    Fails to Adequately Address Behind-the-Scenes Approach to 
Developing HCPs and CCAs. (Page 64, Line 14 and Page 60, Line 3).
C. Increase the Accountability and Ability of Federal Agencies to 
        Achieve Recovery.
    Positive Features.--Emphasizes that Recovery Goals are to be Based 
Solely on Science (Page 23, Line 20.)
    Calls for Inventory of Species on Federal Lands (Page 43, Line 18).
    Clarifies Duty to Mitigate Harmful Effects of Federal Activities 
(Page 53, Line 6).
    Negative Features.--Creates a Procedural Morass at the Expense of 
On-the-Ground Conservation:
    Places Unwarranted Bureaucratic Obstacles in Front of Listings 
(page 10, Line 14).
    Creates Unnecessary Bureaucratic Steps in Managing Threatened 
Species (Page 16, Line 16.)
    Creates a Burdensome Recovery Planning Process That Would Undermine 
ESA Implementation (Page 24, Line 21.)
    Adds Unwarranted Recovery Planning Obstacles by Delegating to 
States (Pages 33, Line 20).
    Creates a New Loophole for Avoiding Recovery Planning (Page 18, 
Line 22).
    Fails to Address Services' Approval of Federal Activities that 
Undermine Recovery. (Page 53, Line 6).
    Creates Unreviewable ``Recovery Implementation'' Agreements With 
Federal Agencies That Could Seriously Harm Species (Page 31, Line 9).
    Provides Harmful ``No Surprises'' Assurances to Industries Engaged 
in Federal Activities (Page 30, Line 13).
    Removes FWS and NMFS from Key Decisions and Allows the ``Fox to 
Guard the Henhouse'' (Page 44, Line 22).
    Authorizes Potentially Destructive Activities During ESA Review of 
Federal Land Management Plans. (Page 48, Line 20).
D. Provide Incentives for Landowners and Others to Conserve Wildlife.
    Positive Features.--Authorizes Grants to Private Landowners, States 
and Others to Implement Recovery Plans(Page 30, Line 13).
    Authorizes Education and Technical Assistance Programs (Page 56, 
Line 9 and Page 76, Line 2.)
    Authorizes Habitat Reserve Program. (Page 67, Line 17).
    Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11).
    Increases the Amounts Authorized for Incentives and Other Programs 
(Page 78, Line 4).
    Negative Features.--Identifies No Secure Source of Funding. (Page 
78, Line 4).
                    ii. section-by-section analysis
Sec. 2. Listing and Delisting Species
    Creates Inflexibility Regarding Contents of Listing Petitions (Page 
5, Line 2.)
    Although it makes sense to set standards regarding the contents of 
listing petitions, these standards should not be designed in a manner 
that enables the Services to reject petitions arbitrarily. Because even 
the most thorough listing petitioner will not likely be able to 
describe all of the available data pertaining to the species, this 
requirement should be qualified with the phrase ``to the maximum extent 
practicable.''
    Limits Tracking of Unlisted Species (Page 9, Line 15.)
    In addition to being required to monitor ``warranted but 
precluded'' species, the Services should be required to maintain a list 
of species for which it has been found that listing may be warranted 
but further research is necessary. When such a list was maintained 
under the name of ``C-2 candidate species,'' it proved extremely useful 
to Federal land managers and others seeking to manage natural resources 
proactively and avoid future ESA listings.
    Places Unwarranted Bureaucratic Obstacles in Front of Listings 
(page 10, Line 14).
    The bill places three new and costly hurdles in front of species 
listings: a requirement of up to five hearings per listing, an added 
comment period for states, and mandatory peer review regardless of 
whether there is a scientific dispute regarding the need to list. The 
overall effect of these changes, and the new 4(d) and recovery planning 
deadlines discussed below, will be that fewer imperiled species will be 
listed and species will wait longer to receive ESA protections.
    Creates Unjustified Bureaucratic Steps in Managing Threatened 
Species (Page 16, Line 16.) The bill adds new and potentially costly 
bureaucratic steps for the Services to follow in managing threatened 
species. Under current law, threatened species automatically receive 
the protections of the full take prohibition unless the Services issue 
a species-specific management plan called a 4(d) rule. Under S. 1180, 
the Services are required to issue a 4(d) rule for each threatened 
species by the time the recovery plan for that species is finalized. 
(The bill requires that recovery plans be finalized within 30 months of 
listing.) Although species-specific 4(d) rules are justified for some 
threatened species, the arbitrary requirement that they be developed 
for all threatened species regardless of whether they are needed will 
divert limited resources away from actual conservation. Moreover, this 
requirement sends a dangerous message that removing the full take 
prohibition is appropriate for threatened species generally, at a time 
when many threatened species are seriously imperiled and rely heavily 
upon the full take prohibition for their survival.
    Fails to Require Meaningful Citizen Participation in Development of 
4(d) Rules (Page 16, Line 16). The bill also fails to identify the 
process that will be used in developing the numerous 4(d) rules that 
will now be required. Large-scale management plans such as 4(d) rules 
should be developed with the input of a wide array of stakeholders, so 
that all relevant information and ideas are assembled. Unfortunately, 
without legislative guidance on this issue, the Services will likely 
develop 4(d) rules behind-the-scenes, with a short comment period 
thereafter, in an effort to meet the statutory deadline.
                   sec. 3. enhanced recovery planning
    Creates a New Loophole for Avoiding Recovery Planning (Page 18, 
Line 22). The bill allows the Services to avoid their obligation to 
prepare a recovery plan for species if ``an existing plan or strategy 
to conserve the species already serves as the functional equivalent to 
a recovery plan.'' This open-ended language would allow the Services to 
sidestep preparation of recovery plans in favor of existing internal 
planning documents developed with little or no scientific guidance or 
public participation. Although it makes sense to avoid unnecessary 
duplication, this goal can be achieved by incorporating previous work 
into the recovery planning process, rather than simply eliminating all 
of the procedural and substantive requirements of recovery planning.
    Sets the Wrong Recovery Planning Priorities (Page 19, Line 1). We 
acknowledge that the Services must choose priorities in allocating 
resources among various recovery plans. But these provisions do nothing 
more than confuse the priority-setting process by suggesting that the 
Services must give priority to plans with four attributes that are 
unlikely to ever be found in a single plan. For example, few if any 
plans will contain both the first attribute (addresses ``significant 
and immediate threats'' to the species) and the third (reduces 
conflicts with construction or other development projects).
    These priority provisions are also problematic because they place 
the objective of reducing conflict with short-term development schemes 
on equal footing with the ESA's fundamental objective of recovering 
species. To further the ESA's recovery goal, Congress should direct the 
Services to give priority to recovery plans that address significant 
and immediate threats, have the greatest likelihood of achieving 
recovery, and address multiple species. Once these priority plans are 
chosen and scientific criteria for recovery are identified, then 
recovery teams should attempt to design implementation strategies that 
minimize social and economic disruptions while achieving timely 
recovery.
    Creates Broadly Representative Recovery Teams, But Deters 
Participation by Creating Unmanageable Tasks (Page 20, Line 11). We 
wholeheartedly endorse the concept of creating ``broadly 
representative'' recovery teams. But in describing potential members of 
the recovery team, the bill includes ``commercial enterprises'' but 
fails to mention conservation organizations. This leaves open the 
possibility that conservation interests will be included, if at all, as 
mere token participants. (A recent habitat conservation planning 
process in Texas included just one conservation member, in contrast 
with six timber industry representatives.) The bill needs to be revised 
to clarify that recovery teams must have a rough balance of 
participation from both those seeking to promote economic activity that 
adversely affects species and those seeking to conserve species. This 
approach--currently utilized in the Marine Mammal Protection Act 
provisions governing take reduction teams and the Federal Land Policy 
and Management Act regulations governing range advisory councils--would 
help ensure that a full range of viewpoints are represented on recovery 
teams.
    Of course, the concept of stakeholder-type recovery teams makes 
sense only if the assigned tasks are manageable. As discussed below, S. 
1180 would need to be revised substantially to make the recovery 
planning process accessible to stakeholders.
    Helps Recovery Team Members Cover Costs (Page 22, Line 16.) We 
applaud the bill's recognition that participation on a recovery team 
will be costly and that the Federal Government should help defray the 
costs. This makes perfect sense, considering that the recovery team 
will essentially be providing advisory services to the Services. To 
limit the budgetary impact of this proposal, Congress should condition 
the reimbursement of expenses upon a demonstration of financial need.
    Emphasizes that Recovery Goals are to be Based Solely on Science 
(Page 23, Line 20.) The bill appropriately calls for scientific members 
of the recovery team to recommend a recovery goal ``based solely on the 
best scientific and commercial data available'' and ``expressed as 
objective and measurable biological criteria.'' This, along with the 
requirement of peer review of the recommended recovery goal, will help 
ensure that political considerations do not intrude into the process of 
resolving the scientific issue of the species' recovery needs. To 
ensure that economic self-interest does not intrude into this 
determination, language should be added to clarify that the term 
``independent scientific review'' means that peer reviewers may not 
have economic conflicts of interest.
    Creates a Recovery Planning Process That Would Undermine ESA 
Implementation (Page 24, Line 21.) The bill adds numerous bureaucratic 
requirements to the recovery planning process that would essentially 
negate the recovery planning improvements noted in the above three 
paragraphs. These requirements would make development of the recovery 
plan more expensive, difficult, and time-consuming and would create 
numerous litigation opportunities from those seeking to frustrate ESA 
implementation. The new requirements would also delay finalization of 
recovery plans, increasing the likelihood that HCPs and other 
management plans will provide inadequate species protections. Finally, 
the burdensome processes would drain limited agency resources away from 
the on-the-ground conservation activities that determine the success or 
failure of the ESA.
    The following is a summary of the numerous tasks that have been 
added to the existing recovery planning process. Although a small 
handful of these steps are useful, the cumulative effect of these 
requirements would be to undermine ESA implementation.
    1. The bill first requires the Services to assemble a recovery 
team. Although (as noted above) NWF supports making recovery teams 
broadly representative, the bill also mandates that they be developed 
``in cooperation with the affected states,'' which would create a 
procedural morass. (The bill defines such cooperation as incorporating 
the states' recommendations ``to the maximum extent practicable.'') In 
light of the inherent difficulties of soliciting and incorporating 
state recommendations, the bill's 60-day deadline for appointing 
recovery team members would likely be impossible to meet, especially 
for recovery plans governing species found in multiple states.
    2. The scientific members of the recovery team must then convene to 
recommend a biological recovery goal.
    3. The recovery goal must then be subjected to peer review and the 
comments of the peer reviewers must be considered and, where 
appropriate, incorporated.
    4. Recovery team members must then decide upon the ``recovery 
measures'' for the draft recovery plan, balancing three conflicting 
factors: effectiveness in meeting the recovery goal, the period of time 
in which the goal is likely to be achieved, and the social and economic 
impacts and their distribution across regions and industries.
    5. Recovery team members must then prepare a description of 
alternative recovery measures considered and set forth the reasons for 
their selection or rejection. Presumably, the discussion of reasons for 
selecting and rejecting recovery measures must include an analysis of 
how each of the three factors described above was applied to each of 
the selected and rejected recovery measures.
    6. To add to this already difficult task, the bill then states that 
for recovery measures that impose significant costs, the team must 
somehow prepare a description of ``overall economic effects'' of the 
recovery plan, including effects on employment, public revenues, and 
property values. This assessment would be even more speculative than 
the assessments of regulatory impacts called for in the various 
``takings'' bills that Congress has considered and rejected. Rather 
than analyzing the effect of a single regulation, the recovery team 
will need to analyze the potential economic effects of a long list of 
broadly defined recovery measures that may or may not be implemented, 
depending on when funding becomes available, over the course of 
decades. This task will produce nothing more than wild speculation 
about potential economic effects, speculation that will become 
available to ESA opponents seeking to block implementation.
    7. In addition, the recovery team must identify objective 
benchmarks to determine whether progress is being made toward the 
recovery goal.
    8. The team must also make recommendations regarding designation of 
critical habitat, including recommendations for special management 
considerations.
    9. The work is far from over once the recovery team's numerous 
recommendations and extensive analyses are completed. At that juncture, 
the Services must review this extensive set of materials and, if they 
find any deficiencies, they must send the package back to the recovery 
team with an explanation.
    10. At that point, the team must convene again to address the 
perceived deficiencies. (Page 28).
    11. Once the Services have received the revised recommendations of 
the recovery team, the Services must publish a draft plan in the 
Federal Register and hold up to 5 public hearings on the draft plan, if 
requested. If this draft plan has not been completed within 18 months 
of listing, the Services must also defend against potential lawsuits 
for failure to meet the new statutory deadline.
    12. The Services must then develop a final plan, and included with 
the plan their responses to any significant comments received from the 
public. If the Services ultimately reject any measures recommended by 
the recovery team, they must publish an explanation along with the 
final plan. If this draft plan has not been completed within 30 months 
of listing, the Services must also defend against potential lawsuits 
for failure to meet the new statutory deadline.
    13. The bill also requires the Services, upon request, to delegate 
to one or more states the authority to develop recovery plans on their 
own (with the exception of final approval of the recovery plan, which 
remains with the Services). As discussed below, this would greatly 
increase the likelihood of inadequate recovery plans and would 
substantially increase the associated costs, complexities and delays.
    14. Because satisfaction of these new procedural requirements and 
preparation of these numerous analyses will be extremely difficult and 
will involve many judgment calls by the Services and the recovery team, 
litigation over recovery planning procedures and recovery plan contents 
will likely expand dramatically.
    As this summary makes clear, the overall effect of the bill's 
recovery planning provisions is not to ``enhance'' recovery planning, 
but to make achieving the ESA's recovery goal more difficult and to set 
up those seeking to implement the ESA for failure.
    Authorizes Grants to Private Landowners, States and Others to 
Implement Recovery Plans (Page 30, Line 13). NWF strongly supports the 
bill's authorization for the Services to develop and provide funds for 
recovery ``implementation agreements'' in which states, tribes, local 
governments and private landowners commit to taking actions that 
promote species recovery. By encouraging landowners and others to take 
actions specified in the recovery plan as beneficial to species 
recovery, this provision will potentially help ensure that recovery 
plans serve a meaningful purpose and help imperiled species move closer 
to the recovery goal. The success of this provision, of course, will 
ultimately be determined by the extent to which funds are appropriated 
by Congress.
    Creates Unreviewable ``Recovery Implementation'' Agreements That 
Could Seriously Harm Species(Page 31, Line 9). We also agree with the 
concept of requiring that Federal agencies with activities 
significantly affecting recovery enter into recovery implementation 
agreements. However, two key features of S. 1180's recovery 
implementation agreements with Federal agencies appear to be designed 
to undermine recovery. The first feature is the language that precludes 
any judicial review of recovery implementation agreements, the very 
kind of ``sufficiency'' language that led to the ``logging without 
laws'' debacle of the 104th Congress. According to the bill, the terms 
of recovery implementation agreements are ``within the sole discretion 
of the Secretary and the head of the Federal agency entering the 
agreement.'' This would make the agencies' judgments regarding what 
promotes or undermines recovery unreviewable, thus opening the door for 
deals that could never stand up to legal or scientific scrutiny and 
that could contribute directly to the extinction of imperiled species.
    Provides Harmful ``No Surprises'' Assurances to Industries Engaged 
in Federal Activities (Page 30, Line 13). The second harmful feature of 
S. 1180's recovery implementation agreements with Federal agencies is 
the Section 7 waiver. By waiving Section 7(a)(2) for actions set forth 
in the implementation agreement, the bill removes an essential ESA tool 
for updating management strategies and modifying them as necessary to 
prevent serious harm to imperiled species.
    At first blush, the bill appears to contain some limited 
safeguards: it states that the waiver applies only to actions 
``specified in a recovery plan implementation agreement . . . to 
promote recovery and for which the agreement provides sufficient 
information on the nature, scope and duration of the action to 
determine the effect'' on the species or its critical habitat. It also 
calls for the Services to approve the agreement only if they find that 
the agreement will be ``reviewed and revised as necessary on a regular 
basis . . . to ensure that it meets the requirements of this section.'' 
However, these safeguards can easily be ignored because, as noted 
above, the bill precludes any challenges to the terms of recovery plan 
implementation agreements.
    Even without the sufficiency language, recovery implementation 
agreements still could be used to authorize activities that prove to be 
harmful to species. The bill's ``duration'' language is sufficiently 
flexible to potentially allow agreements of one or two decades or more. 
(The Services have utilized the similar flexibility of the ESA's 
Section 10 to approve HCPs of up to 100 years.) And the bill's 
``regular'' review requirement is sufficiently flexible to allow for 
agreements that are reevaluated at intervals of 5 years or more. Thus 
there is a substantial risk that by the time management practices 
approved in the recovery implementation agreement are carried out, they 
will be inconsistent with the current scientific understanding of the 
species' needs. Even if the recovery implementation agreement is 
contributing directly to a species' decline, the Section 7 waiver would 
preclude the Services from reinitiating consultation and revising the 
agreement to conform with the latest science.
    For example, if the Fish and Wildlife Service enters a 10-year 
recovery implementation agreement with the Agriculture Department's 
Animal Damage Control (ADC) agency stating that depredation of the gray 
wolf to protect livestock on Federal grazing allotments is necessary to 
promote wolf recovery (the current FWS view), S. 1180 would waive 
Section 7's applicability to all future wolf depredation authorized by 
the agreement. After 3 years, if new data reveals that wolf depredation 
authorized by the agreement is contributing to the species' rapid 
decline, the bill would preclude FWS from reinitiating consultation 
with ADC and making appropriate changes to save the species.
    In effect, the Section 7 waiver would provide harmful ``no 
surprises'' assurances to Federal agencies and the industries that rely 
upon the agencies' authorizations. This policy is harmful enough as 
applied to nonFederal activities--it would be far more harmful if 
extended to Federal activities.
    Creates Unwarranted Recovery Planning Obstacles by Delegating to 
States (Pages 33, Line 20).
    For at least three reasons, NWF opposes such wholesale delegation 
of recovery plan development to the states. First, most listed species 
are imperiled due to management practices carried out by a wide variety 
of landowners and resource users on lands and waters within the 
jurisdiction of Federal, state, tribal and local government landowners. 
Under our constitutional framework, only the Federal Government has the 
ability to confront these threats. Although the bill suggests that the 
Services and the states can develop ``standards and guidelines'' for 
interstate cooperation, history tells us that such cooperation is quite 
difficult to achieve, especially in cases where neighboring states have 
conflicting economic development and resource conservation strategies.
    Second, state governments are suffering widespread and severe 
funding shortfalls due (among other things) to the devolution of 
numerous Federal programs. Before delegating another costly and complex 
Federal program, Congress should investigate whether the state wildlife 
agencies have the resources, expertise and demonstrated commitment to 
endangered species conservation to undertake the lead role on recovery 
plan development. In an era when (according to a National Audubon 
Society survey) only six state wildlife agencies have staff 
ornithologists, Congress should be particularly hesitant about inviting 
states to take the lead in drafting complex recovery plans for 
migratory birds and other ``multi-jurisdictional'' species.
    Finally, delegation to the states would increase the overall costs 
of recovery planning. States would need to develop separate ESA 
recovery planning bureaucracies and devote substantial resources simply 
toward coordinating amongst themselves and with the Services. The 
Services would retain the responsibility to participate on recovery 
teams, monitor state compliance with the maze of new procedures and 
withdraw state authority when appropriate, review draft plans, and make 
final approval decisions. Even if resources to pay for this additional 
staffing were available, it would be much better utilized doing on-the-
ground conservation. The benefits, if any, of giving the states the 
lead role in developing recovery plans would be far outweighed by the 
added costs and complexities.
    There are plenty of ways of increasing state involvement in ESA 
recovery efforts without creating undue risks for species. Because 
states already have the ability to participate on recovery teams led by 
the Services, Congress could expand that involvement by increasing 
Section 6 funding. As recognized elsewhere in this bill, states can 
also be encouraged to take the lead in implementing recovery plans.
    Reopens Critical Habitat Loophole (Page 37, Line 21). The bill 
requires final designation of critical habitat only ``to the maximum 
extent prudent and determinable``--a return to the approach that was 
taken prior to 1982, when Congress recognized this as a loophole that 
was enabling the Services to claim arbitrarily that habitat is not 
determinable and to evade their responsibilities to designate critical 
habitat. This provision should be removed and the 1982 amendment 
requiring final designation ``to the maximum extent prudent'' should be 
reinstated.
    Imposes Recovery Plan Deadlines (Page 20, Line 3 and Page 42, Line 
16). NWF supports imposing deadlines for completion of recovery plans. 
However, deadlines should be imposed only after making a realistic 
estimation of the time needed for each of the assigned recovery 
planning tasks given anticipated levels of appropriations. The fact 
that the bill is replete with inordinately complex and burdensome tasks 
that could never be achieved under any near-term deadline suggests that 
this process has not been undertaken. By setting near-term deadlines 
for numerous difficult-to-achieve tasks without any realistic hope that 
appropriators will provide the necessary funding, the bill appears to 
be setting up the Services for failure.
    Calls for Inventory of Species on Federal Lands (Page 43, Line 18). 
The bill calls upon Federal land management agencies to undertake a 
long overdue inventory of listed species, species proposed for listing, 
and candidate species on Federal lands. One of the major obstacles to 
effective management of both Federal and nonFederal lands is the 
paucity of biological data. The success of this program, of course, 
will ultimately be determined by the extent to which funds are 
appropriated by Congress. Considering that most Federal land management 
agencies are already very understaffed, Congress will need to 
appropriate substantial funds to make this program a success.
    Removes FWS and NMFS from Key Decisions and Allows the Fox to Guard 
the Henhouse (Page 44, Line 22). S. 1180 would remove the Services from 
their longstanding roles as the expert biologists charged with ESA 
consultations, i.e., reviewing and potentially modifying Federal 
projects to reduce their harmful impacts on imperiled species. The bill 
instead merely gives the Services the option to perform the 
consultative role: if the ``action'' agency contends that its project 
would not be likely to adversely affect imperiled species, the Services 
may object within 60 days and force a consultation to take place. If 
they fail to object within 60 days, the project moves forward without 
their expert review.
    The risk that the Services will fail to respond to ``not likely to 
adversely affect'' (NLAA) findings by action agencies is substantial, 
especially given the severe staffing shortages currently faced by the 
Services, the many new bureaucratic requirements imposed by this bill, 
and the lack of any evidence that appropriators are committed to 
substantial funding increases. (The new bill gives new incentives to 
regulated industries to oppose such funding increases, since ESA review 
of their projects will be less likely so long as the Services remain 
understaffed.) The risk of inaction by the Services is further 
heightened by the fact that most of the bureaucratic tasks required by 
this bill are mandatory, whereas responding to the agencies' NLAA 
findings is discretionary. As the Services' experience with the listing 
program teaches us, when the understaffed Services are forced to choose 
between legally mandated and discretionary actions, they choose the 
legally mandated actions.
    The bill's requirement that the action agency rely upon a 
``qualified biologist'' does not provide a sufficient safeguard for 
imperiled species. Agencies such as the U.S. Forest Service (FS) and 
Bureau of Land Management (BLM) routinely rely upon biologists to 
advocate for projects that are deleterious to species. Because the 
missions of these agencies are not oriented toward protecting wildlife, 
allowing them to make key ESA decisions unilaterally would be 
disastrous--no different than the proverbial ``fox guarding the 
henhouse.''
    The Clinton Administration itself has acknowledged that FS and BLM 
cannot be entrusted with making far-reaching decisions concerning 
endangered species. In its October 1996 indictment of the timber 
salvage program, it concluded that ``some FS and BLM personnel do not 
have an understanding of, or a commitment to the goals and requirements 
of the ESA.'' In contrast, FWS and NMFS in recent years have 
successfully maintained their expert roles while consolidating and 
streamlining consultations. There simply is no justification for 
shifting responsibility for implementing the ESA's consultation 
provisions away from these expert agencies.
    Calls for an Unbalanced ESA Study (Page 48, Line 10). The bill 
calls for the GAO to issue a report on the cost to Federal agencies, 
corporations and others of complying with Section 7, without seeking 
any information on the conservation benefits of this provision. The 
result will be ammunition to those seeking to undermine the Act, not a 
balanced appraisal of the results of ESA implementation.
    Authorizes Potentially Destructive Activities During ESA Review of 
Federal Land Management Plans. (Page 48, Line 20). An essential feature 
of the existing ESA is that potentially destructive Federal activities 
do not go forward if the Services cannot rule out the possibility that 
they might jeopardize the existence of an imperiled species. S. 1180 
would undermine this principle by allowing action agencies to go 
forward with their activities while the cumulative harmful effects of 
those activities on newly listed species are being evaluated.
    For example, under the current ESA, if a newly listed salmon 
species is threatened with extinction by timber harvesting, the 
Services must review the FS's land management plan authorizing timber 
harvesting and recommend changes needed to protect the species. At the 
outset of the review process, if the Services find that certain 
harvesting activities authorized by the old plan could threaten the 
very existence of the species, Section 7(d) of the ESA calls for 
delaying those activities pending completion of the review. The bill 
would undermine Section 7(d) protections by allowing those activities 
to go forward before the plan review is completed--even if the 
resulting habitat destruction would irrevocably undermine efforts to 
save the species.
    Although S. 1180 calls for the plan review to be completed within 
15 months of listing, this offers little protection to imperiled 
species. Projects that go forward before the end of 15 months will 
still potentially cause significant harm. Moreover, if the plan review 
is not completed within 15 months, additional harmful projects could 
potentially go forward because the bill fails to provide any remedy for 
failure to meet the statutory deadline.
    The bill should be amended to authorize action agencies to initiate 
a review of their land management plans during the 1-year period in 
which a species has been proposed for listing. This approach, which the 
Administration is in the process of adopting a MOU between key 
agencies, would ensure that the plan review is completed prior to the 
time when the listing goes into effect and that imperiled species 
receive the protections called for in the amended plan immediately upon 
listing.
    Provides Special Access to Section 7 Consultations to Regulated 
Industries (Page 51, Line 11). The National Wildlife Federation 
supports the notion of giving access to stakeholders, including 
regulated industries, to the Section 7 consultation process. However, 
the language proposed here would create a ``special right'' of access 
to regulated industries while shutting out other citizens who have an 
equally legitimate interest in decisions concerning Federal lands and 
other public wildlife resources. This language should be revised to 
give equal access to all citizens to the Section 7 process.
    Clarifies Duty to Mitigate, But Fails to Address Activities that 
Undermine Recovery. (Page 53, Line 6). It is helpful that the bill 
clarifies that the Services, when designing ``reasonable and prudent 
measures'' to reduce take in the Section 7 consultation process, must 
identify mitigation efforts as well as minimization. (In practice, the 
Services were already doing this.) However, this language fails to 
address a critical flaw with the implementation of the minimization and 
mitigation requirements in both Sections 7 and 10: the failure by the 
Services to ensure that the harmful effects of projects are minimized 
and mitigated to point where they do not undermine recovery.
    The Services' current approach to Section 7 is to review Federal 
activities for their impacts on the short-term survival of an imperiled 
species, but not to consider their impacts on the species' recovery 
needs. As a result, many Federal activities are approved even though 
they undermine the ESA's recovery goal. S. 1180 fails to grapple with 
this well-known problem, thus perpetuating the problem of species being 
added to the ESA list but virtually never being removed.
    Limits Mitigation Options (Page 53, Line 8).
    By requiring reasonable and prudent measures for minimizing/
mitigating take to be ``related both in nature and extent'' to the 
effects of the proposed activity, the bill would potentially limit 
significantly the Services' ability to ensure that the destructive 
effects of Federal activities are fully mitigated. Often, the only 
viable mitigation strategy that arises in a Section 7 consultation is 
the requirement of offsite habitat restoration. By imposing this new 
restriction, S. 1180 would frustrate the Services' ability to ensure 
that Federal activities do not undermine recovery.
                       sec. 5. conservation plans
    Fails to Address the Services' Approval of HCPs that Undermine 
Recovery. (Page 53, Line 18). Habitat Conservation Plans (HCPs) 
represent a potentially powerful mechanism to reconcile the desires on 
nonFederal landowners to undertake economic activities in endangered 
species habitats with the recovery needs of endangered species. 
Unfortunately, in approving HCPs to date, the Services have failed to 
consider the long-term recovery needs and instead have chosen to focus 
on the species' short-term survival needs. By failing to address this 
problem, S. 1180 leaves open the possibility that the Services will 
approve HCPs that undermine the ESA's recovery goal.
    Establishes Workable Standard for Unlisted Species Covered by HCPs, 
But Creates New Obstacle to Multispecies Planning (Page 54, Line 5). 
The bill establishes two positive new approval standards (based largely 
on the Administration's candidate conservation agreement policy) for 
unlisted species that landowners seek to have included in their 
multispecies HCPs. These standards will be helpful in ensuring that any 
inclusion of unlisted species in an HCP is based on sound science. 
However, the addition of these standards without similar improvements 
to the approval standard for listed species could create an unintended 
new obstacle to multispecies planning. Because the bill's new standard 
for candidate species, in essence, requires a contribution to the 
recovery of the species, it is more protective than the standard for 
listed species, which merely requires the HCP to avoid jeopardizing the 
species. A potential result is that landowners will develop HCPs for 
listed species only, and later amend their HCPs once any candidates 
have been listed, thereby benefiting from the lower standard for listed 
species. To ensure early development of ecosystem-oriented plans that 
address multiple listed and unlisted species, the bill should be 
revised to require that the recovery needs of both candidate and listed 
species be addressed in the HCP.
    Authorizes Education and Technical Assistance Programs (Page 56, 
Line 9 and Page 76, Line 2.)
    The availability of education and technical assistance will be 
essential to make the ESA work for both species and landowners. 
However, agency personnel already have the authority to provide 
technical assistance, so it is unclear what effect, if any, this 
additional authorizing language would have. The main hindrance to 
technical assistance has been lack of available funding, and whether 
the funding situation would improve as a result of this bill remains an 
open question.
    Imposes Arbitrary Deadlines for Plan Approval (Page 56, Line 19). 
The timeframes set forth in the bill for approving or disapproving HCPs 
are likely to be impossible to achieve, especially in cases where the 
potentially significant environmental effects of a plan justify full-
scale NEPA review. Because of the rapidly evolving nature of HCPs and 
other management plans, deadlines for processing proposed plans should 
continue to be set administratively.
    Weakens Standards for Reviewing Activities That May or May Not be 
``Low Effect'' (Page 57, Line 2). NWF supports offering expedited 
permitting procedures to small landowners with low effect activities. 
However, the procedures set forth in the bill for determining whether 
an activity is truly ``low effect'' are far weaker than the 
Administration's current approach, which itself has been criticized for 
not allowing adequate scientific scrutiny or citizen input. For 
example, the bill states that low-effect permits will automatically be 
issued if no significant adverse comment has been received within 30 
days. This kind of ``auto-pilot'' provision would create unacceptable 
risks to imperiled species. Given the brief period of review and 
limited resources of conservationists and independent scientists, it is 
inappropriate to infer from the absence of citizen or scientific input 
that a permit application is sound.
    The bill also removes Section 10's key protection for species, the 
requirement that harm be minimized and mitigated to the maximum extent 
practicable. This essential safeguard ensures that strategies for 
avoiding unnecessary harm, which are sometimes virtually cost-free, 
have been fully considered.
    To ensure adequate citizen and scientific input into potentially 
``low effect'' activities, Congress should require that the Services 
propose individual species, along with specific economic activities, as 
eligible for the ``low effect'' permit procedures and invite broad 
public input into the proposals. This would ensure adequate scientific 
scrutiny and citizen input while giving landowners guidance about which 
permitting procedures would be appropriate for their particular project 
proposals.
    Locks in HCPs, Some of Which Will Prove to be Harmful to Species 
and Will Need to be Adjusted. (Page 59, Line 6). S. 1180 would codify 
the Clinton Administration's ``no surprises'' policy, a policy that has 
been roundly criticized by conservationists and scientists. Under the 
``no surprises'' policy, the Services offer landowners assurances that 
no ESA obligations will be imposed on them beyond those stated in the 
HCP, even if the HCP ultimately proves to be contributing toward 
species decline and possible extinction. As critics from the scientific 
and conservation communities have pointed out, many HCPs are long-term 
plans with numerous questionable assumptions about the adequacy of 
species protections, and thus some HCPs will inevitably fail to perform 
as anticipated. Although giving landowners regulatory certainty makes 
sense, this certainty should only be offered in return for HCPs that 
contain basic safeguards for species.
    In addition to the HCP safeguards recommended elsewhere in these 
comments, S. 1180 needs to be amended to include a credible adaptive 
management strategy. (An adaptive management strategy is a program for 
periodic reevaluations of and adjustments to a management plan; 
reevaluations include measuring biological performance and checking 
assumptions in light of new information and changed circumstances.) To 
ensure that HCPs are adjusted as needed to ensure species recovery, the 
following adaptive management provisions need to be built into any HCP 
assurances policy:
    (a) Monitoring and Biological Goals. The bill should be amended to 
require that the performance of the HCP be carefully monitored. With 
biological indicators established at the outset of the plan, key 
assumptions of the plan can routinely be tested. The landowners should 
be required to generate monitoring data, and the Services should in 
turn be required to evaluate the data and issue regular progress 
reports for public inspection.
    (b) Requirements to Take Corrective Action. The bill should be 
amended to require that the HCP identify all foreseeable changes in 
conditions that would have an adverse effect on species recovery, and 
include the landowner's agreement to undertake specific mitigation 
strategies to address those changes. (The Services acknowledge the need 
for such a strategy, but fail to require it. See 62 Fed. Reg. 29093 
(``HCP planners should identify potential problems in advance and 
identify specific strategies or protocols in the HCP for dealing with 
them'')). The bill should also require the Services to take corrective 
action to address unforeseeable changed conditions that would adversely 
affect recovery.
    (c) Limits on Duration. To ensure that adaptive management 
strategies are credible, the bill should limit the duration of HCPs to 
a time period in which the landowner can reasonably foresee--and design 
mitigation strategies to address--the changed conditions that would 
adversely affect species recovery.
    (d) Reliable Funding. To ensure adequate funding for corrective 
action, the bill should be amended to ensure that responsibility is 
properly divided between private and public sources. As noted earlier, 
the landowner should be required to respond to reasonably foreseeable 
risks in the HCP's adaptive management provisions. A performance bond 
or other evidence of the landowner's ability to carry out this 
responsibility should be required as a condition of plan approval. For 
risks that cannot reasonably be foreseen, Congress should establish a 
trust fund to cover the costs of corrective action.
    By requiring that the ``no surprises'' assurances be provided 
without these conservation safeguards, S. 1180 locks in controversial 
HCP management strategies and removes the tools needed to respond if 
the HCP is found to be contributing to species decline and possible 
extinction.
    Codifies Administration's Workable New Standards for Candidate 
Conservation Agreements, But Leaves Other Basic Flaws with CCAs 
Unaddressed. (Page 60, Line 3). The bill would set a useful standard 
for approving candidate conservation agreements--virtually the same one 
recently proposed by the Administration. This will help ensure that the 
agreements are based on sound science--a significant improvement over 
agreements approved in the past, which have been harshly criticized as 
political deals to avoid listings that fail to address the needs of 
species. However, it would greatly reduce (if not eliminate) the 
potential benefits to be achieved by such agreements by requiring that 
agreements be covered by the flawed ``no surprises'' policy (discussed 
above) and allowing them to continue to be developed with a behind-the-
scenes process that denies citizens meaningful opportunities to 
participate (discussed immediately below).
    Fails to Adequately Address Behind-the-Scenes Approach to 
Developing HCPs. (Page 64, Line 14). Under the current ESA, many large-
scale HCPs are developed in closed-door negotiations between the 
Services and regulated interests. Although citizens are given a brief 
period to comment on the final draft of the HCP, this comment period 
does not allow for meaningful input. As a result, many HCPs appear to 
be biased toward the viewpoints of the regulated interests. Because 
HCPs are essentially long-term management plans affecting numerous 
valuable public resources ranging from wildlife to drinking water to 
flood protection, citizens are entitled to a seat at the table as the 
plans are developed.
    S. 1180 fails to address this need for expanded public 
participation. Although it states that citizens may participate in plan 
development with the approval of the permit applicant, it offers 
nothing to citizens in situations where the permit applicant believes 
that it will get a better deal in a closed-door negotiation. This 
voluntary approach is essentially a codification of the approach taken 
by the Administration in its HCP Handbook, which has not succeeded in 
stimulating greater opportunities for citizen participation. The bill 
should be amended to set forth clear standards for balanced 
participation in the development of large-scale HCPs.
    Authorizes Safe Harbor Agreements Without Requiring Conservation 
Benefit. (Page 65, Line 1). Safe harbor agreements are a laudable 
attempt to get conservation benefits from private lands that otherwise 
might not be managed for the benefit of species. These new agreements, 
however, are still in the experimental stage and should be approached 
with caution. The following safeguards should be added to S. 1180 to 
ensure that ``safe harbor'' agreements result in improved conditions 
for species:
    (a) Establish a Net Conservation Benefit Standard. As the 
Administration has stated in its proposed rulemaking on ``safe harbor'' 
agreements, such agreements are not necessarily appropriate for all 
species and all habitats. For example, scientists have raised concerns 
that endangered species will move from protected habitat to newly 
created or restored habitat covered by ``safe harbor'' agreements. As a 
result, the abandoned habitat would lose its ESA protection and both 
the abandoned and ``safe harbor'' habitat would be subject to 
development--a net loss of habitat for the endangered species. The bill 
should require that ``safe harbor'' agreements be entered into only if 
(as the Administration has proposed in its recent rulemaking) the 
Services rule out such negative effects and find that the agreement 
will lead to a net conservation benefit.
    (b) Establish a Scientifically Credible Baseline. The fundamental 
premise of ``safe harbor'' agreements is that landowners may improve 
habitat on their land and later destroy those improvements, as long as 
the habitat is left no worse off than it was at the time the agreement 
was initiated. Thus, an accurate baseline measure of existing habitat 
quality and quantity must be identified at the start, to ensure that 
later activities do not result in a net loss of habitat. The bill 
requires use of a baseline, but contains only vague suggestions about 
how the baseline should be defined in the ``safe harbor'' agreement. 
Congress should require that the parties use scientifically defensible 
and measurable data, including the number of species present on the 
land and indicators of habitat quality, to define the baseline that 
must be protected under the ``safe harbor'' agreement.
    (C) Prevent Safe Harbor Agreements From Being Undermined By 
Incidental Take Permits. Some landowners have asserted that they are 
entitled to receive an incidental take permit authorizing habitat 
destruction and, at the same time, to receive a ``safe harbor'' 
agreement for restoring habitat just destroyed under the permit. By 
leaving open this possibility, the bill would allow the ``safe harbor'' 
agreement to be used as a tool to remove ESA protections from habitat. 
The bill should make clear that habitat sacrificed under a take permit 
is not appropriate for a ``safe harbor'' agreement--it must be restored 
and given the same ESA protection that it had in the first place.
    (d) Don't Subsidize Agreements Lacking Net Conservation Benefit 
Standard. The bill authorizes the Services to provide grants of up to 
$10,000 to private landowners to assist in carrying out a ``safe 
harbor'' agreement. Unless the bill is amended to require that ``safe 
harbor'' agreements provide a net conservation benefit to species, this 
funding would be much better targeted toward other landowner incentives 
programs authorized in the bill.
    (e) Provide Opportunities for Citizen Involvement. Under S. 1180, 
``safe harbor'' agreements may be developed without any notice to the 
public or opportunity to comment. Public participation opportunities 
must be expanded significantly to ensure that the Service is held 
accountable for setting a credible baseline obligation and providing a 
conservation benefit to the species.
    Authorizes Habitat Reserve Program. (Page 67, Line 17). This 
provision authorizes the Services to pay private landowners for 
managing habitat pursuant to a contract or easement--an important 
financial incentive that would help promote recovery of imperiled 
species on private lands. To ensure that the maximum conservation 
benefit will be realized for the taxpayer's incentives dollars, the 
bill should give priority to habitat management that is identified in 
an approved recovery plan. (Like the other incentives programs 
authorized by this bill, the success of this program depends completely 
on whether necessary funds are appropriated.)
    Authorizes Habitat Conservation Planning Fund. (Page 69, Line 11). 
This revolving loan fund, which will provide financial incentives to 
states and localities to develop HCPs, would provide an important 
stimulus for comprehensive, region-wide planning. Again, the success of 
this program will depend entirely upon whether sufficient funds are 
appropriated.
    Creates New Obstacle to Enforcement and Habitat Conservation 
Planning. (Page 74, Line 20). The effectiveness of HCPs and other 
conservation planning tools depends on a credible enforcement threat. 
For example, the Clinton Administration has used a combination of the 
threat of ESA enforcement and positive incentives to convince 
landowners to ``come to the table'' and develop HCPs that balance their 
desire to undertake economic activities with the needs of imperiled 
species. According to NWF's sources, the negotiators of S. 1180 have 
agreed to include report language that would require proof that the 
landowners' activities are the ``proximate cause'' of harm to imperiled 
species. This would reduce the Administration's ability to convince 
landowners to engage in conservation planning and increase the 
difficulty of protecting the numerous imperiled species that are 
threatened by the indirect effects of urbanization, intensive 
agriculture and resource extraction.
    Increases the Amounts Authorized for Incentives and Other Programs, 
But Identifies No Secure Source of Funding. (Page 78, Line 4). The bill 
laudably provides for substantial (and long overdue) increases in the 
authorizations for appropriations to the agencies charged with 
implementing the ESA and includes new authorizations for important 
incentives programs. Unfortunately, the actual dollar amounts that will 
fund these programs will be decided in the appropriations committees, 
and those committees historically have starved ESA programs of funding. 
Spending targets under the recent budget agreement call for a steady 
decline in most discretionary spending. Thus, without a new, guaranteed 
source of funding, this bill will likely be underfunded and the bill's 
provisions benefiting imperiled species will not be implemented. A 
bipartisan effort to create a trust fund for endangered species 
conservation, not subject to the vagaries of the appropriations 
process, is badly needed.
    Authorizes ``No Take'' Agreements That Could Contain Broad ESA 
Exemptions (Page 83, Line 8). NWF strongly supports the use of ``no 
take'' agreements and other written understandings between the Services 
and landowners regarding how habitat can be managed to avoid take of 
imperiled species. Presumably, the bill's drafters merely intended to 
codify the Administration's policy and practice of entering such 
agreements. However, the bill language is so vaguely worded that 
virtually any land management practice could be authorized under a ``no 
take'' agreement, regardless of its impact on species and regardless of 
whether it would ordinarily violate the ESA. Rather than simply 
authorizing the Services to declare activities identified in the 
agreement as not in violation of the ESA, the bill should identify what 
biological and other standards must be met to justify a finding of ``no 
take.'' To ensure agency accountability, notice of such agreements 
should be placed in the Federal Register.
    Statement of Duane L. Shroufe, Director, Arizona Game and Fish 
 Department and Immediate Past President, International Association of 
                       Fish and Wildlife Agencies
    Thank you, Mr. Chairman, for the opportunity to appear before you 
today to share the perspectives of the International Association of 
Fish and Wildlife Agencies on S. 1180, the Endangered Species Recovery 
Act of 1997. I am Duane Shroufe, Director of the Arizona Game and Fish 
Department, and Immediate Past President of the Association, and I 
would like to commend you, Senator Kempthorne, Senator Baucus, and 
Senator Reid for your persistence and dedication to producing this 
bipartisan centrist and consensus proposal on a difficult but extremely 
important conservation issue. I bring to you today the firm support for 
S. 1180. While this proposal does not have everything we advocated for 
in an ESA reauthorization bill, the Association believes that S. 1180 
is a bill that improves the effectiveness of the ESA for both the 
conservation of fish, wildlife and plant species and with regards to 
appropriate certainty for the regulated community; it appropriately 
restores Congress' original intent to respect throughout the Act the 
concurrent jurisdiction of state fish and wildlife agencies with the US 
Fish and Wildlife Service (USFWS) and National Marine Fisheries Service 
(NMFS) for listed species; restores the focus in the ESA to what we 
endorse as its most important perspective and that is recovering listed 
species to a level and vitality where the measures under the Act are no 
longer necessary; and provides incentives in the form of financial 
assistance, certainty, and the provision of technical education and 
assistance to landowners to facilitate their stewardship of their land 
and associated resources. While we will offer some suggested 
improvements to S. 1180 to sharpen these aspects and will strongly 
encourage a commitment to securing robust appropriations to implement 
S. 1180, the Association reiterates its firm support of this bill.
    The International Association of Fish and Wildlife Agencies was 
founded in 1902 as a quasi-governmental organization of public agencies 
charged with the protection and management of North America's fish and 
wildlife resources. The Association's governmental members include the 
fish and wildlife agencies of the states, provinces, and Federal 
Governments of the U.S., Canada, and Mexico. All 50 states are members. 
The Association has been a key organization in promoting sound resource 
management and strengthening Federal, state, and private cooperation in 
protecting and managing fish and wildlife and their habitats in the 
public interest.
    I would like to start by recognizing and thanking the bill sponsors 
for grounding S. 1180 in the collective legislative recommendations 
from our Association and the nation's Governors under the leadership of 
the Western Governors' Association which we shared with you starting in 
the first session of the last Congress. Governor Racicot has shared 
with you the process of our consensus building in conjunction with the 
Administration which culminated in our recommendations, and we 
sincerely appreciate the validation of our work as reflected in S. 
1180. We believe you, as did we, recognize that over the 25 years of 
the ESA, we have a much better understanding of what works under the 
Act, what doesn't, and how it can be improved. The State fish and 
wildlife agencies' objectives are fairly straightforward: to 
successfully carry out our responsibilities as public trust agencies to 
our citizens to ensure the vitality of our fish and wildlife resources 
for present and future generations; and to encourage, facilitate and 
enhance the opportunities, means and methods available to all citizens 
and especially landowners in our states to contribute to meeting this 
conservation objective in cooperation with our agencies and our Federal 
counterparts. Much of this involves solving problems and reconciling 
differences, and we believe S. 1180 provides new and useful tools, 
opportunities and direction to achieve both of these objectives.
    Let me first strongly urge Congress and the conservation community 
to collectively dedicate ourselves to securing the appropriations 
necessary to fulfill the improvements contained in S. 1180. All of 
these changes will require the additional time and attention of the 
Federal and state fish and wildlife agencies to satisfy these mandates. 
Additional listing process requirements, public participation, 
energized recovery plans through implementation agreements, assistance 
to private landowners and other provisions are significant improvements 
which need to be adequately funded in order to meet the objectives of 
S. 1180 to improve the effectiveness of the Act in achieving 
conservation objectives and with regards to appropriate certainty for 
the regulated community. Therefore, the Association strongly urges that 
Congress and the conservation community make a commitment to securing 
the robust appropriations necessary to implement these improvements to 
the Act.
    We firmly believe that reaffirming the role of the State fish and 
wildlife agencies in all aspects of the ESA reflecting our concurrent 
jurisdiction over listed species sets the stage for more efficient and 
effective administration of endangered species programs. The State fish 
and wildlife agencies have broad statutory responsibility for the 
conservation of fish and wildlife resources within their borders, 
including on most Federal public lands. The states are thus legal 
trustees of these public resources with a responsibility to ensure 
their vitality and sustainability for present and future citizens of 
their States. State authority for fish and resident wildlife remains 
the comprehensive backdrop applicable in the absence of specific, 
overriding Federal law. As Secretary Babbitt said before this Committee 
2 years ago, ``the States are the presumptive front line managers of 
fish and wildlife within their borders,'' a perspective with which we 
fully concur, and which we believe S. 1180 reflects.
    Also, we believe that the affirmation of the true partnership 
between the State fish and wildlife agencies and the USFWS and NMFS 
contemplated in S. 1180 will take full advantage of the expertise in 
fish, wildlife and plant conservation that exists at both the state and 
Federal level, while minimizing duplicative processes and 
administrative burdens, a relief that we can hardly afford to ignore in 
these times of constrained natural resources budgets.
    We would be happy to work with your staff on the one area where we 
believe there needs to be enhanced deference to State fish and wildlife 
conservation responsibility: the review of listing petitions. We would 
urge you to consider directing the Secretary to give greater weight to 
the recommendations of the State fish and wildlife agencies than in the 
existing language, which simply calls for the Secretary to consider the 
States' recommendations. We believe the State fish and wildlife 
agencies have experience and expertise that the Secretary should avail 
himself of as a first level of ``peer review'' of listing petitions. 
Our preference is to give favor to the State recommendations in the 
form of a rebuttable presumption which the Secretary can overturn, but 
we are also happy to work with staff on other alternatives.
    Also, we respectfully bring to your attention other areas where we 
believe the ``in cooperation with the States'' construct should appear 
in the Candidate Conservation and Safe Harbors agreements, and would 
ask for your consideration of those changes. We will work with your 
staff on the specifics of these recommendations.
    The Association encourages you and staff to accept Governor 
Racicot's invitation to visit any of our States to experience firsthand 
the value of preventative conservation measures long before the need to 
list species (or even designate candidate species) occurs. This just 
makes good common sense and good biological sense to avoid the crisis 
of listing. The Association reaffirms its commitment to prudent 
conservation of fish, wildlife and the natural communities that they 
depend on, so that the need to impose the rigors of the ESA is 
minimized. We do not advocate avoiding the application of the Act; 
rather, we advocate addressing species and habitat declines before a 
crisis situation is reached. We need, where possible, to anticipate 
impacts (from development and other projects) on species and habitats, 
and address those comprehensively, rather than reacting to them.
    The ESA can and will play a role in our preventive management 
programs, but should remain primarily as the necessary tool of last 
resort for protecting against extirpation. Through the use of 
preventive management actions, the ESA could then fulfill a more 
appropriate role of dealing with species undergoing precipitous 
decline.
    Federal and State conservation agencies should cooperate in 
coordinating the application of the many existing Federal statutes 
relating to public lands management (NFMA, FLPMA, etc.), habitat 
conservation (CWA, CAA), and project impact review (NEPA, etc.); 
comparable State laws (State nongame and endangered species laws; State 
environmental review statutes and programs); and county and local land 
use planning ordinances and programs. A more comprehensive integration 
of the relevant statutes at all levels will enhance their utility for 
the conservation of fish and wildlife and their habitats, ensure the 
sustainability of ecological communities, and preclude the need to list 
species.
    Further, there needs to be a major thrust (distinct from ESA 
reauthorization) to broaden the highly successful user-pay/user-benefit 
concept under the Pittman-Robertson and Wallop-Breaux programs to meet 
today's broader conservation challenges, enabling State/Federal 
programs for the conservation of the vast majority of nongame fish and 
wildlife currently receiving less than adequate attention, and thereby 
providing the means to prevent species from becoming endangered. Based 
programmatically on the highly successful Sportfish and Wildlife 
Restoration Programs under the Wallop-Breaux and Pittman-Robertson 
Acts, the Fish and Wildlife Diversity Funding Initiative, ``Teaming 
with Wildlife,'' supported by the IAFWA and conservation community, by 
all 50 State fish and wildlife agencies, and by a substantial (over 
2300 businesses and organizations) grassroots coalition across the 
country, is designed to secure permanent, dedicated funding, based on 
user fees in the form of an excise tax, to provide among other things, 
the prevention of species becoming endangered, through the provision of 
routine fish and wildlife management practices. We look forward to 
visiting with you further on this proposal.
    Further, the Association encourages the use of legally binding 
Conservation Agreements for declining or candidate species in lieu of 
listing as threatened or endangered, where management actions specified 
under such an agreement remove the threat(s) to the species, and where 
the Agreement is enforced. Comprehensive habitat based agreements 
should be encouraged. Clarification of the Endangered Species Act to 
support such Conservation Agreements is required and affirmation of 
State authority for pre-listed species must be legislatively assured. 
The role of the State fish and wildlife agencies in this process must 
be affirmed and institutionalized. By requiring the Secretary to concur 
with State-led conservation agreements involving affected 
jurisdictional entities and private landowners (where appropriate), the 
Secretary will be legally shielded from a requirement to impose certain 
regulatory implications through suspension of the consequences of 
listing. Private landowners should be given legal assurances that, once 
they commit to certain responsibilities under the agreement, no 
additional liabilities under Section 9 will be imposed upon them. The 
incentive for Federal agencies to participate is that they obviously 
incur no liability under Section 7 if actions to recover declining 
species are taken prior to listing. This provision is detailed further 
in the legislative recommendations from the WGA/IAFWA/NGA, and we look 
forward to continuing to represent to you the merits of such a proposal 
through a review of on-the-ground successes.
    The Association applauds and fully supports your efforts in S. 1180 
to energize recovery plans through implementation agreements to restore 
the focus in the ESA to not just listing species, but to carrying out 
actions that restore species and habitat to a sustainability level 
where the measures under the Act are no longer necessary. As S. 1180 
provides, State fish and wildlife agencies must be given the 
opportunity to take the lead on recovery plans. The utility of a team 
approach not only provides for application of a broad base of knowledge 
and perspectives, but also better intergovernmental coordination 
regarding biological, social, economic and environmental factors. State 
fish and wildlife agency lead or affirmed participation brings in 
experience in working with both private landowners and local land use 
regulatory agencies (county Planning and Zoning agencies, for example) 
both of which are vital to the success of recovery programs.
    Finally, we fully support the provisions of financial assistance, 
regulatory certainty, and education for private landowners in S. 1180. 
The provision of incentives seems to be an area of general agreement on 
which most parties can agree. As you are aware, Mr. Chairman, the ``no 
surprises,'' ``safe harbors,'' and ``candidate conservation 
agreements'' policies were contained in Secretary Babbitt's March 1995 
ten-point policy articulation of administrative improvements to the 
ESA. The Association heartily supported that proposal, and participated 
in the consensus building between the States and the Department of the 
Interior, which culminated in the Secretary's policy. The Association 
supports the codification of these policies in statute to affirm the 
Secretary's authority in offering and implementing these policies.
    Thank you for the opportunity to share the Association's firm 
support for and perspectives on S. 1180, and I would be pleased to 
address any questions you might have.
                               __________
      Response by Mark Van Putten to Question from Senator Chafee
    Question: That doesn't sound like ``no surprises'' to me. Could you 
explain that?
    Answer: The Section 7 waiver in S. 1180 effectively precludes the 
Services from reopening recovery implementation agreements (RIAs) 
except pursuant to the terms of the RIAs. This is a``no surprises'' 
feature in the sense that Federal agencies are given assurances that 
the Services cannot unilaterally call for changes in the agreement even 
if those changes are needed to address the rapid decline of an 
imperiled species.
    The committee partly addressed NWF's concern by amending S. 1180 at 
markup to require that RIAs provide opportunities to reopen at 5-year 
intervals. However, the bill still reduces the Services' management 
flexibility from the current ESA, which authorizes the Services to 
reinitiate consultation whenever ``new information reveals effects of 
the action that may affect listed species or critical habitat in a 
manner or to an extent not previously considered.'' 50 C.F.R.--
402.16(b).
    This new inflexibility would be harmful to imperiled species. To 
protect species, management strategies need to be updated continually 
to incorporate new information and address changed circumstances. For 
example, if the Fish and Wildlife Service enters a 5-year recovery 
implementation agreement with the Agriculture Department's Animal 
Damage Control (ADC) agency stating that depredation of the gray wolf 
to protect livestock on Federal grazing allotments is necessary to 
promote wolf recovery (the current FWS view), S. 1180 would waive 
Section 7's applicability to all future wolf depredation authorized by 
the agreement. After 3 years, if new data reveals that wolf depredation 
authorized by the agreement is contributing to the species' rapid 
decline, the bill would preclude FWS from reinitiating consultation 
with ADC and making appropriate changes to save the species.
    This new inflexibility is particularly harmful considering that a 
``no surprises'' policy is already being applied to nonFederal 
activities covered by Habitat Conservation Plans (HCPs). With the 
Services' management options already reduced on nonFederal lands, it 
makes no sense to restrict them further on Federal lands.
    In summary, there is a significant risk that by the time management 
practices approved in the recovery implementation agreement are carried 
out, they will be inconsistent with the current scientific 
understanding of the species' needs. Even if the recovery 
implementation agreement is contributing directly to a species' 
decline, the Section 7 waiver would preclude the Services from 
reinitiating consultation and revising the agreement to conform with 
the latest science. NWF strongly recommends removing the Section 7 
waiver.
                               __________
     Statement of the Coalition on the Environment and Jewish Life
    The Endangered Species Act encodes into law a biblical precept 
common to the Jewish, Christian, and Moslem faiths and record by the 
vast majority of Americans that creation in all its diversity is good'' 
and that it is wrong for human beings to knowingly cause the extinction 
of a unique form of life. This core moral principle is the foundation 
for what has become a significant public policy priority for the 
Coalition on the Environment and Jewish life, an organization 
encompassing 26 national Jewish organizations including the 
Conservative, Orthodox, and Reform movements as well as the major 
Jewish public affairs agencies in the U.S.; the Jewish Council for 
Public Affairs, (formerly the National Jewish Community Relations 
Advisory Council), which is an umbrella organization for 13 national 
agencies and 125 Jewish public affairs councils; and the Union of 
American Hebrew Congregations, representing 1.5 million Reform Jews. We 
have been working together, and with major groups from other faiths 
that comprise the National Religious Partnership for the Environment, 
to advocate stronger protections for endangered species. We welcome 
efforts to reauthorize the Endangered Species Act and applaud the 
positive proposals included in the Senate Endangered Species Recovery 
Act of 1997; however, we are profoundly concerned that provisions in 
this bill fall far short of goals to strengthen protections for 
endangered species sufficiently to ensure their full recovery.
    Sources from the Bible to contemporary Jewish theologians teach us 
about our obligations to--in the words of Genesis--``Serve and 
protect'' the creation and all of its constituent life forms. Nothing 
was created in vain, the Talamud (Shabbat 77b) teaches us. Our sages 
taught that human beings were created last in order to remind us, lest 
we grow too proud, that God's entire world preceded us, that God 
declared the world good before we arrived, and that we could not have 
been created had all the rest of it not been formed first (Sanhedrin 
38a).
    Science and religion alike agree that there is a profound integrity 
to the natural order, a marvelous ecological complexity and 
interdependence that even now, with all our growing scientific 
understanding, rant beyond our comprehension We stand in awe of 
creation's integrity, humbled by our limited knowledge of it and our 
awesome responsibility to protect it.
    Today we are confronted with a challenge similar to that of Noah: 
we must ensure that all of God's creatures have safe passage from one 
epoch of human history to another. We have a solemn obligation to 
ensure that as our society grows and develops, that all of the plants 
and measures with which we share the earn survive into the fixture.
    The Endangered Species Act serves as a contemporary Noah's ark. Yet 
it is an ark in need of major repair. While the provisions of He Act 
have rescued many species from extinction, less than \1/2\ of 1 percent 
of endangered species have recovered sufficiently to be removes from 
the list of threatened and endangered species.
    As the Congress considers the reauthorization of the Endangered 
Species Act, we welcome efforts to address the shortcomings of the Act 
lay strengthening provisions to recover threatened and endangered 
species on both public and private lands. In July 1997, eve 
enthusiastically endorsed the Endangered Species Recovery Act 
introduced by Representative George Miller (CA) as a constructive and 
proactive effort to recover declining species by setting recovery goals 
and providing incentives.
    We welcome the provisions included in the Senate Endangered Species 
Recovery Act, S. 1180, introduced by Senators Baucus, Chafee, 
Kempthorne, and Reid, which would improve the chances for species to 
recover, including:
    Recovery plans that require the establishment of recovery teams 
which will set biologically based recovery goals using the best 
scientific and commercial data available, and which will be reviewed 
every 10 years;Financial assistance, incentives, and technical 
assistance for private property holders, including grants to implement 
conservation plans, the creation of habitat reserves on private 
property, and a revolving fund for habitat conservation planing; and
    Substantially increased appropriations for endangered species 
programs.
    However, we are gravely concerned about a number of provisions 
which we believe are not in the best interests of the recovery of 
threatened and endangered species:
    The proposed recovery teams are too heavily weighted in favor of 
vested economic interests. While we agree that those parties that have 
a stake in the outcome of land use decisions should have an opportunity 
to present their views, we believe that those developing recovery plans 
should, to the greatest degree practicable, be citizens without a 
vested interest other than the common good of the community.
    Too much weight is given to economic interests in the selection of 
recovery measures and the designation of critical habitat. Critical 
habitat should be determined solely on the bow of scientific analysis.
    Interests utilizing Federal lands whose activities are the subject 
of review by the Department of Interior are given inappropriate access 
to decisionmakers in the Department.
    Overly broad discretion is given to the Secretary of Interior 
regarding the creation of recovery teams, the designation of critical 
habitat, and the provision of wholesale exemptions to species 
protections.
    The consultation process for Federal agencies natures the Secretary 
of Interior to object to planned actions within a 60 day period. We 
believe that the current process, whereby an agency must obtain 
positive permission from the Department of Interior, is superior as it 
is a more cautious approach.
    ``No surprises'' assurances would require the government to lock 
into place for long periods of time conservation agreements between the 
Department of Interior and private landowners regardless of new 
scientific information that may invalidate the ecological assumptions 
of those agreements. We favor the approach taken in the House bill 
which would require the creation of performance bonds by recipients of 
land use permits to cover the costs of changes in conservation 
agreements due to reasonably foreseeable circumstances.
    The Senate Endangered Species Recovery Act of 1997 as currently 
proposed may, in many cases, risk species recovery, and the common good 
of the community, in favor of short term economic interests. While we 
agree that the economic and social costs of species protection should 
be calculated, and in cases of overwhelming human need be considered. 
when developing conservation plans, we believe that our solemn 
obligation to protect the integrity of creation requires us, whenever 
possible, to integrate human affairs into the larger patterns of 
creation rather than relegate to the margins of our human-conceived 
society the creation whose ecosystems all life, including our own, 
depends. A precautionary principle should be applied to protect life 
forms from extinction: we must err on the side of caution.
    We must fulfill our long term responsibilities to our children, to 
creation, and to the Creator. In the greater scheme of things, the 
requirements for economic security, human health and well-being, and 
ecological integrity are consistent. By making difficult choices today, 
we will not only fulfill our overriding moral obligations, we will 
provide a sounder basis for long term economic vitality. Consistent 
with a religious perspective humility not arrogance must be the byword 
in assessing our obligations to the multiplicity of creations with 
which we have been blessed by the Creator.
                               __________
 Statement of the Evangelical Environmental Network, Coalition on the 
 Environment and Jewish Life, and the National Council of Churches of 
                              Christ, USA
    We are gravely disappointed that the perspectives of faith and 
values, as shared by religious people throughout the United States, 
have not been invited into the Committee's discussions today. Where 
could the need for these be more self-evident than when reflecting upon 
the condition of God's creation? Failure to consider religious 
teachings has led to the destruction of God 's creatures in the first 
place, and the decision not to hear them is happening again here today.
    This is not about the exclusion of an interest group but of a way 
of looking at the world --one shared by tens of millions of people of 
faith. As the perspectives of science, commerce, environmentalism, and 
government bring unique insights, so too does that of religious 
thought. But that is not here today. And without it, these 
deliberations present to our nation a circumscription of vision and 
values.
    We appreciate that the Committee intends no disrespect to people 
and communities of faith as such. We are confident that, as always, 
many Members of Congress will listen to the views of religious 
denominations across this country. But we wish the Committee to 
understand the depth and breadth of the religious community's 
convictions here --unanimous not always on the intricate details of 
environmental policy but on the inescapably religious and moral 
principles which policy must clearly embody. People of faith in this 
nation will respond with great resolve if action on the Endangered 
Species Act is hastily moved through the Congress without due 
consideration of their views.
    Though our traditions are diverse, we together have understood the 
value of care for creation from the beginnings of Scripture: ``And God 
said, 'Let the waters swarm with swarms of living creatures, and let 
fowl fly above the. earth, across the expanse of heaven.' And God 
created the great sea-beasts, and all the living creatures of every 
kind that creep, which the waters brought forth in swarms, and all the 
winged birds of every kind. And God saw that this was good.'' (Genesis 
1: 2021) God's affirmation of all creation sets the standard for our 
protection of it. We ask ourselves, as a result of this legislation 
will the condition of life and habitat be more or less likely to be 
``good''?
    At the end of the Noah story, we read of God's rescue and recovery 
of all species, as God establishes ``the covenant which want make 
between Me and you and every living creature that is with you, for all 
future generations.'' (Genesis 9: 12) In this legislation, will we seek 
less than rescue and recovery? With ``every living creature'' and ``for 
all future generations''? And underlying this standard is the 
proclamation from Psalms: ``The Earth is the Lord's and the fullness 
thereof'' (Psalm 24: 1). God owns it, not us. Will this legislation, 
then, help us live up to our obligations to be good stewards of God's 
creation?
    Increasingly, people of faith from all the world's great traditions 
are coming to understand afresh how care for the diversity of creation 
is a standard of faithfulness, at the heart of what it must mean to be 
religious. We are relearning what our sages have taught for millennia. 
Sages such as St. Basil the Great, who wrote in the 4th century: ``May 
we realize that our brothers and sisters the animals live not for us 
alone, but for themselves and for You, God, and that they love the 
sweetness of life.'' Talmudic sages writing at roughly the same time 
noted (Shabbat 77b, Sanhedrin 38a) that even those species we might 
consider unnecessary or a nuisance have value to God and to the world--
and that Genesis relates, ``lest we grow too proud, that even the fleas 
took precedence over us in the order of creation.'' St. Thomas Aquinas 
wrote, ``The whole universe together participates in the divine 
goodness more perfectly, and represents it better, than any single 
creature whatever.'' The 1 3th century sage, Nachmanides, in his 
commentary on Deuteronomy, wrote that ``The Bible does not permit a 
killing that would uproot a species, even when it has permitted the 
killing of individuals of that species.''
    Scripture and perennial teachings such as these have led 
increasingly of late to a distinctively religious vision and voice on 
issues of environmental justice and sustainability --a vision and voice 
that have been lifted up in ardent support of the Endangered Species 
Act. The National Council of Churches of Christ has distributed ``A 
Call to Defend God's Creation'' to 50,000 mainline Protestant, historic 
African-American, and Orthodox Christian congregations. Across the 
broadest spectrum, from Reform to Orthodox, members of the Jewish 
community worked together on ``Operation Noah,'' celebrating how the 
Endangered Species Act has served as a modern day Ark, preserving and 
nurturing the remnants of God's creation until they, like the Bald 
Eagle, can soar on their own again. After much prayer and reflection, 
members of the Evangelical Environmental Network took on the defense of 
the Endangered Species Act as its very first public policy initiative. 
Representatives of the faith community have testified in formal 
hearings and met with senior Congressional leaders of both parties in 
private deliberations.
    We are eager, therefore, to continue this spirit of dialog as 
discussion of new legislation, such as S. 1180 and H.R. 2351, move 
forward in this Congress. In this light, we wish to make clear that 
there are a number of provisions in S. 1180 that we believe will serve 
the common good of human community and natural habitat alike. The 
Landowner's Education and Technical Assistance program, the revolving 
fund to assist with Habitat Conservation Plans, and the inventory of 
Federal lands are all positive steps in the right direction. They will 
help the restoration of species even as they provide added flexibility 
and clarity of law.
    We do believe, however--for is this not the standard set before us 
by God's covenant in Genesis--that this legislation needs to focus more 
firmly on the recovery of endangered species. To this end, we are 
concerned that certain elements in the bill as it now stands will 
actively hinder that goal. For example, while we welcome the mandating 
of public hearings in a number of provisions, we are concerned that 
industries which apply for the use of Federal lands are granted 
private, unlimited access to the consultation process, without the 
opportunity for public comment. S. 1180 also requires in-depth analyses 
of the costs of recovery plans, without seeking to set this in the 
comprehensive context of the economic and health benefits, ecosystem 
services, and moral value of species recovery. We also fear that the 
less stringent, extremely timebound consultation requirements for 
Federal agencies would result in weakened protection of endangered 
species on public lands.
    Along with these specifics, which we are eager to discuss with the 
authors of this legislation, we are, however, most deeply concerned 
that adequate time be given for people across the United States, 
including religious communities, to be informed about, and to share 
their views on, this legislation as proposed.
    In the 104th Congress, efforts were made to rush final action on 
ill-considered revisions of the Endangered Species Act. Not again. The 
religious community played perhaps some small role in preventing that 
action and the pace with which it was undertaken. The cordial and 
cooperative relationship we have been steadily building with Members of 
Congress and the Administration over the past several years should 
prevent this from happening once more. Indeed, we look forward not 
simply to avoiding past failures but to amplifying new visions.
    The biological integrity of the world and its spiritual integrity 
are stunningly intertwined, and it is no small thing that we are 
invited --more than invited, that we are called --to work as God's 
partners in tending this exquisite garden, this precious planet whose 
stewards we are. Our commitment to the endangered species of this 
planet is one way, one indispensable way, in which we choose to respond 
to that call, and we do so with love, with gratitude, and with 
reverence. As you consider your actions, it is our prayer that this 
same reverence will enter into your deliberations.
                               __________
         Statement by the National Association of Home Builders
                              introduction
    This statement is presented on behalf of the National Association 
of Home Builders (NAHB). NAHB and its 800 state and local affiliate 
organizations comprise over 195,000 member firms that employ over 
8,000,000 people. Many of our members have been involved in efforts to 
make the Endangered Species Act (ESA) work better for landowners while 
at the same time protect endangered and threatened species. 
Unfortunately, while there have been successes, the Act's often 
unwieldy and inflexible nature has more often than not frustrated these 
efforts.
    NAHB's members recognize the importance of maintaining our 
country's rich natural heritage. However, they also recognize the 
importance of economic growth and, of course, the investment in the 
future that purchasing one's own home represents. Therefore, NAHB has 
continued to call for improvements to the ESA that can better balance 
species protection efforts with goals for economic progress.
    The commitment of NAHB's members to making the ESA work better is 
illustrative of the impact this law has had on the home building 
industry. Indeed, while residential construction represents over 7 
percent of our nation's GDP, NAHB is primarily a small business 
organization, and as such can be dramatically affected by the Act's 
sometimes sweeping prohibitions. Specifically, over half of the members 
of NAHB build fewer than 10 homes per year, and nearly \3/4\ build 25 
or fewer homes.
              overview and the need for legislative reform
    The ESA imposes some of the most stringent restrictions on the use 
of private property of any Federal statute. The Act's provisions are 
mandatory, inflexible, and absolute. Indeed, unlike most legislative 
schemes, the statute's requirements are not moderated by ``where 
practicable'' or ``where the benefits exceed the costs.'' This 
inflexibility is manifested by the Act's imposition of restrictions on 
private land due to the listing of a particular species which have 
often been based on questionable scientific data. Little opportunity 
for public involvement in the listing process exists, and the burden of 
proof often falls to the landowner where alleged violations are 
concerned.
    As an example of the kinds of impacts the Act can have on 
communities and regions around the country, consider the listing of the 
Golden-cheeked Warbler as an endangered species. The listing 
effectively imposed a development moratorium in Travis County, Texas. 
The county appraisal district estimated that land values in the area 
fell from over $335 million to less than $57 million after the Warbler 
was listed. Moreover, estimates reflected a reduction in property tax 
revenues from almost $7 million to $302,000. These figures do not 
include lost revenues from abandoned business ventures, and foregone 
taxes to the city, school districts, and county government. Similarly, 
the listing of the California Gnatcatcher was accompanied by 
prohibitions that severely restricted or prohibited the use of more 
than 300,000 acres of private property in Southern California, an area 
six times larger than Washington, DC. Clearly, it is cases such as 
these, which have the potential to devastate communities, that 
illustrate the dramatic need for an improved ESA that is both accurate 
and sensitive to the concerns of the citizens of this nation. Moreover, 
while we should protect the environment from harm, Congress should 
ensure that the Act's significant land use prohibitions are exercised 
only when accurate and reliable scientific data demonstrates a species 
is truly endangered. Congress should guarantee that the Act's 
burdensome costs are distributed equitably with minimal disruption to 
local and regional economies, and without expecting a few landowners to 
foot the large costs of species protection and habitat preservation. 
Congress should also guarantee that the public has a much greater role 
in the ESA process than it currently does, and that the Federal 
Government is held much more accountable for how the Act is 
implemented.
    At the same time, however, NAHB clearly recognizes that species 
preservation is a worthy national objective and the Act's goals are 
beyond censure. Our nation's diversity of fish, wildlife and plants are 
part of our cultural and historical heritage, and the Act's aspirations 
to nurture and preserve a biodiverse environment are laudable. To be 
certain, the ESA is not without its successes. Indeed, most recently 
the Bald Eagle was ``downlisted'' from the endangered to the threatened 
category, an action that many hail as the result of the Act's 
effectiveness. Unfortunately, the Eagle is one of a few rare 
exceptions, as the Act has largely failed to achieve its ultimate goal 
of species recovery. Even in the case of the Eagle, although it was 
downlisted under the ESA, much of the credit for its recovery must be 
attributed to the 1972 Bald Eagle Protection Act, which banned the use 
of DDT.
    Unquestionably, the ESA can be a much more effective vehicle for 
species preservation than it has been to date. Even the environmental 
community has recognized the Act's shortcomings, and has gone on record 
in support of significant changes to the Act. Peter A.A. Berle, 
President of the National Audubon Society, has acknowledged publicly 
that ``the Act is not working well enough to accomplish its purpose.'' 
One of the Act's drafters and a former Sierra Club president, Douglas 
Wheeler, was succinct in his criticism: ``The Endangered Species Act 
just doesn't work.'' His sentiments reflect the exasperation felt in 
both the industry and the environmental community. Consequently, the 
statute's legislative scheme should be made more effective, more 
efficient and more equitable. Accordingly, ESA implantation must be 
improved in five key areas: the listing process, critical habitat 
designation, habitat conservation plans, recovery planning, and public 
involvement in the process.
    S. 1180, the Endangered Species Recovery Act of 1997, addresses 
each of these areas in some fashion, and this testimony will place its 
focus there. Clearly, the bill does not reflect NAHB recommendations in 
all of these areas, and does not address each and every aspect of the 
Act that NAHB believes needs improvement. Accordingly, this testimony 
will also note those areas where NAHB believes the bill falls short and 
could be improved by some additional language that, in the opinion of 
NAHB, should not be so controversial as to stall the progress of this 
legislation. However, NAHB believes S. 1180 makes some very important 
strides toward making the ESA a law that is much more equitable and 
workable for landowners, but which maintains the underlying goal of 
species protection.
                          the listing process
    Controversial decisions have become far too commonplace in the 
listing process, and have served to taint it. Clearly, the Fish and 
Wildlife Service (FWS) should extend the Act's protections to only 
those species that genuinely confront endangerment. Currently, there is 
no congressional or regulatory directive to guide FWS in their listing 
decisions. Predictably, the agency routinely renders unreliable listing 
decisions with no basis in science or fact. The harmful results from 
FWS's current listing practices are twofold: either the agency reviews 
and accepts petitions to list species that contain too little or 
unreliable data to determine if the species is in danger of extinction, 
or, more importantly, FWS may fail to list a species that is truly 
endangered.
    Under current law, a species secures the Act's formidable 
protections upon FWS's official conclusion that it is in danger of 
extinction. The criteria for determining that a species is threatened 
or endangered are broad, and include: destruction, modification, or 
curtailment of habitat or range; disease or predation; and inadequate 
existing regulatory mechanisms. Considering the broad statutory 
proscription of a ``take,'' reliable listing decisions are imperative. 
Although Congress directed that economic considerations play no role 
during species listing, it is hard to ignore the exorbitant costs 
inherent to the listing process. The ministerial act of listing a 
species is estimated at $60,000 per species.
    [The Endangered Species Program--U.S. Fish and Wildlife Service 
Audit Report, Report No. 90-98, September 1990 at 6]. Based on this 
figure, well over $81 million has been spent merely to queue species 
and signal they deserve some protection. As high as these costs are, 
however, they pale in comparison to the costs that flow from the 
listing decision.
    Considering the Act's significant land use prohibitions and the 
excessive costs associated with listing a species, it would be 
reasonable to expect FWS's listing process to be based upon rigorous 
science and accurate, reliable data that demonstrates a species is 
truly endangered. Unfortunately, it is not. The listing process should 
be open to the public at all stages. Today it is not. The listing 
process should include the identification of critical habitat. Today it 
routinely does not.
    Currently, the agency bases its listing decision upon ``best 
scientific or commercial data available,'' vague language prescribed by 
the Act but not defined anywhere by law or regulation. The 
ramifications of Congress' failure to provide definitive language 
explaining what constitutes acceptable data has become a recurring 
source for dispute. FWS has accordingly been left with inadequate data, 
in the absence of a congressional directive, on which to base its 
listing decisions. Predictably, recurring debate and prolonged 
litigation regarding the validity of certain listing decisions has 
arisen.
    The vernal pool Fairy Shrimp exemplifies the faulty listing 
process. In 1991, Ms. Roxanne Bitmann, an ``interested'' citizen, sent 
a one-paragraph petition to the Fish and Wildlife Service requesting 
the Fairy Shrimp be listed as endangered. The petition claimed that the 
shrimp were being threatened by urban development, and agricultural 
land conversion. The petition did not contain any data documenting 
these threats to the Fairy Shrimp. The petition did not contain any 
scientific evidence that the Fairy Shrimp's population was diminishing, 
even marginally.
    Nevertheless, Fish and Wildlife determined the petition contained 
``substantial scientific data'' and shortly proposed to list the Fairy 
Shrimp. FWS's proposal to list the Fairy Shrimp was based on two 
unproven assumptions: that the species is solely reliant on vernal 
pools as habitat and that California vernal pools are in imminent 
danger of eradication. In fact, the actual evidence presented to FWS is 
insufficient to indicate that either Fairy Shrimp or vernal pools are 
endangered. During the public comment period on the proposed listing, 
an independent biologist, widely recognized in the scientific 
community, sampled over 3,000 vernal pools. The biologist found the 
shrimp to be hardy, adaptable and ubiquitous throughout California. In 
addition, California already has strict conservation measures 
protecting wetlands such as vernal pools. In contrast, Fish and 
Wildlife accepted a study of only 120 vernal pools to reach the 
conclusion that the shrimp is threatened and listed the species in 
September 1994. The impacts of the Fairy Shrimp's listing are not 
minor. Vernal pools cover roughly 1 million acres in California. The 
Sacramento municipal utility district was notified by Fish and Wildlife 
that they were required to preserve 117 acres of land because a 
pipeline would impact on 2 acres of vernal pools.
    Congress must ensure that FWS extends the Act's protections only to 
those species, which are truly threatened or endangered, based upon all 
appropriate documentation and research. The listing process, therefore, 
should be reformed to require a stricter scientific basis for listing 
species. Ideally, NAHB believes that Congress should define ``best 
available science'' to include: the minimum viable population of the 
species, the minimum habitat necessary for the species survival, the 
species geographic distribution, population, and percentage decline, 
and the actual threats to the species. NAHB also believes that an ideal 
formal, systematic peer review process would require evaluation of the 
methodologies used in the collection of the data. This would assure 
that researchers follow appropriate methodologies for gathering and 
analyzing data.
    While S. 1180 does not go as far as NAHB's recommendations, it does 
indeed define what constitutes ``best scientific and commercial data 
available.'' The legislation requires that the Secretary, when 
evaluating scientific data, give greater weight to that which is 
``empirical, field-tested, or peer-reviewed.'' While NAHB believes that 
all data should be field-tested, verifiable, and peer-reviewed, this 
language is an important step toward ensuring that the data on which 
listing and delisting decisions are made is as accurate as possible. In 
an effort to hold the Secretary further accountable, the legislation 
also requires that he or she publish a summary of the data utilized for 
the listing decision, and that the Secretary publish in the Federal 
Register a description of additional scientific and commercial data 
that would assist in recovery plan preparation. The Secretary would 
then be required to issue a schedule for obtaining that data. Finally, 
by replacing ``or'' with ``and'' in the phrase ``best scientific and 
commercial data available,'' the legislation expands the universe of 
data from which it will be necessary to draw. S. 1180 makes some 
important changes to the listing process that would at once restore 
much of the credibility that has been lost in the process, and 
eliminate at least some of the controversy surrounding many of the 
listing decisions.
    Also, NAHB believes that Congress should require FWS to establish 
professional standards for the researchers who prepare the best 
available data. It is imperative that the scientists and biologists 
that compile the required data have no financial interest in the 
outcome of the research. Expert biologists stand to gain substantial 
financial rewards once their petition listing a species as endangered 
or threatened is accepted by FWS. Large research grants and lucrative 
consulting contracts with government agencies and developers are the 
foreseeable outcomes once a researcher's listing becomes official. S. 
1180 appears to have done that. The legislation requires that the 
independent referees chosen for peer review ``do not have, or represent 
any person with, a conflict of interest with respect to the 
determination that is the subject of the review.'' NAHB applauds this 
provision.
    Finally, in an effort to further tighten the listing process and 
prevent the sort of ``back of the envelope'' listing petitions 
referenced here, S. 1180 takes what NAHB believes to be some very 
important steps in requiring minimum documentation for undertaking the 
listing process. The requirements include: 1) documentation that the 
fish, wildlife, or plant is a species as defined by the ESA; 2) 
description of the available data on the historical and current range 
and distribution of the species; 3) appraisal of the available data on 
the status and trends of all extant populations; 4) appraisal of the 
available data on the threats to the species; and 5) identification of 
what data or information has been peer-reviewed. NAHB would encourage 
that the legislation take the additional step of establishing a public 
docket with all of the information received or generated internally and 
make it available to any interested person.
                            critical habitat
    FWS routinely fails to designate critical habitat for listed 
species. Congress mandated that the critical habitat of a species 
should be identified at the time the listing decision is made ``to the 
maximum extent prudent and determinable.'' Only those areas essential 
to the protection and recovery of the focal species are considered its 
critical habitat. Furthermore, Section 4 of the Act directs FWS to 
consider economic and other relevant impacts when it designates 
critical habitat, and the Secretary may exclude any area from a 
species' critical habitat if the detriments of inclusion outweigh the 
benefits. FWS's routine failure to designate critical habitat for 
endangered and threatened species compromises the Act's chances for 
success. Opponents of reform rely on the statutory language contained 
in Section 4 to defend their position that the Act sufficiently 
considers economic impacts. This argument is deficient. As of September 
1991, FWS had not designated critical habitat for 84 percent of all 
listed species. [Endangered Species Act: Types and Number of 
Implementing Actions, Briefing Report to the Chairman, Committee on 
Science, Space, and Technology, House of Representatives at 29 (U.S. 
General Accounting Office, May 1992).] This poor track record suggests 
that the FWS has not met the statute's mandate in designating critical 
habitat or fulfilling the congressional mandate.
    FWS's consistent failure to designate critical habitat 
unquestionably subverts one of the few areas in the Act where 
legislative intent is clear. The legislative history for the Act's 1978 
amendments evidences Congress's intent that:
    . . . in most situations the Secretary will, in fact, designate 
critical habitat at the time that a species is listed as either 
endangered or threatened. It is only in rare circumstances where the 
specification of critical habitat concurrently with the listing would 
not be beneficial to the species. [Act of Nov. 10, 1978, Pub. L. No. 
95-632, 11(1), 92 Stat. 3751, 3764. H.R. Rep. No. 1625, 95th 
Cong. 2d. sess. (1978)] [emphasis added].
    The agency's failure to designate critical habitat creates severe 
and unnecessary problems for private landowners. As a result of FWS' 
failure to designate critical habitat, FWS regulates development on all 
potential habitat. Moreover, since the Act does not require 
notification of property owners that they own potential habitat of a 
listed endangered species, many individuals are unaware of their 
responsibilities. Congress should require that FWS provide much greater 
notice to potentially affected landowners. NAHB includes a 
recommendation on how this can be improved later in this statement.
    Without critical habitat designation, we face more unnecessary 
conflicts like the one between the Delhi Sands Flower-Loving Fly and 
the San Bernardino County Medical Center. The Medical Center was 
required to spend over $3.28 million to preserve land that might be 
occupied by 8 flies--a cost of over $410,000 per Fly.
    FWS often asserts that there is insufficient scientific data to 
support the designation of critical habitat. If deficiencies in the 
data exist at the time of the species listing, Congress should require 
FWS to collect and consider all necessary data. Too often the task of 
collecting and analyzing biological data is expected from the landowner 
at great expense. Furthermore, it is imperative that the information 
upon which a critical habitat is designated be based upon the best 
scientific and commercial data available. Locking up thousands of acres 
of land based upon questionable determinations of critical habitat is 
simply unacceptable.
    Congress, therefore, needs to make collection of sufficient and 
appropriate data for critical habitat designation a requirement, and a 
priority, of FWS.
    With one consideration, S. 1180 makes solid improvements in 
requiring that critical habitat be designated concurrently with the 
listing of a species. The legislation requires that within 9 months the 
team designated to develop the recovery plan provide the Secretary with 
a recommendation of any habitat that should be designated as critical. 
The Secretary must then propose the designation of critical habitat to 
the maximum extent prudent and determinable within 18 months of the 
listing. The final regulation is due within 30 months of the final 
listing. S. 1180 also requires that the critical habitat be based on 
the best scientific and commercial data available.
    NAHB's chief concern in this provision is the continued use of the 
phrase ``to the maximum extent prudent and determinable.'' This is the 
same as current law, and has been used by FWS to avoid listing critical 
habitat.
    Additionally, NAHB believes that the Federal Government must weigh 
the socio-economic consequences before critical habitat designations 
are made. These considerations are not part of the listing process. 
Congress should strengthen the mandate that critical habitat be 
designated at the time of listing and condition the Act's restrictions 
on these determinations. There should be no exceptions. Listings should 
not be permitted without critical habitat designation. This is an area 
where S. 1180 falls short. While the legislation requires that the 
Secretary ``consider'' the economic impacts of critical habitat 
designation and describes them in the proposed designation, there is no 
requirement that the designation be based in any way on this 
information. The legislation also requires that in the event the 
recovery measures proposed in a draft recovery plan would impose 
``significant costs'' on a municipality, region, county, or industry, 
the recovery team shall prepare a description of the overall effects on 
the public and private sectors. Finally, the legislation would require 
that recovery measures ``achieve an appropriate balance'' between the 
effectiveness of achieving the recovery goal, the time period to 
achieve the goal, and the social and economic impacts of the measures. 
Unfortunately, the terms ``consider,'' ``significant costs,'' and 
``appropriate balance'' are not defined. This leaves far too much up to 
interpretation.
                       habitat conservation plans
    Congress needs to revise the Section 10(a) incidental take permit. 
The Section 10(a) permit is critical, as it is a landowner's sole 
remedy to the Act's land use prohibitions when no other Federal action 
is necessary. The Act's statutory language vaguely describes the 
necessary components of a Habitat Conservation Plan (HCP), and FWS 
regulations merely reiterate the Act's imprecise criteria. Meaningful 
and detailed HCP guidelines should be developed to advise participants 
on the essential elements of any plan, on what value the FWS ascribes 
to habitat enhancement or other conservation measures, and how to 
measure the success or failure of the plan.
    Although the HCP concept originated in the Act's 1982 amendments, 
it has rarely been utilized. In the past 12 years, FWS has approved 
fewer than forty HCPs nationwide, a number that belies the claim that 
the HCP concept has been employed extensively. Ironically, even FWS 
recommends that private parties seeking HCP approval evaluate whether a 
proposed project contains a Federal nexus that would qualify it for 
Section 7. Unfortunately, many Federal agencies refuse to perform 
Section 7 consultations when granting permits because of the shortage 
of staff or the paperwork requirements. Thus many private landowners 
are left in an untenable position with few acceptable alternatives. 
Before HCPs are widely accepted as the Act's panacea, several reforms 
are essential.
    In the past, FWS has been unwilling to offer definitive guidelines 
in crafting an acceptable HCP. Although the FWS has routinely attended 
all HCP planning sessions, the agency typically refuses to indicate 
whether it will find the plan acceptable or whether a particular 
component will prevent their approval of the HCP. Meaningful FWS 
involvement at all stages can introduce reliability, equality, and 
efficiency to the HCP process. Without FWS commitment, local officials 
and landowners alike face Federal regulations that impose stringent 
land use restrictions based on loosely defined criteria.
    Congress should require FWS to furnish definitive guidelines, 
specific to the focal species, as to what constitutes an acceptable 
habitat conservation plan. HCP guidelines should be developed to advise 
participants on the essential elements of any plan, on what value the 
FWS ascribes to habitat enhancement or other conservation measures, and 
how to measure the success or failure of the plan.
    Unfortunately, S. 1180 needs to go much further in this regard. 
NAHB advocates that the legislation do the following:
    Provide the applicant with the opportunity to engage in a 
preapplication consultation procedure similar to informal consultation 
under Section 7; mandatory pre-application and application processing 
timeframes to incorporate a consultation and permit processing 
timeframe procedure like those procedures applied under Section 7;
    Require FWS to approve or deny any complete Section 10 application 
that does not require an environmental impact study within 180 days of 
receiving such application, and should FWS not meet that deadline, 
require that the permit be deemed approved;
    Require FWS to approve or deny any complete Section 10 permit that 
requires an environmental impact study within 1 year of receiving such 
application, and should FWS not meet that deadline, require that the 
permit be deemed approved;
    Provide that should FWS deny an application, it must do so in 
writing within the review period and concurrently provide the applicant 
with those minimum necessary mitigation or compensation measures which, 
if incorporated into the applicant's permit application, would result 
in the approval of the permit application by FWS;
    Require that a Section 10 application be deemed complete unless FWS 
has notified the applicant in writing within 20 days of receipt of the 
application that the application is incomplete and has clearly 
identified which aspects of the application are incomplete; notice to 
the applicant of the acceptability of the measures within the 180 day 
review period, FWS should be required to issue the local permit within 
45 days of providing notice of acceptance of the mitigation measures;
    Should FWS decide that the applicant's proposed mitigation and 
compensation measures are not sufficient to issue a Section 10 permit, 
the applicant should be immediately entitled to bring suit in the U.S. 
Court of Claims for a determination of damages suffered as a result of 
any regulatory taking.
    Another area in which improvement is necessary is that of setting 
out the criteria for Section 10(a) permit issuance. Indeed, the current 
criteria are vague and subject to agency abuse, particularly in terms 
of what constitutes ``indirect take.'' Permit applicants have little in 
the way of guidance on whether or not the action they are proposing 
would constitute a ``take'' under current law. While NAHB clearly is of 
the belief that the current definition of take is unfairly broad, that 
may be a fight for another day. However, at the very least, it should 
be incumbent upon the FWS to identify in any rule listing a species as 
endangered or threatened those activities that would constitute a take 
of that listed species.
    Fortunately, the administration has set a precedent along these 
lines. Responding to public criticism that the FWS was being 
uncooperative in responding to landowner requests for information about 
the impact of their actions on listed species, the FWS and National 
Marine Fisheries Service (NMFS) introduced a new policy in 1994 in an 
attempt to stave off some of that criticism. They announced that in all 
future listings they will ``identify, to the maximum extent known at 
the time a species is listed, specific activities that will not be 
considered likely to result in violation of Section 9.'' Notice of 
Interagency Cooperative Policy for Endangered Species Act Section 9 
Prohibitions, 59 Fed. Reg. 34272 (July 1, 1994). This policy also 
identifies agency contact personnel for landowners seeking further 
guidance. The agencies have used these policies in a number of listings 
for which the prior practice of providing no ``take/no take'' guidance 
would have left regulated entities in the dark over what actions might 
trigger ESA liability. The listing of the Barton Springs Salamander is 
perhaps the best-known of these instances. NAHB believes that this 
administration policy should be codified in S. 1180.
    In the same vein, another improvement to current law would be a 
requirement that FWS define the basic standards by which they judge 
permit applications. This would provide potential permit applicants 
with at least a framework within which they can prepare their permit 
applications. Additionally, FWS should be required to provide 
scientific documentation to substantiate any decision made to grant or 
deny a permit.
                           public involvement
    One of the great inadequacies of the current ESA is the lack of 
public involvement in the listing and critical habitat designation 
process, especially the members of the public most likely to be 
dramatically affected by these actions.
    Clearly, it is the landowner that faces the most significant impact 
as a result of a listing, and it is the landowner that, therefore, 
should be immersed in the process from beginning to end. Current law 
has no public notice requirement outside of a Federal register notice 
of proposed listing, and the requirement that a hearing be held in each 
affected state if requested within 45 days of final notice. 
Unfortunately, S. 1180 does not appreciably improve upon this scenario. 
It does require that a hearing be held on a draft recovery plan, which 
includes proposed critical habitat, if requested by any person.
    NAHB strongly believes that this must be improved. NAHB recommends 
that a system be established whereby the FWS would maintain a mailing 
list of interested parties who would receive notification of any and 
all petitions to list, proposed listings and draft recovery plans. 
Currently, the Army Corps of Engineers maintains such a list for 
proposed actions under the Section 404 program. In this way, 
landowners, environmental organizations, and other interested parties 
would have sufficient opportunity to comment on these proposed agency 
actions.
                           recovery planning
    The ESA will be effective only if it sets a course for species 
recovery. All of the effort associated with the Act's implementation is 
ultimately directed at a single goal--the recovery of endangered 
species to the point where their continued existence is no longer in 
doubt. Surprisingly, only a minority of listed species boasts recovery 
plans, and few of these plans have been implemented. The Act mandates 
the Secretary to develop and implement recovery plans for all listed 
species, unless, as the statute states, ``a plan will not promote the 
conservation of the [particular] species.'' Yet nowhere has Congress 
explained how a recovery plan could ever fail to promote species 
conservation. Where the language of the statute itself is unclear, as 
it is here, it is impossible for divergent groups to agree on 
congressional intent, much less for FWS to successfully implement.
    The recovery plan concept is crucial for several reasons. Unless 
the Act is successful in rescuing species from extinction, the ESA's 
reputation will be an ever-burgeoning catalog of rare species. 
Moreover, the recovery planning process directs FWS to give priority to 
those species ``that are most likely to benefit from such plans, 
particularly those species ... in conflict with construction or other 
development activity.'' The Act's legislative direction seems clear: 
Federal resources should be aimed at recovering the maximum number of 
species that pose the minimum amount of conflict with development. 
Recovery plans are also required to include a description of site-
specific management actions; objective, measurable standards on which 
to judge the appropriateness of delisting; and a timetable and cost 
estimates for attainment of the plan's goals. Recovery plans therefore 
empower Americans to effectively gauge desired results against the 
Act's costs.
    Recovery plans also assume a great degree of urgency given that the 
Act boasts a recovery rate of about two species per decade. Of the 
1,354 species listed since 1966, only 19 species have ever been removed 
from the list of species covered by the Act. Seven of these 19 were de-
listed due to extinction. Eight were de-listed after subsequent 
information proved their initial listing was erroneous. Only four were 
de-listed because they had recovered and no longer warranted protection 
under the Act. Three of these recovered species were birds native to an 
island in the western Pacific (the other was a plant indigenous to 
Utah). Even the recovery of the three birds is questionable. FWS 
conceded that the birds' population counts may have been mistakenly 
low.
    Another problem with the current recovery planning process is that 
FWS routinely adopts fiscally irresponsible recovery plans and then is 
not held accountable for implementing them. Consequently, FWS requires 
the private sector to bear the costs of recovery. For example, FWS 
requires Section 10(a) permits to achieve recovery for species. This 
requires property owners to implement excessively costly mitigation and 
preservation requirements, which exceed the impacts of the project.
    NAHB believes Congress should fortify the recovery planning process 
envisioned in the Act by requiring the preparation and use of timely, 
comprehensive, effective and cost-efficient recovery plans. S. 1180 
makes significant improvements in this direction by requiring that for 
each listed species, a recovery plan be drafted and finalized under a 
strict deadline. However, NAHB would also advocate that the requirement 
for peer review of the biological goals within a recovery plan be at 
least as stringent as that for listing and delisting decisions. 
Furthermore, there should be a requirement that the critical habitat 
designated as part of the recovery plan be peer reviewed in the same 
fashion. Finally, FWS should be required to adopt the ``least-cost'' 
alternative in recovery plans, and be prohibited from adopting a plan 
until all financial expenditures are identified.
             no surprises/candidate conservation agreements
    NAHB applauds the sponsors of S. 1180 for taking the important step 
of codifying two important administration policies: ``no surprises'' 
and ``candidate conservation agreements.'' Both of these policies 
provide much needed assurances that when a deal is struck between 
landowners and their local, state or Federal Government that provide 
for both species conservation and the ability of the landowner to use 
his or her property, the government cannot come back with new 
information that requires further mitigation. This is a critical 
component in getting the landowner to the table and providing him or 
her with a much-needed incentive to preserve species.
                  other important nahb recommendations
    NAHB believes that S. 1180 can be substantially improved in other 
important ways by addressing the following issues:
Defining ``Knowing'' Violation
    Currently, the ESA provides for criminal conviction of illegal 
taking or possession of listed species, even if the violator doesn't 
know the species is listed or that the conduct is illegal. Criminal 
penalties are severe and can be up to $50,000 and 1 year of 
imprisonment for a ``knowing'' violation of any provision of the Act, 
or any permit, or of Section 9 regulations. The ESA also authorizes 
civil penalties of $25,000 per ``knowing'' violation.
    NAHB would propose two changes to this language. First, while 
clearly NAHB supports the concept that those who have the intent to 
take an endangered or threatened species should face penalty, current 
law does not limit prosecution to those who intend to commit this 
unlawful action. Indeed, ``knowing'' is defined nowhere in the ESA, and 
is left up to broad interpretation. As a result, an individual who had 
no knowledge that an endangered species might reside on his or her 
property, and who had no knowledge that his or her action might result 
in the take of such a species, can be held just as liable as the 
individual who fully intended to commit a take of a listed species. 
NAHB recommends that ``knowing'' be defined as a knowledge that one's 
action would result in the take of a listed species. This would mean 
that the alleged violator would have to have been aware that a species 
they might have taken was in fact on the endangered or threatened list.
    Additionally, as is the case in other instances, NAHB recommends 
that the threshold for imposing criminal penalties on an individual 
found guilty of a violation under the ESA be higher than that for civil 
penalties. Indeed, the criminal penalties as spelled out in the Act are 
more severe, including jail time, and therefore should at the very 
least be held to the threshold that their actions ``proximately and 
forseeably'' would have resulted in the take of a listed species. S. 
1180 is silent in this area.
Cost Sharing
    Species preservation exacts a heavy financial burden on the local 
community. The Federal Government should share the cost. If species 
preservation is deemed a worthy national goal the Federal Government 
should share in the responsibility for the cost.
    Recently, for example, FWS has asserted that the Federal Government 
should not share the financial burden of developing an HCP, since an 
HCP's purpose is to allow for the incidental taking of wildlife 
species, which are a ``public commodity.'' FWS's reasoning suggests 
that landowners should continue to bear the sole financial burden of 
developing the conservation plans solely because the plan will enable 
landowners to realize some value from their land. Landowners already 
contribute significantly to species preservation by donating thousands 
of acres of essential habitat. Landowners are also the largest 
financial contributors to HCP development and implementation. It is 
important for Congress and FWS to recognize that private property 
owners are often instrumental in preserving crucial habitat for 
species, but they can not shoulder the financial burden alone.
    Interestingly, FWS did not always adopt such a frugal opinion 
regarding species preservation. One of the earliest HCPs, the Coachella 
HCP, which consistently receives praise from a diverse group of 
admirers as model for compromise and cooperation between builders, 
developers, environmental organizations, government agencies, and 
private landowners, relied heavily upon government funding. Land 
acquisition costs for preserve lands totaled approximately $25 million. 
The majority of the funds ($15 million) were derived from the Federal 
Land and Water Conservation Fund and through land trades conducted by 
the Bureau of Land Management. Developer mitigation fees comprised only 
25 percent of the HCP's cost. Unfortunately, since 1986 when the 
Coachella plan was approved and Congress used it as a model for the 
1986 ESA amendments, FWS has largely refused to use the funds 
appropriated by Congress to further species preservation in areas that 
need it most.
    S. 1180 does not address this problem. NAHB advocates that the Land 
and Water Conservation Fund continue to provide funding for habitat 
acquisition for approved HCP's.
                               conclusion
    NAHB supports S. 1180, and recommends that the Senate move the 
legislation to the floor. While it does not accomplish everything that 
NAHB seeks in terms of reforms to the Endangered Species Act, it makes 
some extremely important strides in the direction of making the Act 
work better for all concerned.
                               __________
           Statement of the National Association of Realtors
                              introduction
    Thank you for the opportunity to submit the National Association of 
Realtors' comments for the record on S. 1180, the Endangered Species 
Recovery Act. The National Association of Realtors, comprised of nearly 
720,000 members involved in all aspects of the real estate industry, 
has a keen interest in a balanced Endangered Species Act which 
accommodates both species protection and economic opportunity and 
vitality.
    NAR believes that development should be encouraged as it is a 
stimulus to the economy, it increases the tax base, provides places to 
live and work, and offers opportunities that would not otherwise exist. 
However, we also realize the responsibility we have to educate and work 
with local, state, and Federal Government officials to develop 
responsible growth planning that is equitable and considers the 
divergent needs of transportation, housing, agriculture, commercial, 
industrial, and environmental concerns.
                       endangered species policy
    The National Association of Realtors believes the way in which the 
Endangered Species Act (ESA) is implemented is of major importance. We 
support the addition of amendments to the Threatened and Endangered 
Species Act that recognize socio-economic considerations and urge that 
compensation be required in cases where the value of private property 
has been unduly diminished by government action under the Act.
    We believe that any legislation or regulation should include the 
following concepts:
    Compensation to property owners whose land is adversely affected by 
implementation of any provision of the ESA.
    Use of incentives to private property owners for species protection 
rather than relying solely on restrictions and penalties.
    A listing as threatened or endangered must be based on verifiable, 
scientific evidence.
    A strict limitation on how far down the chain of sub-species will 
be allowed in listings.
    Provisions to protect private property rights and narrow the reach 
of the ESA on private lands, to include, but not limited to, 
notification of private property owner of potential listings which 
impact their property.
    Increased local involvement in creating and implementing recovery 
plans.
    Support for the concept of substantial equivalency for states that 
currently have adequate legislation.
    No implementation of a National Biological Survey of private 
property without express written permission of the property owner.
    Independent peer review committees should review both the 
scientific evidence and economic impacts of all listings.
    Periodic review and expedited delisting of species when supported 
by verifiable scientific evidence.
                           s. 1180 provisions
    Considering that nearly 90 percent of all listed species are found 
on private property, the concerns of private landowners are vitally 
important in this nation's efforts to protect our endangered plants and 
animals. The National Association of Realtors strongly supports S. 1180 
for its focus on conserving and recovering endangered species by 
recognizing economic considerations, removing regulatory burdens, and 
encouraging landowners to conserve species and preserve biodiversity. 
We support the following elements of S. 1180:
    A streamlined Habitat Conservation Plan (HCP) process which 
minimizes the cost to small landowners for activities having a 
negligible impact on a listed species.
    Incentives to preserve species and habitat by ensuring landowners 
who develop HCPs or who voluntarily agree to conserve species that they 
will not be required to spend more money or set aside additional land, 
nor subject to additional liability.
    Consideration of the economic impact of recovery measures by 
requiring an assessment of significant effects on employment, public 
revenues and the value of property.
    A greater state role by soliciting state agency input in the 
listing process and allowing states to assume responsibility for 
development of recovery plans.
    The creation of species recovery teams including local government, 
business and citizen representation.
    Establishment of a process for independent scientific peer review 
for all listing and delisting decisions.
    The delisting of species when recovery goals have been met.
                          public notification
    We urge the inclusion in S. 1180 of a process for notifying the 
public about proposed listing and habitat designation decisions. 
Citizens have a right to know about government actions which may impact 
their community or their property. A targeted notification system 
designed to apprise landowners of proposed listing and critical habitat 
designation decisions would improve the species protection process by 
broadening public notice and enhancing public participation.
                 financial incentives and compensation
    We also urge the inclusion of financial incentives, such as the tax 
credit, deduction, estate and capital gains provisions provided in S. 1 
181, which provide landowners with additional incentives to actively 
participate in the protection of endangered species.
    The National Association of Realtors has worked for years to 
encourage a balanced approach to environmental protection that 
accommodates the important needs for conservation as well as economic 
opportunity and vitality. To balance the efforts of government to serve 
the public well-being with the economic and property rights secured by 
the Constitution, we believe that the cost of the benefits to the 
general public achieved by environmental regulation should be borne by 
the beneficiaries--the general public.
    However, our primary interest is a reformed and improved Endangered 
Species Act which achieves recovery of endangered species through a 
cooperative effort between government and its citizens. Accordingly, we 
support S. 1180 despite the absence of a regulatory takings 
compensation provision.
                               conclusion
    The National Association of Realtors supports the reauthorization 
and reform of the Endangered Species Act represented by S. 1 180 as a 
significant forward step toward the recovery of endangered species 
through sound science, government and citizen participation, and 
cooperation with landowners.
    Thank you for the opportunity to express our views.