[Senate Hearing 106-437]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 106-437

 
  ENDANGERED SPECIES ACT RECOVERY PLANS: CRITICAL HABITAT DESIGNATIONS

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

                                HEARING

                               BEFORE THE

                            SUBCOMMITTEE ON
                FISHERIES, WILDLIFE, AND DRINKING WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   ON

S. 1100, A BILL TO AMEND THE ENDANGERED SPECIES ACT OF 1973 TO PROVIDE 
             THAT THE DESIGNATION OF CRITICAL HABITAT FOR 
     ENDANGERED AND THREATENED SPECIES BE REQUIRED AS PART OF THE 
            DEVELOPMENT OF RECOVERY PLANS FOR THOSE SPECIES

                               __________

                              MAY 27, 1999

                               __________

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

                                

                       U.S. GOVERNMENT PRINTING OFFICE
59-377cc                       WASHINGTON : 2000
_______________________________________________________________________
            For sale by the U.S. Government Printing Office
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                                 20402



               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED SIXTH CONGRESS
                 JOHN H. CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
ROBERT SMITH, New Hampshire          DANIEL PATRICK MOYNIHAN, New York
JAMES M. INHOFE, Oklahoma            FRANK R. LAUTENBERG, New Jersey
CRAIG THOMAS, Wyoming                HARRY REID, Nevada
CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
MICHAEL D. CRAPO, Idaho              BARBARA BOXER, California
ROBERT F. BENNETT, Utah              RON WYDEN, Oregon
KAY BAILEY HUTCHISON, Texas
                     Jimmie Powell, Staff Director
               J. Thomas Sliter, Minority Staff Director
                                 ------                                

         Subcommittee on Fisheries, Wildife, and Drinking Water

                   MICHAEL D. CRAPO, Idaho, Chairman

CRAIG THOMAS, Wyoming                REID, HARRY, Nevada
CHRISTOPHER S. BOND, Missouri        LAUTENBERG, FRANK R., New Jersey
JOHN W. WARNER, Virginia             WYDEN, RON, Oregon
ROBERT F. BENNETT, Utah              GRAHAM, BOB, Florida
KAY BAILEY HUTCHISON, Texas          BARBARA BOXER, California

                                  (ii)



                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 27, 1999
                           OPENING STATEMENTS

Crapo, Hon. Michael, U.S. Senator from the State of Idaho........     1
Chafee, Hon. John H., U.S. Senator from the State of Rhode Island     3
Lautenberg, Hon. Frank R., U.S. Senator from the State of New 
  Jersey.........................................................    29

                               WITNESSES

Clark, Jamie Rappaport, Director, Fish and Wildlife Service, 
  Department of the Interior.....................................     4
    Prepared statement...........................................    33
    Responses to additional questions from:
        Senator Baucus...........................................    37
        Senator Boxer............................................    38
        Senator Crapo............................................    40
        Senator Hutchison........................................    38
Domenici, Hon. Pete V., U.S. Senator from the State of New Mexico     7
    Letter, from Pecos River Commission..........................    31
    Prepared statement...........................................    29
DuMars, Charles T., Professor of Law, University of New Mexico 
  School of Law, Albuquerque, NM.................................    16
    Prepared statement...........................................    46
    Responses to additional questions from Senator Crapo.........    50
Kostyak, John F., Counsel, Office of Federal and International 
  Affairs, National Wildlife Federation..........................    18
    Prepared statement...........................................    53
    Report, Balancing Public Trust and Private Interest, 
      University of Michigan..................................... 58-84
Murray, William R., Natural Resources Counsel, American Forest 
  and Paper Association..........................................    14
    Prepared statement...........................................    42
    Responses to additional questions from Senator Crapo.........    45

                          ADDITIONAL MATERIAL

Letter, Western Urban Water Coalition............................    86
Report, Balancing Public Trust and Private Interest, University 
  of Michigan.................................................... 58-84
Statement, Defenders of Wildlife.................................    84
Text, S. 1100, A bill to amend the Endangered Species Act to 
  provide that the designation of critical habitat for endangered 
  and threatened species be required as part of the development 
  of recovery plans for the species..............................    87



  ENDANGERED SPECIES ACT RECOVERY PLANS: CRITICAL HABITAT DESIGNATIONS

                              ----------                              


                         THURSDAY, MAY 27, 1999


                                     U.S. Senate,  
                   Subcommittee on Fisheries, Wildlife,    
                                      and Drinking Water,  
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 10:30 a.m. in 
room 406, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo and Chafee [ex officio].

          OPENING STATEMENT OF HON. MICHAEL D. CRAPO, 
              U.S. SENATOR FROM THE STATE OF IDAHO

    Senator Crapo. The hearing will come to order.
    This is the hearing of the Subcommittee on Fisheries, 
Wildlife and Drinking Water on S. 1100, a bill to amend the 
Endangered Species Act of 1973 to provide the designation of 
critical habitat for endangered and threatened species be 
required as a part of the development of recovery lands for 
those species.
    Good morning and welcome. This is the first subcommittee 
meeting of 1999 in which we will address the provisions of the 
Endangered Species Act. Those of you who are here today who are 
either participating in or attending the hearing are acutely 
aware of the contentious debate over the Endangered Species Act 
as well as the significant legal challenges and great 
difficulties with implementing the Act.
    While written with the best of intentions, the Endangered 
Species Act simply doesn't work for species or people. 
Conserving our wildlife and fisheries resources to maintain 
diversity and ensure healthy populations of our indigenous 
species is a necessary and laudable goal. But I am particularly 
concerned by repeated reports that implementation efforts are 
not doing enough to recover species in decline, and at the same 
time are having significant negative impacts on the economic 
and social health of many communities.
    Simply put, the Endangered Species Act is failing to meet 
its objectives to conserve, protect and recover species at the 
risk of becoming extinct.
    In response to these concerns, legislative initiatives have 
been proposed in successive Congresses to address many of the 
issues raised by reform advocates. There are proposals from 
many different perspectives as to what can be done to improve 
the operation of the Act. But attempts at comprehensive reform 
have been slowed by a polarizing debate from many perspectives. 
For the benefit of species and people, we have to move ahead to 
find solutions that protect our fisheries and wildlife 
resources, and at the same time, protect our communities.
    Recognizing that comprehensive reform is still necessary, 
and also recognizing that comprehensive reform is an extremely 
difficult undertaking, Chairman Chafee and Senator Domenici and 
I have decided to take a focused approach to address an 
immediate and urgent problem regarding the implementation of 
the Act. This relatively minor fix is going to have a 
disproportionately beneficial effect on fish, wildlife and 
communities.
    S. 1100 would do essentially two things. First, it would 
establish a deadline by which the recovery plans for listed 
species must be completed. Nothing in the current law requires 
that a recovery plan be completed in a specified timeframe. A 
recovery plan is the most critical element for the recovery of 
threatened or endangered species. It is the blueprint for 
increasing their numbers and maintaining healthy, viable 
populations.
    There are many listed species for which no recovery plan 
exists, which is why we will establishing a deadline for 
completing the plan 2 \1/2\ years after the species is listed.
    Second, S. 1100 would shift the time of designating 
critical habitat. The current law requires that critical 
habitat be designated when species are listed, when they are 
determined to be threatened or endangered. It would be 
difficult at best to scientifically justify how fisheries and 
wildlife managers could make a determination about critical 
habitat of a species when so little is known at the time of the 
listing. The designation of critical habitat often has dire 
effects on the social and economic stability of communities.
    During the critical habitat designation for the northern 
spotted owl, a major economic engine of the entire region of 
the country was the focus of a confrontational debate on the 
impact of a critical habitat designation.
    In my own State of Idaho, we've seen farm loans disappear 
and economic hardship as a result of the focal point that 
critical habitat brings when it is designated. Currently, 
critical habitat is required to be designated when we know the 
least about a species. We know only that the patient is in the 
emergency room. We do not know enough about the prescription 
for recovery.
    Because critical habitat designation can create such 
widespread impact, it is crucial that designations be 
undertaken at a time that maximizes our scientific 
understanding of the recovery needs of the species. This will 
ensure that these efforts are a productive and effective tool 
in the recovery of the species. For these reasons, S. 1100 
would move critical habitat designation to the recovery 
planning phase of the Act. Critical habitat would be designated 
as an element of the recovery plan instead of the listing 
process. This measure would not make any other substantive 
changes to existing law, nor would it modify petitions or other 
procedural requirements to designate habitat.
    I look forward to a productive and educational discussion 
of this legislation, and the possibilities of making the 
Endangered Species Act more effective in today's hearing.
    That concludes my opening remarks. We have the chairman of 
the full committee with us, Senator Chafee.

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

    Senator Chafee. Thank you very much, Mr. Chairman.
    I want to express my thanks to you for holding this hearing 
and for all the work you've done on this measure. If I could, I 
would ask that my statement might be put in the record.
    Senator Crapo. Without objection, so ordered.
    [The prepared statement of Senator Chafee follows:]
Statement of Hon. John H. Chafee, U.S. Senator from the State of Rhode 
                                 Island
    Good morning. I would first like to express my sincere gratitude to 
you, Mr. Chairman, for holding this hearing and for your cooperation on 
the legislation that we introduced last week with Senator Domenici. 
That bill, S. 1100, addresses one of the most problematic, 
controversial and misunderstood provisions of the Endangered Species 
Act--the provision relating to the designation of critical habitat for 
endangered species.
    As I have often said, the key to protecting our nation's fish and 
wildlife is to protect the habitat on which those species depend. This 
is particularly true for endangered and threatened species, which often 
fall into such precarious condition precisely because of habitat loss 
and degradation. However, of almost 1,200 species listed by the Fish 
and Wildlife Service, only 113--9 percent--have critical habitat 
designated.
    Landowners fear that critical habitat imposes severe restrictions 
on use of their lands; the Secretary frequently does not designate 
critical habitat; and environmental groups often bring lawsuits over 
this failure to designate.
    The root of the problem lies in the fact that designation of 
critical habitat requires knowledge of the conservation needs of the 
species, as well as an assessment of the economic impacts of the 
designation, neither of which is generally known at the time of 
listing.
    This bill would move the requirement to designate critical habitat 
from the time of listing to the time of recovery plan development. It 
would also provide a deadline for development of recovery plans, no 
later than 36 months after listing. In the event that the designation 
is necessary to avoid the imminent extinction of the species, the bill 
allows the Secretary to designate critical habitat concurrently with 
listing. In addition, the Secretary would be required to appoint a 
recovery team with limited exceptions. Other than these changes, the 
critical habitat provisions would remain virtually the same as in 
existing law.
    I believe that this bill addresses a narrow fix in a way that 
answers the complaints of both environmental groups and the regulated 
community. Let me emphasize two points: first, I intend to work 
collaboratively with all interested parties in making further 
improvements to the legislation; and second, I do not intend to see 
this bill include other issues not related to critical habitat. As you 
mentioned, Mr. Chairman, there will be another time and opportunity for 
that.
    Mr. Chairman, again, thank you for holding this hearing. I wish to 
welcome our distinguished panelists and look forward to their 
testimony.
    Senator Chafee. Just a couple of points I'd like to accent 
which you have touched on in your opening statement. That is, I 
believe as you do that the key to protecting our nation's fish 
and wildlife is habitat. It all gets down to habitat, Mr. 
Chairman, as you've noted.
    The root of the problem as I see it lies in the fact that, 
as you said, designation of critical habitat requires some 
knowledge of the needs of the species as well as an assessment 
of the economic impacts of the designation. This is not known 
when the listing is done.
    This bill would move the requirement to designate critical 
habitat from the time of listing. When you list now, you 
designate critical habitat. We change that. We change that 
designation of critical habitat to when the recovery plan gets 
submitted.
    The bill would also provide a deadline for development of 
the recover plan no later than 36 months after listing. Now 
there is an escape hatch there for the Secretary. In the event 
that the designation is necessary to avoid imminent extinction 
of the species, the bill does allow the Secretary to designate 
critical habitat concurrently with the listing. But we don't 
anticipate that that will occur very often.
    I believe this bill addresses a narrow fix in a way that 
answers the complaints of both environmental groups and the 
regulated community. I intend to work collaboratively with you, 
Mr. Chairman, and with all interested parties in making further 
improvements to the legislation.
    I don't intend to see this bill include other issues not 
related to critical habitat. In other words, when we get to the 
Floor with this legislation, I don't look on this as a 
Christmas tree to change everything in connection with 
endangered species. It's a narrow fix that we're doing, and I 
hope we can restrict it to that.
    Thank you very much, Mr. Chairman.
    Senator Crapo. Thank you, Mr. Chairman. I think we both 
agree that a comprehensive reform of the Endangered Species Act 
is needed, but we don't want to avoid the opportunity that we 
have with this legislation for a narrow fix of a critical 
issue.
    Senator Chafee. Thank you.
    Senator Crapo. Our plan today was that Senator Domenici, 
the other cosponsor of this legislation, would be the first 
witness, and would then be invited to participate in the 
hearing. Senator Domenici, however, is currently in an 
Appropriations Committee meeting on which the bill that he 
chairs is up. So we don't know exactly when he is going to be 
able to meet with us. When he does arrive, we will interrupt 
the hearing and allow Senator Domenici to make his remarks and 
then invite him to join us.
    However, until he arrives, we will proceed with the hearing 
as indicated in the announcement of the hearing.
    Our first panel will be Ms. Jamie Clark, the Director of 
the U.S. Fish and Wildlife Service. Ms. Clark, please come to 
the table. I know you understand this, but I'll state for you 
and all the other witnesses that the witnesses are allocated 5 
minutes to give their opening statement. There is a set of 
lights here that will go on. The yellow light comes on at 1 
minute, and then the red light indicates that the 5 minutes is 
up. Then following the oral testimony, we will have a found of 
questions and answers.
    Without anything further, I believe, we are ready to 
proceed. Ms. Clark, you may proceed.

STATEMENT OF JAMIE RAPPAPORT CLARK, DIRECTOR, FISH AND WILDLIFE 
              SERVICE, DEPARTMENT OF THE INTERIOR

    Ms. Clark. Thank you, Mr. Chairman. Good morning to you and 
Senator Chafee.
    I appreciate this opportunity to comment on S. 1100, a bill 
which attempts to improve the effectiveness of the critical 
habitat designation process.
    Mr. Chairman, I would first like to begin by thanking you 
and Chairman Chafee of the full committee and Senator Domenici 
for your leadership in introducing S. 1100 and for taking on 
the complex and often controversial issue of critical habitat. 
I look forward to working very closely with you and the full 
Committee as S. 1100 moves through the legislative process.
    To more effectively achieve the goals of the Endangered 
Species Act, the Service believes the process of designating 
critical habitat for listed species should be improved. 
Protection of habitat is paramount to successful conservation 
and recovery of listed species, however, in 25 years of 
implementing the Act, we have found that designation of 
official critical habitat provides little additional 
protection.
    Because of our concern about the critical habitat 
designation process, we have prepared a notice of intent to 
clarify the role of habitat in endangered species conservation. 
Once published early next month, we look forward to engaging in 
a meaningful, collaborative dialog on this extremely complex 
issue.
    We believe that the critical habitat designation process 
needs to be recast as the determination of habitat necessary 
for the recovery of listed species, or ``recovery habitat.'' 
This recovery habitat should be described in recovery plans.
    I'd like to talk briefly about what critical habitat is, 
what it is not, and why we think it needs to be improved.
    The Endangered Species Act directs the Service to identify 
habitat essential to the conservation of species, and to 
designate it as critical habitat when prudent and determinable. 
We are required, as you mentioned, to do this at the time 
species are listed as endangered or threatened. At this early 
stage in the process, biological information regarding recovery 
goals and needs may be incomplete. Additionally, critical 
habitat designation currently competes with all other listing 
actions for limited resources. Unfortunately, this denies the 
Act's protection to imperiled species that have yet to be 
listed.
    There exists a wide range of perceptions on the meaning, 
purpose and value of critical habitat. Contrary to popular 
understanding, critical habitat does not create a preserve and 
has no regulatory effect at all on private land when no Federal 
involvement is present. Once designated, critical habitat has 
only one regulatory impact: under Section 7 of the Endangered 
Species Act, Federal agencies must ensure that their actions 
are not likely to result in the destruction or adverse 
modification of critical habitat. However, under Section 7, 
Federal agencies already consult with the Service on activities 
affecting listed species. In essence, these two processes often 
are identical, making critical habitat designation a redundant 
expenditure of conservation resources.
    I would like to make some comments on S. 1100; however, Mr. 
Chairman, since the bill was just recently introduced, I will 
respectfully ask that the subcommittee keep the record open in 
case further analysis yields additional comments.
    Senator Crapo. The record will be held open for that 
purpose.
    Ms. Clark. Thank you.
    S. 1100 appropriately moves the process of critical habitat 
designation to the recovery stage of the process. During this 
stage, the biological information needed to best determine 
habitat necessary to support species recovery is more readily 
available and scientifically sound.
    The bill requires critical habitat to be designated by 
standalone regulation. The Service suggests instead integrating 
more fully the designation of recovery habitat into recovery 
plans. Recovery plans would still be subject to public review 
and statutory deadlines for the publication of the draft and 
final plans. The cooperative nature of the recovery planning 
process will give the experts and stakeholders comprising 
recovery teams flexibility and adequate time to determine the 
habitat necessary to support species recovery.
    S. 1100 contains certain regulatory and statutory burdens, 
some of them new. Although we would always prefer that these 
burdens not be included in the legislation, if they are, we 
recommend that the bill include sufficient authorization for 
appropriations above current authorization levels to offset 
these requirements. Our success in carrying out these 
additional responsibilities will depend on the will of Congress 
to appropriate the necessary funds to actually accomplish the 
tasks required by the legislation.
    The Service also suggests that S. 1100 include language to 
establish a priority ranking system similar to the language in 
S. 1180 that was favorably reported by this Committee in the 
105th Congress. Such a system would allow the Service to 
address statutory requirements on a prioritized basis in the 
case that sufficient funds are not appropriated to carry out 
the requirements of the bill on time.
    Without such a safety valve and without the needed 
additional appropriations, the Service would likely be subject 
to litigation which addresses special interest priorities 
instead of national species recovery priorities. Taxpayers will 
pick up the tab for the lawsuits which will be filed as a 
result of missed deadlines, and protection for listed and 
imperiled species will be diminished.
    I would like to conclude by emphasizing that the Service 
continues to believe that the identification, protection, 
restoration and conservation of habitat are paramount to the 
successful recovery of endangered and threatened species. The 
scientific determination of habitat necessary for species 
recovery should be undertaken during the recovery planning 
process and not as a part of a duplicative regulatory process.
    I again commend the subcommittee's efforts to address a 
complex, controversial and poorly understood issue of critical 
habitat. We look forward to working closely with the committee 
to improve S. 1100 as it moves through the legislative process.
    Mr. Chairman, this concludes my testimony, and I would be 
pleased to respond to any questions.
    Senator Crapo. Thank you very much, Ms. Clark.
    Let me start out by asking you, I take from your testimony 
that you agree with the general proposition that the 
designation of critical habitat is better done at the recovery 
stage rather than the designation stage or the listing stage, 
is that correct?
    Ms. Clark. Absolutely, yes, I do.
    Senator Crapo. You know what I think I'll do is stop my 
questions. Senator Domenici, would you like to take this time 
to make a statement?
    Senator Domenici. I don't want to displace her. I'll just 
make it right here if that's all right.
    Senator Crapo. That's fine, please take a seat.
    Senator Domenici. [sitting at the dais] Thank you very 
much.
    Senator Crapo. Ms. Clark has just finished her testimony 
and I was just starting questions. I would interrupt the 
questions and allow you to make any opening statement you want.
    Senator Domenici. Thank you, I appreciate it. I am sorry to 
be late. I was supposed to testify sooner, but we were marking 
up.
    Senator Crapo. We got word of that.
    Senator Domenici. And I happen to be the chairman of that 
one, and want to get it finished. In 28 minutes, we spent $22 
billion.
    Senator Chafee. That's pretty good, a billion a minute. 
That's a good morning's work.
    [Laughter.]
    Senator Crapo. Senator Domenici, please make any statement 
you would like.

  STATEMENT OF HON. PETE V. DOMENICI, A UNITED STATES SENATOR 
                  FROM THE STATE OF NEW MEXICO

    Senator Domenici. Well, let me first say to Ms. Clark, I've 
been trying to meet with you and our schedules have not matched 
up. I am hopeful after this hearing we will be able to meet on 
this subject.
    Ms. Clark. I would be glad to, Senator.
    Senator Domenici. Thank you very much.
    First, thank you, Mr. Chairman, for allowing me the 
opportunity to talk a little bit about your bill, which I 
gladly cosponsor, S. 1100. I am very pleased to have joined you 
and Senator Chafee on this legislation, which I think when 
everybody begins to understand it, that it or something like it 
will be overwhelmingly adopted by the Congress and ultimately 
approved by the White House.
    As you are well aware, I was involved in the Endangered 
Species Act when it was passed. I voted for it. I have not been 
one who has been an open, day-by-day critic of it, but I have 
observed, as is the case for many laws, that the interpretation 
of courts sometimes makes environmental laws unmanageable. In 
many instances, the courts make them so that common sense is 
absent from the implementation. To the extent that that 
happens, it's obvious that the Department of Interior is 
getting so used to lawsuits with reference to the Endangered 
Species Act that they probably have boilerplate responses that 
they just punch out of the computer.
    Nonetheless, however well they do, they don't seem to win 
many of them. We have a very anomalous and strange situation 
that I want to talk about that your amendment addresses.
    First, I am very hopeful that as this progresses that with 
reference to water that you, Senator Crapo, and others from the 
West will be able to enlighten our friends and Senators, like 
Senator Chafee, about the very big difference between water in 
our States and water in eastern America. There are two giant 
differences. Many of our streams are snow-fed, and snowpack-
fed, and thus rely dramatically upon how much snow and moisture 
you get in the uplands as to how full or how long the stream 
will run.
    That's very different from being alongside the Potomac 
River. There are times in my youth in Albuquerque, where I 
lived six to eight blocks from the Rio Grande River, Rio Grande 
means big river or mighty river, well, I can tell you many 
times while I was growing up, either in the immediate area that 
I lived or 15 miles south toward the little town of Los Lunas, 
you could go there many times in the summer in teenage groups 
and there was no water in the river. Period.
    So the great river doesn't run all the time. That's one big 
difference. That not only is the case in New Mexico, but in 
many States. Very high mountains and much snowfall created 
these streams.
    The other thing we have is a completely different set of 
water laws. We are built in many of our States around a system 
that is called the appropriation of water, or first person that 
takes water from the river and applies it to a beneficial use 
as described in law, beneficial use is defined, acquires 
ownership to that water as of that point in time. So there are 
water rights users from cities, water rights holders from 
cities to associations to individual farmers up and down the 
streams in a dry State like mine and yours, who own all the 
water that flows in that river, because we have a State law 
that says that's how it works.
    Now, frankly, that does not mean that there is no room for 
an endangered species. But it does mean that over history, up 
to the current time, all of those appropriators of water, the 
saving of the minnow to the extent it requires new water, was 
not contemplated in the water rights acquisition and use that 
historically built up. So it comes along as perhaps a neighbor, 
perhaps a friend to the stream. But it comes along with a new 
water need that nobody was figuring on 10, 15 years ago, and 
certainly when most of this water was allocated.
    So you know we are terribly worried about it. We have 
appropriated huge amounts of water through an intercontinental 
tunnel from the Colorado River system to the Rio Grande, in the 
days of Clinton P. Anderson. They built tunnels, and we 
acquired some water as our share of putting together the 
Colorado River project. It flows into this same stream, but it 
belongs to cities and communities. It flows in the river bed 
just like all the water I described heretofore.
    But it's owned by somebody. They don't need it right now, 
but they bought it so they could plan to use it over time.
    Well, they're not very interested in seeing a whole bunch 
of their water taken up by this newcomer, as I said, this 
minnow, be it friend or be it foe. Certainly, I am not against 
trying to preserve it. It's a hardy little rascal, because it 
still exists even though that river has been going dry almost 
15 percent of the time for about a 25 year cycle in its 
southernmost region.
    The Secretary of Interior testified before an Interior 
Appropriations Subcommittee that the endangered species law was 
not working. We have sent you his testimony in which he talked 
about having to fix this Act because the courts were 
interpreting it wrong and he was being forced to do some 
things. The cart was being put ahead of the horse.
    So current implementation of this endangered species 
imposes a negative. The listing of the endangered species 
designating critical habitat and then simply stopping human 
activities without further solution. So less than 70 percent of 
the listed species are covered by recovery plans.
    Let me move ahead, since I have given you the background. I 
just want to make sure that you know the Supreme Court, in a 
case which I have cited in more depth, Bennett v. Spear, which 
one of our great water lawyers will talk to you about, the 
Supreme Court has said that we should have the best scientific 
and commercial data available to be used to designate a 
critical habitat.
    In the case of the river I mentioned earlier that I grew up 
by, the science is not there yet for the silver minnow. There 
exists no implementable plan for recovery. But as Secretary 
Babbitt said, he is being put in a straitjacket into 
permanently designating habitat by a court order.
    It's abundantly clear that a complete environmental 
analysis of a critical habitat designation is an absolute 
necessity. We're trying to put into place the science first; 
that is, it doesn't make any sense to designate the habitat 
before you have the science and the plan put together. It 
causes great animosity, great fear, and trepidation, because 
nobody knows what it means. So you get huge opposition and 
people pulling in, saying, ``they're taking my water.'' We 
really don't have a plan because we don't know how much the 
minnow and other endangered species would need.
    I want to stop there, and tell you that you have called a 
renowned witness from New Mexico who represents many water 
issues in our State and around the nation. I think for the 
record he ought to tell this committee from the water law 
standpoint why it's very difficult to work the endangered 
species into a good habitat and a good ecosystem for a river 
when you have to designate it before you have the science and 
know what you're doing.
    Thank you very much, and I hope the bill is reported out. I 
will pledge to you I will help as best I can getting it passed. 
Secretary of Interior and others say the bill in its current 
form may not be right, but certainly something like it, 
something has to be fixed. So I comment you and thank you very 
much.
    Senator Crapo. Thank you very much, Senator. We realize 
that you may have important responsibilities back in the 
Appropriations Committee, but we welcome you to join us.
    Senator Domenici. I am going to stay a while. We've 
finished our work.
    Senator Crapo. Good.
    Senator Chafee. I want to note that Senator Domenici was a 
member of this committee for a good number of years.
    Senator Domenici. Yes, both through the first Clean Air Act 
and second Clean Air Act.
    Senator Chafee. I remember when I came on this committee, 
you were here.
    Senator Crapo. Well, then, we'll resume the questions. Ms. 
Clark, we appreciate your working with us through these 
interruptions. But schedules here in the Senate don't always 
allow us to perfectly time things out.
    I had just asked you whether you agree with the general 
proposition that the designation of critical habitat should 
occur in the recovery process rather than in the designation or 
listing process. You indicated your agreement with that.
    You also stated in your testimony that there were several 
new statutory requirements included in this proposed 
legislation that you had some concern about. Could you identify 
those at this point in time?
    Ms. Clark. Sure. I could at least identify some of them and 
then we're still looking at it. But I really do, I am excited 
about the notion of this whole science process being part of a 
science-based recovery process. That overwhelmingly is quite 
positive.
    Certainly, a concern is the notion that recovery plans will 
now have statutory timeframes. It's something we have tried to 
embrace in policy, because quite frankly, recovery is the key 
to solving the endangered species crisis nationwide. Recovery 
is really what the goals of the Endangered Species Act are all 
about.
    But the frustration that Senator Domenici so aptly 
described, with the backlog of species without recovery plans, 
clearly typifies the need for appropriations. If we're going to 
have more statutory deadlines and more statutory requirements 
that are judicially reviewable, we would hope that that would 
come with available authorization and appropriation. So it very 
much dovetails with what we testified on in the bill last year, 
or in 1997.
    There are some minor issues that we could talk about, the 
requirement to appoint a recovery team within 60 days. 
Oftentimes, it takes us a little bit longer than that. But it's 
primarily because we try to get the best of the best, and to 
get the correct mix of stakeholders, including scientists and 
land owners and economists and the right people to be able to 
describe and define what's needed for species recovery. It 
takes us a little bit longer than 60 days.
    So it's things like that that we certainly can talk about.
    Probably one of the largest issues, the most significant 
issue, has to do with the mechanism to describe this habitat, 
and the mechanism to describe habitat that's ultimately 
essential to the recovery of the species. We believe that the 
notion of a recovery team being identified and charged with 
articulating critical habitat, which is then conducted by 
regulation, ultimately is duplicative.
    We have debated for years the notion of trying to have a 
big, open stakeholder-involved process to describe recovery 
habitat, or habitat that's necessary for the recovery of 
species--one that could evolve as science on the species and 
science of the surrounding areas evolves.
    So we believe the notion of having to do two processes is 
duplicative. We'd like to have that discussion and see if we 
can work through some of that. I think that is certainly 
something that we can discuss.
    The priority system--it was an issue that we discussed in 
S. 1180 back in the previous Congress to address national 
priorities. We have had to do that with the listing program, 
because we do indeed have a backlog of species that deserve 
protection. We have tried mightily to address biological 
priorities as opposed to priorities of individuals or special 
interests.
    We'd like to be able to legislate or statutorily endorse a 
recovery priority program, so that in fact we have some 
biological mechanism to guide, given available appropriations, 
those species that will receive recovery planning process 
support in some kind of sequenced order, according to 
biological priorities. Determining whatever is first case into 
court becomes the priority for the Fish and Wildlife Service. I 
can tell you it is extremely difficult to rearrange resources, 
move people, and try to address those priorities, when in fact 
we're trying to deal with biological priorities.
    So it's issues like that that would be of interest to us.
    Senator Crapo. Can you tell me how much time and effort the 
Fish and Wildlife Service puts in to defending citizen 
litigation on critical habitat designation?
    Ms. Clark. I can't give you a specific percentage. But I 
can tell you it is dominating increasingly the Section 4 
listing and critical habitat designation priorities--a 
significant amount of time. I am certainly not debating whether 
or not it's appropriate litigation or not, because if we've 
missed a statutory deadline, we've missed a statutory deadline, 
and we're just as frustrated as anybody else by it.
    But we can only work within the confines of our available 
appropriations and available resources. But the litigation 
surrounding critical habitat has risen exponentially over the 
last few years between our Solicitor's office and the 
Department of Justice, and our own biologists nationwide. We 
believe it's becoming an overwhelming part of our workload, 
which then means our biologists are not working on species 
recovery and species issues.
    Senator Crapo. Thank you very much. My time has expired.
    Senator Chafee?
    Senator Chafee. Thank you, Mr. Chairman.
    Ms. Clark, you raised concerns over some of these deadlines 
that have to be met. We had all those deadlines in S. 1180 last 
year, which as you know we worked with you closely on. What's 
changed? In other words, you weren't so concerned. I don't mean 
to be difficult here, but last year, when we did S. 1180, you 
didn't seem to be concerned over these deadlines. Now you are. 
What's changed?
    Ms. Clark. Let me clarify my concerns, Senator, because 
we're actually not specifically concerned about the deadlines. 
But I actually went back to our testimony on S. 1180 to make 
sure I didn't doublespeak here. We indicated our concerns about 
appropriations, given the additional statutory deadlines, last 
year as well. I am all for recovery, and I am all for statutory 
mandates on recovery plans, because actually I think that's 
where the focus of the Endangered Species Act would be and 
should be if we're going to do what's needed for species and 
habitat conservation.
    But that doesn't come with a flat budget. So, like we 
testified on S. 1180, these additional statutory deadlines 
really do need to come with additional Congressional support to 
get the job done. Because without that, it's just going to be a 
steady parade--a new scenario--of missed deadline cases in the 
courts that will be very justified.
    Regarding the critical habitat part of S. 1180, we did 
testify last year, the fall of 1997, regarding the concern 
about the potential duplicative process. We were very pleased 
during the discussion about the placement of critical habitat, 
with the placement of identification of habitat into the 
recovery process. But we raised the concern then as well about 
whether or not the actual mechanics of the process were value-
added or duplicative.
    Senator Chafee. Let me see if I understand your position 
here, and you tell me if I am wrong. As I understand it, you 
are supportive of moving the designation of critical habitat 
from the listing time to the filing of the recovery plan. Is 
that a fair statement?
    Ms. Clark. With a minor edit, Senator.
    Senator Chafee. OK, give us the minor edit.
    Ms. Clark. My minor edit would be, we are clearly 
supportive of moving the identification of habitat that is 
essential for the recovery of species into the recovery 
planning process. Absolutely.
    Senator Chafee. OK. I'm not sure I get the difference.
    Ms. Clark. I think the subtle difference is, I believe that 
the whole notion of what critical habitat is, should be or 
people believe it to be has become so confused that I've never 
had the same conversation twice on what it is. People perceive 
it, want it to be and intend for it to be something that it 
isn't. But the notion of a science-based collaborative habitat 
identification regime is extremely important. So what you're 
hearing me doing is very subtly trying to shift the debate of 
habitat, and what habitat essential for recovery is, into the 
recovery planning process. But I don't think it's what a lot of 
people's perception of what critical habitat is.
    Senator Chafee. In other words, you don't think critical 
habitat can be defined specifically, it's difficult to define 
what it is. Is that one of your points?
    Ms. Clark. I think over the years, it has become so 
confusing and so misintended and misused as a tool that some of 
us think it's better to redescribe what it should be and call 
it something else. Don't have to. We can certainly redefine 
critical habitat. This bill has it in the absolute correct 
place. But I do think it needs a little bit of refinement and 
description and expectation.
    Senator Chafee. OK. Well, hopefully we can work with you in 
trying to come up with that.
    Ms. Clark. I think we can.
    Senator Chafee. In other words, you don't see this as a 
hopeless cause that we're involved in?
    Ms. Clark. Absolutely not. No, I don't.
    Senator Chafee. Good. Well, we obviously seek your 
cooperation, you're a very key player in this. You're out in 
the trenches there having to deal with all this. So we look 
forward to working with you.
    Thank you very much, Mr. Chairman.
    Senator Crapo. Thank you. Senator Domenici.
    Senator Domenici. I'd like to first address your concern 
about how much money you get to do this work. Frankly, I 
believe one of the reasons the appropriation process is not 
giving you sufficient money is because the way the law is being 
interpreted and implemented is scaring people, and scaring them 
so much that they're asking their legislators not to fund you. 
Legislators are responding quite readily to not putting in 
enough money, because the whole thing is upside down. Once you 
name the species as endangered, you've done nothing, you've 
just named them.
    For us to then start litigation and then you to start 
trying to put a habitat in place before you have an 
implementable plan, and the plan has to involve, under law, the 
economic, social and other impacts that that plan is going to 
have on everybody. In western America, most of the water has 
already been appropriated to other uses. So what happens, 
because we're moving too rapidly before we have scientific 
information, water information, stream flow information, 
everybody hunkers down to protect their interests. Frankly, 
what I am finding out now is that some people are beginning to 
meet and talk about it with the idea that nobody is going to be 
taking large quantities of water away from anybody, but we're 
just trying to figure out a habitat.
    I suggest you read it our expert's testimony about the 
problem of allocated streams--and there are many such streams 
in the West. All the water is owned or supposed to be used by 
somebody. We have not yet litigated who owns the water--whether 
you own new water rights or not. Both sides are sitting there 
like big bears, and neither wants to take that issue to court. 
Everybody is hoping the issue will disappear before deciding 
ownership of water rights, and whether an endangered species 
law precedes other rights that have been there for a long time.
    In the meantime, people are very concerned about what 
you're going to use. So I would say this issue of not moving so 
quickly with trying to use up people's water, or the river's 
water, the ecosystem, until you have a plan, is a very healthy 
part of maybe getting more support for what you're doing. I, 
for one, have already said that if we could get this 
straightened out where people were not filled with such up-
front fears, that we probably would join some advocates in 
funding the implementation moneys.
    Essentially, you do agree, however, with the premise of the 
legislation, that we ought to clarify the phasing of these two 
aspects of the endangered species law?
    Ms. Clark. Absolutely, Senator, I do. If I could respond to 
your comments for just a moment, prior to coming to Washington, 
I was in the Albuquerque regional office. So I know painfully 
the debates over western water issues and how important they 
are.
    You are absolutely right, it is very disturbing that there 
continues to be a fear factor about conservation of biological 
diversity. We've worked really hard to try to create 
incentives, to try to clarify science and to try to be much 
more open and collaborative rather than secretive about 
decisionmaking processes under the Endangered Species Act. 
That's clearly the only way that we're going to be successful. 
Opening up a recovery process, engaging the affected 
stakeholders and founding it all on solid science in the right 
sequence is the only way that we're really going to achieve 
conservation of species and habitat.
    So for that, we're thankful that this debate is occurring.
    Senator Domenici. Thank you.
    Senator Crapo. Thank you, Senator Domenici.
    Ms. Clark, we have been informed that there is going to be 
a vote some time in the next 45 minutes. So we've all got a 
long list of questions for you. But in an effort to try to 
resolve this before the vote, that may or may not happen, we're 
going to forego any further questions. Is that agreeable with 
the panel?
    I suspect that means that we are going to submit several 
lists of questions to you in writing and ask that you as 
promptly as possible respond to those question sin writing.
    Ms. Clark. We would be happy to.
    Senator Crapo. With that, you are excused. We appreciate 
your attendance today.
    We will move to panel No. 2. Mr. William R. Murray, Natural 
Resources Council of the American Forest and Paper Association; 
Mr. Charles T. DuMars, Counsel for the Middle Rio Grande 
Conservancy District, from Albuquerque; and Mr. John Kostyack, 
Counsel for the National Wildlife Federation.
    Now that we're looking at a vote situation, we're going to 
ask that you pay even more attention to the instruction and try 
to keep your remarks within the 5 minutes, so we have an 
opportunity for questions. We would like to begin immediately 
then with you, Mr. Murray.

  STATEMENT OF WILLIAM R. MURRAY, NATURAL RESOURCES COUNSEL, 
             AMERICAN FOREST AND PAPER ASSOCIATION

    Mr. Murray. Thank you, Mr. Chairman, and good morning, 
Senator Chafee, Senator Domenici. Thank you for the opportunity 
to testify today on S. 1100 and the issues surrounding the 
designation of critical habitat under the Endangered Species 
Act.
    My name is William Murray. I am the Natural Resources 
Counsel of the American Forest and Paper Association, the 
national trade association of the forest products and paper 
industry. I have submitted a written statement which I request 
be included in the record.
    Senator Crapo. Your written statements will be made a part 
of the full record.
    Mr. Murray. Thank you, Senator.
    Congress enacted the Endangered Species Act to protect 
endangered and threatened species, a goal which we fully 
support. Under Congress' own schedule, however, the law was due 
for review and update in 1992. That date has long since passed, 
and the need for action grows.
    S. 1100 focuses on moving the designation of critical 
habitat from the listing process to the recovery planning 
process. Improving the recovery planning process is one of the 
six key areas in the law which the AF&PA has identified as 
needing particular attention. Moving critical habitat into the 
recovery planning effort is an important step in that process. 
But we have some suggestions which we believe will ensure that 
the change proposed in S. 1100 has the desired effect.
    Critical habitat as currently provided in the law and 
implemented by the Fish and Wildlife Service and the National 
Marine Fisheries Service suffers from several problems. As we 
have heard today, the Fish and Wildlife Service believes that 
critical habitat is not an efficient or effective means of 
securing the conservation of species, particularly as compared 
to the controversy it causes and to the monetary, 
administrative and other resources it absorbs. The Act directs 
the Secretary to take into account economic impacts before 
designating critical habitat and to exclude land if the 
benefits of exclusion outweigh the benefits of designation, 
provided extinction will not result.
    However, in their economic analyses, the Services only 
consider the incremental effects above and beyond those caused 
by the actual listing. Since listing is only based on 
biological considerations, the Government rarely if ever 
considers the full economic effects of actions under the 
Endangered Species Act. Perhaps as a result this ability to 
exclude land has not been used extensively in the designation 
of critical habitat.
    The only statutory role for designated critical habitat is 
provided by Section 7(a)(2) of the Endangered Species Act 
requiring Federal agencies to consult with the Secretary to 
ensure their activities are not likely to jeopardize the 
continued existence of a listed species or result in the 
destruction or adverse modification of designated critical 
habitat.
    However, as Director Clark testified, she believes that 
species are adequately protected by the jeopardy consultation 
without necessarily considering the designated critical 
habitat. The Service has acknowledged that critical habitat 
designation has no statutory effect on private land unless the 
landowner seeks an action from a Federal agency. Nonetheless, 
the designation produces a map with lines drawn by a Federal 
regulatory agency. Most landowners and their bankers find it 
difficult to believe that the lines mean nothing.
    Indeed, the National Marine Fisheries Service recently 
touted the lines as a benefit of designation, because it helps 
focus Federal, tribal, State and private conservation 
management efforts in such areas. While this statement carries 
no threat of regulatory action, it does exemplify the idea of 
targeting land which in turn causes controversy, fear, etc., 
among landowners.
    Given the overall problems with this concept and the lack 
of support even from the expert agencies, we recommend that 
critical habitat be merged entirely into recovery planning. 
Many would say the Services have accomplished this in any 
event. However, the designation process, as Director Clark 
testified, continues to drain resources from the Services, and 
litigation mounts. Retaining critical habitat as a separate 
rulemaking makes no sense if the ultimate goal is recovery and 
that's where resources ought to be focused and spent.
    S. 1100 makes only a tentative step in that direction. It 
does not sufficiently ensure that economic impacts are 
adequately addressed. Consideration of social and economic 
impacts are essential if conservation is to have any 
credibility to the public at large and to the particular 
members of the public affected by a specific listing.
    S. 1100 contains no requirement that the Secretary appoint 
a balanced, multi-disciplined recovery team. Yet the bill gives 
the recovery team the first crack at not only drawing the lines 
on the map but at establishing the management and protection 
measures. If critical habitat is retained as a separate 
rulemaking, we recommend that the Secretary be given the full 
18 months to prepare that initial proposal, rather than have 
the recovery team step out front.
    Let me just conclude that we don't think critical habit is 
the only issue that needs to be addressed in the Endangered 
Species Act. My testimony submitted for the record outlines 
several other issues, particularly in the area of habitat 
conservation. Land stewardship is a particular concern and 
focus of our Association's Sustainable Forestry Initiative. We 
think the habitat conservation planning process is an important 
element of land stewardship, and that the committee ought to 
focus its attention on improving and making that a workable 
process.
    Thank you, Senator, for the opportunity to testify this 
morning. I'd be happy to answer any questions.
    Senator Crapo. Thank you, Mr. Murray.
    Mr. DuMars.

  STATEMENT OF CHARLES T. DU MARS, ESQUIRE, PROFESSOR OF LAW, 
UNIVERSITY OF NEW MEXICO SCHOOL OF LAW, ALBUQUERQUE, NEW MEXICO

    Mr. DuMars. Thank you, Mr. Chairman, Senator Chafee, for 
the opportunity to come and visit about this topic.
    A little bit about my experience in this area very briefly. 
I've been on the Western States Water Council, which represents 
the western prior appropriation States under four Governors. I 
have been on the endangered species subcommittee during that 
entire time. I am currently a professor of law at the 
University of New Mexico Law School, where I teach 
constitutional law and water law among my courses.
    I have served on two committees in the National Research 
Council and the National Academy of Science, both dealing with 
water quality directly or indirectly related to this topic, and 
consulted with a number of other countries about designing 
water law systems, including endangered species protection 
issues.
    I am going to make four points very quickly. The first is 
that the Endangered Species Act, as others have said, 
absolutely requires that there not be an uncoupling of the 
concept of determining where the species must be protected and 
the concept of how you protect the species. It is vital that 
those two go hand in hand. That has not happened, not at least 
in the western United States, in my experience.
    The consequence of that yields huge impacts on individual 
water users. One of the clients I represent includes four 
Indian Pueblos, about 50,000 small farm irrigators, and 
involves over 100 miles of river. All of these individuals are 
directly affected by the uncoupling of critical habitat from 
the process of protection. I will make the point that the 
critical habitat designation has huge impacts in the dry West 
prior appropriation States when it is made.
    My third point is that the third thing critical habitat 
designation does is it creates the illusion that by stopping 
people from doing things, stopping farmers from farming, by 
stopping people from diverting water, you are somehow 
affirmatively protecting the species. That illusion is very 
harmful because it creates unneeded conflict between 
environmental groups and water users and it gives an 
explanation or at least a rationale for not going forward.
    Finally, I will address in my view why specifically this 
particular amendment is an improvement. Turning first to the 
question of how these two notions have been uncoupled, what has 
happened is, in the typical circumstance in the western United 
States, in my experience, there are different ways of 
addressing the problem. One is through the Section 7 
consultation process with Federal agencies, which is not 
particularly collaborative, and involves neither, oftentimes, 
environmental groups or the individual water users. That alone 
is inadequate.
    One would think that then, instead of going through that 
process, one would move toward recovery. Unfortunately, 
recovery is expensive, complex, requires a great deal of 
science and lags behind critical habitat. That means that the 
next thing that happens, and by statute, by timeframe, is that 
a decision is made as to what the habitat is in the western 
United States. That decision has a direct effect on individual 
water users.
    Let me give you an example. Just 2 months ago, I met with 
approximately 35 ditch riders, men who turn the water on and 
off, of which 10 of them were Pueblo Indians. I had to tell 
them to their face, yes, you've been irrigating for 400 years, 
yes, you have done the same thing every year, yes, we know the 
river dries up. But if a critical habitat designation is made 
saying there must be continuous flow in the water bed, and if 
you divert water under the Sweet Home decision, you may be 
subject to civil and criminal penalties.
    That is an incredibly significant deterrent to the behavior 
of these individuals who are simply trying to do what they 
normally do. They would ask me, well, how much water does the 
fish need? Well, we haven't decided that exactly yet, because 
we don't know how we're going to recover it.
    Then they would say, well, if we don't know how much it 
needs, how do we know when we're causing damage? I have to tell 
them, it doesn't matter if the critical habitat designation has 
taken place, because in fact, you are subject to civil and 
criminal penalties.
    Turning to my next point, exactly then what does one do to 
address that, and what is the analogous legal situation in the 
west? In the west, at least in the Tenth Circuit Court of 
Appeals, because of the magnitude of the critical habitat 
designation on the individuals and the stream system, you 
require an environmental impact statement (EIS) in order to 
evaluate the alternatives to the designation.
    So on the one hand, we have the environmental groups suing 
to force the designation, and we have the farmers seeking just 
the opposite, saying you have to do an EIS. So the U.S. Fish 
and Wildlife Service and the environmental groups are basically 
opposing the EIS process. It's an incredible irony created by 
the absence of connection of recovery.
    In summary, this amendment will merge those two processes. 
It will make is possible to have collaborative efforts that 
lead toward habitat conservation plans, wherein everybody looks 
at not only how to protect the species, but where do we protect 
the species and distinguish between the range, which is one 
point and that narrow question, what is the critical habitat 
that best fits on through the recovery plan.
    Thank you.
    Senator Crapo. Thank you, Mr. DuMars.
    Mr. Kostyack?

 STATEMENT OF JOHN F. KOSTYACK, COUNSEL, OFFICE OF FEDERAL AND 
      INTERNATIONAL AFFAIRS, NATIONAL WILDLIFE FEDERATION

    Mr. Kostyack. Good morning, Mr. Chairman, Senator Chafee. 
My name is John Kostyack, I am here to testify on behalf of the 
National Wildlife Federation, which is the nation's largest 
member supported conservation advocacy and education 
organization.
    I want to thank you for inviting me here to testify on S. 
1100. The National Wildlife Federation considers the Endangered 
Species Act critical habitat provisions to be an extremely 
valuable tool for conserving imperiled species. We disagree 
with any suggestion that this provision is redundant with the 
other protections of the Endangered Species Act.
    We have serious concerns with this bill, both substantively 
and also in the manner in which it is being approached outside 
the reauthorization process. I'd like to walk through each of 
those concerns.
    We have just passed the 25th anniversary of the Endangered 
Species Act, and we really should be celebrating its crucial 
role in saving our nation's biological heritage. On the other 
hand, we do need to grapple with the fact that many species on 
the Endangered Species List are not yet on the path to 
recovery. Scientists tell us that we need to do a better job of 
protecting, managing and restoring habitat.
    To achieve this task, the Endangered Species Act provides 
three enforceable safeguards, and the critical habitat 
protection is one of those three. It has a number of features 
that sets it apart from the other two safeguards in the 
Endangered Species Act.
    One, critical habitat provisions provide the clearest 
direction to the Federal agencies about their obligation to 
protect and manage habitat for the purpose of species recovery. 
Second, the Endangered Species Act explicitly calls for the 
protection of unoccupied habitat in the context of critical 
habitat designations. For many listed species, this focus on 
unoccupied habitat is crucial if extinction is to be avoided 
and recovery made possible.
    Third, critical habitat designation focuses the attention 
of Federal and State land managers on the special management 
efforts that need to take place to save species. Fourth, 
critical habitat designation draws clear lines on a map, giving 
land managers the direction they need to determine what habitat 
must be saved.
    Finally, critical habitat designation provides that 
essential early warning signal, so agencies and people involved 
in these local land use planning processes have the information 
they need about areas that need special attention.
    Let me give you two concrete examples about why the S. 1100 
approach of delaying or avoiding critical habitat designation 
is problematic. First, a negative example. In the Natomas Basin 
outside of Sacramento, California, there are several species in 
the region that have been listed for well over 5 years, and yet 
no critical habitat has been designated. Meanwhile, the Fish 
and Wildlife Service has issued an incidental take permit that 
allows habitat destruction throughout the Natomas Basin, so 
long as a mitigation fee for future habitat acquisition is 
paid.
    But because no critical habitat has been designated, the 
development is taking place in areas that scientists believe 
are needed for species recovery.
    Let me also give you a more positive example where critical 
habitat was designated, in unoccupied habitat as well as 
occupied, and contributed to the recovery of listed species. 
This example was discussed in the 1995 case known as Idaho 
Rivers United versus National Marine Fisheries Service. In that 
case, the United States Forest Service sought to allow a mine 
to be developed adjacent to what was then unoccupied habitat of 
a listed species, a listed salmon species.
    The court relied on the fact that the habitat had been 
designated as critical habitat as a basis for rejecting the 
agency's proposal to move forward with this mine. It sought to 
protect the unoccupied habitat, because it was needed for the 
species to return in order to recover and rebound in number.
    Now, the fact that there are only 9 percent of listed 
species that have received designated critical habitat suggests 
that serious attention to this issue is needed, and reforms are 
needed. However, the problems that have arisen in implementing 
critical habitat would not be solved by S. 1100. In fact, this 
bill would exacerbate some of those problems and leave many 
other challenges unaddressed. We recommend some alternative 
approaches that would ensure that critical habitat works for 
both species and land owners.
    Walking through the major features of this bill, first, the 
bill adds new delays to the Act's requirements concerning 
designation of critical habitat. Second, it reopens a loophole 
that had previously been closed by Congress that enables the 
Services to avoid designating critical habitat altogether, 
based upon a scientifically unjustified, not determinable 
finding.
    Third, the bill sets deadlines for completing recovery 
plans and adds new procedural burdens but does not provide for 
any new funding. The result of this will be either that the 
Services prepare shoddy recovery plans in their haste to meet 
statutory deadlines with inadequate resources, or they will 
fail to meet their statutory deadlines and end up in wasteful 
litigation.
    Finally, the bill arbitrarily limits the ability of 
citizens to enforce the Endangered Species Act's requirements 
concerning the content of critical habitat designations.
    Despite these flaws, S. 1100 does attempt to address a 
legitimate issue about the need for better information in 
designating critical habitat. It attempts to address this by 
postponing the designation until either a recovery plan has 
been completed or 3 years have passed since listing, whichever 
is sooner. But this 3 year delay is really arbitrary.
    Regardless of which deadline for critical habitat 
designation is chosen, either the time of listing or 3 years 
later, the Endangered Species Act must be implemented in an 
arena where important data about conservation strategies will 
be missing.
    The scientific community has provided a useful approach for 
addressing this issue. In a 1995 National Research Council 
report called Science and the Endangered Species Act, a report 
that was requested by Congress, a panel of leading scientists 
convened from industry, government and academia, recommended 
that an interim designation of what they called ``survival 
habitat'' be used to protect a core amount of essential habitat 
during the period between listing and completion of the 
recovery plan.
    It then suggested that once the recovery plan was adopted, 
the critical habitat designation, with its more sophisticated 
analysis of conservation needs and economic impacts, could 
replace a survival habitat designation.
    This precautionary approach is much preferable to the 
approach of S. 1100. Because by the time a species becomes 
listed, there is little room for error. Species have usually 
declined to extremely low population numbers, and have 
typically lost significant percentages of their historical 
habitat, and by definition are in danger of extinction.
    The precautionary approach also benefits land owners, 
because when you use the interim protection of survival 
habitat, you preserve the widest array of conservation 
strategies, so land owners and other stakeholders can sit down 
and devise a strategy that is tailored to the local economic 
and social objectives.
    We are heartened by the news that the Fish and Wildlife 
Service wants to begin a dialog with the public on the future 
of critical habitat. We think that this will create a useful 
discussion about creative approaches that we can all develop 
about making critical habitat work for species and land owners. 
We have some ideas we have set forth in our written testimony 
about using some of the existing language in the Endangered 
Species Act for this purpose.
    Finally, I would like to emphasize our strong concern about 
the fact that this bill is being considered outside of the 
Endangered Species Act reauthorization process. Because each of 
S. 1100's provisions depends on successful implementation of 
other provisions of the Endangered Species Act, we are 
concerned that the issues are not going to be addressed 
effectively or understood well enough.
    I can give you one example. The deadlines that are imposed 
for completion of recovery plans, they will only further the 
Endangered Species Act conservation goals if we get into what 
makes a meaningful recovery plan, and if we get into the 
question of how the agency will mount the resources necessary 
to accomplish this task.
    Senator Crapo. If you could wrap up pretty quick, I'll be 
asking you some questions on that.
    Mr. Kostyack. Sure.
    Reauthorization is long overdue. The difficult task of 
completing it will be made more difficult if Members of 
Congress are allowed to resolve their individual grievances 
with the ESA through targeted amendments. If this subcommittee 
and the full committee move forward with S. 1100, every member 
with a desire to weaken the Endangered Species Act will 
sidestep the reauthorization debate and will instead come 
forward with his or her amendment.
    Reauthorization is the only way to provide a comprehensive 
assessment and updating of the Endangered Species Act with a 
process that is fair to all sides.
    Thank you again for the opportunity to testify. I would be 
happy to answer your questions.
    Senator Crapo. Thank you very much.
    Let me start first with you, Mr. Murray. Could you tell me, 
just in your opinion, how important to the public is the 
economic analysis performed as a part of the critical habitat 
designation?
    Mr. Murray. Economics gets small attention in the 
Endangered Species Act, although as the Supreme Court ruled in 
the Bennett case, there is sufficient recognition that there 
are economic interests involved to give them the ability to be 
within the zone of interest for purposes of filing litigation.
    The critical habitat provision is one of the few sections 
that has an economic consideration in it. The recovery plan, 
for example, does not require consideration of economic 
impacts.
    We think the way the Services have implemented it really 
guts what Congress intended for the critical habitat provision. 
I remember when the northern spotted owl critical habitat was 
proposed, being surprised that the economic analysis was so 
limited that it only looked at the incremental effect between 
listing a species and critical habitat designation. As Director 
Clark testified, designation provides little beyond the listing 
in terms of conservation benefit, which in turn would be little 
additional economic impact.
    So we think it's an essential component and requires the 
committee's attention. We think if it is moved to the recovery 
planning process, it needs to be given a fuller scope than just 
that incremental analysis.
    Senator Crapo. Thank you. You have indicated in your 
written testimony, I believe, that critical habitat has no 
statutory effect on private land. Is that correct?
    Mr. Murray. That's correct, Senator.
    Senator Crapo. The question I have is, the adverse 
modification of a species habitat is considered to be a take, 
which is prohibited by Section 9 of the Endangered Species Act. 
Wouldn't that have an impact on private land?
    Mr. Murray. As Mr. DuMars testified, and he has been 
advising people in New Mexico that such an effect may well 
happen, it's not a certainty, Senator. We would like it not to 
be an effect.
    The fact that a land use activity would adversely modify 
habitat suitable for listed wildlife, whether it's designated 
critical habitat or just habitat that's suitable for that 
species, does not make that activity unlawful. Instead, it 
provides one of the three elements of a take as defined by the 
Fish and Wildlife Service in their definition of harm. The text 
of the first sentence of that regulation says it has to be an 
activity which actually kills or injures wildlife.
    In the Sweet Home case, the Supreme Court emphasized that 
take is an activity that kills or injures wildlife. The example 
of that which the regulation uses is an adverse habitat 
modification, which actually kills or injures wildlife through 
a significant modification of an essential behavioral pattern.
    The problem is that when the courts get into that analysis, 
when the citizen suit is filed by the National Wildlife 
Federation or another environmental group, or if the Government 
itself brings an enforcement action, sometimes the distinctions 
between those three elements get blurred. No matter how much 
emphasis the Supreme Court may have put on the requirement for 
an actual death or injury in the Sweet Home decision, the fact 
that habitat has been designated as critical can sometimes sway 
the court to give less emphasis to the other elements.
    Senator Crapo. I am shifting gears here a little bit, but I 
know that you also are suggested that Congress amend the Act by 
providing for the appointment of a balanced, multi-disciplinary 
recovery team. Could you expand a little bit on your thought 
there?
    Mr. Murray. Yes, Senator. In the last Congress, S. 1180 
recommended such a direction to the agency. The agency does not 
always do that now. A lot of times, they place specialists on 
the particular species on their recovery teams. Of course, 
there's a lot of species that are listed that have a small 
impact and perhaps don't need the full attention of a multi-
disciplined team.
    We believe that for any kind of a species that is going to 
have the kind of effects that Senator Domenici is concerned 
with or the kind of effects that our industry is faced with, 
there needs to be a variety of disciplines on the recovery 
team. The importance of the economic considerations that we 
think ought to be examined at some point in the process, we 
think adds to the need for land owners, stakeholders, people 
with other scientific knowledge, and economists, to take part 
in the recovery analysis.
    If the recovery plan is to be the focus of the effort under 
the Endangered Species Act, it needs to have the full input 
from a variety of disciplines to make sure that all the 
impacts, both biologic, social and economic, are considered. We 
think that Congress ought to make sure that happens by 
requiring that there be some balance in the approach on the 
recovery team.
    Senator Crapo. Did you hear when Jamie Clark testified, she 
indicated that there was some concern on the part of the Fish 
and Wildlife that these time limits for the appointment of the 
recovery team would be too strict, or too restrictive. Do you 
have a thought about that?
    Mr. Murray. I appreciated her concerns, but the species has 
been proposed for over a year prior to the deadline for 
appointment of the team under S. 1100. The species is proposed, 
then you take a year to get it finally listed. Then they have 
60 days to appoint the recovery team.
    I am certainly not saying that 60 days is a magic number, 
Senator, but I think that given the fact they have been looking 
at the species for at least a year and probably longer, since I 
am sure they were looking at it before they proposed it, they 
have had time to consider who would be effective on the 
recovery team, and who might be appointed.
    Certainly finding the best people is a consideration, and 
the agency must have the necessary time to do that. Whether 60 
days is unreasonable I can't say, but I certainly think the 
agency would have longer than 60 days since they've been 
looking at the species for quite some time.
    Senator Crapo. Would there be a negative impact to delays 
in appointing the recovery team, do you believe?
    Mr. Murray. They have 18 months under the bill to draft a 
recovery plan. I think that there well could be some impact on 
that schedule, if you delay the appointment of the recovery 
team significantly beyond 60 days. But whether again, 60 days 
or 90 days, I can't say what is better.
    We shouldn't lose sight of the fact they've had over a year 
to consider the species.
    Senator Crapo. Thank you.
    Let me move to you for a moment, Mr. DuMars. In your 
testimony, you indicated something that I think is very 
relevant to the entire debate over how to manage the 
reauthorization of the Endangered Species Act. That is, you 
identified one of the problems that we face is the conflict 
that is generated as we approach the listing and then the 
designation of habitat. It seems to me that one of the 
objectives that we ought to seek as we move forward in either 
this type of narrow focused legislation, or in terms of broader 
Endangered Species Act reauthorization, is to find a way to 
build the collaborative process more effectively into the 
process of decisionmaking, and to reduce the level of conflict.
    Now, you indicated that you felt there was, and I hadn't 
actually looked at this legislation in that context, but you 
had indicated you felt there might be a benefit in terms of 
developing collaboration and reducing conflict in S. 1100. 
Could you expand on that a little bit?
    Mr. DuMars. Surely. First, I do agree with you that that is 
the heart of the matter. To the degree we could engage in 
collaborative efforts before the species was even in the 
position of needing to be listed at the State level, we would 
all be better off. That's the approach that I took with the 
Western Governors Association when I was on the drafting 
committee. I continue to believe that's true.
    But with this legislation, to the degree you could get the 
environmental groups and the users and the Fish and Wildlife 
all together, looking at problem solving rather than worrying 
about how the designation causes them injury, then we are in a 
different direction. The reason that would work is that there 
is a huge difference between affirmatively trying to solve the 
problem and deciding how and when these particular lines on 
this map are drawn. Because they are not just lines on a map, 
they define the contours of activity in the whole stream 
system.
    It's a mind set, but it's really more than that. It's 
everybody realistically trying to work, understanding what in 
our case for example, this particular minnow needs, and then 
deciding what habitat is critical, what could sustain it in the 
short term, and finally, how do we get long term adjustments to 
water allocation which are inevitable.
    Senator Crapo. Do you believe that there is a particularly 
unique problem in the West relating to aquatic species that 
heightens this problem with regard to habitat designations? If 
so, elaborate on that for a moment.
    Mr. DuMars. There is a particular problem, Mr. Chairman. 
The problem is that our stream systems are so incredibly 
erratic. A few years back, when I was testifying on the Clean 
Water Act, they said, well, we need fishable and swimmable 
streams. I said, well, in New Mexico, we have three kinds: 
fishable, swimmable and driveable. In certain times of the year 
when the snow pack is gone, even with reservoirs, they're dry. 
Stream beds are incredibly porous.
    So how the rates of flow that you put into that stream 
system, when you release them, have tremendous consequences for 
the individual. So if you draw these lines on the map and say, 
these lines mean there will be a continuous rate of flow 
through July, August and September, that may mean the loss of 
hundreds of thousands of acre feet through carriage loss into 
the stream bed.
    It is really an incredibly sensitive and delicate and 
complicated hydrologic balance that might not exist if you're 
simply drawing lines around the forest or around the stream and 
the Chattahoochee River system, for example, that never goes 
dry.
    Senator Crapo. I am going to ask another question of you, 
which is related to the conflict and collaboration issue, but a 
little bit distant from this specific legislation. One of my 
concerns has also been, as we try to find a mechanism to 
increase collaboration and reduce conflict, one of my concerns 
is that the current procedural process for public input often 
becomes a battle ground, the creation of a battle ground rather 
than the creation of a collaboration.
    We need to find a new procedure for allowing the various 
interested parties to sit down around a table rather than to 
participate in warfare from a table in front of a hearing 
officer.
    Could you comment on that thought?
    Mr. DuMars. I agree with you. If people could be brought to 
the table, not to articulate what they want, but to determine 
what is the science--the hydrologic changes that happen in the 
river system--and what are the needs of the species. If 
everybody comes forward and addresses that question first, you 
will have a lot less argument than if people are brought before 
a hearing officer, offering only vituperative rhetoric or 
comments about each other--describing what they want, not what 
is. That's why the recovery plan might move us in that 
direction, by merging those two issues together.
    Senator Crapo. Thank you very much.
    Mr. Kostyack, I'll move to you. One of the benefits of 
being the one who chairs the committee on a busy day like this 
when other Senators are called away to other hearings, this is 
the last day, hopefully, that we'll be in session before break 
when we can get to go out to our States. A lot of the 
committees are doing the same thing we are, trying to get 
business taken care of.
    A number of the Senators have expressed their apologies for 
not being here. Some have asked me to ask questions for them. I 
won't get to all of those questions, but the chairman has asked 
me to ask a question for him, since he had to leave. I am going 
to do that right now.
    Mr. Kostyack, one of his questions was, do you support the 
Administration's proposal that critical habitat be 
nonregulatory in nature?
    Mr. Kostyack. Well, we just recently heard about that 
proposal. It's a new thing, we really haven't had an 
opportunity to study it. We do have potential concerns about 
it. As I alluded to in my testimony, there are only three 
enforceable safeguards that in fact protect habitat in the 
Endangered Species Act. So if you move the critical habitat 
designation into the recovery plan and make it non-regulatory, 
it raises at least a question, and I am not sure if I know the 
answer to it right now, as to whether this would affect the 
protection against adverse modification of critical habitat, 
and whether we would lose its enforceability. We think that is 
one of the strengths of the Endangered Species Act, that it 
does provide bottom line safeguards.
    On the other hand, it does make a lot of sense to our 
organization to merge critical habitat with the recovery 
planning process. We are very interested in making critical 
habitat work for species and land owners. Creating a 
collaborative process around recovery planning where the 
critical habitat issue is addressed is something we 
wholeheartedly support.
    Senator Crapo. I have some other questions I've been asked 
to ask, but I want to followup on that. You obviously just 
heard the question I asked Mr. DuMars about collaboration, and 
trying to find a way to sit around the table and work things 
out, rather than to combat from a table. Would you give your 
thoughts about that in a little more detail.
    Mr. Kostyack. Yes, thank you, I've actually done quite a 
good deal of thinking about that. The National Wildlife 
Federation commissioned a report by the University of Michigan 
on that very subject in the context of habitat conservation 
planning. One of the key findings of this report is the fact 
that when you do habitat conservation plans, when you set up 
this dynamic where you have essentially a comment period, where 
information is basically laid out in the form of a proposal and 
the public comes back and gives their reaction at the end of 
some kind of process, it simply does not work.
    You need to have a continual process as a decision is being 
developed where stakeholders can sit around the table in what 
we refer to as an iterative process, where there is a true 
exchange of information, of ideas, as opposed to laying out a 
proposal and letting the public vent.
    So we very much support the gradual shift in that direction 
we're beginning to see. We think there are many more 
opportunities for developing that kind of concept. We'd be very 
interested in working with you on that.
    Senator Crapo. I'd be very interested in seeing a copy of 
that report, if you could provide one.
    Mr. Kostyack. I'd be happy to do that.
    Senator Crapo. I appreciate that. I would love to work with 
you and any others who are interested in trying to find, as you 
indicate a radical shift in procedural approach to the 
decisionmaking process, so that we can achieve reduction of 
conflict and an increase in the collaboration, which I think is 
going to expand the common ground for solutions that work. So I 
am glad to hear you discuss that in that context.
    Those bells, by the way, don't yet mean that there's a 
vote. We'll find out what this one means.
    Mr. Kostyack, another question I've been asked to raise to 
you is, you mentioned that critical habitat plays a vital role 
in species protection. But Director Clark indicated that it 
adds very little in additional protection.
    That was a 15 minute bell, so I have about 5 or 6 more 
minutes before I am going to have to resolve this.
    Except in the rare instance where critical habitat is 
designated for areas unoccupied by the species, how do you 
explain this difference?
    Mr. Kostyack. In my testimony, I did lay out five ways that 
the critical habitat creates added value. So I would rely upon 
that testimony.
    But let me elaborate further. First of all, it should not 
be the rare instance where unoccupied habitat is addressed in 
critical habitat designations. Unoccupied habitat is essential 
to the recovery of many endangered species.
    More importantly, the record we have seen so far on 
critical habitat is very much undeveloped. Less than 10 percent 
of endangered species have critical habitat designations, and 
most of those designations were created under duress, as a 
result of pressure from environmentalists. There has not been a 
commitment from the agency to working with critical habitat 
designations to make it work, to make it work for both species 
and land owners.
    We need to move forward with a more proactive and creative 
approach so that critical habitat can realize its true 
potential. It's very difficult to sit here and say, critical 
habitat has no value, when there has been very little attempt 
to put it on the ground and make it work. So we are critical of 
the Fish and Wildlife Service for essentially taking this 
approach to critical habitat, we're only going to designate it 
if somebody sues us and even then, after we designate, there's 
no discussion of what to do next.
    Senator Crapo. Thank you.
    I'd like to move on with you to another area. At the end of 
your testimony, you indicated that the focused approach of this 
legislation is objectionable because it really separates from 
the broader issue of complete reauthorization of the Endangered 
Species Act and the complete reform process. We are evaluating 
right now very carefully the proper approach to Endangered 
Species Act reform in the political environment that exists in 
the country, and how this committee should proceed in that 
context.
    I take it from your testimony that you believe we should 
try to focus on developing a comprehensive reform package 
rather than specific targeted reforms, where solutions can be 
found where there is the common ground. Am I correct in that?
    Mr. Kostyack. That's correct. As one noted ecologist said, 
everything is hitched to everything else.
    Senator Crapo. And I, too, would love to achieve that. And 
in fact we will. I don't believe the two are mutually 
exclusive, necessarily. But in one context or another, we will 
be seeking to find the way, the path forward for a 
comprehensive Endangered Species Act reform bill. So I want to 
be sure that you understand my question in that context.
    The question is, however, if we are able to develop a 
collaborative process or to identify areas such as what we 
thought and still think we have here, where in a focused area 
we've identified a clear, needed reform where there's a lot of 
consensus on it, what would be the harm in moving forward in 
those areas and making the necessary corrections now while we 
are underway in the broader process of reform?
    Mr. Kostyack. There are two main concerns. One is the fact 
that every specific section of Endangered Species Act 
essentially relies upon successful performance of the other 
sections of the Endangered Species Act. So if you shunt all the 
other issues aside, you essentially could be undermining that 
very narrow reform effort.
    The other concern is that even if a consensus were achieved 
among key players in the endangered species debate, there are 
always going to be outliers who believe, and indeed have 
individual grievances about the Endangered Species Act that 
they want to have resolved. If a bill is put forward that is 
not a comprehensive reauthorization, that does not attempt to 
address the full range of issues, then we expect to see 
amendments. It will be difficult to fend off those amendments. 
We are concerned that a lack of orderly process, that kind of 
attack from the side without any thoughtful hearing and debate, 
would be a major setback for the Endangered Species Act.
    Senator Crapo. I share with you your last concern there, 
very strongly. I know that Chairman Chafee also shares that 
concern. This could be noticed, that we are going to try to 
very rigorously oppose that type of development if we do have, 
on this bill as well as others, if we do have very targeted 
reforms that we are hopeful of moving forward, and we don't 
want them to get caught up in the process of trying to write a 
broader reform bill through the amendment process on the Floor. 
So I agree with that.
    I know my staff is probably getting nervous about this 
vote. We'll call and tell them we're on our way in a few 
minutes here.
    The information that I have is that we will probably have a 
series of stacked votes, which means that we could be delayed 
by up to an hour or more, and because of that, I think what I 
am going to do is ask a couple more questions and then 
terminate the hearing, but submit the rest of the questions 
that I have and that other Senators will want to submit to you 
in writing.
    So at this point, I would ask if any of you have any 
objection to responding in writing to further questions. I 
think that's probably what will happen.
    But I do have a few more minutes, so I want to go on a 
little bit further. Mr. Murray, you didn't get in on the 
question of collaboration and conflict resolution, but I would 
love to have your thoughts on that. Do you agree that we 
currently have a process which is too conflict-ridden and does 
not have enough collaboration? And if you agree with that, do 
you have any ideas about how we could solve it?
    Mr. Murray. Senator, I think that conflict is a problem 
with endangered species in general, just the idea of drawing 
lines on maps in Texas created a huge furor over the golden 
cheeked warbler a few years ago. The fact that this law 
generates this kind of fear and controversy I think is 
extremely troubling, and certainly does not do anything for the 
conservation of species.
    So in answer to your question, I think yes, we would 
definitely support the idea of increased collaboration. I think 
the recovery plan is the one place in the statute that cries 
out for that kind of collaboration. I am not sure. however, 
that all habitat conservation plans necessarily require the 
same type of collaboration.
    But certainly the recovery planning process, which is far 
different than a single land owner proposing a management plan 
for their activities, is one. That's one of the reasons why we 
recommended the multi-disciplined recovery team, because that 
would be a collaborative effort, by bringing in stakeholders 
and land owners and interest groups of various kinds in the 
development of that recovery plan.
    Senator Crapo. Thank you.
    I've just been given a note on the time, and I have time 
for about one more question. I am going to give it to you, Mr. 
Kostyack.
    I took your previous answer to mean that you would at least 
in principle be supportive of a very significant change in 
process. What I took from that was that you would be 
supportive, and I am not trying to commit you to something 
that's not in fine print yet, but supportive of moving away 
from a system in which we hold hearings and people, the public 
is allowed to come in and register their feelings about 
whatever the topic of the hearing is, to some type of a process 
in which we encourage that type of public input, but we either 
in addition or in replacement have a process by which people 
are brought in to discuss the facts, the science, the potential 
solutions and to seek to find the common ground in a more 
discussion-oriented type setting.
    Is that correct?
    Mr. Kostyack. That is essentially correct, yes. The only 
caveat I would provide, and I think you alluded to this, is 
that these stakeholder processes can be extremely time 
consuming and involve a lot of resources. So there will always 
be certain individuals who have a serious interest in the 
outcome of a process and a decision, who are going to want to 
have input at some point who will not necessarily be able to 
sit at the table during those lengthy meetings. So you have to 
keep that additional feature available.
    Senator Crapo. That's true. I don't think we could ever or 
should ever try to create a system in which the public in 
general, any person or group in the public, loses an 
opportunity to give input on the issue. But I think that we 
need to supplement, at least, the process.
    I know 5 years ago, I'll give you just a little background 
on some of my personal experience with this, I tried to do 
something similar with regard to the wilderness issue in Idaho. 
I found just trying to identify all the necessary interested 
parties to invite to the room to have the collaborative 
discussion with was a very challenging undertaking. We had 
seven or eight different meetings on this in different places. 
We found out each time that no matter how hard we tried, we 
left somebody out. And they let us know.
    So I understand very clearly the challenges in trying to 
make sure you have an inclusive but yet effective collaborative 
process. But I also found in those meetings that we made a 
tremendous amount of progress. We found a lot of common ground 
that would help us in making decisions.
    So I am convinced that something like that will work, and I 
look forward to working on those types of issues.
    Mr. Kostyack. Likewise, thank you.
    Senator Crapo. I apologize for the fact that we have not 
been able to spend as much time today in the questioning or 
your oral testimonies as we would have liked. But we do have 
your written testimony. There is a tremendous amount of 
interest in this issue by the members of the committee. 
Virtually every one who could not be here today had a very 
compelling reason not to be able to, and expressed their 
personal regrets to me and have asked me to submit questions 
and so forth.
    So I suspect you will get a list of questions that will be 
very helpful to us if you will respond to them.
    With that, this hearing is officially closed. We will 
continue the deliberations following this. Thank you.
    [Whereupon, at 12:01 p.m., the subcommittee was adjourned, 
to reconvene at the call of the Chair.]
    [Additional statement submitted for the record follow:]
 Statement of Hon. Frank R. Lautenberg, U.S. Senator from the State of 
                               New Jersey
    Thank you, Mr. Chairman, for holding a hearing on the designation 
of critical habitat under the Endangered Species Act.
    Mr. Chairman, I am deeply concerned over the elimination of 
wildlife habitat in this country. Each year we lose 300,000 acres of 
wetlands and 95,000 acres of National Forest in this country. It's not 
surprising that species are in trouble.
    We have 1183 species on our list of endangered and threatened 
species, and around 150 more that are officially considered to be 
candidates for that list. I am told we would find hundreds more of such 
species, if we had the resources to look for them. Worse yet, the 
stresses on these species only seem to be increasing, whether in the 
form of sprawl, drastic manipulation of our water resources, or change 
in the Earth's climate. Standing against this daunting tide is a tiny 
underfunded group of public servants forced to decide which species 
will receive protection under the law this year and which won't.
    Mr. Chairman, I am pro-growth. But I believe, like all things, 
there's a right way to grow and a more harmful way. I believe we can 
grow our economy, provide more and better jobs for our people, and 
increase our standard of living while shrinking our footprint on this 
Earth. Our obligation as stewards of the Earth requires us to find that 
approach.
    Protecting habitat, which we will discuss today, is an essential 
part of that approach. For that reason, it is troubling to me that we 
have designated critical habitat for less than 10 percent of our 
endangered and threatened species. Whether due to the allocation of too 
few resources, the concern that such designation will actually put 
species at risk, and even the desire to avoid controversy, the apparent 
shortfall is deeply troubling.
    Mr. Chairman, I believe your bill, with some improvements, might 
move us forward on this important issue. However, I am concerned that 
it will be difficult to move the bill, especially through the House, 
without drawing in other controversial ESA issues. We might end up with 
a comprehensive ESA bill assembled bit-by-bit, which would be the wrong 
approach. Nevertheless, I look forward to what our expert witnesses 
have to say, and I look forward to working on this issue with you and 
the members of this committee.
    Thank you.
                               __________
Statement of Hon. Pete V. Domenici, U.S. Senator from the State of New 
                                 Mexico
    Thank you, Mr. Chairman, for allowing me the opportunity to testify 
on S. 1100 before the Subcommittee today. I am very pleased to have 
cosponsored, along with you, Senator Chafee's fine legislation. As you 
are well aware, a crisis in New Mexico has developed, based on a court 
decision, regarding critical habitat designation for a fish. This 
situation started me down the path to try to find a solution, and 
subsequent discussion with Senator Chafee opened up the possibility to 
fix an ongoing, inherent problem with the Endangered Species Act. I 
look forward to the chance S. 1100 provides to make moderate, narrow, 
and extremely logical reform to the Endangered Species Act that will 
help nationwide.
    I would also encourage the Committee pay particular attention to 
the testimony of Mr. DuMars, a professor at the University of New 
Mexico's School of Law and widely regarded as a preeminent expert on 
water issues. I think he will point out the disconnect that currently 
exists in the Endangered Species Act, and the unnecessary adverse 
impact critical habitat designation has on water users in dry states 
like New Mexico.
    I have spoken in recent weeks regarding my exchange with Interior 
Secretary Babbitt during the April Interior Appropriations subcommittee 
hearing, when we both agreed the Act was not working as it should. I 
was a Senator in 1973 and voted for the Endangered Species Act. 
However, I have been around long enough to see the problems with the 
Act's implementation since, and the courts' interpretation of it in a 
manner never contemplated by Congress. The goal of government has been 
to protect and recover endangered species in concert with human 
development, but it has failed in its mission.
    The Secretary of Interior is required to base critical habitat 
designation on the best scientific data available, after taking into 
consideration the economic impact of that designation. I asked 
Secretary Babbitt whether the Interior Department had sufficient data 
to determine the true water needs to sustain the silvery minnow in the 
Rio Grande, and to make an accurate economic and social assessment of 
what a critical habitat designation would mean to existing water rights 
owners. Babbitt testified that his department does not have sufficient 
information, but that it has no choice but to act because of Federal 
court orders.
    The focus of saving species should be on planning recovery, not 
using premature habitat designation to unnecessarily hurt people. Tying 
critical habitat designation to recovery plan implementation is 
logical, defensible, and the right thing to do. S. 1100 goes directly 
to the heart of this issue.
    Current implementation of the Endangered Species Act imposes a 
negative: listing endangered species, designating critical habitat, and 
then simply stopping human activities without further solution. Less 
than 70 percent of listed species are covered by recovery plans. 
Establishing plans to save species is an affirmative choice that should 
be the goal of everyone.
    The beauty of S. 1100 is that it solves a major problem in the Act. 
It ties critical habitat designation to recovery planning. And who can 
be against recovery of species? This modest and logical amendment to 
the Act will impose reasonable deadlines for the recovery process and 
take it out of the courts. Once the problem has been identified by way 
of listing an endangered species, the government must move to the where 
and how of solving the problem.
    The U.S. Supreme Court has unanimously agreed that the best 
scientific and commercial data available must be used to designate a 
critical habitat. (Bennett v. Spear) Designation of critical habitat is 
more appropriate in the context of a final recovery plan for an 
endangered species, because that plan must specifically address 
conservation needs and costs of recovery. That is when you have the 
data, rather than front-ending the process.
    In the case of the Middle Rio Grande silvery minnow, the science 
isn't there, there exists no implementable plan for recovery, but as 
Secretary Babbit put it, he is being ``straight-jacketed'' into 
prematurely designating habitat by a court order. I cannot emphasize 
enough to my Eastern colleagues, that water is the most precious 
resource in the West. Unlike big rivers such as the Potomac, many 
southwestern rivers and streams change from roaring torrents to bare 
trickles over the year. The Rio Grande, despite its ``big river'' 
title, is no exception to this cyclical flow. As a child, I often 
walked across the dry riverbed in Albuquerque. Historically, through 
weather variations and changing populations, the Rio Grande was dry 20 
percent of the time in points.
    The quantity of water needed by the Rio Grande silvery minnow is 
unknown, as is admitted the draft recovery plan. Water amounts needed 
under critical habitat designation must be tied to recovery planning. 
The Fish and Wildlife Service has also conceded that there has never 
been a thorough study of the economic consequences of providing water 
as a critical habitat for the minnow.
    While we all want the silvery minnow and other endangered species 
to have their critical habitat, the Fish and Wildlife Service and the 
Bureau of Reclamation acknowledge that they do not know what the 
``critical habitat'' is or should be. Gentlemen, this river NEVER 
flowed to the ocean; it dried up somewhere south of El Paso from time 
immemorial. And the fish lived. Pueblo Indians, Hispanic irrigators, 
and city dwellers have all shared with the silvery minnow the water 
they rely on, and they have all shared the wet and dry times.
    It is abundantly clear that a complete environmental analysis of a 
critical habitat designation is an absolute necessity. Federal agencies 
should not have their hands tied by premature designation, forced by 
litigation. If we want to save species, as was and is the intent of the 
Endangered Species Act, then we have to plan how to recover them.
    Recovery plans require objective and measurable criteria for saving 
species, specific descriptions of management actions, and cost 
estimates for those actions. This bill will create a mandatory deadline 
for developing final, comprehensive recovery plans. Critical habitat 
will now be designated in conjunction with those plans.
    I am very proud to be a part of this historic legislation. However, 
some have asked ``Pete, why are you doing this? It won't solve all the 
problems on the Rio Grande.'' I recognize that. But this is the right 
thing to do. It will help people AND endangered species. You cannot 
save a species by pitting people against fish.
    A key aspect of this legislation is the recovery team, where 
interested parties who have to live with the consequences of an 
endangered species in their midst are integral to plan development. The 
role of the Federal Government is, of course, crucial too. I have 
noticed how many people involved in the situation on the Rio Grande 
point the finger of blame at others. Secretary Babbitt called the water 
users and environmentalists the most ``intransigent'' he had ever 
encountered. But I would note that the government can be intransigent, 
too.
    The Rio Grande isn't the only river in New Mexico with endangered 
species impacts. I have a copy of a letter sent yesterday to the 
President, Secretary Babbitt and Director Clark by the Pecos River 
Commission. The Commission recently held a multi-state meeting to 
discuss an endangered fish on the Pecos river. The Fish and Wildlife 
Service effectively did not participate. To find solutions to these 
problems, the Federal Government needs to be an active partner.
    The Department of Interior needs to consider impacts to human users 
before critical habitat is designated. Farmers should not face civil 
and criminal penalties for doing the same thing they have always done, 
before a way to save the fish is established. Right now, critical 
habitat for the silvery minnow must be designated by June 23, unless an 
Environmental Impact Statement is required. Considering the fact that 
the 10th circuit Court of Appeals has stated that designations requires 
full review of effects on humans, and that Interior has admitted via 
affidavit in court and testimony to Congress that they do not know the 
environmental or impact of critical habitat designation for the silvery 
minnow, an EIS is likely. However, obviously tying the recovery 
planning process to that of critical habitat designation is logical. 
Secretary Babbitt has admitted he needs more time to understand the 
impacts of critical habitat designation for this species, and I am sure 
this is true for other species as well.
                                 ______
                                 
           letter submitted with senator domenici's testimony
                                    Pecos River Commission,
                                                      May 24, 1999,

The Honorable William Jefferson Clinton,
President of the United States,
The White House,
Washington, DC 20505.

The Honorable Bruce Babbitt, Secretary,
Department of the Interior,
1849 C. Street, NW,
Washington, DC 20240.

The Honorable Jamie Rappaport Clark, Director,
Fish and Wildlife Service,
1849 C. Street NW,
Washington, DC 20240.

Dear President Clinton, Secretary Babbitt and Director Clark: We are 
the three members of the Pecos River Commission. The Commission was 
formed in 1948 pursuant to the Pecos River Compact, an interstate 
compact ratified by Congress and the legislatures of New Mexico and 
Texas. The Compact apportions the waters of the Pecos River between the 
two States and provides a forum to address interstate water issues. The 
Pecos River Commission consists of a chamnan appointed by the President 
and one representative from each member State, appointed by their 
respective governors.
    We request that you address an issue of grave concern to us and to 
our constituents regarding the Fish and Wildlife Service. This 
Commission placed issues on the agenda for its April 15, 1999 meeting 
in El Paso, Texas, which are very important to people in our region. We 
wanted the Bureau of Reclamation and the Fish and Wildlife Service to 
address these issues at our meeting--a gathering that knowledgeable 
representatives from these agencies have traditionally attended--and 
the Service effectively did not show up.
    Goverrunent teams are conducting NEPA and Endangered Species Act 
studies in the Pecos Valley of New Mexico. The Bureau of Reclamation 
has also been in Section 7 consultation with the Service for several 
years following the listing of the Pecos Bluntnose Shiner under the 
Endangered Species Act. (The Carlsbad Project in New Mexico, one of the 
West's oldest Federal reclamation projects, is operated under the 
auspices of the Bureau). The Service's Albuquerque Office is well aware 
that New Mexico has voiced serious concerns about the quality and 
adequacy of the scientific and technical worl: going into the decision-
making process. The Service's Albuquerque Office is also well aware 
that New Mexico has registered complaints about delays in receiving 
responses to Freedom of Information Act requests that New Mexico has 
made on the Service.
    Based on the data that New Mexico has received, New Mexico did make 
a presentation to the Pecos River Commission at its April 15 meeting. 
New Mexico has concluded that the changes in River operations are based 
on the Service's unsupported determination of Pecos Blunblose Shiner 
habitat refinements. To illustrate its concerns, the State of New 
Mexico cited problems connected with four goverrunent conclusions 
regarding Shiner habitat:
    1. Conclusion that there has been a decline in Shiner population: 
no population estimates have ever been calculated for the Pecos 
Bluntnose Shiner. New Mexico informs the Pecos River Commission that 
there has been a decline in the abundance of Shiner in fish collections 
comparing pre-190 data to the present, but there was actually an 
increase in the abundance of the Shiner in collections taken between 
1991 and 1997 in at least two sections of the Pecos River.
    2. Conclusion that the range of the Shiner is reduced: the range of 
the Shiner has not changed since 1973.
    3. Conclusion regarding loss of habitat: no estimate of the 
quantity of Shiner habitat throughout its range has ever been 
calculated, however there has been an actual increase in Me amount of 
habitat in the upper end of the Shiner's range between 1991 and 1997.
    4. Conclusion regarding threats to the Shiner: no conclusive data 
were found to show that on-going dam and reservoir operations threaten 
the continued existence of the Shiner, although it is unclear exactly 
what the Service means by ``on-going operations.''
    Further, New Mexico reported to the Pecos River Commission that 
there has not been a firm and consistent designation of critical 
habitat for the Pecos Bluntnose Shiner. Given that several years have 
passed since the listing of the species, the ruling of the Tenth 
Circuit Court of Appeals in Forest Guardians v. Babbitt. 164 F.3d 1261 
(lOth Cir., 1998) seems to apply here and the Service should designate 
critical habitat for the Shiner. When the Fish and Wildlife Service 
designates critical habitat, it must consider the ``economic impact. 
and any other relevant: impact of specifying any particular areas as 
critical habitat.''
    Had the Service sent any one of its staff members who have 
knowledge of Pecos issues to the Commission's April 15 meeting, we 
would have been able to engage them on the issues New Mexico has 
raised. Instead, the Fish and Wildlife Service sent an employee with no 
more than 5 weeks total tenure with the Service to our meeting. None of 
her experience involved the programs critical to the Pecos River 
Commission. The representative did offer to ``take back'' the 
Commission's questions to her supervisors, but she was totally 
unfamiliar with the Pecos River operations and with the Compact and 
could answer none of our inquiries.
    Were this failure to send an informed representative a failure of 
the first instance, we may not have registered this complaint with you. 
However, we must also consider the difficulties and delays New Mexico 
experienced when, pursuant to the Freedom of Information Act, New 
Mexico requested the Fish and Wildlife Service to provide the 
scientific data used in Endangered Species Act and NEPA analyses of the 
Bluntnose Shiner. We are left to conclude that the Service's 
Albuquerque Office is reluctant to be forthcoming with, or to engage 
the Pecos River Commission on the issues in a public forum when facts 
exist in the record which do not support the policy positions ofthe 
Albuquerque Office.
    The Commnission meets every spring around mid-April. The Bureau of 
Reclamation, the U.S Geological Survey, the Army Corps of Engineers, 
and (in the past) the Fish and Wildlife Service love traditionally 
sent: knowledgeable representatives to the Commission's annual 
meetings. These agency representatives regularly report on their 
activities over the previous year, on upcoming activities, and they 
answer questions from the Commission and the public. So regular is the 
Commission's meeting schedule that the location of the next year's 
meeting is oDen announced at the close of the culTent year's meeting. 
In fact, the Fish and Wildlife Albuquerque Field Supervisor was present 
at last yearts meeting held in Carlsbad, Steal Mexico when the location 
of this year's meeting in El Paso, Texas was announced. The agendas for 
the meeting are distributed to the Federal agencies (including the 
Service) well in advance. We can think of no reason that the Service 
would not Mow that a meeting was coming up in April or that it should 
send adequately prepared representatives to it.
    We hasten to add that we do commend the Bureau of Reclamation, the 
Geological Survey, and the Corps of Engineers for consistently sending 
experienced staff to our meetings and for responding in a timely manner 
to our inquiries. We especially thank the Bureau, because they knew 
that the Commission would have questions of them as well. Much to their 
credit, representatives of the Bureau of Reclamation, including, the 
Albuquerque area manager, attended our 1999 meeting in El Paso. They 
were prepared to field our questions and respond to our comments.
    The Service's failure to make an effective appearance at this 
meeting is an insult and affront to the Pecos River Commission. More 
importantly, this failure by public servants to face up to public 
scrutiny on an issue of public policy is not acceptable. We are not in 
a position to attribute any motive to the Service's effective failure 
to show up, but that is immaterial: there is no excuse for not sending 
a knowledgeable representative to a meeting under the circumstances 
that eve have described to you.
    The Pecos River Commission respectfully requests that you consider 
the matters we have raised and censure and instruct the appropriate 
Service officials to have knowledgeable personnel in attendance at our 
meetings. We thank you for your consideration of this matter.
            Sincerely,
                                          W. Thrasher, Jr.,
                                             Comissioner for Texas.

                                         Colin R. McMillan,
                                       Commissioner for New Mexico.

                                          Hector Villa III,
          Chairman and Commissioner Representing the United States.
                               __________
    Statement of Jamie Rappaport Clark, Director, Fish and Wildlife 
                  Service, Department of the Interior
    Mr. Chairman, I appreciate this opportunity to comment on S. 1100 
and issues relating to critical habitat, an aspect of the Endangered 
Species Act which the U.S. Fish and Wildlife Service believes needs to 
be amended.
    Mr. Chairman, I would like to thank you and Chairman Chafee, of the 
full Committee, and Senator Domenici for your leadership in introducing 
S. 1100, a bill which attempts to improve the effectiveness of the 
critical habitat designation process. The Service worked extensively 
with the full Committee in the last Congress on legislation to 
reauthorize the ESA (S. 1180). We were able to come to agreement on 
many complicated aspects of the legislation. Although the bill was 
never enacted, the process of its development demonstrated that we can 
work together effectively on complex and difficult issues. We hope to 
work similarly with this Committee to produce even more effective 
results.
    The U.S. Fish and Wildlife Service (Service) is committed to 
improving the efficiency and effectiveness of the Endangered Species 
Act (ESA) in order to achieve its purpose of conserving threatened and 
endangered species and protecting the ecosystems upon which they 
depend.
    The Service believes the process under the ESA of designating 
critical habitat for listed species should be improved in order to more 
effectively achieve the goals of the ESA. We firmly believe that 
attention to, and protection of habitat is paramount to successful 
conservation actions and to the ultimate recovery and delisting of 
listed species. However, in 25 years of implementing the ESA, we have 
found that designation of ``official'' critical habitat provides little 
additional protection to most listed species, while it consumes 
significant amounts of scarce conservation resources. We believe that 
the critical habitat designation process needs to be recast as the 
determination of habitat necessary for the recovery of listed species. 
This ``recovery habitat'' should be described in recovery plans.
    Because of our concerns about the critical habitat designation 
process, the Service has prepared a notice of our intent to clarify the 
role of habitat in endangered species conservation. In the notice we 
will solicit public comments on how the critical habitat provisions of 
the ESA should be administered. We intend to take a wide-ranging look 
at our current interpretation of critical habitat and at our methods 
for determining and designating it. We will request comments from 
interested parties on ways to improve the overall process. We look 
forward to engaging in a meaningful dialogue on this complex issue. It 
is our intent to publish a notice in the Federal Register next month to 
begin this process.
    S. 1100 addresses some of the Service's criticisms of the current 
process. We believe that the protective purposes of the ESA would be 
better served if habitat necessary for the conservation of species were 
identified and protected primarily through the development and 
implementation of recovery plans. S. 1100 accomplishes this. However, 
the Service has concerns with certain aspects of S. 1100. We believe 
that critical habitat designation should not be accomplished through a 
redundant regulatory process and S. 1100 does not remove the redundant 
process. S. 1100 also places additional deadline requirements on the 
Service without including authorization for appropriations to help meet 
these deadlines. The bill does not provide a priority ranking system to 
act as a ``safety valve'' in the case that insufficient funds to meet 
the new responsibilities are appropriated.
    I will comment more extensively on S. 1100 and will provide the 
Subcommittee with suggestions we believe will improve the bill. To 
begin, I will provide background on the existing critical habitat 
process to give an understanding of why the Service believes it needs 
to be amended.
Habitat Considerations in the Endangered Species Act
    Habitat considerations are a key part of virtually every process 
called for in the ESA. For most species, threats to habitat are the 
primary consideration in determining whether a species qualifies for 
protection under the ESA. When species are listed as threatened or 
endangered, the habitats or ecosystems upon which they depend are 
recognized and protected. The first factor of every listing rule 
discusses ``The Present or Threatened Destruction, Modification, or 
Curtailment of the Habitat or Range'' of the species. Once listed, 
conservation and recovery actions are directed to the species as well 
as their habitats. In addition, habitat considerations are prominent in 
all recovery plans, and recovery plans include maps and descriptions of 
the habitat needed to recover the species. Finally, the analysis of 
habitat alteration and/or destruction is the cornerstone of the ESA's 
section 7 consultation process and the section 10 habitat conservation 
planning process. The preceding is true for all species regardless of 
whether or not critical habitat has been designated.
Effects of Critical Habitat Designation
    There exists a wide range of perceptions on the meaning, purpose, 
and value of critical habitat. Contrary to popular understanding, 
critical habitat does not create a ``park'' or a ``reserve'' and has no 
regulatory effect at all on private land when no Federal involvement is 
present; it rarely affords additional protections to species listed 
under the ESA; and it does not require economic analyses of the impact 
of species listings.
    As defined in the ESA, critical habitat is:

    (i) the specific areas within the geographical area currently 
    occupied by a species, at the time it is listed in accordance with 
    section 4 of the ESA, on which are found those physical or 
    biological features (I) essential to the conservation of the 
    species, and (II) which may require special management 
    considerations or protection; and (ii) specific areas outside the 
    geographical area occupied by a species at the time it is listed 
    upon a determination by the Secretary that such areas are essential 
    for the conservation of the species.

    Once designated, critical habitat has only one regulatory impact: 
under section 7(a)(2), Federal agencies must, in consultation with the 
Service, insure that any action they authorize, fund, or carry out is 
not likely to result in the destruction or adverse modification of 
critical habitat.
    Thus, critical habitat is linked only to the section 7 process and 
is only enforceable when a Federal nexus, meaning some sort of Federal 
involvement, exists sufficient to trigger a section 7 consultation.
    The Service believes that the protection conveyed by designation of 
critical habitat is duplicative of the prohibition against jeopardy for 
most species. Section 7 prohibits Federal agencies from taking actions 
that jeopardize the continued existence of a listed species or actions 
that adversely modify critical habitat. In our implementing regulation, 
jeopardy is defined as engaging in an action that reasonably would be 
expected, directly or indirectly, to reduce appreciably the likelihood 
of both the survival and recovery of a listed species in the wild by 
reducing the reproduction, numbers, or distribution of species. These 
effects are caused, almost without exception, by impacts to habitat. 
Destruction or adverse modification of critical habitat is defined as a 
direct or indirect alteration that appreciably diminishes the value of 
critical habitat for both the survival and recovery of a listed 
species. For almost all Federal actions, the adverse modification of 
critical habitat and jeopardy to the species standards are the same, 
resulting in critical habitat designation being no more than regulatory 
process that duplicates the protection already provided by the jeopardy 
standard.
    Because the complex biological needs of many species are not well 
documented at the time of listing, the importance of unoccupied habitat 
for population expansion, species introductions, or out plantings/
seeding of rare plants becomes known during the recovery phase of the 
conservation process.
    A major misconception of critical habitat designation is that it 
calls for examining the economic impacts of listing. This is not the 
case. The economic analysis that is required for a critical habitat 
designation examines the economic impacts of the designation only. For 
almost all species, there are no significant economic impacts 
associated with a designation of critical habitat because there are 
usually no additional restrictions on activities beyond those resulting 
from listing of the species.
Critical Habitat Litigation
    Some parties view critical habitat as providing additional 
regulatory protection. One result of this view is that we are 
experiencing an increasing number of lawsuits designed to compel 
critical habitat designations. These lawsuits necessitate the diversion 
of scarce Federal resources from imperiled, but unlisted species which 
do not yet benefit from the protections of the ESA.
    All of the critical habitat lawsuits with which we are burdened 
concern species that are already listed and are receiving the full 
protection of the ESA. There are currently 15 active lawsuits involving 
critical habitat designations. In addition, there are currently six 
critical habitat lawsuits that have been resolved by a court order 
requiring the Service to reconsider earlier critical habitat decisions 
or to designate critical habitat. Lastly, we currently have 12 Notices 
of Intent to sue for alleged violations regarding critical habitat; 
some of the Notices of Intent cover more than 30 species.
    The litigation burden placed on the Service is causing serious 
delays in our ability to protect the many highly endangered species 
which are not listed, and are therefore not afforded any of the ESA's 
protections. For example, in Hawaii, a single court order remanded 245 
``not prudent'' critical habitat determinations for Hawaiian plants. 
There are other species in Hawaii that are not yet listed and are 
facing severe conservation risks while precious resources are being 
depleted on critical habitat litigation support and the reexaminations 
of critical habitat prudency determinations for species already listed.
    This situation is causing the delay of listing actions of all 
types, including final determinations, new proposed rules, resolution 
of candidate's conservation status, and even the processing of 
petitions from members of the public who have specific listing and 
delisting actions they want the Service to consider. Additionally, the 
administrative burdens associated with litigation on a regular basis 
are taking their toll on staff at all levels of the Service. Many 
listing program duties are not being completed because of the demand of 
staff attention to the preparation of responses to a steady stream of 
complaints, the compilation and certification of species' 
administrative records, and the necessity for declarations and 
affidavits.
Critical Habitat Designation Process
    I would like to describe for the Subcommittee the steps involved in 
designating critical habitat under current law. The Service believes 
that this process needs to be recast, and included in recovery plans, 
as the determination of habitat necessary for the recovery of listed 
species (or more succinctly stated, ``recovery habitat'').
    Designation of critical habitat is a complex, science-based task. 
First, information on population locations, ecological needs, and 
habitat use of the species must be compiled and analyzed to determine 
what areas meet the definition of critical habitat as specified in the 
ESA. These areas must be delineated on a map. Land ownership must be 
researched and identified. We must then complete an analysis of the 
economic impacts of critical habitat designation, and determine if such 
impacts indicate that the benefits of exclusion of a particular area 
outweigh the benefits of its inclusion. The economic analysis is 
usually contracted to a third party which prepares a draft report for 
review. The draft is usually made available for public comment, and 
once all comments are analyzed, a final economic analysis is completed, 
printed, and distributed. A proposed critical habitat designation is 
published as a proposed rule in the Federal Register, and a comment 
period is opened. During this time, public hearings and/or public 
meetings are held. Written and oral testimony may be entered into the 
record at these meetings. Lastly, the Service compiles all comments 
(both written and oral) and data received during the comment period and 
analyzes them for use in the final decision making process.
    The Service believes that conducting this analysis in an open, 
collaborative environment, at the appropriate time (the recovery 
planning phase) is a more efficient way to conserve and recover 
species.
Comments on S. 1100
    I would like to make some comments on S. 1100, however, given that 
the bill was just recently introduced, it is possible that further 
analysis will yield additional comments. I ask that the Subcommittee 
accept any additional comments we may provide in writing for inclusion 
in the record.
    Section 1 of S. 1100 requires a recovery team to be appointed by 
the Secretary within 60 days of the publication of a final listing 
regulation. This is not a realistic deadline. Listing regulations are 
not effective until 30 days after publication in the Federal Register. 
This is required by the Administrative Procedures Act, and is only 
excepted when an emergency listing is necessary or in the rare case 
that necessitates immediate effectiveness of the listing for biological 
timing purposes (e.g., imminent nesting or spawning).
    The Service suggests that at least 120 days be allowed for the 
formulation of recovery teams. Recovery teams are comprised of species 
experts and interested parties who often have very busy and conflicting 
schedules. Identifying, contacting, and formally appointing appropriate 
people willing to participate in the recovery planning process can be 
logistically difficult. A greater allowance of time will result in more 
stable and effective recovery teams.
    S. 1100 moves the designation of critical habitat from the listing 
phase to the recovery phase of the ESA. The Service believes this shift 
is highly appropriate. Because listing focuses on threats to a species, 
there are many instances where the biological elements necessary for 
the conservation and eventual recovery of the species are not known 
until later in the conservation process, namely during the recovery 
phase. Also, the recovery phase is the appropriate time for analyzing 
the economic effects of designation of critical habitat because 
recovery planning inherently involves consideration of economic 
feasibility.
    Once a species is listed, a recovery team comprising scientific 
experts on the species is identified and convened. The team identifies 
conservation measures that will facilitate the recovery of the species. 
The more that is known about a species' needs, the easier it is to 
address those needs through on-the-ground conservation and recovery 
measures. If areas of unoccupied habitat are required for a particular 
species to recover, that information will become available through the 
recovery team and the recovery implementation process and critical 
habitat can be specified accordingly.
    Section 2(a) of S. 1100 requires publication in the Federal 
Register of a proposed regulation designating critical habitat 
concurrent with the publication of a draft recovery plan. The Service 
strongly suggests adopting a much more collaborative approach that 
fully integrates the identification of recovery habitat into the 
recovery planning process. This will allow recovery teams to identify 
and determine habitat essential to listed species' conservation during 
the recovery planning process. This is more effective than requiring 
recovery plan development and the redundant designation of critical 
habitat by separate regulation. Recovery plans would still be subject 
to public review and statutory deadlines for the publication of draft 
and final plans. This cooperative process will give the experts and 
stakeholders comprising recovery teams flexibility and adequate time to 
determine the habitat necessary for recovery. These parties, working 
together, are best suited to describing species' habitat needs and 
determining and implementing the recovery actions necessary for the 
conservation of listed species and eventual delisting. The product of 
this collaborative process would be published in draft and final 
recovery plans, which could then be appropriately revised as new 
information becomes available.
    The Service is concerned that passage of S. 1100 as now written 
will result in litigation which could delay or halt the implementation 
of actions necessary for the eventual recovery and delisting of 
species. The well-intentioned parties that now sue the Service over 
perceived critical habitat requirements currently linked to listing 
regulations, may refocus their efforts on litigation involving critical 
habitat regulations linked to the recovery planning process. Instead of 
crippling the listing process and delaying the ESA's protection, such 
litigation would affect the recovery planning process, and on-the-
ground recovery actions could be delayed for species only a few short 
steps away from downlisting and eventual delisting.
    In advocating the revision of the critical habitat designation to a 
more collaborative, science-based recovery habitat determination, the 
Services' intent is not to circumvent our legal responsibilities to 
protect listed species and their habitat. Rather, our intent is to 
better uphold our responsibility to protect and restore declining 
species in the most efficient and effective manner possible. The 
protection, conservation, and recovery of endangered and threatened 
species is what matters most in the entire ESA process. We believe that 
this new process will better serve this goal.
    The recovery planning requirements included in S. 1100 will impose 
additional workload burdens on the Service. S. 1100 requires completion 
of a draft recovery plan within 18 months and a final recovery plan 
within 3 years of a listing regulation. To accomplish these tasks, many 
additional Service biologists will need to participate as recovery team 
members or facilitators. Without additional appropriations, other 
recovery duties could be delayed. The Service recommends S. 1100 
include sufficient authorization for appropriations above current ESA 
authorization levels to offset these burdens, and our success in 
carrying out these additional responsibilities will depend upon the 
will of Congress to appropriate the necessary funds.
    The Service further recommends including language to establish a 
priority ranking system, similar to language in S. 1180 (105th 
Congress), for certain requirements in the bill. Such a system would 
allow the Service to address situations on a prioritized basis in the 
case that sufficient funds are not appropriated to carry out the 
requirements of the bill on time. Without such a ``safety valve,'' and 
without the needed appropriations, the Service would likely be subject 
to even more litigation. Taxpayers will pick up the tab for the 
lawsuits which will be filed as a result of missed deadlines, and 
protection for listed and imperiled species will be diminished.
    I want to conclude by emphasizing that the Service continues to 
believe that identification, protection, restoration, and conservation 
of habitat are paramount to the successful recovery of endangered and 
threatened species. The scientific determination of habitat necessary 
for species recovery should be undertaken during the recovery planning 
process and not as part of a duplicative regulatory process. I again 
commend the Subcommittee's efforts to address the complex, 
controversial, and poorly understood issue of critical habitat. We look 
forward to working with the Committee on critical habitat issues.
    Mr. Chairman, this concludes my prepared testimony. I would be 
pleased to respond to any questions you and other members of the 
Subcommittee might have.
                                 ______
                                 
  Responses of Jamie Clark to Additional Questions from Senator Baucus
    Question 1. What is the Administration's view of the citizen suit 
provision of S. 1100 (page 8, line 19--page 9, line 8)?
    Response. If appropriate amendments are added to S. 1100 to conform 
the determination of critical habitat to the recovery planning process, 
then we would support the extension of citizen suit jurisdiction in 
Section 11(g) of the Endangered Species Act to recovery planning 
deadline cases and to merit claims brought under proposed Section 4A. 
We oppose any amendments to Section 11(g) that would confine or 
restrict the ability of interested persons to challenge violations of 
the procedures or substantive requirements of the Endangered Species 
Act.

    Question 2. In your testimony, you recommend that S. 1100 include 
sufficient authorization for appropriations above current ESA 
authorization levels to offset the workload burdens imposed on the 
Service by the changes that S. 1100 would make to the recovery planning 
process. What additional authorization would be sufficient?
    Response. Assuming 5-year authorization, an additional 
authorization of $42 million per year will be needed in the Recovery 
Program to meet the new requirements in S. 1100. This recommended 
additional authorization addresses the increased funding needs 
necessary to ensure that we can develop recovery plans within 5 years 
for all species currently listed but without recovery plans, and can 
complete recovery planning within 30 months for all species listed from 
the date of enactment.

    Question 3. The 1995 National Research Council report, ``Science 
and the Endangered Species Act'' recommends that the designation of 
critical habitat be deferred from the time a species is listed to the 
time that a recovery plan is issued. In addition, the report recommends 
that ``survival habitat'' be designated at the time a species is 
listed. What is your response to the latter recommendation?
    Response. As I stated in my testimony before the Subcommittee, 
habitat considerations are a key part of every process called for in 
the ESA. Threats to habitats are identified in every regulation to list 
a species and the section 7 consultation requirements, which protect a 
species' habitat, begin immediately upon listing. An interim 
designation of survival habitat would not, in our view, add to those 
mechanisms to protect the habitat that are already in place. This 
designation of ``survival habitat'' at the time of listing would be 
burdened by the same lack of complete information that is common to 
critical habitat designations. In addition, its more limited scope 
would likely ensure near total overlap with the protections provided by 
the section 7 jeopardy standard.
                                 ______
                                 
   Responses of Jamie Clark to Additional Questions from Senator Kay 
                            Bailey Hutchison
    Question 1. As you know, the Barton Springs Salamander was listed 
as endangered under the ESA on May 30, 1997, almost 2 years ago. When 
the Salamander was listed, the Service announced that compliance with 
state and local laws was sufficient to conserve the species. What is 
FWS position now?
    Response. The Service has not changed its position since the final 
listing of the Barton Springs salamander (April 30, 1997 (62 FR 
23377)). We still believe that protecting water quality through 
compliance with State and local laws is key to reducing the threats to 
the species and ensuring eventual recovery.

    Question 2. As you are aware, since 1994, USFWS, the Texas Parks 
and Wildlife Department and a coalition of landowners have been working 
to develop a conservation agreement that would conserve nine species of 
cave invertebrates in Bexar County, Texas. I fully support this type of 
effort and believe this is the right way to protect species. If USFWS 
can encourage private efforts to ensure the conservation of species, 
then we will be able-to achieve more conservation with our limited 
resources and at the same time develop cooperative relationships with 
the private sector.
    Can you tell me the status of this conservation agreement?
    Response. In our February 4, 1999, letter to you, the Service 
discussed the conservation efforts for nine Bexar County invertebrates. 
After a 4-year concerted effort working on a conservation agreement for 
the nine invertebrates, we determined that the lack of commitment of 
funds to carry out on-the-ground conservation implementation weakened 
the conservation agreement's ability to reduce the threats to the 
species and preclude the need to list. Given the precedent set by the 
District Court in 1997 (Barton Springs salamander litigation), the 
Service determined that proposing the species for listing was the most 
prudent course of action. We continue to work with our partners in the 
conservation of the imperiled Bexar County invertebrates in order to 
ensure long-term conservation of the species. If the conservation 
agreement progresses to the point where funding is provided to carry 
out the necessary conservation measures and threats to the species are 
removed or reduced to the point where listing is no longer warranted, 
the Service would consider withdrawing the proposal to list the 
species. We will continue to work with the coalition (landowners and 
the State of Texas) in all efforts to conserve the Bexar County 
invertebrates. We met with the coalition on January 21, 1999, to 
discuss the conservation agreement and the necessary steps that will 
need to take place to provide for the long-term conservation of the 
species. The statutory deadline to complete a final determination for 
the nine Bexar County invertebrates proposed as endangered is December 
30, 1999.

    Question 3. What priority does FWS place on critical habitat 
designations versus other listing/delisting activities? What is the 
current litigation burden with respect to critical habitat 
designations?
    Response. The current Listing Priority Guidance for fiscal year 
1998-1999 (May 8, 1998 (63 FR 25502)) prioritizes listing actions to be 
undertaken by the Service. The current guidance is a three-tiered 
system. Emergency listing actions are the highest priority (Tier 1); 
final determinations, new proposals (or candidate removals), petition 
findings, and reclassifications/delistings (moved to a recovery 
function with the fiscal year 1999 appropriation) are the next priority 
(Tier 2); and critical habitat actions are the lowest priority (Tier 
3). The Service considers obtaining the ESA's protections for imperiled 
species to be the most important actions to be completed with our 
limited resources. Critical habitat is the lowest listing program 
activity because the species considered for critical habitat 
designation already receive section 7 (consultation requirement) and 
section 9 (take provision) protective measures.
    As stated in my written testimony, as of April 30, 1999, the 
Service has received 12 Notices of Intent to Sue (some covering more 
than 30 species) and is involved in over 15 active lawsuits regarding 
critical habitat designations. Additionally, we are working to comply 
with six court orders, all involving critical habitat actions.
                                 ______
                                 
  Responses of Jamie Clark to Additional Questions from Senator Boxer
    Question 1(a). The FWS testimony on S. 1100 states that the 
designation of ``official'' critical habitat under the ESA''provides 
little additional protection to most listed species.''
    Is this the case solely because ESA implementing regulations define 
the standard which governs the jeopardy determination and adverse 
modification of critical habitat determination as essentially the same?
    Response. The similarity in definition and ultimate effect of the 
``jeopardy'' and ``destruction and adverse modification'' standards do 
contribute substantially to our conclusion that designation of critical 
habitat generally provides little additional protection to most listed 
species. However, in addition, we have found that critical habitat 
designation can also put species at greater risk of vandalism, 
collection, or harmful harassment, and the public controversy often 
associated with critical habitat designation works to the detriment of 
listed species by making recovery efforts more difficult and 
contentious.

    Question 1(b). In the rulemaking defining those standards, what was 
the FWS' legal justification, if any for defining these two distinct 
statutory commands in 16 U.S.C. Sec. 1536(a)(2) as having essentially 
an identical meaning?
    Response. The substance of these two regulatory definitions has 
remained unchanged since consultation regulations were first 
promulgated in final form in January 1978. Both terms were defined in 
teens that focused upon survival and recovery of the species, and with 
sufficient flexibility to encompass the multitude of circumstances 
associated with every possible consultation situation. The Service and 
the National Marine Fisheries Service specifically concluded at the 
time of final rulemaking that the definitions ``contain adequate 
criteria and guidelines to be utilized by the FWS and NMFS and provide 
a rational basis for the two Services to implement section 7'' (43 FR 
873, January 4, 1978).

    Question 2. In the 1995 report ``Science and the Endangered Species 
Act,'' the National Research Council (NRC) articulated the advantages 
of early designation of critical habitat in this way:

    ``The advantages of early designation include the provision of some 
    'early warning' to all parties, and in particular, the affected 
    Federal agencies, that such areas are to be treated with particular 
    caution. Designated habitat is protected by a more objective 
    standard (``no adverse modification'') than that provided for 
    threats to species (``no likelihood of jeopardy'') in that adverse 
    habitat modifications are more amenable to objective measurement 
    and quantification than are the many factors that might contribute 
    to jeopardizing the survival of species. The standard of habitat 
    protection provides an important point of focus for those outside 
    of government, including the scientific community, to help protect 
    areas at least until recovery plans are developed that will clarify 
    the needs of endangered species and provide more fully for their 
    recovery.'' NRC Report at 76.

    Does the FWS agree with the NRC recitation of the benefits that 
would attend the early designation of critical habitat? If not, why 
not?
    Response. The Service already notifies landowners and land managers 
when a species is proposed to be listed. We undertake an extensive 
outreach effort to inform the public, State agencies, County and local 
governments, other Federal agencies, Members of Congress, and other 
interested parties when a species is listed. Additionally, the section 
7 consultation requirement begins upon listing. Our Ecological Services 
Field Offices and our seven Regional Offices work with Federal agencies 
and the landowners involved to ensure that actions involving a Federal 
nexus do not harm the species or its habitat. We believe that, in most 
cases, critical habitat designation provides little additional ``early 
warning'' beyond that already exercised.
    We also believe that both the ``jeopardy'' and ``adverse 
modification'' standards are equally amenable to objective measurement. 
One cannot assess the significance of habitat modifications in 
isolation of the ecology of the species. Application of both standards 
must necessarily consider the many factors affecting the survival of 
the species.

    Question 3. While the NRC finds benefit in designating critical 
habitat at the time of recovery planning, it also recommends the 
designation of so-called ``survival habitat'' (defined as ``habitat 
necessary to support either current populations of a species or 
populations that are necessary to ensure short-term (25-50 years) 
survival, whichever is larger'') at the time of listing:

    ``Because critical habitat plays such an important biological role 
    in endangered species survival, we believe that some core amount of 
    essential habitat should be designated at the time of listing and 
    should be identified without reference to economic impact.'' NRC at 
    77.

    Does the FWS agree with the NRC that the designation of such 
survival habitat at the time of listing would be beneficial to listed 
species?
    Response. We certainly agree that habitat protection is important 
to the conservation of threatened or endangered species. In some cases, 
critical habitat designation can provide some benefits to the species, 
although in most cases the habitat protection benefits of critical 
habitat designation are duplicative of that provided through the 
Section 7 protections provided by listing alone. With regard to the 
advisability of designating survival habitat, one must also look at the 
detriments, such as increased risk of vandalism, collection, or 
purposeful take, and loss of landowner support for conservation 
efforts. It is in that larger picture of conservation benefits that the 
Service has generally found critical habitat designation not prudent. 
The same would apply, as a general rule, to survival habitat.

    Question 4. In the designation of critical habitat for the northern 
spotted owl, what benefits did the FWS rely upon in the rulemaking for 
that designation?
    Response. The concluding remarks of the northern spotted owl 
critical habitat designation states that ``critical habitat may 
contribute to regional biodiversity by protecting natural ecosystems of 
sufficient size and quality to support native species, as well as 
protecting listed, proposed, and candidate species. Critical habitat 
may also help in retaining ecosystem values through a combination of 
preservation, conservation, and compatible management of forest habitat 
with an emphasis given to older forest values and characteristics. 
However, these are dynamic and complex issues that include both spatial 
and temporal components that are not addressed by the designation of 
critical habitat alone.''

    Question 5. While the FWS rarely performs critical habitat 
designations, the National Marine Fisheries Service (NMFS) frequently 
does designate critical habitat.
    Question 5(a). What accounts for the different track records of the 
two agencies in this regard?
    Response. We continue to maintain that there is little added 
protection afforded to species by the designation of critical habitat. 
Our experience in designating critical habitat has also shown that it 
is very expensive and resource intensive when weighed against the 
benefits derived. We cannot speak to the specific circumstances of 
NMFS' critical habitat designations, or to NMFS' views or record on 
designating critical habitat.

    Question 5(b). If the difference relates to the larger number of 
species under FWS jurisdiction relative to NMFS, how do the 
congressional appropriations for critical habitat designations for the 
two agencies compare?
    Response. In fiscal year 1999, the Service was appropriated 
$5,756,000 for listing. Although no specific figure was specified to be 
applied to critical habitat designations, the Service allocated 
$979,000 of this amount to the Regions for work related to critical 
habitat designations.
    It is our understanding that NMFS' Endangered Species program 
appropriations are organized by species or species groups and that 
appropriations for critical habitat designations cannot be separately 
identified.

    Question 6. How many legal challenges to ESA recovery plans have 
been brought against the Interior Department? What were the basic 
allegations in those challenges, and how were the challenges resolved?
    Response. Our litigation data base includes 6 lawsuits challenging 
recovery plans. We also have received 5 notices of intent to sue 
regarding recovery plans. Three of the lawsuits have been resolved 
either by agreement or court order and three remain active.

    Question 7. Has lack of information ever been cited by the FWS as a 
reason for not designating critical habitat? If so, have the courts 
supported this rationale in claims challenging FWS' determinations not 
to designate?
    Response. The ESA allows for a critical habitat determination of 
``not determinable.'' When a not determinable finding is made, an 
additional year is granted to obtain the information necessary for the 
determination. Critical habitat is not determinable when one or both of 
the following situations exist: (I) information sufficient to perform 
required analyses of the impacts of the designation is lacking, or (ii) 
the biological needs of the species are not sufficiently well known to 
permit identification of an area as critical habitat (50 CFR 
Sec. 424.12(a)(2)). While lack of information may be a basis for 
extending the deadline for making a critical habitat determination, the 
Service has not used lack of information as a reason for not 
designating critical habitat.
                                 ______
                                 
  Responses of Jamie Clark to Additional Questions from Senator Crapo
    Question 1. The ESA allows designation of habitat that the 
Secretary deems to be critical. Do you believe that the ESA provides 
legal authority for the Secretary to designate areas that a species 
does not use, at the time of designation, as habitat? For example, can 
land that might, some day, be useful to a species be designated as 
critical now?
    Response. Yes, the ESA does provide the Secretary the authority to 
designate suitable but unoccupied habitat as critical habitat. In fact, 
the definition of critical habitat from section 3 of the ESA defines 
critical habitat as--(i) the specific areas within the geographical 
area currently occupied by a species, at the time it is listed in 
accordance with section 4 of the Act, on which are found those physical 
or biological features (I) essential to the conservation of the 
species, and (II) which may require special management considerations 
or protection, and (ii) specific areas outside the geographical area 
occupied by a species at the time it is listed upon a determination by 
the Secretary that such areas are essential for the conservation of the 
species. Those areas outside the geographical area occupied by a 
species may be important for the species' conservation at a later date, 
however, they could be designated as critical habitat while the areas 
are still not occupied by the species.

    Question 2. At the time of listing of a threatened or endangered 
species, are you able, as a matter of biological certainty, to predict 
how much, or how little, habitat is necessary for the species? Are you 
better able to predict, when you enter into a recovery plan, how much 
or how little habitat is necessary for the conservation of threatened 
or endangered species?
    Response. It is very difficult to predict how much or how little 
habitat is necessary for a species to recover. Those types of analyses 
are more properly conducted during the recovery planning phase than at 
the time of listing. Generally, more biological information about a 
species, including its habitat requirements, becomes known during the 
recovery planning phase. Because of the collaborative nature of the 
recovery planning process, information is not only obtained, but 
disseminated and analyzed, and disseminated again. Additionally, it is 
often easier for researchers to obtain funding to conduct research on 
the species after it has been listed, therefore, more information is 
usually published or available during the recovery planning phase.

    Question 3. S. 1100 refers to the appointment of a recovery team. 
How inclusive should the recovery team be--do you believe that a 
recovery team should include those who may suffer economically as a 
result of ESA regulation?
    Response. We believe a recovery team should include individuals who 
have knowledge of the species or expertise in elements of the recovery 
plan or its implementation, and who can also represent constituencies 
with an interest in the economic or social impacts of recovery.

    Question 4. Current law and S. 1100 allow areas to be excluded from 
critical habitat, if the benefit of exclusion exceeds the benefit of 
inclusion. In my view, this language allows, and perhaps requires, a 
cost-benefit analysis. For example, the Service could exclude an area 
that is marginal to the conservation of a species, if the Service found 
that inclusion of that area would result in, say, severe economic 
impacts? What is your interpretation of this language?
    Response. Under current critical habitat designation regulations, 
exclusions are possible due to severe economic consequences. S. 1100 
retains that provision.

    Question 5. One of the only places where economic effects have to 
be considered is at the critical habitat designation phase. Some 
Members are concerned that the effect of this legislation will be to 
delay implementation of the economic effects analysis required by 
current law. How effective is the economic effects analysis under 
current law? How would you answer these concerns?
    Response. The examination of economic effects of critical habitat 
designation is required under the current regulations. An economic 
analysis must be prepared for all areas designated as critical habitat. 
We believe that economic effects have been properly considered in 
previous critical habitat designations and the exclusionary provisions 
have been utilized when appropriate. The preparation of an economic 
analysis during recovery planning would work to enhance the quality of 
the information available for analysis.

    Question 6. What is the cost of a critical habitat designation for 
both the scientific and economic evaluation? What is the regulatory 
process cost of designating critical habitat?
    Response. We can only estimate the overall costs of a critical 
habitat designation. Each species for which critical habitat is 
designated may be different because of the species' range, biological 
needs, nesting/breeding requirements, etc. For example, we estimate 
that the critical habitat designation for the Mexican spotted owl cost 
over $500,000. Costs associated with economic analyses range from 
$41,000 to $270,000. As far as the costs of the regulatory process of 
designating critical, staff time is the major expense. Staff time 
cannot be estimated for most actions. Finally, the Federal Register 
publication page costs ($300-$375 per printed page) add to the overall 
cost of designation of critical habitat.
                               __________
Statement of William R. Murray, Natural Resources Counsel, on Behalf of 
                the American Forest & Paper Association
    Mr. Chairman and members of the Subcommittee, thank you for the 
opportunity to testify today on S. 1100 and the issues surrounding the 
designation of critical habitat under the Endangered Species Act (ESA).
    I am William Murray, Natural Resources Counsel 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 130 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. AF&PA member companies, as a condition of membership, 
must also commit to conduct their business in accordance with the 
principles and objectives of the Sustainable Forestry Initiative (SFI) 
program.
    The SFI program is a comprehensive system of principles, objectives 
and performance measures that integrates the perpetual growing and 
harvesting of trees with the protection of wildlife, plants, soil and 
water quality. It is based on the premise that responsible 
environmental practices and sound business practices can be integrated 
to the benefit of landowners, shareholders, customers and the people 
they serve. Professional foresters, conservationists and scientists 
developed the SFI program. These men and women were inspired by the 
concept of sustainability that evolved from the 1987 report of the 
World Commission on Environment and Development and was subsequently 
adopted by the 1992 Earth Summit in Rio de Janeiro. The SFI program 
participants support sustainable forestry practices on the lands they 
manage and actively promote such practices on other forestlands. This 
commitment to sustainable forestry stems from the participants' 
convictions that forest landowners have a critical stewardship 
responsibility to current and future generations of Americans.
    Congress enacted the ESA to protect endangered and threatened 
species, a goal which we support. We believe the principles behind the 
ESA represent those qualities which make our society the finest in the 
world. However, support of that goal does not mean that the resulting 
law is perfect and immune from review. The ESA has been updated 
periodically since its enactment in 1973, most recently in 1988. Under 
Congress' own schedule, the law was due for review and updating in 
1992. That date has long since past and the need for action grows each 
year.
    S. 1100 focuses on moving the designation of critical habitat from 
the listing process to the recovery planning process. As outlined 
below, improving the recovery planning process is one the six key areas 
in the ESA which AF&PA has identified as needing attention. Moving 
critical habitat into the recovery planning process is an important 
step, but we have some suggestions which we believe will ensure that 
this change has the desired effect.
                                   i.
    The ESA, often called the ``pit bull'' of environmental laws, 
grants sweeping powers and authority to Federal agencies for endangered 
species protection. It is weighted heavily in favor of species 
protection at the expense of all other considerations. AF&PA's goal is 
to make the ESA work for species and people. AF&PA believes that any 
amendment of the ESA must be based on the valuable lessons gained from 
26 years of experience with the Act. Congress should update the 
Endangered Species Act in six key areas:

      ensure that the best science is used, including peer 
    review and quality control processes;
      consultation on Federal actions must be prompt and 
    accurate and, when conducted over a Federal permit required for a 
    private activity, must have a limited scope;
      private landowners must be given reasonable compliance 
    and relief procedures that do not impose an unfair burden for 
    protection of a public resource;
      the recovery plan must be the focus of all management and 
    regulatory efforts on behalf of a species, including consideration 
    of social and economic impacts, relative risks, costs and 
    alternative recovery strategies;
      prohibited activities must be defined in a way that 
    avoids speculative enforcement;
      private landowners must be provided incentives to work 
    cooperatively with the government to protect listed species.
                                  ii.
    Critical habitat, as currently provided in the ESA and implemented 
by the U.S. Fish and Wildlife service (``FWS'') and the National Marine 
Fisheries Service (``NMFS'')(together, the ``Services''), suffers from 
several problems. FWS believes that critical habitat ``is not an 
efficient or effective means of securing the conservation of a 
species,'' particularly as compared to the controversy it causes and to 
the ``monetary,. administrative, and other resources it absorbs.'' 
Final Determination of Critical Habitat for the Southwestern Willow 
Flycatcher, 62 Fed. Reg. 39129, 39131 (July 22, 1997). The agency does 
not even include critical habitat designations on its ``Box Score'' on 
the back cover of its Endangered Species Bulletin and on its web site. 
In its annual Listing Priority Guidance, FWS has ranked critical 
habitat designation as the lowest priority. Indeed, the Services have 
designated critical habitat for less than 20 percent of listed species, 
despite decisions from the U.S. Courts of Appeal for the 9th and 10th 
Circuits curtailing their ability to find designation is not prudent. 
Natural Resources Defense Council v. U.S. Department of the Interior, 
113 F.3d 1121 (9th Cir. 1997); Forest Guardians v. Babbitt, 164 F.3d 
1261 (10th Cir. 1999).
    The ESA directs the Secretary to take into account the economic 
impact before designating critical habitat and to exclude land if the 
benefits of exclusion outweigh the benfits of designation, provided 
extinction will not result. However, in their economic analyses, the 
Services only consider the ``incremental'' impacts over and above those 
caused by the actual listing. Since listing must be based solely on 
biologic factors, the government rarely, if ever, considers the full 
economic effects of actions under the ESA. Perhaps as a result, there 
has not been extensive use of the authority to exclude land. Indeed, 
the Service's joint regulations only provide for preparation of the 
economic analysis after issuance of the proposed designation. 50 C.F.R. 
424.19. This would preclude public review and comment on the analysis, 
except the Services now ignore their rule and provide an opportunity 
for comment on the analysis when they propose the designation.
    The only statutory role for designated critical habitat is provided 
by ESA section 7(a)(2). This paragraph requires Federal agencies, in 
consultation with the Secretary, to ensure that their activities are 
not likely to jeopardize the continued existence of a listed species 
``or result in the destruction or adverse modification of habitat of 
such species which is determined by the Secretary, after consultation 
as appropriate with affected States, as critical.'' The Services have 
defined ``destruction or adverse modification'' and ``jeopardize'' in 
substantially the same terms, thus combining the consultation criteria 
into one. 50 C.F.R. 402.02. As noted above, FWS believes that critical 
habitat adds little to the conservation of the species beyond that 
achieved when the species was listed. NMFS, on the other hand, finds 
some benefit in providing Federal agencies an early alert in their 
planning processes. Designated Critical Habitat: Central California 
Coast and Southern Oregon/Northern California Coasts Coho Salmon, 64 
Fed, Reg. 24049, 24050 (May 5, 1999).
    Since the consultation on jeopardy and critical habitat occurs at 
the same time, the existence of critical habitat does not normally 
cause any additional delay. However, if the species is listed first and 
critical habitat designated at a later time, problems can arise. For 
example, there were instances in the Pacific Northwest where proposed 
Federal actions underwent consultation on the listing of the northern 
spotted owl, a second consultation after the designation of critical 
habitat for the owl, a third consultation after the listing of the 
marbled murrelet, and a fourth consultation after designation of 
critical habitat for the murrelet. Admittedly, serial consultation to 
this extent rarely happens anymore because the timber sale program in 
the Northwest has come to a virtual halt.
    The Services acknowledge that designation of critical habitat has 
no statutory effect on private land, unless the landowner seeks an 
action from a Federal agency, such as a permit or funding. (As the 
Services insinuate themselves into the permitting programs delegated to 
the States, such as the National Pollution Discharge Elimination System 
under the Clean Water Act, the number of permits for activities on 
private land resulting in some form of consultation may well increase.) 
Nonetheless, designation produces a map with lines drawn by a Federal 
regulatory agency. Most landowners, and their bankers, find it 
difficult to believe that the lines mean nothing. Indeed, NMFS recently 
touted the lines as a benefit of designation because it helps ``focus 
Federal. tribal, state and private conservation and management efforts 
in such areas.'' Id. While this statement carries no threat of 
regulatory action, it exemplifies ``targeting'' the land which in turn 
generates the controversy. (In a new approach to critical habitat, NMFS 
only drew lines in the regulation for the water portion of coho salmon 
critical habitat. For the dry land portion, the agency merely 
designated the ``adjcent riparian zone.'' In the premable to the 
rulemaking, NMFS described these zones as any area adjacent to 
designated riverine critical habitat which contains certain functional 
qualities, leaving landowners guessing as to the location and extent of 
qualifying zones.)
    Given the overall disarray of the critical habitat concept and the 
lack of support from the expert agencies, we recommend that it be 
merged entirely into the recovery plan. Many would say that the 
Services have effectively accomplished this in any event. However, it 
continues to drain resources from the Services as litigation mounts. 
Retaining critical habitat as a separate rulemaking process makes no 
sense if the ultimate goal is recovery. S. 1100 makes only a tentative 
step in this direction.
    First, S. 1100 only changes the timing of designation by moving it 
from the listing process to the recovery process. The Subcommittee 
should be aware that there are some who value the opportunity to submit 
economic information at the time a species is proposed. Since listing 
may only be based on biologic considerations, such comments will only 
be taken by the Services if critical habitat is also proposed. This 
opportunity could be preserved by retaining proposal of habitat and 
potential impact in the proposed rulemaking for listing, with comments 
to be considered during development of the recovery plan. (If a 
separate rulemaking for critical habitat is eliminated, a discussion 
and comment opportunity could still occur in the proposed listing 
rule.)
    Second, S. 1100 does not sufficiently ensure that economic impacts 
are adequately addressed. Consideration of social and economic impacts 
is essential if conservation is to have any credibility to the public 
at large, and to the particular members of the public affected. If the 
bill does not require consideration of these impacts in the recovery 
planning process, then the Services will likely retain their current 
practice of analyzing only ``incremental'' economic impacts. It might 
also revive the balancing process if the Secretary were required to 
exclude areas from critical habitat when the benefits outweigh those of 
designation, unless extinction would result, rather than given the 
discretion to do so as in the current law.
    Third, S. 1100 contains no requirement that the Secretary appoint a 
balanced, multi-disciplined Recovery Team. Yet the bill gives the 
Recovery Team the first crack at not only drawing lines on the map, but 
also at establishing management and protection measures. Even if the 
bill assured a balanced Recovery Team, requiring these recommendations 
only 9 months after the listing, and only 7 months after appointment of 
the Team, does not provide sugfficient time for data collection and 
analysis. If critical habitat is retained as a separate rulemaking, the 
Services should be provided the full 18 months to develop the necessary 
data, in consultation with the Recovery Team, without being influenced 
by public preliminary recommendations.
                                  iii.
    AF&PA seeks balance and common sense in endangered species 
protection. Our members are united in their belief that the national 
interest is best served by policies that protect wildlife along with 
jobs and the economy. Objective 4 of the SFI program requires AF&PA 
members to: ``Enhance the quality of wildlife habitat by developing and 
implementing measures that promote habitat diversity and the 
conservation of plant and animal populations found in forest 
communities.''
    With AF&PA members' emphasis on stewardship through the SFI 
program, we urge the Subcommittee to consider amendments to the ESA 
which would address stewardship issues as well. The Endangered Species 
Act regulates activities of private parties and states which do not 
require a Federal permit or funding by prohibiting any action which 
would ``take'' listed species. The law provides, in section 10, an 
incidental take permit process which requires the landowner to prepare 
a habitat conservation plan (HCP) focusing on mitigation of the take to 
be caused to the listed species by the applicant's activities.
    Unfortunately, the HCP process generally is expensive, lengthy, and 
complex. Many land owners simply cannot afford to pursue it. For 
example, the government considers an HCP to be subject to consultation 
as a proposed Federal action under ESA section 7, a process which is 
redundant and which creates several difficulties for the landowner, 
such as ongoing second-guessing by the agency and application of the 
irreversible commitment of resources prohibition. Also, the authority 
to require mitigation in the HCP and permit is relatively unqualified 
and has resulted in requirements which exceed by several degrees the 
effect of the activity which would be allowed under the permit.
    Given the expense and commitment inherent in an HCP, landowners 
understandably are often willing to address more species than merely 
those listed. The government must recognize the benefit of addressing a 
number of species when the landowner chooses to do so. Current policies 
tend to create impediments to multi-species HCPs. Moreover, the 
Services have not applied HCP policies in a consistent manner, causing 
considerable delay and frustration among HCP applicants.
    While Secretary of the Interior Bruce Babbitt has instituted 
various policies which improve the HCP process, legislative changes are 
necessary to guarantee those improvements. For example, Secretary 
Babbitt has issued a ``No Surprises'' regulation which provides 
landowners, particularly those who depend on continuing access to 
natural resources on their land, certainty when agreeing to conditions 
in an HCP, but it is now subject to a challenge in Federal court. We, 
therefore, also suggest the Committee consider amendments to the 
Endangered Species Act in the following areas:

      provide statutory authority for the ``No Surprises'' 
    policy;
      authorize the Secretary to issue rules providing 
    incidental take relief for categories of actions which would have 
    little effect on listed species;
      recognize that since an HCP provides analyses equivalent 
    to a biological opinion and since the agencies are consulting with 
    themselves, consultation on an HCP is redundant and unnecessary;
      clarify that mitigation in an HCP be proportionate to the 
    effect on the species of the take authorized by the HCP and permit;
      authorize recognition that the HCP will provide benefits 
    for unlisted species and provide assurance that the permit will 
    cover those species in the event they are later listed without 
    additional mitigation and without the imposition of excessive 
    assessment procedures on the applicant; and
      authority should be consolidated in the Secretary of the 
    Interior, at least with respect to implementation of the ESA in 
    non-ocean areas, regardless of the species involved to ensure 
    consistent application of policies.

    On behalf of the American Forest & Paper Association, I appreciate 
the opportunity to offer our views on H.R. 1100. I would be happy to 
answer any questions you may have.
                                 ______
                                 
  Responses of William R. Murray to Additional Questions from Senator 
                                 Crapo
    Question 1. Do you agree with the assessment of the Fish and 
Wildlife Service that critical habitat is an inefficient of resources 
and provides little additional benefit to species conservation?
    Response. We agree with statements made in the past by the Fish and 
Wildlife Service to this effect. We do not believe it is possible for 
the agency to administratively change the designation of''critical 
habitat'' into habitat which is identified to achieve recovery, as 
suggested in Director Clark's testimony. We will carefully review any 
proposal to do so and to add ``efficiency'' to a process which the 
agency has held in little regard for a number of years. .

    Question 2. How would you merge critical habitat into the recovery 
planning process?
    Response. As I suggested in my prepared statement, an option the 
Subcommittee might explore is the elimination of critical habitat as a 
separate process under the Endangered Species Act (ESA). Given the 
generally accepted view that designation of critical habitat provides 
little additional benefit to a species, it makes no sense to cause 
controversy and expend resources on a rulemaking to designate the 
habitat or on consultation under section 7. The Fish and Wildlife 
Service clearly feels that consultation on the likelihood of jeopardy 
provides sufficient protection. Therefore, the habitat needs of the 
species should be addressed in the recovery plan, with statutory 
direction (1) to address the social and economic consequences, both to 
society and to affected individuals, of recovery in general and of 
protection of needed habitat and (2) to publish a reasoned response to 
the comments.
    To the extent the designation process is merely moved back in time, 
it should be kept as a separate rulemaking which is coordinated with 
development of the recovery plan. However, its focus should remain on 
``critical'' habitat as opposed to ``recovery'' habitat. We believe it 
would be exceedingly difficult to for a Federal agency to engage in 
meaningful consultation on such a broad concept as recovery habitat.

    Question 3. You have stated that Congress should amend the 
Endangered Species Act by requiring analysis of the social and economic 
impacts in the recovery plan.
    If we move critical habitat to the recovery plan stage, why 
wouldn't the economic analysis conducted for the designation of the 
habitat satisfy your concern?
    Response. The Services' expertise lies in fish and wildlife 
management. They have demonstrated over the years an extreme reluctance 
to engage in any analysis of the economic impacts of their activities. 
A prime example is their interpretation of the ESA that the economic 
analysis of critical habitat under section 4(b)(2) is limited to the 
incremental impacts above those caused by the actual listing. If they 
are not directed by law to consider social and economic impacts of 
recovery, they will likely retain this incremental approach and will 
not take advantage of the outside expertise by including an economist 
on the Recovery Team.

    Question 4. Don't the Services have the authority now to conduct a 
social and economic impact analysis as part of a recovery plan?
    Response. We believe that the Services do have the discretionary 
authority to conduct these analyses in the recovery plan. However, 
whether it is from the lack of resources or fear of criticism, they do 
not do so. Moreover, since the Services do not generally respond to 
comments on draft plans, even unsolicited comments on economic impacts 
will have no effect. The fact that the Senate defeated an amendment by 
Sen. James McClure (R-ID) to provide such an analysis in the recovery 
plan during the debate on the last reauthorization of the ESA in 1988 
should prevent the agency from examining these impacts in appropriate 
circumstances.

    Question 5. Is changing the critical habitat process important to 
the forest products industry? If not, what changes to the Endangered 
Species Act are important?
    Response. We do not believe that changing the critical habitat 
process will address the most significant issues facing the forest 
products industry. I outlined six areas in my prepared statement and 
emphasized the particular importance of making some adjustments to the 
habitat conservation plan process. Of particular concern is the need to 
establish the Administration's ``No Surprises'' policy in the statute. 
Forest landowners, of necessity, must consider the long term when 
making decisions affecting the management of their land. The absence of 
any assurance that the terms and conditions of the HCP will remain in 
effect 10, 20 or even 50 years from now creates a powerful 
disincentive. The Administration's policy has created the necessary 
confidence among landowners that the government will allow them to 
continue appropriate management of their land for the life of the 
agreement. This policy is now under attack in court. While we are 
confident that the Administration will prevail, it is nonetheless 
important for Congress to ratify such an essential incentive for 
participation by private landowners in species conservation.
    Unfortunately, the incentive provided by the ``No Surprises'' 
assurance is in danger of being lost as a result of a misguided 
decision by a Federal court in California in Environmental Protection 
Information Center v. Pacific Lumber Co. Under this court's 
interpretation of the interaction between the consultation provisions 
of section 7 and the HCP process of section 10, landowners face loss of 
access to their land merely because they have voluntarily stepped 
forward and submitted an HCP for approval. The court ruled that once 
this happens, the agency, whether the Fish and Wildlife Service or the 
National Marine Fisheries Service, is immediately subject to a 
requirement to consult with itself on the proposed Federal action of 
approving the HCP, notwithstanding the fact that the same agency is 
subject to the detailed review requirements of section 10. the court 
then ruled that, because ``consultation'' has commenced, section 7(d) 
requires the landowner to cease activity on the land. The Subcommittee 
should consider correcting this unnecessary complication.
                               __________
 Statement of Charles T. DuMars, Esq., Professor of Law, University of 
                        New Mexico School of Law
I. The listing of a species and the designation of critical habitat 
serve two entirely different purposes. The former is a process designed 
to alert all parties that action must be taken to prevent the 
extirpation of a species; the latter is a logical part of the plans for 
recovery of the species.

    A cursory reading of the Endangered Species Act [hereinafter ESA] 
demonstrates that it establishes a process consisting of numerous 
steps, each of which serve different functions. For example, the 
listing process has as its essential goal the identification of species 
that require protection. The recovery plan and critical habitat process 
begins where the listing process ends, having as its essential goal, 
removal of the species from the list through execution of a plan that 
ensures the species' survival.
a. Establishing the Species as Endangered--the Listing Process
    The first step taken under the ESA is the listing process--a 
process whereby species are identified and nominated for listing 
because of their precarious position in the current world environment. 
After consideration of only the best scientific data available, 
correctly identified species are ``listed''. This listing process does 
not allow any consideration of economic or other evidence because it is 
simply a determination of the current precarious circumstance of the 
species. A finding is made that a species is in so dangerous a 
circumstance that without further protective action it will become 
extinct. No functional decision is made in this process as to how the 
species will be protected, therefore, no economic analysis is required 
since no specific action is being proposed. The specific actions occur 
only after the listing process.
b. The Recovery Plan and the Critical Habitat Designation--the 
        Operational Tools of the ESA
    Once the species is listed, the United States Fish and Wildlife 
Service [hereinafter USFWS] is obligated to embark upon a series of 
steps to ensure the species' survival. These implementation steps often 
involve modification of the environment where the species resides, and 
therefore, impact the future development in the region. These 
protective steps include consultation with all relevant Federal 
agencies under Section 7 of the ESA to determine whether the actions of 
the Federal agencies are placing the species in jeopardy. If it is 
determined that the agencies' actions are placing the species in 
jeopardy, then the ESA requires that the actions be altered or ceased 
or that reasonable and prudent alternatives be developed to the actions 
of the Federal agencies that will allow the agencies to continue their 
activities without causing damage to the species.
    A second, and surely the most important part of the species 
protection process, is the development of a recovery plan. It is of no 
value under the ESA to simply list a species to watch it continue to 
fail. Rather, the obligation under the ESA is to develop a plan for its 
recovery and carry out that process. Conversely, if it cannot be 
recovered, then the species must be de-listed. In the case of aquatic 
species, generally the most significant piece of information in the 
recovery plan is a finding as to the flow regime necessary to ensure 
the survival of the species. This essential flow regime in various 
parts of the stream system, forms the basis for designation of critical 
habitat. Unfortunately, the designation of a critical habitat flow 
regime has been uncoupled from the recovery plan. This is undoubtedly a 
function of the language of the ESA as currently operative, whereby 
short timelines are given that require critical habitat designations 
often before a ``plan for recovery'' is either understood or finalized. 
Thus, a decision is made that the for x miles of river y quantity of 
water is required even though there is no biological data to support 
the conclusion that these quantities are needed to recover the species.
    Simply put, how can one know a habitat is critical to the recovery 
of the species before one understands how to recover the species? The 
answer is one cannot know this, but as currently structured, the 
Secretary of Interior is mandated to decide irrespective of his absence 
of knowledge. Were these decisions made in a vacuum, then guessing at 
the necessary flow regime would perhaps be appropriate. However, in the 
Western United States, where all streams are fully appropriated, 
virtually all changes in flow regimes visit significant costs on other 
water users in the stream system. Moreover, once the designation has 
been made, the individual water users face serious civil and criminal 
penalties should they alter the critical habitat, even though there has 
been no demonstrable case that their alteration would in fact cause the 
species harm.
    Not only does the critical habitat designation place individual 
water users at risk for civil and criminal penalties if they alter 
critical habitat, it has become one of the most fundamental levers in 
the arsenal of the USFWS because it governs all future operations of 
all Federal agencies operating within the region. As stated eloquently 
by the 10th Circuit Court of Appeals in Catron County Board of 
Commissioners, New Mexico v. United States Fish and Wildlife Service, 
et al., 75 F.3d 1429, 1437 (10th Cir. 1996):

    ``The designation of critical habitat effectively prohibits all 
    subsequent Federal or federally funded or directed actions likely 
    to affect the habitat'' See 16 U.S.C. 1536(a)(2).''

    Again, major Federal choices are controlled by a designation that 
may not be in any way logically connected to the methods for recovering 
the species because the recovery plan has not been completed.
    While it seems somewhat tenuous to subject individuals to criminal 
and civil penalties for alteration of habitat that may not have been 
connected to a recovery of the species, any doubt as to the potential 
liability of individual water users was put to rest by the U.S. Supreme 
Court's decision in Babbitt v. Sweet Home Chapter of Communities for a 
Greater Oregon, 515 U.S. 687,115 S.Ct. 2407 (1995). In that case, a 
group of individuals sought to invalidate a regulation of the USFWS 
that would make them liable for a ``taking'' of the species under 
Section 9 of the ESA even if they took no direct action directed at 
harming the species. They argued that they were not directly trying to 
injure the species, there, the red-cockaded woodpecker. Rather, they 
were simply engaging in what they had always done--cutting timber. In 
their view, simply because their actions might modify the critical 
habitat in some way, this should not be considered a ``take'' of the 
species. The Supreme Court squarely rejected their argument and found 
that a modification of critical habitat was a ``take'' of the species 
that could result in civil and criminal penalties. The Court stated:

    ``First, we assume respondents have no desire to harm either the 
    red-cockaded woodpecker or the spotted owl; they merely wish to 
    continue logging activities that would be entirely proper if not 
    prohibited by the ESA. On the other hand, we must assume, arguendo, 
    that those activities will have the effect, even though unintended 
    of detrimentally changing the natural habitat, of both the listed 
    species and that as a consequence, members of those species will be 
    killed or injured.'' Id. at 2412.

    The Court specifically held that the USFWS had the legal authority 
to promulgate a regulation which provided that modification of a 
species habitat, even though unintended, and even though not aimed at a 
particular member of the species, would subject the individuals to 
civil and criminal penalties if any injury to a species proximately 
resulted.
    Justice O'Connor went further and concluded that even a habitat 
modification that affected breeding would be a ``take''. Justice Scalia 
pointed out in dissent that a large number of routine private 
activities, for example, ``. . . farming are subjected to strict-
liability penalties. . . .'' Id. at 2424. He provides another example: 
``. . . a farmer who tills his field and causes erosion that makes silt 
run into a nearby river which depletes oxygen and thereby impairs the 
breeding of protected fish has ``taken'' or attempted to ``take'' the 
fish.'' Id. at 2423.
    Thus, under Sweet Home, supra, once a critical habitat flow regime 
designation is made, Federal agencies must alter their activities to 
protect the critical habitat under Section 7, and private entities face 
severe civil and criminal sanctions should they cause an alteration of 
that flow regime.
    The USFWS has specifically and consistently acknowledged that the 
designation has far reaching effects, even if not connected to any plan 
of recovery:

    ``The requirement to consider adverse modification of critical 
    habitat is an incremental Section 7 consideration above and beyond 
    Section 7 review necessary to evaluate jeopardy and incidental 
    take.''

Determination of Critical Habitat for the Northern Spotted Owl, 57 Fed. 
            Reg. 1796 at 1823.

    That critical habitat designation even though not demonstrably 
aimed at recovery of the species affects all entities that might alter 
that habitat is summarized well by a scholar in the field:

    ``At bottom, what the case law illustrates beyond question is that 
    the ESA's prohibition on modification of critical habitat is 
    interpreted by the courts as strong and unyielding without critical 
    habitat, Federal agency actions are largely shielded from judicial 
    review.''

Houck, Oliver A., ``The Endangered Species Act and Its Implementation 
            by the U.S. Departments of Interior and Commerce,'' 64 U. 
            Colo. L. Rev. 277 (1993).

    A concrete example can be found in numerous lawsuits filed by 
environmental groups to force designation, even when the USFWS concedes 
it does not have adequate data to complete the designation. The Forest 
Guardians and Defenders of Wildlife, seeking an order compelling 
critical habitat designation in Federal court in Albuquerque, New 
Mexico, make it clear beyond peradventure that their goal is to 
designate the entire Rio Grande river as critical habitat and use this 
designation to prevent any person from reducing the flow of the river 
below some unspecified minimum amount. If they are successful, then any 
farmer or other person using the waters of the Rio Grande may be 
subject to civil and criminal penalties because they unlawfully 
``modified'' the critical habitat by reducing the flow even though 
there is no minimum flow amount specified in any recovery plan. They 
state unequivocally:

    ``Without designation of critical habitat, this crucial area for 
the silvery minnow could be adversely modified to the point where it no 
longer supports the elements needed for the minnows survival. 
Designation is especially needed before the summer season, when water 
demands on the Rio Grande increase and frequently result in little or 
no flow downstream from major diversion facilities.''

Forest Guardians and Defenders of Wildlife's Brief in Chief in Support 
            of Motion for Review of Agency Decision at 14.

    Unfortunately, if these groups are successful, any person altering 
the habitat is at great risk of criminal and civil penalties even 
though the responsible Federal agency is conceding it has no data to 
prove the designation is either correct or needed.
    It is precisely because the critical habitat designation can 
potentially subject individuals to far reaching penalties. See Bennett 
v. Spear, 520 U.S. 154, 117 S.Ct. 1154 (1997) that individuals affected 
have been granted broad standing to sue. See also, Catron County, 
supra. And it is for this same reason that prior to the designation the 
USFWS is obligated to consider, in addition to the scientific efficacy 
of the designation, the ``economic impact and any other relevant 
impact'' of designating the habitat and weigh the benefits of exclusion 
against those of inclusion of particular areas within the designated 
habitat'' 16 U.S.C. 1533(b)(2). It is also for this reason that public 
comment is required and notice must be given and judicial review is 
available from an erroneous decision. Id. at 1533 (b)(4)(6).
    Finally, because the critical habitat decision so dramatically 
affects the behavior of all persons and all agencies--Federal and non-
Federal within the stream system, within the area of the Tenth Circuit 
Court of Appeals, an Environmental Impact Statement is required prior 
to the critical habitat designation. The 10th Circuit Court of Appeals 
made it clear that government action in designation of critical habitat 
is precisely the kind of Federal action significantly affecting the 
human environment that requires detailed scrutiny prior to taking final 
action.

    ``The short and long-term effects of the proposed governmental 
    action (and even the governmental action prohibited under the ESA 
    designation) are often unknown or, more importantly, initially 
    thought to be beneficial, but after closer analysis determined to 
    be environmentally harmful. Furthermore, the fact that a Secretary 
    believes the effects of a particular designation to be beneficial 
    is equally immaterial to his responsibility to comply with NEPA.''

Catron County Board of Commissioners, New Mexico v. United States Fish 
            and Wildlife Service, et al., 75 F.3d 1429, 1443 (10th Cir. 
            1996):

    Thus, the critical habitat designation is so significant a Federal 
action that it requires an Environmental Impact Statement, yet, under 
current law, it can be made without any demonstration that it is tied 
to any plan for recovery of the species. This can hardly be the intent 
of the framers of the ESA.
    The situation in which the USFWS finds itself when forced to make a 
designation of critical habitat without ensuring that the designation 
is tied to the actual needs of the species was summed up well in a 
recent statement under oath made by Jamie Rappaport Clark, Director of 
USFWS: ``It will be to no one's advantage if the Service spends its 
limited resources designating critical habitat for the minnow if that 
designation is invalidated in subsequent litigation for failure to 
allow public comment or other legal deficiency. If this happens, the 
designation will provide no protection to the minnow and it will delay 
protections for other species. Giving the Service adequate time now 
will minimize the likelihood of such an unfortunate result.'' 
Declaration of Jamie Rappaport Clark at pg. 12 (March 3, 1999).
    It must be remembered that it is not a victory in the battle of 
species protection to simply enjoin others from continuing their use of 
water under the threat of criminal prosecution. Rather, victory, if it 
can be had, only comes when affirmative steps are taken based upon the 
best scientific, economic and social data available. None of us should 
be fooled by the illusion that a species is rescued from extinction 
simply because others have been forced to forego their use of water at 
great cost. Species are only on the road to being recovered when the 
USFWS has developed and finalized a recovery plan for their survival. 
Thus, contrary to current practice wherein critical habitat designation 
is distinct from the recovery process, steps must be taken to bring 
these two processes together, so that the end result of the drafting of 
the recovery plan is the determination as to where that recovery is to 
take place. Only when we understand how we are to recover the species 
can we accurately decide the precise nature of the habitat that is 
critical for the species' survival.
    The ESA Amendment introduced May 20, 1999 [Senate Bill 1100] 
refocuses the mission of the USFWS on its ultimate goal of recovering 
species and away from altering behavior for alterations sake. This 
refocus is accomplished by ensuring that the USFWS makes the decision 
as to the scope of habitat critical to the survival of the species as 
an integral part of the recovery plan itself.
    Without this Amendment, in the water short West, the designation of 
critical habitat will continue to be nothing more than an abstract 
Federal mandate. The designations will continue to cause great economic 
and social dislocation without any evidence that these designations 
actually result in recovery of the species. Water users cannot bear the 
costs associated with these social and economic dislocations and the 
species cannot bear the consequences of hasty habitat designations that 
may be under inclusive in scope while expending needed resources that 
could have been used for species' recovery. For these reasons, the ESA 
should be amended as proposed by Senate Bill 1100.
                                 ______
                                 
 Responses of Charles DuMars to Additional Questions from Senator Crapo
    Question 1. Is there a problem in the West with respect to aquatic 
species that heightens this problem with critical habitat designations?
    Response. Yes. There are inherently unique characteristics of 
aquatic species in the West that need to be addressed when critical 
habitat designations for aquatic species are contemplated.
    It would not he difficult to imagine that a fish species native to 
a river located in a moist environment typical of the Western United 
States might have difficulty surviving in a typical Western United 
States river due to the vast differences in stream flow. Likewise, many 
western fishes would soon perish in the full running streams of the 
East. Recovery plans designed to ensure the conservation of species in 
these very different aquatic environments would need to address the 
aspects unique to each. Any critical habitat designation only benefits 
a river species, especially in the arid West, when it is based, at a 
minimum, on a complete understanding of what the river provides to the 
species in terms of water quality, quantity, rates of flow, temperature 
and turbidity.
    A river is perhaps best described biologically in tempts of a 
``fluvial hydrosystem''' concept. \1\ This concept looks at a river as 
a holistic entity containing the river channel, riparian zone, 
floodplain, and the alluvial aquifer. \2\ All these are viewed as being 
part of a four dimensional system. \3\ Biologically speaking flowing 
seater presents many advantages over still water. While the flow of a 
river puts stress on the organisms that live within it, this flow also 
provides nutrients, respiratory gases and removal of wastes. It would 
be correct to say that the organisms that live within a river benefit 
from the river in the same ways that humans do living along its banks. 
Where water is of short supply, as in the West, and where all 
organisms, human and non-human living off what the river provides have 
adapted to a seasonally fluctuating pattern, human and non-human 
species can exist in harmony. However, when there is drought, conflict 
will naturally result.
---------------------------------------------------------------------------
    \1\ G.E. Petts, I. Maddock, Flow Allocation for In-river Needs in 
River Restoration, 60-79) (Petts & Calow eds.) (1996).
    \2\  Id.
    \3\  Id.
---------------------------------------------------------------------------
    Typical critical habitat designations by simple geographic area, 
rather than as a fate of flow, heighten this natural conflict by not 
defining the parts of the habitat that are in fact critical to the 
species while unduly restricting the access of others. \4\ It is clear 
that the survival of aquatic organisms is directly tied to the 
hydraulic and hydrological conditions which define their physical 
habitat.\5\  Unfortunately, in the West, this relationship is obscured 
by the typical blanket geographic designation of critical habitat made 
under the ESA.
---------------------------------------------------------------------------
    \4\ 16 U.S.C.A. Sec. 1532(5) and 1533(b)(West 1985).
    \5\  Geoffrey Petts, and Peter Calow, eds. River Biota, 224 (1996).
---------------------------------------------------------------------------
    To a Western aquatic organism, the interaction of velocity depth 
and substrate of a given river develop the hydrologic integrity of its 
habitat. These factors are generally more important to these species 
than simple geographic location and must be recognized as critical for 
both the conservation of the species and the workability of any plan to 
recover it. Absent inclusion of these complex factors, a geographic 
designation can have a less than fully effective impact on the 
conservation of the species and unduly negative impact on the humans 
relying on the water source.
    Indeed, in the West, a simple geographic designation can often be 
over inclusive and cause damage to water uses while giving no benefit 
to the species. If habitat is designated by simple geography of 
location of the western aquatic species and that species requires a 
hydraulic integrity of a specific rate of flow, it may not be possible 
for such a designation to conserve the ``biological features essential 
to the conservation of the species.'' \6\
---------------------------------------------------------------------------
    \6\16 U.S.C.A Sec.  1532(5)(A)(1) (West 1985).
---------------------------------------------------------------------------
    Moreover the designation of critical habitat in aquatic 
environments has a heavy impact on the socio-economic aspects of the 
human culture in the area designated. If the designation is not 
tailored to the aquatic needs of the target species, and yet alienates 
the people living in the area, a chance for cooperative management is 
lost. If an accurate picture of the three dimensional needs of the 
aquatic organism is recognized as the goal of the conservation efforts, 
only then can any resource management techniques be developed to allow 
land use while protecting the species. Without this cooperative 
approach then the scarcity of water in the West presents a heightening 
of problems for all involved whenever the critical habitat designation 
process is applied to western aquatic species. This is the case because 
water is in short supply. Competition for it is fierce and the key 
issues are almost always what rate of flow is needed and whom should 
have to bear the pain of providing it.

    Question 2. To what extent would recovery plans be challenged by 
citizens under the proposed Senate Bill 1100? How would this change 
affect the Middle Rio Grande Conservancy District?
    Response. Senate Bill 1100 would expand the scrutiny applied to 
development of a Recovery Plan under the Endangered Species Act (ESA). 
It would also place clear errors in Recovery Plan development under the 
Citizen Suit provision of the ESA (16 U.S.C. Sec. 1540(g)).
    Senate Bill 1100 would combine a challenge to the Recovery Plan 
with a challenge to designation of critical habitat because Senate Bill 
1100 merges these two processes The amendment to the Citizen Suit 
provision, if enacted, would most likely result in more comprehensive 
challenges to Recovery Plans and the processes by which they are 
implemented. In this way, Senate Bill 1100 would allow challenges to 
critical habitat designations to address the purposes behind the 
designation and force the Secretary to defend the designation as 
essential to the recovery process.
    Under the current law, the Secretary of the Interior is required to 
prepare a Recovery Plan for species listed under the Endangered Species 
Act unless the Secretary concludes the plan will not promote the 
conservation of the species. \7\ Where such a Recovery Plan is 
determined by the Secretary to be appropriate, there is no mandated 
time-table to be followed in preparing the Plan. It is unclear whether 
under the current law a citizen suit could directly challenge the 
Secretary on the preparation of a Recovery Plan.
---------------------------------------------------------------------------
    \7\ ESA Sec. 4, 16 U.S.C.A. Sec. 1533(f) (This duty on the part of 
the Secretary would remain under S. 1100 but become Sec. (a) of ESA 
Sec. 4A).
---------------------------------------------------------------------------
    Under the Citizen Suit provision of the ESA any person may bring 
three different legal actions. First, to enjoin an any person alleged 
to be acting in a manner that violates any regulation or provision of 
the ESA. \8\ Second, to compel the Secretary to apply emergency 
regulations and prohibitions to protect a given species. \9\ Finally a 
citizen may bring suit against the Secretary for failure to perform an 
act or duty that is nondiscretionary under the ESA. \10\ Under the 
current law the Secretary's decision to adopt or not adopt a Recovery 
Plan has faced no direct challenge to date because the adoption of a 
plan is discretionary under the ESA. \11\
---------------------------------------------------------------------------
    \8\ 16 U.S.C.A. Sec. 1540(g)(1)(A) (West 1985).
    \9\ 16 U.S.C.A. Sec. 1540(g)(1)(B).
    \10\ 16 U.S.C.A. Sec. 1540(g)(1)(C).
    \11\ See United States v. McKittrick, 142 F.3d 1170, 1176 (9th Cir. 
1998) (Defendant convicted under the ESA of an illegal take of a Gray 
Wolf that was brought into to U.S. from Canada by the FWS challenged 
the Secretary's decision to adopt a Recovery Plan for the Gray Wolf 
because the wolf in Canada is plentiful and not ``most likely to 
benefit from such a plan.'' The court dismissed this argument by 
stating that the decision to adopt a Recovery Plan at all is within the 
Secretary's ``broad discretion to determine what methods to use in 
species conservation.'')
---------------------------------------------------------------------------
    Under the citizen suit: provision as amended by S.B. 1100, Recovery 
Plans would be more readily the subject of citizen suits once the 
Secretary determines that such a plan is required for the conservation 
and survival of a listed species. Under Senate Bill 1100 the Secretary 
would be required to meet a series of mandated deadlines in preparing 
the Recovery Plan for any listed species where the Secretary believes a 
Recovery Plan is needed. By making the Recovery Plans subject to a non-
discretionary timetable, Section 1540(g)(1)(C) would likely encourage 
citizens to bring suit against the Secretary for failure to timely 
prepare Recovery Plans.
    The merger of Recovery Plans and critical habitat designations by 
Senate Bill 1100 would have two major effects on the ability of 
citizens to challenge a Recovery Plan. First it would have the 
practical effect of keeping the designation of critical habitat ``in 
context'' as part of a plan of recovery of the species in question. 
Second, it would procedurally lick the non-discretionary act of 
critical habitat with the discretionary act of adopting a Recovery Plan 
under the citizen suit provision. This would cause challenges brought 
under the citizen suit provision to be concerned with the holistic 
reasoning being applied to achieve the goal of the ESA rather than 
focusing on the designation of a particular area as critical habitat 
divorced from the reasons underlying the ESA.
    A Recovery Plan is described in the ESA as a ``plan for the 
conservation and survival of endangered and threatened species.'' \12\ 
Critical habitat is defined in the ESA as ``such areas [that] are 
essential to the conservation of a [endanger and threatened] species.'' 
\13\ By requiring ally challenge to critical habitat designation to 
also challenge the process of preparation of a Recovery Plan, Senate 
Bill 1100 focuses citizen challenges brought under the USA toward the 
original purpose of the ESA, ``to provide a means whereby the 
ecosystems upon which endangered species and species depend may be 
conserved. \14\
---------------------------------------------------------------------------
    \12\ 16 U.S.C.A. Sec. 1533(f)(West 1985).
    \13\ 16 U.S.C.A. Sec. 1532(5)(A) (West 1985).
    \14\ ESA Sec. 2(b); 16 U.S.C.A. Sec. 1531(b) (West 1985).
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    Under the ESA as amended by Senate Bill 1100 a stakeholder such as 
the Middle Rio Grande Conservancy District would be better informed 
about just how their actions might be in conflict with plans to 
conserve and protect a species such as the Rio Grands Slivery Minnow. 
Also, a stake holder such as MRGCD would be afforded a greater 
opportunity to have meaningful input in developing any plan to work 
toward species conservation with the possibility of developing least 
restrictive measures to achieve such species protection. (currently a 
final Recovery Plan for the Rio Grande Slivery Minnow has not been 
published. Yet the Tenth Circuit has ordered the Secretary to designate 
critical habitat. The proposed habitat to be designated clearly 
implicates the actions and the livelihood of stake-holders such am 
MRGCD. Yet these stakeholders have no information as to the role this 
habitat plays in the plan to conserve the Minnow.
    Without this information the stakeholders are incapable of 
developing any modification of their use of that habitat to maintain 
their own farms while limiting any negative impact on the species.

    Question 3. Is an Environmental Impact Statement necessary when a 
critical habitat designation is made?
    Response. Yes, The Tenth Circuit Court of Appeals, squarely 
addressed this issue in Catron County Board of Commissioners v. New 
Mexico v. United States Fish and Wildlife Service. et al., 75 F.3d 1429 
(1Oth Cir. 1996). The Court required an Environmental Impact Statement 
because ``The designation of critical habitat effectively prohibits all 
subsequent Federal or federally funded or directed actions likely to 
affect the habitat.'' Id. at 1437.
    The need for the impact statement is obvious when one considers 
that the critical habitat designation must consider the economic, 
social and other consequences to society from the designation itself 
and plainly the designation must be narrowly tailored to meet the needs 
of the species while causing the minimum amount of damage to society. 
When a Federal agency chooses among alternatives, NEPA is invoked since 
the heart of the matter under NEPA is rational analysis of alternatives 
and wise decisionmaking based upon this analysis of alternatives. As 
the Tenth Circuit Court of Appeals observed:
    The short and long-term effects of the proposed governmental action 
(and even the governmental action prohibited under ESA designation) are 
often unknown or, more importantly, initially thought to be beneficial, 
but after closer analysis determined to be environmentally harmful. 
Furthermore, the fact that a Secretary believes the effects of a 
particular designation to be beneficial is equally immaterial to his 
responsibility to comply with NEPA. Catron County Board of 
Commissioners New Mexico v. United States Fish and Wildlife Service, et 
al. 75 F3d. 1429, 1443 (10th Cir. 1996)
    This requirement of development of an Environmental Impact 
Statement would be strengthened and enriched by SB 1100, because the 
EIS analysis would force a consideration and evaluation of which 
alternative could best protect the species and at the same time 
minimize the impact on the human environment in the area.

    Question 4. Do you believe that a majority of the irrigation water 
users in the West would concur with this amendment?
    Response. Yes. I believe that the majority of the irrigation water 
users in the West would concur with this amendment. First, virtually 
all irrigation systems in the Western United States are water short, 
are at the mercy of both dry years and reservoir management policies 
and continually face the challenge of increasing Federal regulation. 
The Endangered Species Act, while promoting the laudable and critical 
goal protecting species is at the same time, both vague and rigid. It 
is rigid because it places artificial deadline on the development of 
unavailable scientific data and it is vague because it contains 
language that is subject to greatly varying interpretations.
    Thus, in my experience in numerous Western States, I have seen that 
there is in fact no resistance to the concept that endangered species 
should be ``recovered''. Rather, the debate turns on the question 
whether the proposed measures are narrowly tailored to in fact 
``recover'' the species or whether the species is simply a vehicle for 
altering the hydrograph of river systems to meet environmental ends. 
Under current law, the critical habitat designation can serve to 
completely alter behavior within a river system and access to water 
without any real scientific proof that the designation and isolation of 
this river system or guarantee of a rate of flow will in fact lead to 
the species' recovery.
    And, under current law, an alteration of habitat can result in 
criminal and civil penalties to the individual without any proof by the 
United States Fish and Wildlife Service that this individual has 
impeded the species' recovery or endangered its existence.
    First we assume respondents have no desire to harm either the red-
cockaded woodpecker or the spotted owl; they merely wish to continue 
logging activities that would be entirely proper if not prohibited by 
the ESA. On the other hand, we must assume, arguendo, that those 
activities will have the effect, even though unintended of 
detrimentally changing the natural habitat, of both the listed species 
and that as a consequence, members of those species will be killed or 
injured. Babbitt v. Sweet Home Chapter of Communities for a Greater 
Oregon 115 5.ct. 2407, 2412 (1995).
    Starting from the premise that habitat can only be designated if it 
is ``critical'' to the species survival, one would logically ask, when 
must the United States Fish and Wildlife Service meet its burden of 
proof to demonstrate habitat it has chosen is in fact ``critical'' to 
the recovery of the species. Under current law, the answer is at no 
definite time, because the critical habitat can be designated even 
though there is no plan for the recovery of the species. Thus, when 
asked whether the habitat designation is required to recover the 
species, the United States Fish and Wildlife Service can simply answer 
they are not yet prepared to answer this question because they have not 
completed the recovery plan.
    In effect, they have prescribed the medicine before they have 
decided exactly what the disease is and how it is to be treated. This 
approach is both illogical and costly to the persons affected by the 
critical habitat designation. It is illogical because it places the 
cart before the horse, it is costly because it requires persons under 
pain of criminal prosecution to forgo economic activity that is their 
livelihood.
    The United States Fish and Wildlife Service argues that the 
critical habitat designation has no real effect on private entities 
because these persons will only be prosecuted if their alteration of 
habitat actually causes a harm to the species. This abstract assertion 
provides very little assurance to the average person diverting water 
from a stream system. It is nothing more than the empty assertion that 
if these individuals are prosecuted for alteration, they may have a 
defense of a lack of proximate causation between their actions and the 
death of a species. Outside the theoretical world of lethal experts, 
people fully understand that to tell a small farmer, ``go ahead and 
divert water, if you are prosecuted we might have a defense'' is no 
answer at all. The farmer's only real choice is to stop farming and 
bend to the critical habitat designation or face prosecution. This is 
no choice at all.
    Therefore, merging critical habitat designations with recovery 
plans will put the United States Fish and Wildlife Service to its 
burden of proof under the ESA that the designation protects the 
species. It will also avoid criminal prosecution of water users until 
that burden of proof has been met. This outcome should be readily 
welcomed by irrigators in the West.
                               __________
      Statement of John Kostyack, Counsel, Office of Federal and 
          International Affairs, National Wildlife Federation
    Good morning Mr. Chairman and Members of the Subcommittee. My name 
is John Kostyack, and I am here to testify on behalf of the National 
Wildlife Federation, the nation's largest member-supported conservation 
advocacy and education organization. I thank you for inviting me here 
to share my organization's views concerning S. 1100, a bill to amend 
the critical habitat provisions of the Endangered Species Act of 1973.
    The National Wildlife Federation considers the ESA's critical 
habitat protection to be an extremely valuable tool for conserving 
imperiled species, and therefore we are concerned that this bill would 
worsen rather than solve the problems that we are seeing with critical 
habitat implementation today. We also believe that it is a mistake to 
respond to the individual grievances of Members of Congress through 
piecemeal amendments to the ESA. This gradual chipping away at the ESA 
will not only weaken the Act's ability to protect species; it will also 
supplant the much-needed effort to update and strengthen the Act with a 
comprehensive reauthorization bill.
      i. the importance of the esa and critical habitat protection
    The ESA recently reached its 25th anniversary, and there is much to 
celebrate. Hundreds of species that were once heading toward extinction 
are now either recovering or at least stabilized. The bald eagle, our 
nation's symbol, is at or near the point of total recovery, and the 
gray wolf has been successfully restored to the Yellowstone ecosystem 
and the wilderness of central Idaho. In the Pacific Northwest, we are 
witnessing an amazing groundswell of public support for the listing of 
salmon species and for the use of the ESA to recover this cultural 
icon. Across the country, the public is increasingly recognizing the 
ESA as a vitally important law for protecting the nation's precious 
biological heritage.
    Despite the successes, there is still much work to do. Many of the 
species on the ESA list of threatened and endangered species are not 
yet on the path to recovery. Scientists tell us that the leading reason 
why so many of our animal and plant species are declining toward 
extinction is habitat loss and degradation. In other words, we need to 
do a better job protecting, managing and restoring habitats.
    In enacting the ESA, Congress recognized the vital importance of 
protecting habitats. The first stated purpose of the ESA is to 
``provide a means by which the ecosystems upon which threatened species 
and endangered species depend may be conserved.''
    To achieve this purpose, Congress created three bottom-line 
safeguards: Section 9's prohibition against taking endangered species 
in the absence of a permit, Section 7's prohibition against Federal 
actions jeopardizing the existence of any listed species, and Section 
7's prohibition against Federal actions resulting in ``destruction or 
adverse modification'' of critical habitat.
    This last safeguard, the critical habitat protection, has a number 
of features that make it a vital tool for protecting, managing and 
restoring habitats of listed species. First, of all of the ESA's 
provisions, the critical habitat provisions provide the clearest 
direction to the Federal agencies about their obligation to protect and 
manage habitat for the purpose of species recovery. The ESA requires 
critical habitat to be designated and protected in any areas with 
physical or biological features that are ``essential to the 
conservation of the species'' in other words, in areas needed for 
recovery and delisting. The other two safeguards of the ESA, the 
takings and jeopardy prohibitions, lack this clear and unambiguous 
directive to promote recovery.
    Second, the definition of critical habitat explicitly calls for 
protection of areas ``outside the geographical area occupied by the 
species at the time it is listed'' if such areas are essential for the 
conservation of the species. For many listed species, this focus on 
unoccupied habitat is crucial if extinction is to be avoided and 
recovery made possible. Many listed species are migratory or otherwise 
highly mobile, and thus cannot survive without the habitat they 
sometimes use and otherwise leave unoccupied. In addition, many listed 
species occupy only the remnants of their former habitats, and thus are 
not likely to survive unless we develop a strategy to restore habitats 
that are degraded and no longer occupied.
    To date, neither the taking prohibition nor the jeopardy 
prohibition has been interpreted by the agencies or the courts as 
providing the necessary protection of unoccupied habitats; only 
critical habitat has served this purpose. The importance of this role 
in saving unoccupied habitats was highlighted in Idaho Rivers United v. 
National Marine Fisheries Service, 1995 WL 877502 (W.D. Wa. 1995), 
where the U.S. Forest Service sought to allow a mine to be developed 
adjacent to the unoccupied habitat of a listed salmon species. The 
court relied on the fact that the habitat was designated as critical 
habitat as the basis for rejecting the agency's proposal. According to 
the court, if agencies were allowed to cite the temporary absence of a 
species from its native habitat as a reason for allowing further 
habitat degradation, they would effectively prevent the habitat from 
being restored and the species from ever being recovered.
    Third, critical habitat designation helps focus the attention of 
federal, state and private conservation agencies on special management 
efforts that a species may require. For example, in designating 
critical habitat for the green sea turtle and hawksbill sea turtle, the 
National Marine Fisheries Service explained that one of the benefits of 
this designation was that it provided an opportunity to alert federal, 
state and private agencies about affirmative management steps needed in 
the designated areas. Among other things, the critical habitat 
designation highlighted the need for habitat restoration in sea grass 
beds destroyed by boat propellers and coastal development.
    Fourth, a critical habitat designation draws clear lines on a map 
so that land managers have the direction they need about what habitat 
is needed to save species. An example of the problems that arise when 
the Services fail to designate critical habitat is found in the Natomas 
Basin, an agricultural region outside of Sacramento, California. 
Despite the fact that the giant garter snake (a species that relies 
heavily on Natomas Basin habitats for its survival) has been listed for 
over 5 years, no critical habitat has been designated. Meanwhile, urban 
development is proceeding apace in and around Fisherman's Lake, an area 
of the Natomas Basin that has long been identified as key nursery 
habitat for the species. The ESA's taking prohibition is of no avail 
because the Fish and Wildlife Service has approved a Habitat 
Conservation Plan (HCP) that allows habitat destruction throughout the 
Natomas Basin. In return for permission to destroy habitat, developers 
must pay a mitigation fee that ultimately will be used to acquire 
habitat but no effort has been made to identify and protect those areas 
needed for species recovery. If employed, the critical habitat tool 
would provide those implementing the HCP with the direction they need 
to ensure that Fisherman's Lake and other key habitat areas are 
acquired and protected.
    Fifth, and finally, critical habitat designation provides an 
essential ``early warning signal'' to agencies and others involved in 
land use planning that certain areas deserve special attention. As 
stated by the National Marine Fisheries Service in designating critical 
habitat for the Umpqua cutthroat trout, ``[w]ith a designation of 
critical habitat, potential conflicts between Federal actions and 
endangered or threatened species can be identified and possibly avoided 
early in the agency's planning process.'' Thus, if designated in a 
timely manner, critical habitat can provide a useful mechanism for 
minimizing the social and economic costs of habitat protection.
  ii. s. 1100 would weaken the esa's species safety net--a different 
 approach is needed to ensure that critical habitat works for species 
                             and landowners
    The above discussion about the benefits of critical habitat is not 
meant to obscure the fact that we have had serious problems with 
implementation of this safeguard. The fact that only 9 percent of 
listed species have received designations of critical habitat suggests 
that serious attention to critical habitat is needed. However, the 
problems that have arisen in implementing critical habitat would not be 
solved by S. 1100; in fact, this bill would exacerbate some problems 
and leave many other challenges unaddressed. Alternative approaches 
ought to be considered to help ensure that the critical habitat 
safeguard is better implemented--for the benefit of both imperiled 
species and landowners.
A. S. 1100 Would Exacerbate Problems with Critical Habitat and Other 
        Aspects of ESA Implementation
    S. 1100 has four key provisions, each of which contains flaws that 
could make species recovery more difficult. First, the bill adds new 
delays to the Act's requirements concerning designation of critical 
habitat. Under the current ESA, critical habitat must be designated at 
the time of listing, subject to a possible one-year extension. Under S. 
1100, critical habitat designation is postponed until after a recovery 
plan has been completed or until 3 years have passed after listing, 
whichever comes sooner. Although the bill sets a timetable for 
completing recovery plans and for designating critical habitats for 
species lacking recovery plans, the bill does not specify when the 
Services are required to designate critical habitat for species that 
currently have recovery plans. Unless the bill is amended to set a 
timetable for such designations, it will leave open the possibility 
that the Services will continue to neglect the major backlog of species 
awaiting critical habitat designations.
    Second, the bill would reopen a loophole, previously closed by 
Congress, that would expand the ability of the Services to avoid 
designating critical habitat altogether. Under the current ESA, 
critical habitat designation can be avoided altogether if one of the 
Services determines that such designation would be ``not prudent'' 
(e.g., if it finds that designation would make a plant species 
susceptible to illegal collection). If one of the Services makes a 
finding that critical habitat is ``not determinable,'' this merely 
entitles it to postpone designation for 1 year after listing. Under S. 
1100, designation can be avoided altogether if one of the Services 
determines that it would either be ``not prudent'' or ``not 
determinable.'' There is no scientific justification for allowing the 
Services to avoid designations altogether based on a ``not 
determinable'' finding. In fact, Congress recognized this absence of a 
legitimate need in 1982 when it amended the ESA to eliminate the 
``determinable'' loophole. Reinstating this loophole now would only 
invite further politically-motivated refusals to designate.
    Third, the bill requires completion of recovery plans 3 years after 
listing. For species that have already been listed but lack recovery 
plans at the time the bill would become law, the bill imposes a 
deadline of 5 years for completing recovery plans. These new deadlines 
would be a useful step toward cleaning up the backlog of species 
without recovery plans--if they were accompanied by substantial 
increases in funding. Because S. 1100 does not provide for such 
funding, but instead adds new unfunded procedural burdens to the 
recovery planning process, it essentially sets up the Services for 
failure. The result could be that the Services prepare shoddy recovery 
plans in their haste to meet statutory deadlines with inadequate 
resources, or that they simply fail to meet the statutory deadlines. 
The bill specifies no remedy for the Services' failure to meet 
deadlines, thus forcing the courts to determine when to order 
completion of specific recovery plans and how to prioritize among 
recovery plans.
    Fourth, and finally, the bill precludes citizens from enforcing the 
ESA's requirements concerning the content of critical habitat 
designations unless they simultaneously file claims concerning the 
timing or content of recovery plans. The intended purpose of this 
limitation is unclear, but the outcomes are likely to be arbitrary and 
unfair. Under this limitation, citizens would be denied the ability to 
challenge improper designations whenever designation is required in 
advance of the completed recovery plan. In other cases where a recovery 
plan has been completed, citizens could be forced into adding claims 
concerning the timing or content of recovery plans even when no 
legitimate dispute exists on those issues.
B. Postponing Critical Habitat Designations So That They Can Be Timed 
        With Recovery Planning Makes Sense--But Only If Core Habitats 
        Are Protected During the Period of Delay
    Despite its serious flaws, S. 1100 does attempt to address a 
legitimate concern about the need for better information in designating 
critical habitat. In introducing S. 1100, Senator Chafee stated that 
designations require ``knowledge of the conservation needs of the 
species as well as an assessment of economic impacts of the 
designation, neither of which is generally known, or can be determined, 
at the time of listing.'' The bill attempts to address this problem by 
postponing critical habitat designations until either a recovery plan 
has been completed or 3 years have passed since listing, whichever is 
sooner.
    Senator Chafee is legitimately concerned about the absence of 
complete information about the needs of species and economic impacts of 
habitat protections at the time of listing. However, although we are 
likely to have a better understanding of these issues when S. 1100's 
three-year deadline for critical habitat designation is reached, our 
knowledge will still likely be far from complete. Regardless of which 
deadline for critical habitat designation is chosen, the ESA must be 
implemented in an arena where important data about conservation 
strategies is missing. The real issue facing Congress is what kind of 
risks should we be taking with the fate of endangered species during 
the continual processes of data-gathering and recovery planning?
    The scientific community has answered this question unambiguously. 
In the 1995 report Science and the Endangered Species Act, an esteemed 
panel of scientists from government, academia and private industry 
convened by the National Research Council (NRC) explicitly addressed 
the question of whether critical habitat ought to be designated at the 
time of listing or whether it should be deferred to the time of 
recovery planning. According to the NRC panel, the importance of an 
``early warning'' system was too great to defer habitat protection 
until recovery planning. On the other hand, it recognized the 
complexities of the critical habitat analysis and difficulties of 
completing it by the time of listing. The panel therefore recommended 
an interim designation of what it called ``survival'' habitat to 
protect a core amount of essential habitat during the period between 
listing and completion of the recovery plan. It suggested that once a 
recovery plan is adopted, the critical habitat designation (with its 
more sophisticated analyses of conservation needs and economic impacts) 
could replace the ``survival'' habitat designation.
    This precautionary approach is preferable to the approach of S. 
1100 because it recognizes that habitats, once lost, are often 
irreplaceable. The need for such a precautionary approach is 
particularly appropriate in implementing the ESA because, by the time 
species are listed, they have usually declined to extremely small 
population numbers, have typically lost significant percentages of 
their historic ranges, and are by definition in danger of extinction. 
In light of the substantial declines that many species face in the 
lengthy process of attaining the ESA list, it is essential that 
Congress require protection of their core habitats upon listing.
    This precautionary approach to critical habitat designations, which 
has been incorporated into H.R. 960, the Endangered Species Recovery 
Act of 1999, would provide benefits to landowners as well as imperiled 
species. By ensuring that a core of essential habitat is protected from 
the moment of listing, it would maximize the chances of successful 
recovery and delisting. It also would preserve the widest array of 
conservation strategies, so that landowners and other stakeholders can 
help devise a strategy that it is tailored to local economic and social 
objectives.
C. Congress Should Encourage Creative Uses of Critical Habitat 
        Designations To Ensure That This Safeguard Works for Both 
        Imperiled Species and Landowners
    Perhaps the most serious problem with S. 1100 is that it purports 
to address the critical habitat issue without grappling with the real 
obstacles to successful implementation. The main problem with critical 
habitat implementation is not (as suggested by S. 1100) because more 
time is needed after listing for information-gathering and recovery 
planning. Roughly 85 percent of listed species have been listed for 
over a year and are covered by finalized recovery plans, and yet the 
vast majority of these species still lack critical habitat 
designations.
    The main problem with critical habitat implementation is that, due 
to fierce resistance from certain developers and the lack of any 
champions in the Administration, no one has tried to make it work. 
Enormous resources have been squandered by the Fish and Wildlife 
Service battling environmentalists in court over its repeated refusals 
to designate, with the courts uniformly siding with the 
environmentalists and holding that the Service's excuses lack merit.
    It is time for developers, the Fish and Wildlife Service and 
environmentalists to call a truce on critical habitat and for all sides 
to come together to find a way to make these provisions work for both 
imperiled species and landowners. FWS is reportedly contemplating a 
dialogue with the public about the future of critical habitat. We fully 
support this idea and hope that it can provide a forum for developing 
these kinds of solutions.
    The current ESA itself provides a number of ideas that could be 
pursued. For example, the concept of ``special management 
considerations or protection'' found in the ESA's definition of 
critical habitat could be the focus of a multi-stakeholder discussion 
about how critical habitat might be managed once it is designated. 
Contrary to prevailing myths, a critical habitat designation does not 
lead to a suspension of all economic activities in the designated area. 
Serious work needs to be done in resolving how designated areas could 
be managed for the benefit of imperiled species and landowners.
    Another idea found in the current ESA that has never been seriously 
pursued is the Section 4(b)(2) provision calling for the exclusion of 
certain areas from critical habitat if the benefits of such an 
exclusion outweighs the benefits of specifying those areas as part of 
critical habitat. This provision could potentially provide the impetus 
for a carefully-structured planning process in which economic needs are 
balanced with the recovery needs of imperiled species.
    These are simply initial thoughts. For critical habitat to succeed, 
the Services will ultimately need to develop and articulate their own 
positive vision for critical habitat designation. With the leadership 
of the Services, we can take the critical habitat issue out of the 
courtrooms and into the realm of effective conservation planning. In 
the meantime, Congress should reject S. 1180 and any other proposals 
that would promote postponement and avoidance of critical habitat 
decisions.
 iii. s. 1100 should be rejected as an inappropriate attempt to amend 
                      the esa on a piecemeal basis
    In addition to the substantive problems with S. 1100, the National 
Wildlife Federation is also concerned that the bill is being considered 
outside the ESA reauthorization process. S. 1100 raises a host of ESA 
issues that can only be addressed effectively in a full reauthorization 
debate. This is because each of S. 1100's provisions depends on the 
successful implementation of other provisions of the ESA not dealt with 
in the bill. For example, the deadlines imposed for completion of 
recovery plans will not further the ESA's conservation goals unless 
they are accompanied by ESA amendments to ensure that recovery plans 
are meaningful and to ensure that the recovery planning process is 
properly funded.
    To successfully amend the ESA, Congress needs to take a holistic 
view of the Act and ensure that it understands the potential effects of 
each proposed change on the ability of the rest of the Act to function. 
For example, before establishing recovery teams (as proposed by S. 
1100), Congress must consider how their memberships will be determined, 
and such decisions will affect the formation of the advisory committees 
that the Services are promoting for HCPs and the peer review panels 
that the Services are promoting for listing decisions.
    Reauthorization is long overdue and the difficult task of 
completing it is only made more difficult if Members of Congress are 
allowed to resolve their individual grievances with the ESA through 
targeted amendments. If this Subcommittee and the full Committee move 
forward with S. 1100, every member with a desire to weaken the ESA will 
sidestep the reauthorization debate and will instead come forward with 
his or her amendment. Considering that the issues raised in S. 1100 
have no priority claim over other issues that have long been debated, 
it may be difficult to fend off those amendments. At the very least, 
those members will demand a hearing and markup in the Senate Committee 
on Environment and Public Works and, like S. 1100, these proposals too 
will be considered without an understanding of how they inter-relate 
with the rest of the ESA. The only way to provide a comprehensive 
assessment of the ESA with a process that is fair to all sides of the 
debate is to reject the piecemeal approach altogether and to move 
forward on a full ESA reauthorization.
                             v. conclusion
    The National Wildlife Federation urges this Subcommittee to reject 
S. 1100. Although the bill could conceivably be improved to ensure that 
endangered species and their habitats are adequately protected, such an 
effort would not make sense--and in fact would likely be unfair and 
counterproductive--outside the context of a broader discussion of ESA 
reauthorization.
    Thank you again for the opportunity to testify.
                                 ______
                                 
           [Report submitted by John Kostyak for the Record]
  Balancing Public Trust and Private Interest Public Participation in 
             Habitat Conservation Planning: Summary Report
    (By the University of Michigan School of Natural Resources and 
  Environment; Study Commissioned by the National Wildlife Federation)
                            about the study
    Under the Clinton Administration, the number of landowners 
preparing Habitat Conservation Plans (HCPs) to protect themselves from 
liability under the Endangered Species Act (ESA) has skyrocketed. The 
number of approved plans has grown from 20 in 1994 to 225 today. \1\ 
The U.S. Department of Interior expects that by the year 2002 more than 
27 million acres of land and more than 300 species will be covered by 
HCPs. \2\ The growing scope of HCPs has made them one of the more 
celebrated yet controversial aspects of the ESA.
---------------------------------------------------------------------------
    \1\ L. Hood, Frayed Safety Nets: Conservation Planning Under the 
Endangered Species Act, Defenders of Wildlife, Washington, DC, 1998, p. 
vl.
    \2\ FWS, Strategic Plan for 9/30/97-9/30/00, p. 20.
---------------------------------------------------------------------------
    HCP applicants, the U.S. Fish and Wildlife Service (FWS), and, 
sometimes, outside stakeholders negotiate the provisions of an HCP. 
Once the parties have reached an agreement and the FWS has formally 
approved the plan, applicants receive an incidental take permit that 
protects them from liability if they unintentionally harm endangered 
species or their habitat in the course of completing proposed projects. 
Without a permit such activities would violate the ESA. In exchange for 
the permit, applicants agree to pursue specific mitigation strategies. 
These strategies may include avoiding endangered species habitat during 
development, creating habitat reserves, instituting an active 
management program such as prescribed burns, paying a development fee, 
or translocating affected species to public lands.
    HCPs raise a number of important biological, social, and political 
issues that have yet to be answered. Of these issues, the role of 
public participation in habitat conservation planning is particularly 
controversial. As the number and scope of HCPs has grown, so has the 
public's desire and need to be involved. While the character of the HCP 
decisionmaking process has a considerable effect on the shape of final 
HCPs and the adequacy of wildlife protections, there has not been 
extensive research on this process and the public's role in it. How 
does the public participate in these processes? Are applicants, the 
FWS, and outside stakeholders satisfied with current approaches? How 
can policies and procedures be changed to improve habitat conservation 
planning?
    To answer these questions, we conducted an 18-month study of public 
participation in HCPs. The study included:
      A written survey of FWS contacts for the 55 large HCPs 
approved after 1991 or likely to be approved by the end of 1997 (data 
is included from 45 responding HCPs);
      Fourteen in-depth case studies selected from these large 
HCPs that included more than 75 interviews with a wide variety of HCP 
stakeholders; and
      Thirteen case studies of public participation in other 
environmental contexts in the United States, Canada, and Europe.
    We focused on large HCPs (greater than 500 acres) because they tend 
to have greater environmental, economic, and political implications and 
more extensive public participation than smaller HCPs. The survey was 
conducted between dune and September 1997 and all case-study interviews 
took place between November 1997 and January 1998.
    This publication summarizes a longer report prepared by the 
University of Michigan on the role of public participation in the HCP 
process. The summary captures the major themes of the full report and 
provides policymakers with recommendations for improving the HCP 
program. The full report provides a more extensive analysis of 
stakeholders' roles in the planning process and presents detailed 
survey and case study results.
    The full and summary reports were commissioned by the National 
Wildlife Federation, which continues to have a strong interest in 
endangered species policy and HCP management. We would like to thank 
John Kostyack and Sara Barth for their support of the study. However, 
these reports solely represent the work of the University of Michigan 
research team and do not necessarily reflect the views of the National 
Wildlife Federation.
Preface
    The National Wildlife Federation (NWF) commissioned this study of 
public participation in the Habitat Conservation Planning (HCP) process 
for two reasons.
    First, as the study explains, HCPs have rapidly become a popular 
tool for many state and local governments and private landowners 
seeking to ensure that their economic activities are consistent with 
the Endangered Species Act (ESA). Considering the potentially enormous 
impacts (either positive or negative) that these plans have on the 
long-term survival of endangered species, we wanted to learn how NWF, 
its affiliates, and other activists could play a meaningful role in 
shaping these plans.
    Second, policymakers in Congress and the Federal wildlife agencies 
ultimately decide when and how the public is allowed to participate in 
HOP development.
    We wanted to learn if current policies are adequate to ensure 
meaningful involvement and, if not, what policy changes are needed to 
achieve this important objective.
    This policy objective is a top priority for NWP because broad 
public participation helps ensure that HCPs truly protect endangered 
species and helps build the political support that ESA programs need 
for successful implementation.
    The resulting report, summarized here, reflects an outstanding 
effort by the University of Michigan team to investigate NWF's 
questions. We intend to make full use of the report's findings and 
recommendations, and we encourage you to do the same.
                                    John Kostyack, Counsel,
                     Office of Federal and International Affairs,  
                                      National Wildlife Federation.
                                 ______
                                 
                             major findings
    A well-managed public participation process has the potential to 
provide significant benefits to Habitat Conservation Plan (HCP) 
applicants, U.S. Fish and Wildlife Service (FWS) staff, outside 
stakeholders and affected species. These benefits include:
      Enhancing HCP quality,
      Improving communication and building new relationships,
      Increasing public understanding of and political support 
for an HCP, and
      Reducing the likelihood of approval and implementation 
delays.
    With a few exceptions, applicants and the FWS are neither capturing 
the lull benefits of public participation nor providing meaningful 
opportunities for public involvement in the HCP process. In particular, 
we found that:
      Interest groups and independent scientists are not 
involved in a large number of HCPs.
      In the HCPs in which outside stakeholders do participate, 
the FWS and applicants rarely make significant changes to HCPs based on 
their input. In general, outside stakeholder input typically comes too 
late in the process to maximize its usefulness.
      FWS staff have low expectations for making changes to 
HCPs based on public concerns.
      Many outside stakeholders remain dissatisfied with HCPs, 
which suggests that significant problems exist in the HCP program.
    There are four key obstacles to meaningful public participation:
      FWS priorities and policies.
    The FWS has higher priorities than public participation, including 
streamlining the HCP planning process, maintaining congressional 
support for the Endangered Species Act (ESA), providing flexibility to 
landowners, and enticing landowners to pursue HCP agreements.
      NEPA as a public participation process.
    The National Environmental Policy Act does not do enough to 
facilitate an effective public participation process. For example, 
landowners and the FWS typically negotiate HCP provisions well before 
comment periods on NEPA and ESA documents. There are also few 
incentives for the Service or applicant to renegotiate these provisions 
and incorporate changes based on public participation, even if the 
public provides significant new information.
      Ineffective management of HCP negotiations.
    HCP applicants and FWS staff often poorly define the roles of 
outside stakeholders and the FWS in the HCP process, leave outside 
stakeholders with false expectations, and exclude key stakeholders from 
the process. They also fail to ensure that participants central to the 
process, including Federal agencies! have adequate resources to 
participate.
      Fear of public participation.
    HCP applicants, the FWS, and outside stakeholders fear that public 
participation places too great a burden on them. In fact, public 
participation likely increases the cost and length of HCP planning 
processes and requires participants to expend significant resources. 
Still, the FWS, HCP applicants, and outside stakeholders stand to gain 
significant benefits if they learn to manage public participation 
effectively.
    To strengthen the HCP program, we recommend a number of policy 
changes aimed improving the timing and effectiveness of public 
participation. These recommendations include that:
      The FWS require all HCPs with major effects to have some 
form of public advisory committee.
      The FWS build new disclosure and comment periods into the 
planning process to help applicants and the outside stakeholders 
communicate about HCP provisions before a plan is set in stone.
      The FWS concentrate its efforts on programmatic HCPs 
developed by local governments rather than on a large number of small 
private landowner HCPs.
      The FWS involve independent scientists in HCPs with major 
effects.
      Congress and the FWS encourage public participation by 
requiring that HCP agreements allow for citizen enforcement and 
developing a grant program that rewards innovative approaches to public 
participation.
    To make public participation in individual HCPs more elective, we 
recommend that:
      Congress and the FWS enable the FWS staff to involve the 
public more effectively in HCPs by hiring more field-level staff and 
providing all HCP staff with public participation and negotiation 
training.
      FWS staff make NEPA documents and other HCP information 
more readily accessible.
      Applicants and FWS staff involve outside stakeholders, 
including independent scientists, early and consistently throughout HCP 
planning processes. They should use a variety of different outreach 
methods, including field trips, workshops, and steering committees.
      Applicants and FWS staff communicate clearly with outside 
stakeholders about their input and expectations of the planning process 
in order to avoid creating unmet expectations and consequent 
dissatisfaction.





                              introduction
Public Participation In Habitat Conservation Planning
    In theory, Habitat Conservation Plans (HCPs) are designed to 
balance the needs of endangered species with the needs of private and 
other nonFederal landowners. But do HCP agreements live up to this 
promise and promote the public interest?
    The effectiveness of public participation in the HCP decisionmaking 
process provides critical insights for answering this question. As a 
negotiation process that seeks to balance private and public interests, 
habitat conservation planning must find ways to deal effectively with 
the concerns of HCP applicants; public agencies; and outside 
stakeholders, such as independent scientists, interest groups, Native 
American tribes, local governments, state and other Federal agencies, 
nonapplicant landowners, and the public.
    HCPs that incorporate the ideas and concerns of affected parties 
while meeting the biological requirements of the Endangered Species Act 
(ESA) may successfully balance the needs of species and ecosystems with 
the need for of economic development. However, HCPs that lack the 
involvement of key outside stakeholders risk undermining their 
scientific credibility and public support.
    Indeed, we found that meaningful public participation in the HCP 
process has the potential to provide significant benefits to the U.S. 
Fish and Wildlife Service (FWS), the lead Federal agency in most HCPs, 
as well as to HCP applicants, affected species, and the public. 
Specifically, public participation can enhance the information on which 
HCP decisions are based, improve understanding and relationships among 
HCP stakeholders, increase public and political support for HCPs, and 
provide applicants with greater certainty about the long-term viability 
of HCPs.
    However, many of these potential benefits are not being fully 
realized. Our research indicates, with several important exceptions, 
that outside stakeholders have a limited ability to change the 
substantive provisions of HCPs and arc unsatisfied with HCP processes 
and outcomes.
    The benefits of public participation are not being achieved for 
several reasons. The FWS's policies and attitudes suggest that public 
participation is not a high priority within the Service. In addition, 
public comment periods on documents created under the National 
Environmental Policy Act (NEPA) and ESA--the most typical form of HCP 
public participation--come too late in the HCP development process to 
provide meaningful opportunities for public involvement in HCP 
decisions. In many HCPs, FWS staff and HCP applicants also 
ineffectively manage the negotiation process leading to HCP agreements.
    This report outlines the potential benefits of public participation 
and then analyzes why the benefits of public participation are not 
being fully realized. It concludes with a series of recommendations for 
better involving the public in the HCP planning process. Our 
recommendations do not deal with all of the problems facing those 
engaged in habitat conservation planning. For example, other recent 
reports provide important lessons for improving the scientific basis of 
HCPs. \3\ Nevertheless, our findings suggest that improving the design 
and management of public participation will lead to better and more 
enduring HCPs.
---------------------------------------------------------------------------
    \3\ Frayed Safety Nets; P. Brussard et al., A Statement on Proposed 
Private Lands Initiatives and Reauthorization of the ESA from the 
Meeting of Scientists at Stanford University, April 3, 1997; G. Meffe, 
Letter from 169 Scientists to Senator Chafee and Congressman Saxton, 
July 23, 1996; J. Kostyack, ``Surprise,'' Environmental Forum: March/
April 1998, 15(2), pp. 23-28.
---------------------------------------------------------------------------
    We draw extensively on case studies and survey results to 
understand the perspectives of FWS employees, HCP applicants, and 
outside stakeholders who are actively involved in the HCP process. As 
much as possible, we tell the story in their words in order to share 
the variety of HCP experiences we encountered. In many respects, this 
story is discouraging and frustrating. Still, in a small number of our 
case studies, FWS staff and applicants effectively involved the public 
and balanced private and public interests. These success stories 
provide useful lessons for improving habitat conservation planning.
    Public participation is defined in this study as . . .
    The involvement of all nonapplicant and non-U.S. Fish and Wildlife 
Service participants in HCP development and implementation. Outside 
stakeholders include independent scientists, interest groups, Native 
American tribes, local governments, state and other Federal agencies, 
nonapplicant landowners, and the public.
    Meaningful public participation is. . .
    A dynamic process in which applicants, the FWS, and outside 
stakeholders share information with each other about their interests, 
concerns, and ideas. While this may take many forms, depending on the 
context of individual HCPs:
      It requires applicants to solicit public participation 
when it can be incorporated into the planning process, to listen and 
respond to public input, and to implement proposed changes when 
appropriate.
      It also requires that all parties clearly communicate 
their expectations of how public input will be used in the planning 
process.
      In the most effective processes, parties work together to 
find creative and acceptable solutions to problems and develop trust 
through face-to-face interaction.



                           the hcp experience
A Wide Variety of Approaches
    HCPs are essentially products of negotiations between limited 
parties--primarily the applicant and FWS. Outside stakeholders--
independent scientists, interest groups, Native American tribes, local 
governments, state anti other Federal agencies, nonapplicant 
landowners, and the public--are involved to varying degrees in 
particular HCPs. Their involvement depends a great deal on the 
political, legal, and biological context of the HCP and the willingness 
of the applicant to include them.
    Indeed, the HCPs we studied used many different forms of public 
participation, and outside stakeholders tended to play a variety of 
roles during the negotiation of individual HCPs. Approximately half of 
the 45 large, recent HCPs included in our survey results held public 
forums, 40 percent convened steering committees, and 30 percent gave 
site tours. According to our survey, state agencies were involved in a 
high percentage of HCPs, while local governments, interest groups, 
independent scientists, and tribes were involved in fewer HCPs.
    In a number of our case studies, outside stakeholders had 
significant opportunities to participate in the development of the HCP 
and the applicant and FWS responded meaningfully to their input. In 
many of these cases, HCPs stakeholders were allowed to participate 
directly in HCP negotiations. In others, applicants made a concerted 
effort to communicate with stakeholders about their input and changes 
made to the HCP as a result of that input.
    For example, the applicant in the Karner blue butterfly HCP in 
Wisconsin used a collaborative steering committee process in which the 
committee developed the entire HCP for FWS approval. The committee 
consisted of a number of outside stakeholders, including state 
agencies, environmental groups, utility companies, and forest products 
companies. In this and similar cases, outside stakeholders tended to be 
very satisfied with the HCP process. Indeed, this type of HCP 
illustrates many of the potential benefits of a well-managed public 
participation process.
    However, we found two other types of HCPs that were much more 
common. In the first, the applicant and FWS provided significant 
opportunities for public participation but failed to respond 
meaningfully to the public's input. In the Plum Creek HCP, for example, 
the applicant provided outside stakeholders with numerous opportunities 
to comment on its plans and created expectations that it would 
seriously consider those comments. However, many outside stakeholders 
felt frustrated that the company and FWS ignored their comments. In the 
second and most common type of HCP, the applicant and FWS did not 
provide significant opportunities for public participation during the 
development of the HCP. For example, in its Willamette HCP, 
Weyerhaeuser negotiated directly with the FWS, and the public was only 
formally involved late in the process through a comment period on an 
environmental assessment (EA) prepared under NEPA.
    These two types of HCPs have several common characteristics. First, 
outside stakeholders sit on the periphery of the negotiations between 
the applicant and FWS. As a result, they are forced to use other legal 
and political means to influence the HCP. Stakeholders also tend to be 
dissatisfied with these HCPs because they do not provide meaningful 
opportunities for public participation. Indeed, we found that 
stakeholders are less satisfied with HCPs that provide less meaningful 
opportunities for public participation. Finally, these HCPs provide 
numerous examples of pitfalls to avoid when designing and managing a 
public participation process. These pitfalls arc discussed throughout 
the report.
    The actual level of outside stakeholder involvement in an HCP 
depends on their perceived power and the context of the HCP. Because 
levels policy gives applicants almost complete discretion to shape 
public participation beyond the comment period requirements of the ESA 
and NEPA, outside stakeholders are typically involved only to the 
extent that the applicant perceives their involvement to be in its 
interest. If the FINS and applicant perceive outside stakeholders as 
powerful, they are more likely to address outside stakeholders' 
concerns, at least cosmetically, during HCP negotiations. Stakeholders 
have power if they can affect or delay an HCP decision through 
litigation or have political influence over the primary negotiating 
parties.
    For example, in the Orange County Ccntral-Coastal HCP, which was 
one of California's first planning efforts under the Natural Community 
Conservation Planning (NCCP) program \4\ environmentalists who 
participated on an advisory committee initially had little clout. Many 
of their early suggestions were ignored. However, as Dan Silver of the 
Endangered Species Habitats League explained: ``As time wore on, we had 
more [influence] as the resource agencies realized that the overall 
NCCP program wasn't going to have much support in Congress or the 
Legislature if the first one [NCCP] had no conservation group support. 
In the end, they [FWS and the applicant] made the easy changes because 
they needed our support politically.'' Peter DeSimone of the National 
Audubon Society similarly explained: ``It's all politics and 
personality. The politics are so extreme here that you are better off 
schmoozing with some politician than sitting down and doing some real 
planning.''
---------------------------------------------------------------------------
    \4\ The California NCCP program is a state program that encourages 
conservation planning activities in urban southern California, with a 
special focus on coastal sage scrub habitat. It was passed by the 
California legislature in 1991 and has been marketed (much like the HCP 
program) as a means to resolve environmental-economic conflicts over 
endangered species on private lands. Two of the HCPs that we studied 
through case studies (Orange County Central-Coastal HCP and San Diego 
Multiple Species Conservation Program Plan are moving through the HCP 
and NCCP processes concurrently.
---------------------------------------------------------------------------
    The level of stakeholder involvement in HCPs also depends on 
landownership patterns, the type of applicant, and the extent to which 
HCPs affect local economies. In particular, outside stakeholders tend 
to be more involved in HCPs with state or local government applicants 
than they are in HCPs with private landowner applicants. While many 
private applicants do not perceive themselves as having incentive to 
pursue meaningful public participation strategies, government 
applicants typically have extensive public participation requirements 
and experience. Government applicants also tend to have a greater 
political interest in public participation, because their HCPs affect a 
wider varies'' of interests and public resources. .
    Why Is Public Participation Beneficial?
    Public Participation . . .
      Can improve the quality of an HCP.
    Outside stakeholders can bring technical information and other 
resources to HCP decisionmaking. They are more likely than either the 
applicant or the FWS to be able to articulate their real concerns with 
an HCP, which allows these concerns to be addressed in an effective and 
efficient manner. Outside stakeholders also can help craft creative 
solutions that balance the range of interests involved in HCP 
decisions.
      Can build public support for an HCP.
    Involvement in the decisionmaking process can improve stakeholders' 
understanding of the choices made in an HCP and the constraints facing 
both the applicant and FWS. Applicants can also be more responsive to 
stakeholder concerns. Meaningful public participation can build 
relationships and trust that can enable the HCP to move forward. For an 
HCP involving a single, private applicant, public support is needed to 
provide the enhanced certainty that landowners seek. For an HCP 
involving government applicants or public lands, public support is 
necessary for the plan to achieve political acceptability. Ultimately, 
a plan that is supported by outside stakeholders is more efficient than 
one that faces potential litigation and political action.
      Provides an important measure of the likely success of an 
HCP.
    For many HCPs, evaluation of success in biological terms will not 
be possible in the near term. One indicator of the likely success of an 
HCP is the satisfaction level of outside stakeholders, including 
independent scientists. If people with different interests, knowledge, 
and perspectives all look favorably on the direction set in an HCP, it 
is more likely that it will achieve its biological targets. In 
addition, a plan that is supported by outside stakeholders is more 
likely to be implemented successfully.
      Is a vital component of the FWS's responsibilities under 
Federal law and landowner obligations as neighbors in communities.
    Congress has established public participation as an important 
element of endangered species decisionmaking. Through the citizen suit, 
review-and comment, and full disclosure elements of the ESA, NEPA, and 
other laws Lauding Federal administrative procedures, the FWS is 
directed to organize an effective process for involving the public. 
Such involvement is an important element of a democratic society, and 
its significance is magnified in decisions affecting public trust 
resources such as wildlife, publicly used landscapes, and public funds, 
as are often involved in HCP decisionmaking. Involving the public in 
HCP decisionmaking is also part of being a good citizen and neighbor. 
Well-established norms associated with communities establish 
responsibilities associated with citizenship and landownership.
The Potential Benefits of Public Participation
    A meaningful public participation process has the potential to 
provide significant benefits to HCP applicants, the FWS, the public, 
and affected species. While the majority of HCPs do not currently 
capture these benefits, these potential gains suggest reasons why 
applicants and the FWS should consider improving their public 
participation policies and practices.
    Participation clearly improves the quality of information available 
to decisionmakers. Ninety-four percent of FWS respondents to our survey 
said that public participation increased the quality of information 
available to develop HCPs. According to Rich Wininger of Weyerhaeuser, 
public participation can bring up legitimate issues that can ``help 
defuse misperceptions.''
    Public participation can also help stakeholders learn about the 
legal, political, and biological complexities of HCPs. If participants 
are involved early and consistently in the process, this learning can 
help establish communication and trust among participants, which is 
important for plan approval, implementation, and future conservation 
efforts. In the Karner blue butterfly HCP, forest products and utility 
industry representatives reported that the inclusive HCP process 
improved their communication with others in their field. Nonprofit and 
government representatives also improved their relationships with the 
private sector. As Nancy Braker of The Nature Conservancy said, ``If it 
had been an easy process, and we only had to meet a couple of times, we 
would have never developed stronger ties with the timber companies that 
have resulted in further opportunities to do effective conservation 
work in Wisconsin.''
    Involvement of outside stakeholders can build public support for an 
HCP and increase the likelihood of plan approval and implementation. 
With opportunities for learning and building trust, public 
participation can help garner the support of potential critics and 
prevent future conflicts and delays. Our case study results show that 
this is especially true when HCPs provide for early and consistent 
public participation. HCPs with a greater level of public participation 
tend to have higher and broader levels of outside stakeholder 
satisfaction, which decreases the chance of future delays through 
administrative appeals or litigation.
    On the other hand, HCPs that do not effectively involve the public 
can become vulnerable to lawsuits and other delays. In the Riverside 
County Stephens kangaroo rat HCP in California, the public had 
significant opportunities to participate, but many participants felt 
that their comments were ignored. One result was a high number of 
lawsuits from environmentalists and property owners, which slowed the 
planning process and drained the coffers of the joint county-municipal 
authority created to develop the HCP. By 1996 (before the HCP was 
approved and even more lawsuits were filed), the joint county-municipal 
authority reported spending $1.3 million on litigation and legal 
services. The county seems to have learned from its mistakes. Local 
officials developing a multi-species HCP in Western Riverside are 
trying to avoid the high degree of controversy associated with the 
earlier single-species HCP. Although the multiple species HCP is not 
yet complete, all participants--applicant, FWS, and outside 
stakeholders--characterized it as a more collaborative and satisfactory 
process than the first plan.
Clark County: Capturing the Benefits of Public Participation
    The Clark County HCP for the desert tortoise effectively managed 
several aspects of public participation. As a result, the HCP enjoys 
wide support in this growing area of Nevada.
    As with other HCPs that enjoy public support, Clark County, the 
primary applicant, created a steering committee at the outset of the 
planning process that involved a wide array of interests, including the 
county, local, state, and Federal agencies; academics; developers; off-
road vehicle interests; miners; and national and local environmental 
groups. This diverse membership legitimized the committee process and 
helped build trust and ownership of the plan.
    Dolores Savignano, a FWS biologist involved in the HCP, said: 
``There was good buy-in because of all the participation. Our approach 
definitely lowered the controversy level and actually promoted 
learning, which has resulted in more actions getting implemented.''
    The steering committee kept the planning process running smoothly 
by hiring a facilitator and establishing two subcommittees. The 
technical subcommittee kept the steering committee from bogging down in 
technical uncertainty, while the education subcommittee worked to 
enlist the public's support in protecting the tortoise. They educated 
the public by using a telephone hotline, speaking engagements, school 
materials, videos, billboards, and newspaper, radio, and TV ads.
    Participant continuity also facilitated the success of the HCP by 
building trust and understanding. The steering committee met more than 
100 times over 8 years. Many of the core committee members stayed 
involved throughout the planning process and even formed an 
implementation and monitoring (I&M) committee.
    The committee operated on a principle that compromise was necessary 
and that everyone needed to buy into the overall document. According to 
Paul Selzer, the process facilitator: ``No matter how long we took we 
were never going to get total unanimity. The key was consensus not on 
every little item but on the whole thing.''
    Broad committee support translated into broad public support. When 
the committee submitted its plan to the county commissioners, the 
commissioners unanimously voted for it and submitted it to the FWS as 
their official HCP application. As Selzer noted: ``ESA matters are 
explosive and most government entities love it when the enviros walk 
hand-in-hand with the biggest developers in the region and request in 
unison for them to do something.''
    While some biological and policy questions linger, the plan 
continues to be supported by key stakeholders. According to Selzer: 
``No one from any side has really complained about the plan or its 
implementation. There are issues and everyone is not totally happy. But 
if you asked them, would you rather have this plan or not, they would 
all want it.'' In fact, the process worked so well that the county is 
using the HCP committee to prepare a new, 5-million-acre multi-species 
HCP that will be the largest HCP in the country if it is approved. \6\
---------------------------------------------------------------------------
    \6\ Las Vegas Review Journal, November 17, 1997, p. B1.
---------------------------------------------------------------------------
    If structured and managed correctly, steering and advisory 
committees enable outside stakeholders to get involved earlier and more 
consistently in the development of HCPs, thereby helping to capture 
many of the benefits of public participation. For example, an 
environmentalist involved in a number of HCPs said that being part of a 
working group: ``allowed us to understand how the plan developed and 
evolved.
    [The plan] is easier to accept if you understand the series of 
step-wise decisions that occurred. We had the opportunity to satisfy 
ourselves that we couldn't do certain things like connect two reserves. 
. .
    [The plan] worked for me, but if I had not been a part of the 
working group, I would likely not have been able to accept the plan. 
Having that ability to see it as it was developed was critical.''
    The involvement of outside stakeholders, particularly independent 
scientists, can also strengthen the negotiating position of FWS staff. 
In negotiations information is power, and outside stakeholders often 
provide useful and credible information to FWS staff. Having groups 
other than the FWS make the case for permit conditions can also 
strengthen the Service's bargaining position.
    According to interviewees, outside stakeholders can also aid field-
level FWS staff in making their case with upper-level decisionmakers.
    HCPs that include the involvement of outside stakeholders after HCP 
approval are more likely to be implemented successfully. For example, 
in the Georgia Safe Harbors HCP, the steering and scientific advisory 
committees--both made up of outside parties--will oversee the 
implementation process. In the Orange County Central/Coastal NCCP/HCP, 
three public members sit on the 15-member board of the nonprofit 
corporation created to implement the HCP. They can act as watchdogs, 
informing the agencies and outside stakeholders if problems occur. 
According to Dave Harlowe, an assistant FWS field supervisor: ``I think 
more people will come around to appreciate this element of the final 
plan. It is a very positive, partnership-building mechanism, and it 
essentially gives continued life to the plan so that it doesn't become 
like many processes, where frankly the final product is largely 
forgotten by the public.''
    The involvement of outside stakeholders can also help the FWS and 
applicants leverage other valuable resources and expertise, which is 
particularly important given the FWS's chronic budget and staffing 
problems. For example, The Nature Conservancy has been critical to the 
implementation of the Coachella Valley fringe-toed lizard HCP in 
southern California, which was one of the first HCPs ever completed. 
The Conservancy provided funding, secured options on reserve lands, and 
is the repository and distributor of mitigation fee funds. It also 
manages the reserve, oversees management activities, and conducts 
public outreach. All parties to the HCP agree that the plan would not 
work without the Conservancy's continued involvement. \7\
---------------------------------------------------------------------------
    \7\ M. Bean, S. Fitzgerald, and M. O'Connell, Reconciling Conflicts 
Under the Endangered Species Act: The HCP Experience, World Wildlife 
Fund, Washington, DC, 1991, pp. 66-78.
---------------------------------------------------------------------------
    The involvement of independent scientists can have a particularly 
beneficial effect on HCP processes and products. In several of our case 
studies, independent scientists helped design conservation strategies 
and improved the scientific basis of the plans. For example, in the 
Clark County HCP, independent scientists were involved in a technical 
subcommittee early in the planning process. They helped formulate the 
plan and provided scientific review of the steering committee's 
proposals. As the plan developed, members of the technical subcommittee 
continued to sit on the overall steering committee and played a 
critical role in shaping the plan.
    Continued involvement by independent scientists in the planning 
process can also increase the public credibility of an HCP. For 
example, in the Washington Department of Natural Resources (DNR) HCP, a 
science team recommended overall conservation strategies. The team's 
work was widely supported by industry groups and environmentalists 
alike. Unfortunately, those groups lost confidence in the plan when, 
according to Tim Cullinan of the National Audubon Society, among 
others, the ``policy people took over'' and the scientific basis for 
the plan was perceived to have been altered.
    The early involvement of independent scientists also has the 
potential to help applicants and the FWS negotiate HCPs more 
efficiently by providing information that enables the FWS to clarify 
requirements for applicants. Applicants tend to negotiate plans that 
come as close as possible to the minimum acceptable conservation 
standard. However, this minimum standard is often difficult to define 
in practical terms, and the FWS often keeps standards ambiguous in 
individual HCPs to strengthen its negotiating position. For example, 
Kristi Lovelady, senior administrative analyst of the Riverside County 
Habitat Conservation Agency, described her frustration with the lack of 
FWS clarity: ``They were supposed to be the authorities on how much is 
enough . . . . The whole process of the plan was like trying to 
construct something in a pitch black room and somebody saying 'you're 
kind of close.''' Early scientific involvement can reduce problems like 
this by shedding light on biological questions that bog down 
negotiations and providing objective criteria to which negotiating 
parties can appeal.
    In the best of situations, public participation can also ``expand 
the pie'' and help participants discover creative solutions that at 
least partially meet their interests. As Paul Seizer, the facilitator 
for the Clark County HCP, said, ``You might not get your way on every 
item, but in the end the document ought to be better for all than the 
status quo and any alternative you could get through regulation or 
litigation.'' In this inclusive HCP, everyone received something they 
wanted. Developers received greater assurances that they could continue 
to develop in fast growing Las Vegas. In addition, development fees 
paid for state and FWS research, fencing along highways to protect 
desert tortoises, public outreach on tortoise conservation, the 
purchase of grazing leases from willing sellers, and other activities 
that met the interests of participating stakeholders.
The Full Benefits of Public Participation Are Unrealized
    Unfortunately, while there are a number of HCPs that illustrate the 
benefits of engaging in a meaningful public participation process, most 
of the HCPs we studied do not capture these benefits. In fact, 
according to our survey and case study results, interest groups and 
independent scientists are not involved in a large number of HCPs, and 
few HCP agreements are significantly changed because of public 
participation. Significant substantive change> to HCPs tend to occur 
early in the planning process, before interest groups or other 
stakeholders are involved in a significant way. As a result, outside 
stakeholders generally are less satisfied with HCP processes and 
agreements than applicants or the FWS.
    Outside stakeholders are not significantly involved in a large 
number of HCPs. According to our survey results, groups representing 
environmental, Native American, and commodity interests were not 
involved in more than 40 percent of large HCPs. We also found that when 
these groups were involved, the timing of their involvement diminished 
their influence. They tended to be more involved during comment periods 
on ESA and NEPA documents than during earlier phases of the planning 
process when most key HCP decisions are made.
    Nonagency and nonapplicant scientists generally are not involved in 
most HCP processes. Independent scientists were actively or moderately 
involved in only 30 percent of surveyed HCPs. Less than a third of 
surveyed FWS staff reported that they or the applicant submitted 
documents for peer review by independent scientists.
    However, even if outside stakeholders have an opportunity to 
participate in an HCP, this does not necessarily mean that they will be 
meaningfully involved or have their comments seriously considered or 
implemented. Indeed, even when the public is involved, most substantive 
changes to HCPs are driven by the interests of applicants and the FWS, 
not the public. Only 14 percent of FWS staff responding to the survey 
said that public participation resulted in significant substantive 
changes to the HCPs in which they were involved. In more than a third 
of HCPs, public participation led to no substantive changes. In the 
Plum Creek I-90 Corridor HCP, the FWS and Plum Creek tightly controlled 
the development of the HCP. According to Jim Matthew of the Yakima 
Indian Nation, ``It was basically a Plum Creek and FWS show, and 
whatever they were came up with is what we got.''
    While there are important exceptions, outside stakeholders tend to 
be dissatisfied with HCP processes and final HCPs, and their 
expectations of influencing HCPs typically go unmet. In a number of our 
case studies, applicants provided significant opportunities to 
participate, but outside stakeholders did not feel that applicants or 
the FWS incorporated their input. As a participant in the Washington 
DNR HCP stressed: ``The Washington DNR came out and said, ``OK, we're 
going to do all these things to retrieve input from the public and we 
are really interested in what you have to say.'' And the public 
commented at length and intelligently, and that input was not only 
ignored, but in some cases it was almost ridiculed by the Department.'' 
Dennis Hollingsworth of the Riverside County Farm Bureau, a participant 
in the Stephens kangaroo rat HCP echoed this sentiment. ``We can say 
that we had a lot of accessibility to the process by the public . . . . 
But if we look at how it all came out in the wash, it didn't matter. 
There's a healthy number of folks that feel like their public input was 
wasted--that it was nothing but window dressing.''
    Clearly, pleasing everyone, especially single-issue interest 
groups, can be difficult given the complex nature of HCP agreements and 
the biological requirements of the ESA. As Chuck Turley of the 
Washington DNR suggested, ``There's a difference between providing 
someone an opportunity to comment and making some sort of upfront 
guarantee that you're going to do everything they recommend.'' Neither 
the law nor FWS policy requires the applicant or the Service to change 
HCPs based on public comments. And except in unusual cases where the 
applicant and Service prepare an environmental impact statement (EIS), 
the FWS's public participation policy does not require the applicant or 
Service to respond to public comments.



    However, unmet stakeholder expectations can lead to disappointment 
and dissatisfaction. For example, failure to acknowledge and respond to 
public comments can fuel outside stakeholders' impressions that 
applicants and the FWS ignore their comments. Furthermore, the FWS and 
applicants can create expectations that public input will be 
incorporated into an HCP, which leads to frustration when comments are 
not addressed. As Alike Collins of Plum Creek observed: ``If you are 
going to make [your HCP] available to the public and they are going to 
comment on it, then you really have an obligation to respond to what 
they say. There is a tradeoff of making information more available but 
creating a monster in terms of being able to manage the results that 
you get.'' Applicants trying to improve their image or curry public 
favor should be wary of promising meaningful public participation if 
they do not intend to respond to public concerns.



    Our analysis indicates that outside stakeholders are more satisfied 
with the HCP planning process when HCPs have early and consistent 
public participation, involve advisory committees, and use independent 
scientists. Furthermore, outside stakeholders' satisfaction with HCPs 
increases when they are able to participate more intensively--to work 
with others to develop a plan rather than provide feedback on a plan. 
Similarly, the less involved a group is in the negotiation process, the 
more opposed to the HCP they tend to be. This suggests that outside 
stakeholders may be more satisfied with future HCPs if they are able to 
participate earlier and more consistently in the process. 
Unfortunately, this is not the norm.
    While outside stakeholders are generally dissatisfied with the HCP 
process, FWS staff believe that they are very responsive to public 
concerns. An amazing 94 percent of FWS survey respondents reported that 
their final HCP agreement responded very effectively or moderately 
effectively to the concerns and interests of outside stakeholders, 
including those not actively involved in the planning process. This 
wide difference in groups' satisfaction is also evident in our case 
studies. For example, when asked to rate their satisfaction with the 
Washington DNR HCP, both the FWS and the DNR (the applicant) gave the 
final HCP a 4 on a scale of 1 to 5, with 5 being very satisfied. 
Environmentalists, however, ranked the final plan as a 2 and Bob Dick 
of the Northwest Forestry Association asked, ``is there anything less 
than a 1?''
    The fact that FWS staff perceive that they respond effectively to 
public concerns while the public is dissatisfied with many HCPs 
suggests that there are real problems with the HCP program. Either FWS 
staff do not expect to make significant changes to HCPs based on public 
input, or staff are not effectively communicating with the public about 
the changes made to HCPs based on their input. In either case, the FWS 
is not managing the process to maximize the benefits of public 
participation. Moreover, while stakeholder satisfaction is certainly 
not the only measure of HCP success, it is an important one. The more 
satisfied stakeholders are with an HCP, the more likely that HCP is to 
protect affected species and balance public and private interests. 
Unfortunately, the HCP experience to date suggests that many 
stakeholders are dissatisfied with the process and that the balance 
between private interests and public trust is missing.
Tribal, State, and Federal Agency Involvement
    As articulated in the FWS's Habitat Conservation Planning Handbook, 
the FWS has special responsibilities to Native American tribes, states, 
and other Federal agencies. \8\ Our research, however, indicates that 
these outside stakeholders face many of the same obstacles to 
participating effectively in the HCP process as other stakeholders. For 
example, according to Patty Garvey-Darda, a Forest Service biologist: 
``Plum Creek circulated things, but only some, and more importantly 
they would not incorporate our feedback. The sense was there it is, but 
don't ask questions.'' They didn't really want us involved.''
---------------------------------------------------------------------------
    \8\ FWS and NMFS, Habitat Conservation Planning Handbook, 
(Washington, DC, US Department of Interior and Commerce, 1996).
---------------------------------------------------------------------------
    Native American tribes share similar experiences. The environmental 
impact statement for the Washington DNR HCP describes significant 
efforts to incorporate the interests of tribes, and one FWS contact 
felt that tribes were catered to a bit on this project.'' Yet, 
according to Terry Williams of the Tualip Tribe, ``the tribes were left 
out of the planning process.'' Indeed, a number of tribes recently 
filed a notice of intent to sue the DNR over the HCP. Mike Collins of 
Plum Creek explained a similar difference of perceptions in the Plum 
Creek HCP by saying: ``No one translated the HCP into the issue that 
concerns the tribes the most, and that is treaty rights. We thought 
more in terms of considering their interests biologically, but to 
expand to the bigger issue of treaty rights--we missed it.''
                       obstacles to participation
Problematic FWS Policies and Attitudes
    The FWS's policies and attitudes limit HCP participants' ability to 
capture the full benefits of public participation. The Service sends 
its staff conflicting messages about the importance of public 
participation relative to other agency priorities, such as streamlining 
the planning process, securing HCP agreements, and being flexible 
advisors to applicants. indeed we found significant evidence that the 
FWS prioritizes other goals above public participation.
    For example, Service policy statements promoting public 
participation are vague and unenforceable, while policies that limit 
participation are specific and effective. The FWS's Habitat 
Conservation Planning Handbook (Handbooks directs staff to 
``encourage'' applicants to involve outside stakeholders like Federal 
and state agencies and to use steering committees or other means to 
involve interested parties in HCPs. \10\ We found little evidence to 
suggest that this vague policy is leading to meaningful public 
participation.
---------------------------------------------------------------------------
    \10\ Handbook, pp. 3-8, 6-22.
---------------------------------------------------------------------------
    In fact, the FWS has several specific policies that undermine 
effective participation. FWS staff are under pressure to meet Service-
imposed approval deadlines, SUCH as the target permit processing times 
outlined in the Handbook. \11\ These deadlines limit stakeholders' 
ability to review HCPs thoroughly and the FWS's ability to respond 
effectively to public input.
---------------------------------------------------------------------------
    \11\ Handbook, pp. 1-10, 1-14.
---------------------------------------------------------------------------
    For example, despite receiving more than 34 letters asking for a 
comment period extension in the Orange County Central-Coastal NCCP/HCP, 
the FWS and the applicant denied the request because of a previously 
negotiated deadline. In the Plum Creek HCP, the Environmental 
Protection Agency (ERA), Forest Service, and Washington Department of 
Fish and Wildlife (DFW) felt constrained by the limited time to review 
documents. Dave Whipple of the DFW stressed that Plum Creek had defined 
a specific timeline and ``in some instances we ended up without enough 
time to review things thoroughly.''
    Other HCP policies also limit public participation. For example, 
the FWS's policies of categorically excluding ``low effect'' HCPs from 
NEPA review and recommending that applicants prepare environmental 
assessments (EA) instead of environmental impact statements (EIS), 
which require more public disclosure and involvement, sends the message 
that public participation is not a high agency priority. \12\
---------------------------------------------------------------------------
    \12\ Handbook, p. 5-2, 5-3.
---------------------------------------------------------------------------
    The FWS also follows a satisfied customer approach to working with 
applicants, which places a high priority on meeting the needs of 
applicants and securing HCP agreements. The Service has been encouraged 
to take this approach from several sources. Government ``reinvention'' 
efforts have encouraged agencies to focus on customer service. The 
Clinton Administration has also defended the ESA by using HCPs to show 
that the Act can be used to balance species protection and development. 
Indeed, in response to national and local pressures, the Service has 
deferred more to applicants in order to develop a constituency of 
satisfied applicants and increase the number of HCPs.
    Numerous respondents told us that these dynamics reduce the power 
of outside stakeholders and FWS staff and give applicants excessive 
control over the process. As a FEES biologist working on numerous HCPs 
said: ``We have been bombarded from above with this sort of can do 
attitude--to get out there and work with the applicant and get some 
product on the market. Anything that delays that or makes it more 
difficult is not viewed favorably. The whole concept of customer 
service has been really stressed with the applicant being considered 
the only customer.''
    While streamlining the process is a valid goal, the public must 
remain an important customer too, and its interests must be represented 
in permitting decisions. Unfortunately, many in the FWS view public 
participation as a procedural burden rather than an opportunity to 
improve its negotiating position or develop better HCPs. Indeed, many 
see public participation simply as a legally required step in an 
approval process that must be completed as quickly and effortlessly as 
possible.
    FWS staff are also left to decide for themselves how to balance 
guidance that they be advisors to applicants without being ``rigid 
dictators.''16 We found little evidence to suggest that FWS staff make 
encouraging public participation a high priority with applicants. We 
also found that staff have low expectations for making changes to HCPs 
based on public input. Peter Cross, a FWS field director, summarized 
his interpretation of FWS policy by saying, ``The FWS doesn't think 
it's proper to dictate who an applicant should or shouldn't invite to 
attend.''
    The Service's narrow view of public participation partly reflects 
its history and capabilities. The FWS faces staffing and other resource 
shortages, and deadlines limit the staffs ability to effectively 
involve the public. The FWS has years of experience as a regulatory 
agency, but effectively managing HCPs and other cooperative 
conservation programs requires staff to use new techniques, work with 
new constituencies, and balance more complex issues than it has in the 
past. Unfortunately, many HCP staff do not have effective collaborative 
decisionmaking or negotiation skills. Indeed, 59 percent of FWS survey 
respondents reported that they did not have public participation 
training. FWS staff also work in a complex legal environment defined by 
statutes like the Federal Advisory Committee Act, which makes them even 
more wary of dealing with outside stakeholders.
    Ultimately, the Service's approach undermines the effectiveness of 
the HCP process. To improve the HCP program, the FWS should carefully 
review its internal priorities and improve its policies.
The U.S. Fish and Wildlife Service's Public Participation Policy
    Together, ESA, NEPA, and state environmental laws such as the 
California Environmental Quality Act require applicants and the FWS to 
disclose proposed activities and their potential impacts, consider a 
range of alternative actions, and accept public comment on those 
actions.
    The Service typically notices receipt of an HCP application in the 
Federal Register and then conducts at least a 30- to 45-day comment 
period on NEPA and ESA documents depending on whether an environmental 
assessment (EA) or more extensive environmental impact statement (EIS) 
is being prepared. If an EIS is being prepared, the Service and 
applicant also conduct a scoping period early in the planning process 
to identify issues to be addressed in the EIS.
    The law does not require the FWS to incorporate public comments 
into an HCP or make decisions based on public comments. Instead, the 
Service reads public comments, makes a final decision to approve or 
reject the HCP, prints its decision in the Federal Register, and in the 
case of an EIS, publishes a record of decision and final EIS.
    The law provides the FWS with significant discretion to shape its 
own public participation policy. However, rather than using the law's 
flexibility to craft effective public participation processes, the FWS 
interprets the law narrowly and focuses on explicit disclosure and 
comment period requirements.
    The Service encourages applicants to pursue the bare minimum in 
NEPA documentation and comment periods. For example, it encourages 
applicants to pursue EAs or ``mitigated EAs'' instead of more extensive 
EISs. \13\ Only EISs include an analysis of alternative actions and a 
response to public comments.
---------------------------------------------------------------------------
    \13\ Handbook, p. 5-3.
---------------------------------------------------------------------------
    Some HCPs receive no public review. HCPs deemed ``low effect'' by 
the FWS can be categorically excluded from NEPA review. These HCPs are 
not necessarily small. For example, the FWS recently determined that 
the 400,000 acre Gulf States Paper Corporation HCP was a ``low effect'' 
HCP that could be excluded from NEPA review. \14\
---------------------------------------------------------------------------
    \14\ FWS, Notice of Availability of an Application by Gulf States 
Paper Corporation, Federal Register: 63(103): 29423-29424, May 29, 
1998.
---------------------------------------------------------------------------
    The FWS also grants much of its discretion under the law to 
applicants. According to the Service, the development of an HCP ``is 
considered a private action and is, Therefore, not subject to public 
participation or review until the Service receives an official 
application.'' \15\ As outlined in the FWS's Habitat Conservation 
Planning Handbook (Handbook), FWS staff are directed to ``encourage'' 
but not require applicants to provide for public participation beyond 
chat explicitly required by the ESA and NEPA.
---------------------------------------------------------------------------
    \15\ FWS, Habitat Conservation Plans and the Incidental Take 
Permitting Process.
---------------------------------------------------------------------------
    The Handbook makes special mention of encouraging the development 
of stakeholder advisory committees and the involvement of other Federal 
and state agencies and Native American tribes. It also outlines a 
number of suggestions for making committee processes function more 
effectively. While this is sound advice, we found chat FWS staff do not 
make public participation a high priority with applicants. In most 
HCPs, the vague encourage-but-not-require policy fails to lead to 
meaningful public participation. In fact, in most HCPs, the NEPA and 
ESA comment periods are the sole public participation mechanism.



NEPA Is Not Enough
    NEPA provides important access for outside stakeholders into the 
HCP decisionmaking process. But the dynamics of the negotiation process 
used to design HCPs are ill-matched to the opportunities that NEPA 
provides for public participation. Thus, NEPA provides a necessary but 
insufficient approach to public participation in habitat conservation 
planning.
    The NEPA process was designed to provide-the public with 
information about project objectives, alternative actions, and 
environmental effects. In doing so, it can provide a consistent vehicle 
for public disclosure and comment on nearly finalized HCPs, which is 
especially important when an HCP has been negotiated by landowners and 
the FWS behind closed-doors. NEPA also gives the public an important 
opportunity to file formal comments on proposed HCPs. Finally, because 
it is required and institutionalized, NEPA creates benchmarks that help 
stakeholders gauge the progress of the planning process.
    However, NEPA was not designed to facilitate public participation 
in the negotiations that take place in the development of most large-
scale HCPs. The timing of comment periods on NEPA documents is 
particularly mismatched with the dynamic decisionmaking that occurs in 
HCP negotiations. NEPA provides for scoping periods early in the 
planning process when an EIS is prepared and comment periods on ESA and 
NEPA documents at the end of the planning process when either an EIS or 
less extensive environmental assessment EA is prepared. \17\ However, 
in HCP negotiations, key decisions tend to be made iteratively 
throughout the process. Indeed, most key HCP decisions are negotiated 
after the NEPA scoping process (if an HCP has one, and most do not) and 
well before the comment period on ESA and NEPA documents. As a result, 
unless they are involved in a committee process, outside stakeholders 
do not typically have an opportunity to participate in the planning 
process when key decisions are being made.
---------------------------------------------------------------------------
    \17\ ESA documents include a draft HCP and an implementation 
agreement.
---------------------------------------------------------------------------
    This timing problem is magnified by the dynamics of HCP 
negotiations, which can be intense, involved, and protracted. Over 
time, issues become increasingly interconnected, and negotiators become 
vested in specific elements of the agreement and reluctant to unravel 
tentative agreements. Several FWS staff indicated that once a planning 
process is underway, every plan provision becomes hinged to every 
other. As Bill Vogel of the FWS explained ``an HCP becomes like a house 
of cards where you don't want to risk altering too much for fear the 
whole structure will collapse.'' By the time ESA and NEPA documents go 
out for public review late in the planning process, negotiators are 
increasingly unlikely to change tentative agreements even if new 
information is discovered or legitimate concerns are raised during the 
comment period. As Ruth Siguenza of the EPA said: ``The culture of 
[NEPA and HCPs] is a very rough fit. NEPA alone is not a very effective 
tool when it comes to HCPs in terms of affecting changes that come out 
of the whole process. I have seen folks at the FWS go back to the 
negotiating table after NEPA but it is very hard to do that.''
    FWS staff are also reluctant to make significant substantive 
changes to HCPs because they do not want to prepare supplemental NEPA 
documents. Applicants can use this reluctance to their advantage and 
out-negotiate FWS staff. As a IONS staff person acknowledged: ``The 
political pressures got pretty nasty. Because the public comment period 
had already occurred, there was tremendous pressure brought on us not 
to change the HCP too much. People said, 'If you change it too much, 
you'll have to do a supplemental EIS.'''
    Similarly, as the planning process nears completion, negotiators 
become increasingly less open to scientific input that challenges 
tentative agreements. Indeed, the burden of proving that there are 
scientific problems with a negotiated agreement can shift away from the 
applicant and the FWS and onto independent scientists and interest 
groups concerned with HCP provisions. In the Plum Creek case, Dave 
Whipple of the Washington DEW said, ``We had to prove that what Plum 
Creek was proposing was bad, not necessarily that they had to prove 
what they were proposing was good.''
    The mismatch between the NEPA process and the character of HCP 
decisionmaking can be extremely frustrating to outside stakeholders who 
often invest significant amounts of time reviewing, commenting, and 
trying to influence HCPs at the end of the process when their comments 
are less likely to be useful or incorporated into the HCP. Our case 
study and survey results indicate that public participation before the 
comment period on ESA and NEPA documents results in more substantive 
changes to HCPs than participation during other phases of planning or 
implementation. Yet we also found that interest groups tend to be more 
involved during the comment period on ESA and NEPA documents than 
during any other planning phase.
    Outside stakeholders also expect their input to be incorporated 
into the plan, and when it is not, they tend to be dissatisfied and 
unsupportive of the process and resulting HCP. According to Timothy 
Neely, the county planning administrator involved in developing the 
Orange County Central-Coastal NCCP/HCP: ``The problem was people felt 
they had already missed the point to really affect the plan and that 
the decisions were already made [by the point of the NEPA comment 
period]. A lesson we learned was the need to do more public workshops 
before the comment period--when it was easier to make adjustments.''
    Although outside participants understand the legal importance of 
filing written comments for the public record, some outside 
stakeholders have also learned strategies for dealing with these 
dynamics. Dave Whipple of the Washington DEW reported: ``What I learned 
is to be super prepared. If we don't comment or have feedback when 
something is presented they will take it for approval. Silence is 
really consent in these arenas.'' Other outside stakeholders push for 
advisory committees to be created as a vehicle for providing input 
throughout the negotiations. Others design innovative ways to provide 
comments that are difficult to ignore. For example, environmental 
groups concerned about the Weyerhaeuser Willamette HCP commissioned two 
scientific review panels to analyze the HCP.
    By itself, NEPA also fails to facilitate active communication among 
the parties interested in an HCP. In HCPs with broad public support, 
stakeholders often build personal relationships and open new lines of 
communication with other participants. These lines of communication 
help build trust among the participants, dispel misinformation, and 
open new opportunities for cooperation in the future. But the NEPA 
process--with its focus on written documentation--does not facilitate 
this type of cross-party communication. As Rich Wininger of 
Weyerhaeuser said: ``A lot of comments came out of NEPA. With many, we 
thought we could handle or answer them, but that is not our job. Once 
you go through public comment, it is the Service's job to respond and 
the applicant isn't supposed to be involved. It's frustrating. I don't 
think a lot of environmental groups realize all the things that we have 
since worked through and resolved.'' In an effective process, the lines 
of communication would be open so that the interested parties would 
know about these types of changes and might actually be working with 
the applicant to craft them.
    Designing a reasonable range of alternatives, as required by NEPA, 
is also difficult in many HCPs. As Ruth Siguenza of the EPA said, 
``What is quirky about HCPs is that because they are voluntary and 
negotiated, it is hard to come up with three or four reasonable 
alternatives as the process leads you to some sort of settlement.'' 
Tony Metcalf of the San Bernardino Audubon Society similarly complained 
of the Riverside Stephens kangaroo rat HCP: ``If you look at the 
various alternatives that were proposed by the environmentalists, you 
don't see them anywhere. The only thing that comes even close, 
unfortunately, is a 'no project' alternative which nobody was really 
happy with.''
    Although the FWS and applicants have adequate room within the 
guidance of NEPA and the ESA to craft processes that provide more 
opportunities for effective public participation, they rarely do so. As 
currently applied, the formal public participation process is 
misleading to outside stakeholders and an unsatisfactory decisionmaking 
process.
Ineffective Management of HCP Negotiations
    Applicants and the FWS have also structured and managed individual 
HCPs in ways that fail to capture the full benefits of public 
participation. Research and experience in other natural resource 
decisionmaking arenas suggests that managers of effective negotiations 
design dynamic processes in which stakeholders share information about 
their interests and concerns, test the validity of competing technical 
arguments, develop trust through face-to-face interaction, and work 
together to find creative and acceptable solutions to problems. \18\ 
They also ensure that participants' roles are well defined, the agenda 
and scope of the negotiations are defined early in the process, all 
legitimate interests are represented, and participants have an 
incentive to be involved in a good-faith manner. In our research, we 
found a number of examples where these elements of an effective process 
are not incorporated into HCP negotiations.
---------------------------------------------------------------------------
    \18\ J. Wondolleck, Public Lands Gnflict and Resolution, Plenum 
Publ., New York, 1988; S. Yaffee, ``Cooperation: A Strategy for 
Achieving Stewardship Across Agency Boundaries,'' pp. 299-324, in R. 
Knight and P. Landres, StevJardship cross Boundaries, Island Press, 
Washington, DC, 1998.
---------------------------------------------------------------------------
    Managing effective negotiations requires a different approach than 
the traditional public participation approach that most HCPs follow. 
Most HCP negotiations are not structured so that the outside 
stakeholders concerned about an HCP can continue to communicate with 
and learn from each other throughout the planning process. As Jim Fries 
of The Nature Conservancy of Texas commented on the traditional nature 
of the process in the Balcones Canyonlands HCP: ``The public 
participation process allows people who already have preconceived 
positions to continue to state them and argue for them, not to adjust 
their positions based on new information. That's a real deficiency. I 
don't think it's a dynamic or real iterative process; it's a real 
static process.''
    There is often confusion during HCP development about the role of 
certain stakeholders, particularly the role of FWS staff. For example, 
in the Riverside Stephens kangaroo rat HCP and the Balcones Canyonlands 
HCP, Service staff initially took a hands-off approach while 
participants expected them to provide more guidance. Alan Glen, a 
committee member representing the Greater Austin Chamber of Commerce, 
said of the Balcones HCP, ``There was confusion about whether the FWS 
was really a participating member or whether they were a resource for 
the committee.'' In both HCPs, the resulting misunderstanding led to 
significant frustration on the part of participants.
    While the FWS officially defines its role in steering committees 
and other HCP processes as that of a ``technical advisor,'' \19\ in a 
more effective process it would play a host of different roles. At 
various times throughout HCP negotiations, FWS staff may need to act as 
experts, facilitators, leaders, stakeholders, and final decisionmakers. 
These roles are different from those played in traditional regulatory 
decisionmaking processes and will require FWS staff to learn new 
skills. These roles should also be articulated clearly and repeatedly 
to other HCP stakeholders throughout the planning process.
---------------------------------------------------------------------------
    \19\ Handbook, pp. 3-5, 3-6.
---------------------------------------------------------------------------
    With few exceptions, the public has little role in negotiating the 
agenda or scope of HCP planning processes, even though the scope and 
agenda have a significant effect on the shape of final HCP agreements. 
More typically, applicants, acting to varying degrees with the FWS, 
determine the basic scope and agenda of planning processes. This leads 
to frustration and, at times, distrust among stakeholders. For example, 
in negotiating the scope of the Orange County Central-Coastal NCCP/HCP, 
the primary negotiating parties excluded from the negotiation a major 
toll road that eventually bisected a key HCP reserve and at the end of 
the process included a controversial development project located away 
from the main permit area. Interest groups and the public tried 
unsuccessfully to affect these decisions. In particular, the last 
minute addition of the development project damaged trust among those 
involved in the HCP. Dave Harlowe, an assistant FWS field supervisor 
working on the project, said, ``In the long run, this one issue really 
hurt us in terms of understanding and support.''
    Delays and other problems arise when critical outside stakeholders 
are not included in the planning process. The exclusion of a critical 
viewpoint from an advisory committee can undermine the legitimacy of a 
committee, lead to increased controversy and litigation, and prevent 
plans from being implemented. For example, according to Ralph Costa of 
the FWS, the applicants for the Georgia Safe Harbors HCP chose members 
for its steering committee ``just by intuition and a lot of knowledge 
about the players.''
    The committee included an environmental representative from the 
Georgia Wildlife Federation, but it did not anticipate needing a 
national environmental group representative. After the HCP was released 
in draft form, national environmental groups raised serious concerns 
about the plan and successfully delayed approval of the final HCP. 
Similar problems can arise when advisory committee members do not 
represent the positions of their organizations or claim to represent 
interests they do not actually represent.
    HCP negotiations can also bog down because important participants 
do not have the incentive to begin negotiating or make hard choices. 
Paul Seizer, the facilitator in the Clark County HCP, described that 
highly collaborative process as a ``balance of terror.'' He further 
stressed: ``The process works only when every member [of the steering 
committee] is convinced that the product will be the best available 
alternative at that time. So the challenge becomes finding that 
alternative so that they become convinced over time that it is better 
to participate than fight.''
    For example, in the Orange County and San Diego HCPs, the listing 
of the California gnatcatcher and the threat of development 
restrictions gave certain parties more incentive to move the planning 
processes forward and made the HCP ripe for negotiation. Designers of 
the piping plover HCP in Massachusetts failed to thoroughly consider 
the incentives facing the beach managers whom they wanted to apply for 
coverage under the HCP. Only one beach manager applied. According to 
Susanna von Oettingen of the FWS: ``Because the HCP was so restrictive, 
most of the beach managers didn't want to bother. Too much work for not 
enough payback.''
    Planning process organizers are not always sensitive to the needs 
of certain participants. For example, Ann DeBovoise, an individual 
landowner affected by the San Diego MSCP Plan, complained that 
important working group meetings took place in the middle of the day, 
which made them inconvenient and burdensome to attend. Allison Rolfe of 
the Southwest Center for Biodiversity, among others, complained that 
meetings were poorly advertised and getting on mailing lists was 
difficult. Moreover, while the San Diego working group regularly 
accepted public comments, it did so at the end of its meetings, which 
often lasted two or 3 hours.
    Advisory committees present unique challenges to managing a multi-
party planning process. For example, in the Balcones HCP, participants 
acknowledged that employing a consistent, neutral facilitator may have 
improved the process. Facilitators can keep lines of communication open 
and ensure that the process is designed to build trust among parties. 
They can also keep the process moving forward by defusing conflict and 
promoting cooperation and compromise. In Balcones, two interviewees 
spoke of decisions often being made ``behind the scenes'' in unofficial 
meetings with only a select group in attendance. Other committee 
participants disputed this, but the distrust of those who believed the 
process was unbalanced and unfair may have been alleviated if an 
experienced facilitator had helped the Balcones committee set up ground 
rules and communicate about the activities of its members.
    Outside stakeholders often do not have the resources to participate 
as effectively in the planning process as they would like. This can 
lead to nonparticipation by important stakeholders, significant power 
differences among participants, and approval delays. In particular, 
independent scientists currently have few professional or financial 
incentives to participate in the HCP planning process. Landowner Ann 
DeBovoise stressed: ``It was irritating to look around and see all 
these people who were getting paid to do this, especially when their 
decisions affect our land and a lot of other people. To participate and 
protect our interests took all of our spare time, evenings, and 
weekends.'' In the Riverside HCP, environmental representatives had a 
particularly difficult time attending HCP meetings because they were 
all volunteers.
    Both the applicant and FWS staff complained that delays occurred in 
the Plum Creek HCP because the National Marine Fisheries Service (NMFS) 
did not have the resources necessary to participate effectively in 
planning process. As Mike Collins of Plum Creek stressed: ``The biggest 
frustration I had was that NMFS was a partner in this process in theory 
only. In practice, because of severe staffing limitations, they were 
not able to participate as a true partner. They sometimes intervened at 
points when we thought we had an agreement with the government. We 
assumed because of their absence at meetings that the FWS was speaking 
for both of them, which it couldn't.''
    Applicants and the FWS can also have difficulty gauging the 
public's level of interest in an HCP at the outset of the planning 
process. In a number of our cases, applicants and the Service tried to 
involve the public early, during the scoping phase of the planning 
process, only to find little public interest in their efforts. In some 
of these cases, the applicant and FWS assumed that low turnout or 
minimal controversy at early public meetings justified fewer or no 
public meetings later in the process. In the Plum Creek HCP, this 
assumption added to public frustration with the HCP. Several 
dissatisfied participants reported that while Plum Creek offered them a 
number of opportunities to air their concerns early in the process, it 
was not very responsive to their concerns later in the process. As 
Charlie Raines of the Sierra Club said, ``Plum Creek and the Service 
started with this big splash that didn't bring them much, and so later 
on they rationalized 'let's just get these documents out: these 
meetings are a waste of time.'''
    As the examples illustrate, applicants and the FWS do not always 
manage negotiations or public participation as effectively as they 
could. HCPs are a different decisionmaking environment than traditional 
FWS regulatory decisionmaking. In these differences lie the great 
potential for HCPs to balance public and private interests, but only if 
HCP dynamics are managed more effectively on-the-ground. Indeed, a 
greater understanding of the dynamics of the negotiation process and 
how to manage public participation could go a long way to improving HCP 
planning.
Fear of Public Participation
    The benefits of public participation are also not realized in the 
HCP planning process because applicants, the FWS, and outside 
stakeholders fear the burdens of public participation.
    Developing an HCP takes significant time and resources, especially 
given the complexity of most HCPs. Most interviewees reported that 
public participation adds to the cost and length of the planning 
process even if it provides other benefits. Applicants who have 
significant investments at stake in an HCP are legitimately concerned 
about delays and the costs of responding to public demands. As Bruce 
Beckett, a Weyerhaeuser representative stated: ``The HCP effort is 
going to die under its own weight. The more the FWS burdens the process 
down, the less willing people are going to be to enter it.'' FWS 
policies and practices echo concerns that active public participation 
will scare away potential HCP applicants.
    Outside stakeholders may also not have the interest or resources to 
participate in an HCP. Participating in an HCP can have high 
opportunity costs, and stakeholders can grow frustrated if they feel 
applicants are not seriously addressing their concerns. Some are 
concerned that their involvement will lend credibility to an inadequate 
HCP. National Audubon's A Citizen's Guide to Habitat Conservation Plans 
recommends that activists ``carefully evaluate the time required to 
fully participate, as well as the limits of such participation. . . .If 
participation does require some measure of support for the final plan, 
or a role in negotiating the plan itself, conservationists should think 
carefully before agreeing to participate.'' \20\
---------------------------------------------------------------------------
    \20\ M. Minette and T. Cullinan, Citizen's Guide to Habitat 
Conservation Plans, National Audubon Society, August 1997, p. 12.
---------------------------------------------------------------------------
    While developing an effective public participation process can be 
challenging, our analysis suggests that applicants, the FWS, and the 
HCP benefit significantly by making public participation more 
meaningful. As the facilitator in the Clark County HCP, said: ``We 
worked out differences without imposing solutions. This is a longer 
process and more expensive--but it works.''
    Different HCP applicants and stakeholders have different needs, and 
there is no one-size-fits-all approach that works for everyone. Indeed, 
not every applicant should pursue a multistakeholder HCP negotiation 
like the Clark County HCP. Meaningful participation may mean forming an 
advisory committee with a clearly defined mission that educates key 
stakeholders about HCP tradeoffs or calling stakeholders to discuss 
their input. Outside stakeholders should approach applicants by 
demonstrating their value to the process. What do they have that 
applicants want, and how can applicants meet the group's interests and 
still meet their own needs?
    This all takes time and effort. Still, our research suggests that 
increasing communication early in the process, seeking input within 
clearly articulated parameters, and working face-to-face with others to 
solve problems, pays off handsomely in terms of increased credibility, 
trust, relationships, and support. As such, we strongly encourage 
applicants and the FWS to explore ways to make their policies and 
practices more effective.
   policy recommendations making public participation more meaningful
Policy Recommendations
            Expand Participation Policies and Procedures
    1. Require HCPs with major effects to be guided by a public 
advisory committee.
    2. Require new public disclosure and comment periods throughout the 
HCP process.
    3. Extend NEPA comment periods.
    4. Eliminate target processing times.
    5. Clarify the ``maximum extent practicable'' standard and document 
its determination.
            Expand Independent Science
    6. Facilitate the involvement of independent scientists in all HCPs 
with major effects.
            Develop Regional HCPs
    7. Encourage local governments to pursue programmatic HCPs.
            Create New Incentives
    8. Create a grant program that encourages participation.
    9. Acknowledge the public's right to enforce HCP agreements.
            Enable EWS and Applicants
    10. Increase funding to hire and train additional HCP field staff.
    11. Redirect staff to encourage applicants to pursue expanded 
public participation.
    12. Provide HCP staff with public participation and negotiation 
training.
    13. Create a public participation resource team to help design 
effective planning processes.
    14. Make HCP information more readily accessible to the public.
Expand Public Participation Policies and Procedures
    1. Congress and the FWS should require that HCPs with major 
collects hi designed and guided lay an advisory committee that includes 
outside stakeholders.
    Steering or advisory committees can provide a structure that 
enables participants to get involved earlier and more consistently in 
the development of HCPs, thereby helping to capture many of the 
benefits of public participation. Committees that include all affected 
outside stakeholders, including independent scientists, interest 
groups, and members of the public, can find innovative ways to solve 
problems, strengthen relationships among stakeholders, and develop 
plans that are more biologically and politically viable. HCPs with 
major effects include those with significant impacts on species, public 
lands, or public finances or significant public demand for inclusion in 
the HCP process.
    2. Congress and the FWS should build new public disclosure and 
comment periods into the HCP planning process. These periods can be 
held periodically or at trigger points in the planning process. All 
HCPs should require public scoping under NEPA.
    Public participation must be better structured to deal with the 
dynamics of the negotiation process. In particular, the process must 
consider the ongoing nature of HCP negotiations and the strong 
disincentives to change tentative agreements once they have been made. 
Comment periods on ESA and NEPA documents, as they are currently 
implemented, generally come too late in the process.
    Comment and disclosure periods would be more useful if they 
occurred throughout the HCP negotiation process. As such, all HCPs, 
including those that only require an EA should hold scoping periods. 
Other trigger points for public disclosure and comment should also be 
added. These points could be structured for each planning process and 
be negotiated by stakeholders early in the process.
    Points for review might include:
    (a) after completion of draft and final conservation strategies or 
reserve designs,
    (b) directly before the preparation of NEPA documents (i.e. the 
project has been designed and alternatives can be evaluated), and
    (c) after applicants submit their application to the FWS. \21\
---------------------------------------------------------------------------
    \21\ T. Cullinan, ``Habitat Conservation Plans in Industrial 
Forests of the Pacific Northwest'' End. Species Update, July/August 
1997, 14(7&8) p. 31.
---------------------------------------------------------------------------
    The FWS could deem these additional requirements satisfied for 
applicants using advisory committees.
    3. NEPA comment periods should be extended to a minimum of 90 days 
for steering Committee HCPs and 120 days for all other HCPs.
    Many members of the public find current comment periods 
prohibitively brief, especially considering the complexity and risk 
associated with HCPs. As such, the length of comment periods on ESA and 
NEPA documents should be extended. Having comparatively shorter comment 
periods for open steering committee processes could provide an 
incentive for applicants to increase public participation. Presumably, 
outside stakeholders involved in an HCP with a committee process would 
also be more knowledgeable about the HCP and better able to comment 
quickly on it.
    4. The Service should eliminate target processing times in its HCP 
Handbook.
    These deadlines send the message that efficiency is more important 
than public participation and put pressure on agency staff to speed 
through the NEPA process and their review of the HCP application.
    5. The Service should develop criteria used to evaluate whether an 
applicant has mitigated take to the ``maximum extent practicable'' and 
explicitly document its determination of this standard in NEPA 
documents for all HCPs.
    Before the FWS can approve an HCP it must determine that the plan 
will mitigate the take of endangered species to the ``maximum extent 
practicable.'' This approval standard is not very well defined, 
however, and FWS staff have significant discretion to determine its 
meaning in individual HCPs. In cases of scientific ambiguity, 
applicants often limit public disclosure and participation in their 
HCPs because they fear that public input will cause the FWS to 
interpret the standard to their disadvantage. As Bruce Beckett of 
Weyerhaeuser said, ``When you don't know what you are shooting for, 
your distrust among participants increases.'' Moreover, the public 
often does not have access to the information or logic the FWS uses to 
make its determination of this important standard. The standard should 
be clarified, and the evidence supporting the FWS's determination 
should be made available to the public.
Expand Evolvement of Independent Scientists
    6. The Service should facilitate the involvement of independent 
scientists in all HCPs with major effects.
    The involvement of independent scientists benefits everyone. It 
helps clarify how regulatory standards will be interpreted in 
individual HCPs, makes the decisionmaking process more credible and 
efficient, and provides applicants with greater certainty. It may also 
help bolster the negotiating position of FWS field staff.
    In HCPs with major effects, FWS staff should work to ensure that 
independent scientific review happens early and consistently as HCPs 
develop, particularly after baseline data collection and analysis are 
complete. Funding to implement this recommendation is critical. One 
approach would use a blind trust arrangement with funds provided by the 
government or the applicant. To keep the process independent, the 
Service should coordinate selection of scientists in conjunction with 
professional societies and other Federal and state agencies. Scientists 
involved with relevant recovery and other scientific plans should be 
included. The comments of independent scientists should be made 
available to the public, perhaps on an anonymous basis.
Encourage Development of Regional HCPs
    7. The Service should encourage more local governments to initiate 
programmatic HCPs.
    Rather than working with a large number of individual private 
landowners, FWS staff should encourage local governments to pursue 
programmatic HCPs.
    Once a programmatic plan is approved, the local government or other 
public entity that holds the HCP permit provides certificates to 
landowners who agree to follow the HCP's requirements. Local 
governments often have incentive to pursue these HCPs because they can 
be held liable under the ESA for issuing building permits that result 
in the take of endangered species.
    There are a number of benefits associated with pursuing 
programmatic HCPs. The FWS can develop proactive and broad-scale plans 
to protect affected species. They can also better address the 
cumulative effects of development activities on ecosystems. 
Programmatic HCPs are also more efficient. Rather than participating in 
a number of small HCPs, FWS staff and outside stakeholders, including 
independent scientists, can participate in a larger process. This would 
also expedite the process for landowners, who would be able to apply to 
their local government for the proper certificate once the programmatic 
HCP is developed and approved rather than applying for their own 
Federal HCP permit.
    Programmatic HCPs are also likely to have more public participation 
because more people would be affected by the HCP and interested in the 
planning process. Interest groups and other outside stakeholders are 
also likely to invest more resources in the process than they would in 
individual landowner processes. Finally, HCPs that are initiated by 
local governments typically have more opportunities for public 
participation than individual landowner HCPs. As one local government 
official involved in HCPs said, ``The successful HCP is a government 
applicant HCP, because the process must be public and totally open.''
Create Incentives to Encourage Public Participation
    8. Congress or the FWS should create a grant program that 
encourages public participation.
    Congress should authorize and appropriate funds to the FWS to 
establish two competitive grant programs. The first would support 
innovative programs for involving the public in the HCP process beyond 
current legal requirements. The FWS should select recipients based on 
criteria such as the balance of interests represented, ease of 
participation, and potential of replication.
    The second grant program would support stakeholders verity limited 
resources who want to participate in the HCP process. There is 
precedent for funding participants with limited resources. In six of 
the HCPs responding to our survey, either the applicant or the Service 
provided citizens with financial support to participate in the planning 
process. Also, in the negotiated rulemaking model that we studied, 
Federal agencies financially assisted participants who had inadequate 
resources.
    9. Congress and the FWS should explicitly acknowledge the public's 
right to enforce HCP agreements.
    Outside stakeholders may sue to enforce the ESA and most other 
environmental laws. HCPs, however, lack clear outside stakeholder 
enforcement mechanisms and most recent HCP agreements do not 
acknowledge citizen enforcement rights. Under traditional contract law, 
this failure to either explicitly or implicitly acknowledge the rights 
of outside stakeholders means that they lack third-party beneficiary 
status and may not be able to enforce the agreements. \22\
---------------------------------------------------------------------------
    \22\ John Kostyack, ``Surprise,'' The Environmental Forum, March/
April 1998, 15(2) p. 28.
---------------------------------------------------------------------------
    Providing outside stakeholders with the explicit right to enforce 
HCP agreements, either in Section 11 of the ESA or in individual HCP 
agreements, would provide more incentive for HCP applicants to address 
the concerns of outside stakeholders and include them more 
meaningfully.
Enable the FWS and Applicants to Involve the Public More Effectively
    10. Congress and the FWS should increase funding to hire and train 
additional FWS field-level HCP staff.
    Currently, Service HCP staff are stretched thin, often handling 
multiple HCPs under significant time constraints. The lack of adequate 
resources limits the Service's ability to handle the scientific basis 
of HCPs, let alone effectively incorporate the public into the process. 
In certain cases inadequate Service resources can also contribute to 
significant HCP processing and approval delays. Increasing staff 
funding would improve the efficiency of the planning process.
    11. The FWS should reaffirm guidance in the HCP Handbook to 
encourage applicants to pursue expanded public participation.
    To its credit, the FWS has included valuable information about 
designing an effective public participation process in its Handbook. 
The Handbook makes special mention of encouraging the development of 
stakeholder advisory committees and the involvement of other Federal 
and state agencies and Native American tribes. According to the 
Handbook, advisory committees can help guide development of an HCP; 
consider appropriate development, land use, and mitigation strategies; 
and communicate progress to their larger constituencies, all of which 
can reduce conflict surrounding the HCP. The Handbook also outlines a 
number of valuable suggestions for making committee processes function 
more effectively. \23\
---------------------------------------------------------------------------
    \23\ Handbook, pp. 3-4, 3-5.
---------------------------------------------------------------------------
    While this is sound advice, we found that many Service staff are 
not making public participation a high priority with applicants. Given 
conflicting messages about the importance of public participation 
relative to other Service priorities, FWS staff need to be told clearly 
that public participation is a high priority within the Service. 
Moreover, in the case of large effect HCPs, the FWS needs to require 
expanded participation.
    The Service should also make information about effective public 
participation more accessible to applicants and staff and develop 
literature that illustrates the benefits of public participation. This 
literature could include case studies of successful public 
participation processes in completed HCPs. Staff should distribute this 
literature to applicants during initial conversations about preparing 
an HCP.
    12. The Service should provide HCP staff with public participation 
and negotiation training.
    Communicating effectively with the public, designing effective and 
efficient public participation processes, and negotiating complex 
agreements require skills that many FWS staff do not have. Public 
participation training would better enable staff to negotiate HCPs that 
best meet the needs of the species, the Service, applicants, and the 
public. The Service should prepare a training curriculum that addresses 
communication and negotiation with a particular focus on the HCP 
experience.
    13. The FWS should create a public participation resource team made 
up of individuals with HCP public participation, and negotiation 
experience.
    The resource team could be called to help other FWS staff and HCP 
applicants design effective and efficient public participation 
processes or overcome participation roadblocks. Drawing on field 
experience, the team would develop an understanding of the factors that 
facilitated successful HCPs. It could then share this knowledge with 
other FWS staff and help them network with those who have experienced 
similar public participation challenges. The team could also help staff 
strategize for HCP negotiations.
    14. The FWS should make information about HCPs more readily 
accessible to the public.
    The public often has difficulty obtaining current, centralized 
information about the status of HCPs (both completed and in-process). 
To alleviate this problem, the FWS should create a publicly accessible, 
comprehensive HCP data base that tracks the progress of in-process 
HCPs. This data base should be posted on the World Wide Web and revised 
often.
    We also found that outside stakeholders can have problems obtaining 
key HCP and NEPA documents. The FWS should require that field-level 
staff make NEPA and other documents readily available to the public. To 
obtain copies of NEPA documents, those interested in an HCP should 
neither be directed to HCP consultants nor asked to pay exorbitant 
fees.
            innovative ways to involve outside stakeholders
International Paper's Red-Hills Salamander HCP: Involving Scientific 
        Experts
    There was very little controversy regarding International Paper's 
HCP for the Red-Hills salamander, in part because of the company's 
willingness to include scientists in the planning process. Joe McGlincy 
of International Paper said that he asked three salamander experts to 
review the HCP the company had developed. ``I could anticipate that if 
we were going to get criticism, it would be from these two or three 
people. Asking them to review our plan made them aware of what we were 
doing as well as brought them on board with us. . . .When the HCP came 
out in the Federal Register for the general public review, those guys 
had already seen it, and there wasn't a big surprise in it for them.''
    The company also contracted a highly respected scientist to perform 
much of its fieldwork, and had a strong reputation for taking 
cooperative steps to protect salamanders in the past all of which 
helped make the HCP noncontroversial.
Karner Blue Butterfly HCP: Expanding the Range of Involved Stakeholders
    In the Karner blue butterfly HCP in Wisconsin, those involved in 
the HCP divided themselves into two groups: partners who had land or 
other assets at stake and participants who were other active members of 
the public. The Wisconsin DNR sought to include as many partners and 
participants as possible in the process. Fred Souba of Johnson Timber 
Corporation credited the DNR for their work. ``[Short of actually 
dragging people to the meetings, I think there's been an excellent 
effort made to involve as many public entities and individuals as 
possible.''
    Moreover, decisionmaking in the process was primarily by consensus. 
According to Dave Lentz, the HCP coordinator for the Wisconsin DNR: 
It's consensus of all participants--in other words, if we have a 
nonpartner who dissents on an issue, we don't just tell them to go 
away. We want them there. We want to know their position, we want them 
to try and convince us and work to great ends to do that.'' In only one 
or two cases were partner-only votes taken because a decision had to be 
made: in all other cases the process remained consensus based. As a 
result of the inclusive HCP process, several participants noted 
improved relationships. The draft HCP is anticipated to be completed 
during the summer of 1998.
Weyerhaeuser Willamette HCP: Interest Groups Involve Scientists
    Environmental groups who were excluded from the negotiations 
surrounding the Weyerhaeuser Willamette HCP commissioned two scientific 
panels to review the plan. One panel reviewed the HCP's aquatic 
protections and the other its terrestrial protections. The 
environmental groups then submitted the panels' comments to the FWS as 
part of their official NEPA comments. The groups felt that the panels 
provided new information and analysis and helped depoliticize the HCP 
decisionmaking process. For a number of reasons, including concerns 
raised by the panels, final approval of the HA continues to be delayed.
      advice to hcp practitioners: making your hcps more effective
Building Elective HCPs
    1. Involve the public early and consistently in the process.
    2. Form a steering committee.
    3. Involve independent scientists.
    4. Define stakeholders' roles early in the planning process.
    5. Tell outside stakeholders how they can help the process.
    6. Use a variety of public outreach tools.
    7. Hold public meetings, workshops, and field trips.
    8. Make planning documents available.
    9. Communicate with the public about their input.
    10. Begin following existing FWS guidance.
    During our conversations with FWS staff, applicants, and other HCP 
stakeholders and our research on public participation, we heard several 
consistent messages about how to design more effective public 
participation processes.
    1. Involve the public early and consistently in the process.
    Early, consistent, and meaningful public participation facilitates 
learning about proposed projects and the complexities and tradeoffs of 
the HCP planning process. It also gives outside stakeholders an 
opportunity to outline their interests and concerns before tentative 
agreements are reached that limit the negotiating parties' ability to 
make substantive changes to the HCP. Finally, early, consistent, and 
meaningful involvement can reduce conflict surrounding an HCP. help 
participants begin to trust each other, and build ownership of evolving 
agreements. As Susanna von Oettingen of the FWS said, ``I think we are 
getting the message to get the public involved and knowledgeable as 
soon as possible. The trigger point for getting people involved should 
be the start of the project. Let folks know, get the players 
involved.''
    To involve the public throughout the process, managers may want to 
consider forming a steering committee or accepting written comments at 
any time during the planning process. Interviewees also recommended 
distributing draft documents or newsletters throughout the process to 
solicit public comments.
    2. Form a steering committee.
    Our research shows that outside stakeholders tend to be more 
satisfied with an HCP when public participation begins early in the 
planning process and involves a steering or advisory committee. 
Committees help participants understand the difficult issues and 
choices invoked in designing an HCP. When managed well, they can also 
help establish trust among participants and build public support for 
the HCP. The steering committee's job in the Georgia Safe Harbor HCP 
was to oversee and approve the actions of advisory subcommittees. The 
system worked well, according to Ralph Costa of the FWS, ``I don't see 
how you could do a plan of this magnitude without those committees.''
    Still, committees are note panacea. Participants have to be given 
the opportunity to participate meaningfully in the process and have 
their input taken seriously by applicants and the FWS. Participants 
wild be unsatisfied if ``Everyone at the table has an equal voice and 
no power,'' as Tony Metcalf of San Bernardino Audubon Society described 
his involvement in the Riverside Stephens kangaroo rat HCP.
    3. Involve independent scientists.
    An effective process is both technically sound and publicly 
credible. Independent scientists, especially when they are involved 
early in the process, can help achieve both of these goals. Their 
involvement also has the potential to make the process more efficient 
by helping to resolve the controversial technical issues that often 
surround HCPs.
    4. Define stakeholders' roles early in the planning process.
    Applicants and outside stakeholders often grow frustrated when they 
have conflicting expectations of their roles or the FWS's role in the 
planning process. Defining the scope of the project, ground rules, 
timing of public participation, and different participants' roles in 
the process early in the planning process, can make the process more 
efficient and less frustrating. Indeed, the closer outside 
stakeholders' expectations are to reality, the less likely they are to 
be frustrated by the HCP process.
    5. Tell outside stakeholders how they can help the process.
    Applicants should explain their goals with their property and HCP, 
and ask outside stakeholders to help them figure out how to meet the 
group's interests while still meeting their goals. Many creative 
solutions have come from this approach. Applicants should be sure to 
preface their remarks by explaining their expectations of the 
relationship. Applicants can tell outside stakeholders that they do not 
need their permission to do a project, but that they want the 
stakeholders to be informed about it and will accept reasonable advice 
if it can be accommodated.
    6. Use a variety of public outreach tools.
    A number of HCPs use large mailing lists, personal phone calls, or 
newspaper, radio, or television advertisements to alert the public to 
the HCP process. Information displays in public places, such as 
libraries, may also be useful. In the Georgia Safe Harbors HCP, the FWS 
conducted a series of statewide public meetings, but attendance was 
low. Attendance increased considerably, however, after the Service 
advertised the meetings using newspapers, television, and radio.
    7. Hold public meetings, workshops, and field trips.
    Holding public events or targeted meetings with particular outside 
stakeholders gives applicants opportunities to solicit early feedback 
and to educate outside stakeholders about their HCP vision and certain 
complex HCP issues. Field trips provide a special opportunity to 
educate stakeholders and spur relationships among participants.
    8. Make planning documents available.
    Outside stakeholders often have difficulty obtaining HCP documents, 
especially while HCPs are being developed. Some even have trouble 
during the NEPA comment period. The public needs easy and timely access 
to draft plans, ESA and NEPA documents, and other information to 
educate itself on HCP issues and participate meaningfully in the 
process.
    9. Communicate with the public about their input.
    If changes are made to an HCP based on public input, let outside 
stakeholders know about it. If changes are not made, explain to them 
know why they were not. Involve outside stakeholders in crafting 
certain changes to the HCP. In many cases, public comments can be 
easily addressed. Involving the public in making those changes will 
build valuable relationships and trust.
    10. Begin following existing FWS guidance.
    The Handbook provides a number of useful ideas for structuring an 
effective HCP process, such as negotiating in good faith, assigning 
experienced staff to large-scale or regional HCPs, including all 
affected interests in the process, and paying attention to 
stakeholders' perceptions of the process.24 Public participation would 
be more meaningful and effective if applicants and FWS staff regularly 
followed this guidance.
Running Elective Advisory Committee
    Advisory committees, working groups, and steering committees are 
particularly effective at involving outside stakeholders in the HCP 
process. The mix of technical expertise and the collaborative process 
can help shape HCPs with wide credibility and support. Practitioners 
offered the following advice for making committees more effective.
      Ensure that all legitimate interests are represented. The 
exclusion of a critical viewpoint can undercut the legitimacy of a 
committee and lead to increased controversy, litigation, and delay. 
Orange County used a creative method to identify environmental 
community representatives: they allowed statewide conservation 
organizations to nominate environmental representatives.
      Participate in committee meetings. Because applicants and 
the FWS are the decisionmakers in the HCP process, their active 
involvement in meetings gives committees legitimacy, prevents end-runs 
around the committee process, and provides outside stakeholders with 
some assurance that their input will be used.
      Form subcommittees. Subcommittees with certain areas of 
expertise can make the committee process more manageable and efficient, 
especially when the committee is faced with complex and controversial 
scientific or financial issues. Smaller groups can also help build 
trust among participants.
      Hire a skilled facilitator. A facilitator can help keep 
negotiations moving forward, encourage compromise, and expand the 
negotiating pie by helping parties find creative solutions to problems. 
Participants in several HCPs, including Karner blue butterfly and Clark 
County, found a facilitator to be very useful.
      Work to maintain committee member continuity. Building 
strong relationships among participants and developing an understanding 
of complex HCP issues can take a long time. Regular attendance at 
meetings and continuity of committee participants helps the process 
move more smoothly. According to landowners involved in the San Diego 
MSCP Plan, continuity helped participants move away from posturing, 
develop respect for divergent positions, and improve communication.
      Assist committee members who lack the financial resources 
to fully participate. Environmentalists and other interest groups are 
often unable to fully participate because Hey lack adequate resources. 
Several of the HCPs we examined dealt with this problem by reimbursing 
some participants' expenses or otherwise helping these groups 
participate.
      Open committee meetings to the public. Open meetings help 
communicate complex HCP provisions to citizens or interest groups who 
are not actively involved on an advisory committee. Open meetings can 
also help make the process more credible. The Balcones HCP took this 
idea further by televising several committee meetings and giving He 
public opportunities to voice their concerns following meetings.
      Train committee members. The legal and scientific issues 
surrounding HCP processes can be very complex. The more participants 
know about the legal and scientific underpinnings of the HCP the 
better. Providing negotiation skills training can also help 
participants learn how to communicate their interests and participate 
more usefully.
                               __________
                   Statement of Defenders of Wildlife
    Defenders of Wildlife submits the following testimony on S. 1100 to 
the Fisheries, Wildlife, and Drinking Water Subcommittee of the Senate 
Environment and Public Works Committee. Defenders is a non-profit 
organization founded in 1947 with more than 300,000 members and 
supporters that advocates for the conservation of all native wild 
animals and plants in their natural communities. Much of our work 
before the Congress, Federal courts, and administrative agencies is 
focused on improving the effectiveness of our nation's most important 
law for the conservation of biological diversity--the Endangered 
Species Act (``ESA'').
General Comments
    S. 1100 would make several relatively narrow amendments to the ESA. 
The substance of those amendments will be addressed below, but first we 
would like to offer a word of caution on the potential risk that this 
legislation presents. As this subcommittee is well aware, the ESA has 
been up for reauthorization since 1992 and despite numerous attempts, 
Congress has been unable to reauthorize the Act. Defenders believes 
that the issues addressed in S. 1100 would be best addressed in the 
context of a comprehensive, bipartisan reauthorization bill that 
improves the effectiveness of the entire program. There has been no 
shortage of attempts over the last several years to weaken various 
aspects of the ESA through appropriation riders and other pieces of 
legislation. Defenders is extremely concerned over the prospect of S. 
1100's narrow focus being lost and the bill becoming simply a vehicle 
for weakening amendments to the ESA. Should that occur Defenders and 
others will work to kill the legislation. We therefore urge the bill 
sponsors and members of the Senate to avoid efforts to attach 
provisions to S. 1100 that would weaken the ESA.
    Defenders supports those provisions of S. 1100 that would provide 
deadlines for the development of recovery plans for endangered and 
threatened species and require critical habitat to be designated for 
endangered and threatened species concurrently with the final recovery 
plan. We strongly oppose the provision that would amend the ESA's 
citizen suit provision. With the inclusion of changes recommended 
below, we are hopeful that this legislation can help resolve two of the 
biggest implementation failures of the current ESA program: 1) the 
failure to develop recovery plans in a timely and effective manner; and 
2) the failure to designate critical habitat at all.
Recovery Planning
    The primary purpose of the ESA is, ``to provide a means whereby the 
ecosytems upon which endangered species and threatened depend may be 
conserved. . . .'' The terms ``conserve,'' ``conserving,'' and 
``conservation'' are defined by the Act as, ``to use and the use of all 
methods and procedures which are necessary to bring any endangered 
species or threatened species to the point at which the measures 
provided pursuant to the Act are no longer necessary.'' In short, the 
goal of the ESA is the recovery of endangered and threatened species. 
To aid in the attainment of this goal the ESA requires, with limited 
exceptions, that the Secretary of the Interior or the Secretary of 
Commerce (``Secretary'') develop and implement recovery plans for all 
listed species. To date, recovery plans have been developed for about 
75 percent of the approximately 1,200 U.S. species listed under the 
ESA. Even when recovery plans are developed in a timely manner, they 
are frequently implemented inadequately, if at all. Without the 
development and implementation of scientifically sound recovery plans, 
achieving the goal of recovery is far less likely. Provided the 
Congress appropriates the necessary funding to allow the Secretary to 
meet these new obligations, something it has consistently failed to do 
with respect to the existing ESA program but which is absolutely 
critical, S. 1100 could significantly improve the recovery planning 
process by amending the ESA to provide for the first time a deadline of 
36 months for the development of recovery plans for species listed 
after the date of enactment of this legislation. In addition, it would 
require the Secretary within 5 years of the date of enactment to 
finalize recovery plans for all currently listed species lacking such 
plans. This will be a much needed improvement to the ESA.
Critical Habitat
    Perhaps even more important to the recovery of our nation's 
endangered and threatened species, is the ESA provision that with 
limited exceptions requires the Secretary to designate critical habitat 
for all listed species, and the requirement that all Federal agencies 
avoid actions likely to destroy or adversely modify such habitat. The 
most prevalent cause of endangerment for endangered and threatened 
species is habitat loss--affecting more than 95 percent of listed 
species according to one study. Clearly, we will not stem the growing 
number of species added to the Federal list of endangered and 
threatened species, or recover those species currently on the list, 
unless our conservation efforts are focused on reversing the loss and 
fragmentation of habitat. S. 1100 would amend one of the most important 
but improperly implemented provisions of the ESA for conserving 
habitat--the requirement that the Secretary designate critical habitat 
for species listed as endangered or threatened. As disappointing as the 
implementation of the ESA's recovery planning provisions have been, 
compliance with the duty to designate critical habitat has been even 
worse. Notwithstanding a clear statutory mandate to designate critical 
habitat, less than 10 percent of the nearly 1,200 species listed by the 
U.S. Fish and Wildlife Service have critical habitat designated.
    Critical habitat is generally defined under the Act as that area 
determined to be, ``essential for the conservation of [listed] species. 
. . .'' In other words, critical habitat is that habitat necessary for 
the recovery of endangered and threatened species. Defenders believes 
that, given critical habitat's proper focus on recovery, it makes more 
sense to designate it concurrently with finalization of the recovery 
plan, but only if there is a clear deadline for development of recovery 
plans and some habitat protection provided at the time of listing. This 
change is consistent with the National Research Council's (``NRC'') 
recommendation that the designation of critical habitat be done at the 
time the recovery plan is finalized, and it is one that Defenders 
supports.
Concerns and Recommended Changes
    First, the duty of the Secretary to designate critical habitat for 
those species listed at the date of enactment and for which recovery 
plans have been developed, but for which critical habitat has not yet 
been designated, is unclear. The bill establishes clear deadlines for 
the Secretary to designate critical habitat for those species listed 
after the date of enactment (concurrent with the recovery plan, but no 
later than 3 years after the date of listing), and for those species 
listed prior to the date of enactment but for which no recovery plan 
has been developed (concurrent with the recovery plan, but no later 
than 5 years after the date of enactment). We are extremely concerned 
that in failing to expressly address the Secretary's duty to designate 
critical habitat for currently listed species with recovery plans, the 
bill could be interpreted in a manner that would excuse the Secretary 
from having to make such designations. While we are confident that the 
intent of the bill's sponsors was not to create a critical habitat 
loophole, we strongly urge that language be inserted clearly 
establishing the Secretary's duty to designate critical habitat for 
those species listed at the date of enactment for which recovery plans 
have been developed.
    Second, we strongly urge that the language amending the citizen 
suit provision of the ESA be stricken from the bill. The citizen suit 
provision is perhaps the most effective and important provision of the 
ESA. We see no compelling reason why this language is needed or how it 
would improve the ESA. Moreover, in light of the Supreme Court's 
Bennett v. Spear, 520 U.S. 154 (1997) decision, it appears that the 
intended purpose of this language would not be accomplished.
    Third, in cases where the critical habitat of a species is not 
determinable at the time of the final listing determination, the ESA 
currently allows the Secretary one additional year to designate 
critical habitat. S. 1100 would retain the ``not determinable'' 
exception, but would not impose any durational limit on its use by the 
Secretary. Given that this bill would require critical habitat to be 
designated concurrently with the recovery plan, rather than at the time 
of listing, we seriously question the need for retaining the ``not 
determinable'' exception. We find it difficult to imagine a situation 
when critical habitat would not be determinable at the time the 
recovery plan is finalized. We therefore recommend that the ``not 
determinable'' exception be eliminated or at the very least that it 
include a durational limit on its use.
    Finally, as stated previously, requiring that the designation of 
critical habitat be done concurrently with the final recovery plan is 
consistent with the recommendation of the NRC. The NRC, however, also 
recognized the importance of designating some habitat at the time of 
listing to the extent that sufficient information regarding a species' 
habitat requirements is available. The NRC called these areas 
``survival habitat.'' To the extent that sufficient information was 
available, survival habitat would be, ``that habitat necessary to 
support either current populations of a species or populations that are 
necessary to ensure short-term survival, whichever is larger.'' The 
designation of survival habitat would be important in helping to guide 
habitat conservation efforts during the interim period between final 
listing and the time the recovery plan is finalized and critical 
habitat is designated. Given that survival habitat would be based 
solely on a species' habitat requirements to the extent that they are 
known at the time of listing, and would therefore be based on exactly 
the same information evaluated during the listing process, such a 
requirement should not impose any additional resource burdens or time 
constraints on the Secretary. We recommend that S. 1100 include a 
provision requiring the designation of survival habitat at the time of 
listing.
    Thank you for the opportunity to provide testimony on S. 1 100. If 
you have any questions concerning this testimony, please contact: Mike 
Senatore at 202-682-9400.
                               __________
                    letter submitted for the record
                             Western Urban Water Coalition,
                                                     June 28, 1999.

Senator John H. Chafee, Chairman,
Environment and Public Works Committee,
Washington, DC 20510.

Dear Senator Chafee: The Western Urban Water Coalition (WUWC) would 
like to applaud your initiative to reform the critical habitat 
designation process of the Endangered Species Act. S. 1100 recognizes 
two fundamental facts about the current critical habitat process in the 
Act. First, the bill acknowledges that the best time to designate 
critical habitat is when we have had the opportunity to study and learn 
more about the species. The current system of designating critical 
habitat at the listing stage has resulted in designations without the 
kind of sound scientific credibility all parties expect. Early 
designations have unnecessarily alarmed states, regions and communities 
and resulted in unfortunate and unnecessary economic hardships. Second, 
the bill places more emphasis on recovery of threatened and endangered 
species. This bill recognizes that the best way to get a species off 
the endangered list is to recover it off the list.
    WUWC is a national organization of major municipal water agencies 
located in the Western United States. Its membership includes water 
suppliers from seven Western states serving over 30 million water users 
in 17 metropolitan areas, providing water management, water supply and 
hydroelectric generation services. Few, if any, entities are more 
dependent on long-term planning and reliance on consistent 
environmental standards. As a result, the WUWC is dedicated to rational 
and reasonable reform of the Endangered Species Act (ESA) that can 
protect both species and the communities that live with them. WUWC has 
worked with the Committee for many years to develop bipartisan common-
sense reform of the Act and welcomes the opportunity to do so in the 
future.
    We also hope that the Committee will continue to consider other ESA 
amendments in this Congress. Amendments to Section 10 of the Act are 
critical to assuring habitat conservation for the future. No surprises, 
natural systems conservation plans and conservation equality for 
Federal facility users are provisions which deserve to be added to the 
weapons we use to combat species extinction. We look forward to working 
with you in the future.
            Respectfully yours,
                                                Guy Martin,
                   National Counsel, Western Urban Water Coalition.































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