[House Hearing, 107 Congress]
[From the U.S. Government Publishing Office]



 
                        H.R. 2829 and H.R. 3705
=======================================================================



                          LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                             March 20, 2002

                               __________

                           Serial No. 107-98

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                    JAMES V. HANSEN, Utah, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska,                   George Miller, California
  Vice Chairman                      Edward J. Markey, Massachusetts
W.J. ``Billy'' Tauzin, Louisiana     Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Peter A. DeFazio, Oregon
Elton Gallegly, California           Eni F.H. Faleomavaega, American 
John J. Duncan, Jr., Tennessee           Samoa
Joel Hefley, Colorado                Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Scott McInnis, Colorado              Calvin M. Dooley, California
Richard W. Pombo, California         Robert A. Underwood, Guam
Barbara Cubin, Wyoming               Adam Smith, Washington
George Radanovich, California        Donna M. Christensen, Virgin 
Walter B. Jones, Jr., North              Islands
    Carolina                         Ron Kind, Wisconsin
Mac Thornberry, Texas                Jay Inslee, Washington
Chris Cannon, Utah                   Grace F. Napolitano, California
John E. Peterson, Pennsylvania       Tom Udall, New Mexico
Bob Schaffer, Colorado               Mark Udall, Colorado
Jim Gibbons, Nevada                  Rush D. Holt, New Jersey
Mark E. Souder, Indiana              James P. McGovern, Massachusetts
Greg Walden, Oregon                  Anibal Acevedo-Vila, Puerto Rico
Michael K. Simpson, Idaho            Hilda L. Solis, California
Thomas G. Tancredo, Colorado         Brad Carson, Oklahoma
J.D. Hayworth, Arizona               Betty McCollum, Minnesota
C.L. ``Butch'' Otter, Idaho
Tom Osborne, Nebraska
Jeff Flake, Arizona
Dennis R. Rehberg, Montana

                      Tim Stewart, Chief of Staff
           Lisa Pittman, Chief Counsel/Deputy Chief of Staff
                Steven T. Petersen, Deputy Chief Counsel
                    Michael S. Twinchek, Chief Clerk
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel















                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on March 20, 2002...................................     1

Statement of Members:
    Faleomavaega, Hon. Eni F.H., a Delegate in Congress from 
      American Samoa.............................................     9
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement of....................................     3
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................    12
    Jones, Hon. Walter B., a Representative in Congress from the 
      State of North Carolina, Prepared statement of.............    12
    Pallone, Hon. Frank, Jr., a Representative in Congress from 
      the State of New Jersey, Prepared statement of.............    13
    Pombo, Hon. Richard, a Representative in Congress from the 
      State of California........................................     8
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     4
        Prepared statement of....................................     5
    Rehberg, Hon. Dennis R., a Representative in Congress from 
      the State of Montana.......................................    11
    Tauzin, Hon. W.J. ``Billy'', a Representative in Congress 
      from the State of Louisiana................................     9
    Walden, Hon. Greg, a Representative in Congress from the 
      State of Oregon............................................     5
        Prepared statement on H.R. 2829..........................     7

Statement of Witnesses:
    Anderson, James J., Ph.D., Research Associate Professor, 
      School of Aquatic and Fishery Sciences, University of 
      Washington.................................................    61
        Prepared statement of....................................    62
    Bean, Michael J., Chairman, Wildlife Program, Environmental 
      Defense....................................................    95
        Prepared statement of....................................    97
    Dobson, Andrew, Ph.D., Professor, Department of Ecology and 
      Epidemiology, Princeton University.........................    65
        Prepared statement of....................................    68
        Letter submitted for the record..........................    66
    Dueser, Raymond D., Ph.D., Professor of Fisheries and 
      Wildlife, Associate Dean of the College of Natural 
      Resources, Utah State University...........................    84
        Prepared statement of....................................    85
    Gordon, Robert E., Jr., Executive Director, National 
      Wilderness Institute.......................................    42
        Prepared statement of....................................    44
        Inland Action Inc.'s ``San Bernardino International 
          Airport & Trade Center Issue'' submitted for the record    50
    Illyn, Peter, Executive Director, Restoring Eden.............    58
        Prepared statement of....................................    59
    Lent, Rebecca, Ph.D., Deputy Assistant Administrator for 
      Fisheries, National Marine Fisheries Service, National 
      Oceanic and Atmospheric Administration (NOAA)..............    18
        Prepared statement of....................................    20
    Lilburn, Stephen T., President, Lilburn Corporation..........    54
        Prepared statement of....................................    55
    Manson, Craig, Assistant Secretary for Fish and Wildlife and 
      Parks, U.S. Department of the Interior.....................    14
        Prepared statement of....................................    16
    Simmons, Randy T., Ph.D., Professor of Political Science, 
      Department Head, Utah State University.....................    80
        Prepared statement of....................................    82
    Vogel, David, Senior Scientist, Natural Resources Scientists, 
      Inc........................................................    92
        Prepared statement of....................................    93

Additional materials supplied:
    American Farm Bureau Federation, Statement submitted for the 
      record.....................................................   105
    Garczynski, Gary, on behalf of the National Association of 
      Home Builders, Statement submitted for the record..........   107
    Marbut, Gary, President, Montana Shooting Sports Association.
        Article ``Assault by the Environmental Movement'' 
          submitted for the record by The Honorable Dennis 
          Rehberg................................................    33
        Letter submitted for the record by The Honorable Dennis 
          Rehberg................................................   111
    Pate, Preston P., Jr., Letters submitted for the record by 
      The Honorable Dennis Rehberg...............................    36











 LEGISLATIVE HEARING ON H.R. 2829, TO AMEND THE ENDANGERED SPECIES ACT 
OF 1973 TO REQUIRE THE SECRETARY OF THE INTERIOR TO GIVE GREATER WEIGHT 
 TO SCIENTIFIC OR COMMERCIAL DATA THAT IS EMPIRICAL OR HAS BEEN FIELD-
  TESTED OR PEER-REVIEWED, AND FOR OTHER PURPOSES; AND H.R. 3705, TO 
 AMEND THE ENDANGERED SPECIES ACT OF 1973 TO REQUIRE THE SECRETARY OF 
 THE INTERIOR TO USE THE BEST SOUND SCIENCE AVAILABLE IN IMPLEMENTING 
                      THE ENDANGERED SPECIES ACT.

                              ----------                              


                       Wednesday, March 20, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

    The Committee met, pursuant to notice, at 2:03 p.m., in 
room 1334, Longworth House Office Building, Hon. James V. 
Hansen (Chairman of the Committee) presiding.

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

    The Chairman. The Committee will come to order.
    After we fill this room, which we are going to do, I am 
sure, and if anyone wants to hear audio only, we have an 
overflow room in 1332 Longworth for those who would just like 
to pick up the audio.
    Good afternoon, everyone, and thank you for being here to 
discuss two bills that amend the Endangered Species Act, H.R. 
2829, introduced by Congressman Greg Walden, and H.R. 3705, 
introduced by Congressman Richard Pombo, both members of this 
Committee.
    The Chairman. While there is not too much we do on the Hill 
which stirs up as much controversy as the issues dealing with 
the ESA, I may say with some degree of certainty that, for the 
Resource Committee, there are no debates more contentious as 
those which surface when we are discussing endangered species 
and this act.
    There is probably a good reason for this. This is the only 
act in the country that I am aware of that elevates species of 
flies, rats, slimy slugs and hosts of other creatures nobody 
has ever heard of over the needs, desires, and the pursuit of 
happiness for American citizens. I always thought that we 
passed laws here in Congress to help people in this country. 
Instead, however, what we have with the ESA is a law which has 
devastated thousands of people and their families, has 
displaced thousands more, has inflicted undue hardships 
probably on millions of others, and has cost, conservatively, 
in the billions of dollars.
    All of this for the sake of protecting some species that, 
under their current status, cannot be supported scientifically 
and that many believe should never have been put on the 
endangered species list anyway. Unfortunately, we are well 
beyond that point when this act should have been amended. 
Recent events have confirmed or convincingly underscored the 
need for this act to be changed. The agencies responsible for 
making ESA decisions based upon the best scientific and 
commercial data have simply failed to carry out this mandate. 
When laws are passed which simply do not function as they are 
intended to, it is our duty to make changes and amend the law.
    In the case of the ESA, the duty was clearly evidenced by 
two recent events on which this Committee held hearings which 
illustrate some of the most egregious abuses by the agencies 
responsible to use scientifically valid and reliable 
information to base their decision. One dealt with Klamath 
River Basin, the other with the planted Canada lynx hair and 
conclusively show that these agencies base decisions using 
unsubstantiated scientific information or had deliberately 
doctored scientific information to achieve desired results.
    Although these two incidents clearly call the integrity of 
these agencies into question, they are not isolated and have 
been going on for many years. These situations, and others like 
them, simply will not be tolerated by this Committee nor, I 
believe, should they be tolerated by the U.S. Congress. Without 
question, we need to amend the ESA to integrate a system of 
better science and decisionmaking.
    At the end of 2001, there were 1,254 plants and animals 
listed--740 plants and 514 animals. Two hundred and forty-nine 
more species remain on the candidate list, and 32 species are 
proposed for listing. As we have seen, as more species are 
listed, more problems can be anticipated, unless we change how 
the ESA is implemented and get better science and peer review 
into this process.
    There is an inseparable link between best science and that 
science which has been field tested, validated or peer 
reviewed. It is exactly this connection the responsible Federal 
agencies need to account for when analyzing data and 
information within the context of the ESA. It is also this 
connection that H.R. 2829 and 3705 intend to make.
    Both these bills, albeit with slightly different 
approaches, will establish the peer-review process on nearly 
all of the findings and determinations made by the Fish and 
Wildlife Service and the Marine Fisheries Service.
    Both of these bills also give greater weight to information 
that has undergone some scientific scrutiny, analysis or 
review.
    I will let each of the authors explain their legislation in 
greater detail, but after my review of these bills, I am sure 
this is a good first step in amending an act which simply does 
not function as it was intended and solves many of the 
fundamental problems we have had with this act for many years.
    I am looking forward to hearing testimony from all 
witnesses today, especially Assistant Secretary Craig Manson, 
who is making his first appearance before this Committee. I 
want to welcome each of the witnesses here today.
    I will now turn the time over to the ranking member, the 
distinguished gentleman from West Virginia.
    [The prepared statement of Mr. Hansen follows:]

  Statement of The Honorable James V. Hansen, Chairman, Committee on 
                 Resources, on H.R. 2829 and H.R. 3705

    Good afternoon everyone and thank you for being here today to 
discuss two bills that amend the Endangered Species Act--H.R. 2829, 
introduced by Congressman Greg Walden and H.R. 3705, introduced by 
Congressman Richard Pombo, both members of the Resource Committee.
    Well, there is not too much we do on the Hill, which stirs up as 
much controversy as the issues dealing with the ESA. I may say with 
some degree of certainty that, for the Resource Committee, there are no 
debates more contentious as those which surface when we are discussing 
endangered species and this Act.
    And there is probably a good reason for this--this is the only Act 
in this country that I'm aware of that elevates species of flies, rats, 
slimy slugs, and host of other creatures nobody has heard of over the 
needs, desires, and the pursuit of happiness of American citizens. I 
always thought that we passed laws here in Congress to help people in 
this country. Instead, however, what we have with the ESA is a law 
which has devastated thousands of people and their families, has 
displaced thousands more, has inflicted undue hardship probably on 
millions of others, and has cost, conservatively, in the billions of 
dollars.
    All of this for the sake of protecting some species that, under 
their current status, cannot be supported scientifically and that many 
believe should never have been put on the endangered species list 
anyway. Unfortunately, we are well-beyond the point when this Act 
should have been amended. Recent events have confirmed and convincingly 
underscored the need for this Act to be changed. The agencies 
responsible for making ESA decisions based upon the best scientific and 
commercial data have simply failed to carry out this mandate.
    When laws are passed which simply do not function as they are 
intended it is our duty to make changes and amend the laws. In the case 
of the ESA, this duty was clearly evidenced by two recent events, on 
which this Committee held hearings, which illustrate some of the most 
egregious abuses by the agencies responsible to use scientifically 
valid and reliable information to base their decisions. One dealt with 
Klamath River Basin, the other with planted Canada lynx hair and 
conclusively show that these agencies based decisions using 
unsubstantiated scientific information or had deliberately doctored 
scientific information to achieve a desired result. Although these two 
incidents clearly call the integrity of these agencies into question, 
they are not isolated and have been ongoing for many years. These 
situations, and others like them, simply will not be tolerated by this 
Committee nor, I believe, should be tolerated by the Congress. Without 
question, we need to amend the ESA to integrate a system of better 
science into the decision-making.
    As of the end of 2001 there were 1254 plants and animals listed 
(740 plants; 514 animals). Two hundred and forty nine more species 
remain on the candidate list and 32 species are proposed for listing. 
As we have seen, as more species are listed more problems can be 
anticipated, unless we change how the ESA is implemented and get better 
science and peer-review into the process.
    There is an inseparable link between ``best'' science and that 
science which has been field tested, validated, or peer-reviewed. It is 
exactly this connection the responsible Federal agencies need to 
account for when analyzing data and information within the context of 
the ESA. It is also exactly this connection that H.R. 2829 and 3705 
intend to make. Both these bills, albeit with slightly different 
approaches, will establish a peer-review process on nearly all of the 
findings and determinations made by the Fish & Wildlife Service and 
Marine Fisheries Service. Both of these bills also give greater weight 
to information that has undergone some scientific scrutiny, analysis, 
or review. I'll let each of the authors explain their legislation in 
greater detail, but after my review of these bills I am sure that this 
is a good first step in amending an Act that simply does not function 
as it was intended and solves some of the fundamental problems we have 
had with this Act for many years.
    I am looking forward to hearing testimony from all the witnesses 
today, especially Assistant Secretary Craig Manson, who is making his 
first appearance before this Committee. I want to welcome each of the 
witnesses here today and I now turn the time over to the Ranking 
Member, Mr. Rahall.
                                 ______
                                 

 STATEMENT OF THE HON. NICK J. RAHALL, II, A REPRESENTATIVE IN 
            CONGRESS FROM THE STATE OF WEST VIRGINIA

    Mr. Rahall. Thank you, Mr. Chairman.
    Mr. Chairman, I had hoped we would not find ourselves at 
yet another contentious hearing on the Endangered Species Act, 
but it was not to be. Both of these bills have as their 
purported purpose the improvement of science used in the 
implementation of the Endangered Species Act. In reality, they 
do nothing more than hinder the scientific process by dictating 
the types of data that must be used in setting up a conflict 
between the agencies and the outside scientists that will 
surely lead to more litigation, more delays and more loss of 
species.
    The law already requires that the ESA be implemented using 
the ``best scientific information available.'' H.R. 2829 
abandons that approach by defining what does and does not 
constitute acceptable data. How is it possible that we will 
reach better scientific outcomes by basing them on less 
information? Even more puzzling, it requires that any data 
submitted by a landowner be considered in a decisionmaking 
progress, regardless of its scientific merit. It would seem 
then that the best science is not to be identified by 
scientists through peer review, but by Members of Congress with 
little or no scientific expertise of which to speak.
    Moreover, Fish and Wildlife Service and NMFS policy already 
require independent peer review of listing recommendations and 
recovery plans. These bills would extend that process to 
virtually every decision made by the agencies, though only in 
cases where agency decisions will result in more protection for 
the species.
    At the same time, H.R. 3705 establishes a standard for 
review by outside scientists. There is guaranteed resulting 
conflict with the agencies and provide the basis for more 
delays.
    Mr. Chairman, it is time for efforts to undermine the ESA 
to end. As human beings, we have a responsible to act as 
stewards of all of the creatures put on this Earth. We cannot 
continue to destroy the habitat, use water and pollute the air 
with no regard to the impacts on other species. Those of us who 
support the ESA have tried to make this point with secular 
arguments. Failing that, it is my hope that the fact that every 
major religion in the world extols the virtue of species 
protection might carry some weight.
    As the word of the Lord came to Ezekiel, ``As for you, my 
flock, it is not enough for you to be on good pasture. Must you 
also trample the rest of your pasture with your feet? Is it not 
enough for you to drink clear water? Must you also muddy the 
rest with your feet?''
    We cannot treat the Earth's resources with disdain as if 
they are ours alone. If that was God's intention, he would not 
have told Noah to save two of every species, including man.
    We have a responsibility to co-exist with all creatures. If 
we cannot, it is a sad commentary on our abilities to live in a 
civilized world.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. Rahall follows:]

   Statement of The Honorable Nick J. Rahall II, a Representative in 
                Congress from the State of West Virginia

    Mr. Chairman, I had hoped we would not find ourselves at yet 
another contentious hearing on the Endangered Species Act, but it was 
not to be.
    Both of these bills have as their purported purpose the improvement 
of science used in the implementation of the Endangered Species Act. In 
reality, they do nothing more than hinder the scientific process by 
dictating the types of data that must be used and setting up a conflict 
between the agencies and outside scientists that will surely lead to 
more litigation, more delays, and more loss of species.
    The law already requires that the ESA be implemented using the 
``best scientific information available.'' H.R. 2829 abandons that 
approach by defining what does and does not constitute acceptable data. 
How is it possible that we will reach better scientific outcomes by 
basing them on less information?
    Even more puzzling, it requires that any data submitted by a 
landowner be considered in the decision making process, regardless of 
its scientific merit. It would seem then, that the ``best science'' is 
not to be identified by scientists through peer review, but by members 
of Congress with little or no scientific expertise to speak of.
    Moreover, Fish and Wildlife Service and NMFS policy already require 
independent peer review of listing recommendations and recovery plans. 
These bills would extend that process to virtually every decision made 
by the agencies, though only in cases where agency decisions will 
result in more protection for the species. At the same time, H.R. 3705 
establishes a standard for review by outside scientists that is 
guaranteed to result in conflict with the agencies and provide the 
basis for more delays.
    Mr. Chairman, it is time for efforts to undermine the ESA to end. 
As human beings, we have a responsibility to act as stewards of all the 
creatures put on this earth. We cannot continue to destroy habitat, use 
water, and pollute the air with no regard to the impacts on other 
species.
    Those of us who support the ESA have tried to make this point with 
secular arguments. Failing in that, it is my hope that the fact that 
every major religion in the world extolls the virtue of species 
protection might carry some weight.
    As the word of the Lord came to Ezekiel, ``As for you, my 
flock...is it not enough for you to feed on good pasture? Must you also 
trample the rest of your pasture with your feet? Is it not enough for 
you to drink clear water? Must you also muddy the rest with your 
feet?''
    We cannot treat the earth's resources with disdain as if they are 
ours alone. If that was God's intention, would he have told Noah to 
save two of every species, including man. We have a responsibility to 
co-exist with all creatures. If we cannot, it is a sad commentary on 
our abilities to live in a civilized world.
                                 ______
                                 
    The Chairman. I thank the gentleman.
    Possibly, we have just a brief explanation from the two 
authors that are sitting here. Are you ready to go Mr. Walden?

STATEMENT OF THE HON. GREG WALDEN, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF OREGON

    Mr. Walden. I can, Mr. Chairman, but I can't start without 
at least trying to set the record state from the start when it 
comes to data from landowners because I think that the ranking 
gentleman's statement does not reflect the wording in the 
language of the bill.
    What the bill says is that the Secretary would have to 
accept and acknowledge receipt of landowner data and include 
the data in the rulemaking record. That is all it says. So I 
don't think that is asking too much to say accept receipt of 
the data. Think of a public hearing where you accept receipt of 
data, receipt of testimony. These are people whose very lives 
are being turned upside down.
    You want to talk about fairness, come out to my district 
and the Klamath Basin, where you can talk to the people who 
have had their lives turned upside down because of bad 
decisions that, once we did have peer review, we found out were 
not made based on adequate science. The decisions didn't hold 
up.
    So the genesis of the legislation I am proposing says let 
us get a second opinion before we make a decision to either 
list or delist, to consult or to recover. I don't think that is 
bad. If you went to the doctor and the doctor said to you, 
``Mr. Rahall, we are going to have to take off your right 
leg,'' you would probably go get a second opinion. Right now 
under the Endangered Species Act they just cut you off at the 
knees. You don't get a second opinion.
    Fortunately, this administration did go forward and ask for 
a second opinion, the National Academy of Sciences' opinion, on 
the data and the decisions. We found out from the National 
Academy of Sciences the decisions made weren't based on 
adequate science or the decisions misinterpreted the data they 
had. In either case, 1,400 farm families didn't get water, 
nearly two dozen went bankrupt, and Mike McCowan had a heart 
attack and died.
    That is why I feel so strongly about this, and that is why 
we tried to take a very reasonable and prudent course not to 
up-end the Endangered Species Act, but to bring about some 
sensibility, to simply say, turn to the National Academy of 
Sciences, have them put together a recommended list that they 
put forward. Pick from that list, Madam Secretary, three people 
to do an outside peer review, and then let us set some 
standards on what science is or is not. Promulgate that.
    I am not an expert. I am not sitting here telling you what 
that science should or should not be. That is something for the 
experts to determine, but let us set some standards because 
right now under the Endangered Species Act that is not 
determined. It is very fluid, very flexible. And then let us go 
through and look at some of the other issues that would be 
decided by the legislation I am proposing.
    The ESA right now gives the Secretary broad discretion in 
developing recovery plans. Public input is limited to an 
opportunity to comment on a draft recovery plan. That is it. 
Our legislation would say that agencies that are preparing 
recovery plans are required to identify, solicit, and accept 
scientific or commercial information that would assist in 
preparing the recovery plan. In other words, get more 
information, get better information, do it right and involve 
the public more.
    I talked about the need to set minimum standards for 
scientific and commercial data not now required by the ESA. The 
listing actions must be supported by field data on the species 
and that they must accept data on species collected by 
landowners. The ESA does not require peer review of scientific 
information, nor does it establish any structure for a peer 
review process. Our legislation would require, again, that 
every proposed listing, delisting, recovery plan or 
consultation under the ESA would be reviewed by a peer review 
panel of three nonbiased scientists.
    And, finally, our legislation would require the Secretary 
to solicit and consider information provided by the States. It 
allows an applicant to:
    One, prior to the release of a draft biological opinion, 
submit and discuss with the Service an action agency 
information about the proposed action and possible reasonable 
and prudent alternatives. Let us look and see if there are some 
alternatives out there that would be better than what some 
Government agency is proposing.
    Obtain information used to develop the biological opinion 
and reasonable and prudent alternatives. We ought to have a 
right to know here before these decisions are made. Where did 
they get the information?
    And, finally, to provide comments prior to publication of 
the final biological opinion. The Service must include the 
applicant's suggestions or explain why such suggestions were 
rejected. Comments and other information submitted shall be 
made available to the public.
    I don't see that the steps we are proposing are one-sided, 
Mr. Chairman and ladies and gentlemen of this Committee. They 
could be used by either side in this debate, but it makes the 
process more transparent, it makes it based on better science, 
and it gives us a second look at the science that is used and 
the decisions that are made.
    I think it is a prudent and reasonable step to improve and 
give greater support, if you will, to decisions made by the 
Endangered Species Act.
    I thank you for your indulgence, Mr. Chairman.
    [The prepared statement of Mr. Walden follows:]

 Statement of The Honorable Greg Walden, a Representative in Congress 
                 from the State of Oregon, on H.R. 2829

Sound Science and ESA Actions
     LRequires the Secretary to set standards for the 
scientific and commercial data that is used to take actions 
under the ESA.
     Requires the Secretary to give greater weight to 
scientific or commercial data that is empirical or has been field-
tested or peer-reviewed.
Sound Science and the Listing Process
     Sets minimum standards for the scientific and commercial 
data used in listing determinations.
     Listing actions must be supported by field data on the 
species.
     The listing agency must accept data on the species 
collected by landowners.
Sound Science and Recovery Planning
     Agencies preparing recovery plans are required to 
identify, solicit, and accept scientific or commercial information that 
would assist in preparing a recovery plan.
Sound Science and Peer Review
     Every proposed listing, delisting, recovery plan, or 
consultation under the ESA would be reviewed by a peer review panel of 
three non-biased scientists.
Sound Science and the Consultation Process
    Requires the Secretary to solicit and consider information provided 
by the State.
    Allows an applicant to: (1) prior to the release of a draft 
biological opinion, submit and ``discuss'' with the Service and action 
agency information about the proposed action and possible reasonable 
and prudent alternatives; (2) obtain information used to develop the 
biological opinion and reasonable and prudent alternatives; and (3) 
provide comments prior to publication of the final biological opinion.
    The service must include the applicant's suggestions or explain why 
such suggestions were rejected.
    Comments and other information submitted shall be available to the 
public.
                                 ______
                                 
    The Chairman. Thank you, Mr. Walden.
    Mr. Pombo?

  STATEMENT OF THE HON. RICHARD W. POMBO, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF CALIFORNIA

    Mr. Pombo. Thank you, Mr. Chairman. I thank you of for 
scheduling this hearing. Like the ranking member said, I, too, 
think it is time that we stop the contentious hearings dealing 
with the Endangered Species Act.
    After spending months dealing with the ranking member and 
members of the minority, we came up with a number of ideas that 
we agreed on, in terms of the science provisions in the 
Endangered Species Act. Most of those areas that we agreed on 
are represented in this bill, including a number of the 
provisions that the ranking member was critical of, are 
provisions that he and others that worked with me on that 
working group agreed to. We tried to include provisions that 
were of agreement in this bill.
    Many of the provisions in my legislation are similar, have 
the same idea as what is in Mr. Walden's bill. Hopefully, we 
can come out of this process with a unified bill that both the 
minority and the majority can agree upon. I am anxious to get 
into the hearing. I am anxious to hear from our witnesses, so I 
will just conclude, Mr. Chairman, by saying that there are 
very, very few people who will say there is nothing wrong with 
the Endangered Species Act and the science that is being used, 
regardless of which side of the debate you are on.
    Some of the most blatant criticisms that have come from the 
environmental community on the science that is being used under 
the Endangered Species Act are things that we are trying to 
reach some conclusion, to reach some kind of consensus as to 
the best way to proceed.
    I will tell the administration witnesses, I will tell the 
rest of the witnesses that are here, if there are provisions in 
my legislation, in Mr. Walden's legislation, that just don't 
work, we will sit down and work with you. We will try to work 
out what those differences are, but we are going to do this. We 
are going to figure out a way to do a better job of protecting 
endangered species, do a better job of implementing the 
Endangered Species Act without all of the conflicts that Mr. 
Walden's constituents, my constituents have to deal with on a 
daily basis.
    My constituents don't have the advantage of sitting in 
marble hearing rooms and talking about all of this as if it is 
theory. To them, it is real. It is every day. It is a business 
decision. It is something that they have to live with that they 
wake up with in the morning, they go to bed with at night. It 
is not theory to them, it is real life, and we have to figure 
out a way to do a better job than what we are currently doing.
    I thank the Chairman.
    The Chairman. Thank the gentleman from California.
    The gentleman from American Samoa, Mr. Faleomavaega?

  STATEMENT OF THE HON. ENI F.H. FALEOMAVAEGA, A DELEGATE IN 
                  CONGRESS FROM AMERICAN SAMOA

    Mr. Faleomavaega. Mr. Chairman, I want to thank you for 
calling this hearing and certainly extend my courtesy to Mr. 
Pombo and Mr. Walden for their efforts in introducing these two 
pieces of legislation.
    The Endangered Species Act is not a new issue here with our 
Committee, and I certainly want to commend Mr. Pombo for all of 
these past years that he has tried earnestly in trying to 
figure out some way or some how the solutions that have been 
raised by various members and their constituents, problems 
affecting their districts, not only in the scientific terms, 
but more especially even the economics and how the lives of the 
people have been affected because of its implementation. I 
won't say any more than the fact that since the announcement by 
the National Academy of Science, Secretary Norton has also put 
in her contribution, the national media has made a big thing 
about this, too, and I think it does bear a comprehensive 
hearing on our part, as members of the Committee that has 
jurisdiction over this issue.
    So I look forward to hearing to hearing from our witnesses 
this afternoon. Again, I thank Mr. Pombo and Mr. Walden for 
these pieces of legislation to see where we need to go.
    The Chairman. Thank you.
    The gentleman from Louisiana, Mr. Tauzin?

 STATEMENT OF THE HON. W.J. ``BILLY'' TAUZIN, A REPRESENTATIVE 
            IN CONGRESS FROM THE STATE OF LOUISIANA

    Mr. Tauzin. Thank you, Mr. Chairman.
    I will tell you what it is time for, it is time for us to 
stop saying that every attempt to improve this important act is 
an attempt to destroy it. It is time to stop saying that. It is 
time to recognize that people who agree with the way it is 
working and disagree with the way it is working can have 
legitimate differences of opinion and try to make it work 
better, and I hope that is what we begin doing in this 
Committee. I want to commend my colleagues for trying to do 
that, trying to make suggestions that will make this work 
better.
    If you have any doubt that it doesn't work well, come to 
Louisiana and see the alligator population in my State. 
Alligators were put on the endangered species list erroneously 
because somebody incorrectly calculated the rate of 
reproduction of alligators by 300 percent. Now, admittedly, 
checking on alligators reproducing is not without some risk--
    [Laughter.]
    Mr. Tauzin. And getting it done right is probably 
difficult, but the missing by 300 percent was pretty severe. We 
used to have a nutria problem. We don't have a nutria problem 
any more. I would like us not to have the same thing happen to 
Cajuns, but we are getting overrun by alligators, truly. Come 
out and drive the bayous at night with a light, and all you see 
is red eyes everywhere now. They are just all over the place 
because I think we made an error in the science, pure and 
simple.
    I am trying to think this through, ladies and gentlemen, in 
a logical, sort of intellectual way. I thought we should start 
by thinking about what has rights, who has rights in this 
American system, on this planet. Start with property. I don't 
think anywhere in the Constitution, anywhere in our laws, have 
we created rights that property owns. Property doesn't own 
rights. It might deserve respect, a property might deserve all 
sorts of nice treatment and good conservation and environmental 
lights, but I don't know if we have accorded property itself 
rights in America, not those of us who advocate so-called 
property rights nor those who fight them.
    When it comes to animals and plants, everybody debates 
that. What animal rights exist in America, what plant rights? I 
think we have generally concluded, because we have an 
Endangered Species Act, we have generally concluded in America 
that plants, and animals, humans and otherwise all have 
something of a right to survive as a species. We have a right 
to survive, at least a fair shot to survive.
    We can't control meteorites hitting this planet, and you 
know destroying life, again, as it maybe once did. We cannot 
control many things about nature and neither can species and 
plants. Sometimes the survival of one depends upon the 
destruction of the other in the history of the planet. We can't 
control all of that, but we can, in our endangered species 
laws, give plants and animals a fair shot of surviving. We 
shouldn't be going out trying to destroy them. We should be 
trying to create conditions where they have a fair chance to 
continue. I mean, ``What is it all about, Alfie,'' if it isn't 
to continue your line, and love life, and enjoy it, and respect 
it in the process?
    The next group we should look at is people. Do people have 
rights in this society? Absolutely. I mean, one of the basic 
rights we have in this society is the right to private property 
in this American system. You can argue about that elsewhere in 
the world, but here in America in our Constitution we clearly 
describe a right of people in America to own and enjoy private 
property. In fact, we say to this Government up here, you 
cannot take it away from us without fair and just compensation. 
You can take it away, if you have to, for public purposes only 
and then only if you take it away and provide just and fair 
compensation to us.
    We know there are many ways in which those rights are 
abused. They can be abused with regulations that don't make 
sense, are unreasonable, not properly based, and we end up 
either taking rights away of the use and enjoyment of property 
under the Constitution, fairly or unfairly. We should look at 
that.
    For example, do people have a right to know whether a 
Government regulation takes away their rights to use their 
property? I think they do. We do not make that clear in the 
Endangered Species Act well or our wetlands laws. Do people 
have a right to know that when their rights are restricted it 
is on the basis of good science? You doggone right they do. 
They ought to know that when their lives are disrupted or their 
economy is turned around or their property lost to them that it 
was done on the basis of good science at least.
    Do they have a right to know that the agencies of 
Government are respecting good science? I think they do, and 
that is part of what we are going to discuss today. Communities 
have rights, too, by the way. They have a right to know, for 
example, whether or not a decision of an agency of the Federal 
Government is going to upset the community's economic life.
    We had a Critical Area designation proposal in Louisiana to 
designate millions of acres of land to protect black bears in 
Louisiana, no public hearings planned. We demanded and got a 
couple of public hearings. We asked three simple questions: 
What is this critical area all about? What are we doing now 
that we can't do? And what are we going to be required to do 
when this happens? Is it necessary, and what has got to change 
in this area about the way we live?
    The agency couldn't answer, particularly those last two 
questions. And after the public hearings, they abandoned the 
Critical Area because they recognized that there is a bear 
conservation group working in Louisiana that is doing a much 
better job than any Critical Area would do in restoring the 
black bear, the teddy bear, in Louisiana to survival rates.
    Bottom line, this is a good discussion. We ought to have 
it, and we ought to quit saying every time we have it that 
somebody is out to destroy the Endangered Species Act. It ought 
to work better than it does. Let us try to make it work better.
    The Chairman. Thank the gentleman.
    Are there other opening comments?
    The gentleman from Montana?

 STATEMENT OF THE HON. DENNIS R. REHBERG, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF MONTANA

    Mr. Rehberg. Thank you, Mr. Chairman.
    Real briefly I want to add my voice in the kudos to Mr. 
Walden and Mr. Pombo for doing this. When Chairman Hansen 
originally assigned me as a new freshman to the Working Group 
on Endangered Species, I thanked him. Now I blame him. I didn't 
realize how controversial this issue had become in Congress.
    And, you know, it is kind of interesting because I guess I 
have not been in Washington long enough to have lost sight of 
the fact that when people are making jokes about laws, there is 
probably something wrong. ``Shoot, shovel, and shut up'' is not 
a distinction you want to be very proud of, and the people 
usually make the right decision. It is hard to argue with them 
when you lose an election. They probably made the right 
decision, for one reason or another, and they probably will 
make the right decision when they are very angry about a law 
that is not working.
    This is not incentive based, it is disincentive based, and 
when Chairman Pombo originally called this, of course, it took 
several months to even agree what time to meet and where, but 
once we got beyond the initial decision of getting along, a lot 
of good ideas came forward from Mr. Rahall, and Mr. Miller, and 
Mr. Dingell and such, and this is the direction that we took 
from the discussions that occurred.
    I just thank Mr. Walden and Mr. Pombo for capturing the 
essence of the consensus that we are trying to build so that we 
don't have to joke about this law any more.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from Washington?

STATEMENT OF THE HON. JAY INSLEE, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF WASHINGTON

    Mr. Inslee. Thank you, Mr. Chairman.
    I just want to say that Mr. Tauzin made reference to seeing 
the red eyes glowing at night in the swamp, and I just want to 
assure I don't care what color their eyes are, we are going to 
take care of Cajuns in this Committee.
    [Laughter.]
    Mr. Inslee. So thank you, Mr. Chair.
    Mr. Tauzin. The Cajuns with red eyes are on Bourbon Street.
    [Laughter.]
    The Chairman. Does the gentleman from Pennsylvania have an 
opening comment?
    Mr. Peterson. No.
    [The prepared statement of Mr. Jones follows:]

 Statement of The Honorable Walter B. Jones, Jr., a Representative in 
               Congress from the State of North Carolina

    Thank you, Mr. Chairman. I won't take too much of the Committee's 
time today.
    I am growing increasingly frustrated with the National Marine 
Fisheries Service policy of not listening to fishermen regarding the 
implementation of the Endangered Species Act and the Marine Mammal 
Protection Act. These fishermen have generations of empirical data that 
the National Marine Fisheries Service has chosen to ignore on issues 
like summer flounder, bottlenose dolphins and now monkfish.
    Carolina's fishing families are suffering the consequences for the 
National Marine Fisheries Service's use of inaccurate data and the 
unilateral preservationist policies of an elite few within the agency.
    I want to briefly discuss an incident regarding the Endangered 
Species Act that occurred in my district on Friday, March 15, 2002. 
Last Friday with no warning, no cooperation and faulty data, the agency 
closed the monkfish fishery along the entire North Carolina coast due 
to purported turtle interactions.
    During 2001, the National Marine Fisheries Service had nearly 100% 
observer coverage in the monkfish fishery in North Carolina and 
Virginia and a total of 4 turtle interactions were observed during the 
entire fishing season. However, the agency ignored this data while 
filing the ``Final Interim Rule'' and instead used data showing more 
than 275 sea turtle ``strandings'' from the year 2000.
    No Federal observation took place in the fishery in 2000. The 
agency merely assumes that the monkfish fishery is responsible for 
these strandings, whereas empirical evidence collected in 2001 show a 
minimal impact on turtles by the monkfish fishery. Taxpayers paid for 
the observers to be aboard vessels in 2001. I wonder how the taxpayer 
would react if they knew that the agency would dispose of this data 
that they paid for.
    I am glad we're discussing empirical data and the use of sound 
science today. But empirical data and sound science don't mean a thing 
if they are not utilized by a Federal agency during the decision-making 
process.
    Lastly, I want to touch on the role of those directly impacted by 
this closure. My constituents, North Carolina fishermen, personally 
discussed with Administrator Bill Hogarth a voluntary, cooperative 
proposal for rolling area closures to address the sea turtle issue. The 
proposal was endorsed by the North Carolina Division of Marine 
Fisheries in a letter to the agency dated February 20, 2002. At this 
time, I'd like to submit these and an additional clarification letter 
from a constituent of mine, Jim Ruhle, for the record.
    I would like to remind members of this Committee that conservation 
is not a part-time hobby for fishermen, it is a full-time job that 
feeds our families and theirs. To get fishermen to come forward and 
endorse a closure, a closure that will negatively impact his business, 
his employees, his customers and his family, is a profound example of 
resource stewardship that should be rewarded. Instead, the National 
Marine Fishery Service rejected this fair, equitable and flexible 
proposal.
    One of the things we've learned from the 9/11 attack is that 
America needs a safe, locally grown and caught food supply. This action 
will do little other than to unilaterally disarm our nation by putting 
our food supply at risk.
    Once again, I respectfully request that my natural resource-
dependent constituents receive better treatment from their Federal 
Government. Fishermen face daunting regulations and mortal danger as a 
part of their livelihood. If my constituents are going to be able to 
ever trust a Federal agency, that Federal agency must be accountable.
    To provide an unbiased, equitable and accountable process is the 
most important service you can provide, a process designed to allow 
input from the fishermen who pay the bills of the National Marine 
Fisheries Service.
    In closing, I would like to submit for the record the text of an e-
mail sent to my office yesterday that I think gets to the heart of the 
matter. Dale Farrow is one of my constituents impacted by this closure. 
He has spent countless hours and dollars in preparation for the 
monkfish season, now closed by the National Marine Fisheries Service. 
Dale asks for no change in current law, asks for no compensation from 
his Federal Government for this closure. All he asks for is to be 
adequately notified of closures, to be given a chance to compete, to do 
what he does best, and that is to feed America's families.
    Thank you.
                                 ______
                                 
    [The prepared statement of Mr. Pallone follows:]

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

    Mr. Chairman, I oppose both of the two bills that are before the 
committee today concerning the Endangered Species Act, H.R. 2829 and 
H.R. 3705. Protecting our endangered species should be one of our top 
priorities; therefore we should not be doing anything to undermine 
them. I have always been an ardent supporter of protecting endangered 
species, and I believe that these two bills are headed in the wrong 
direction.
    Neither bill is designed to promote sound science or to conserve 
imperiled species. Rather, both bills are biased against species 
protection because they require additional independent reviews that 
would lead to delays in the decision-making process. Peer review policy 
has been part of the listing process by agencies and adhered to since 
1994. These two bills require further peer review at a number of steps, 
which would not only slow down the decision-making process, but cost 
more money and reduce flexibility for the agencies. The current Act 
requires the Services to make biological decisions based upon the best 
scientific and commercial data available, and therefore increased 
levels of review are not necessary. Agencies should continue to develop 
their own policy, and the premise underlying these two bills is that 
the agencies cannot be trusted to make decisions based on sound 
science.
    Decisions regarding the Endangered Species Act can always benefit 
from more data, and Congress can support sound scientific decision-
making under the Endangered Species Act by appropriating more funds for 
basic science. However, enacting H.R. 3705 and H.R. 2829 would add 
costly bureaucracy and delay without promoting sound science or 
furthering species conservation. They would also require inappropriate 
deference to industry experts, ultimately leading to reduced species 
protection efforts.
    I strongly urge all of my colleagues to oppose both of these bills.
                                 ______
                                 
    The Chairman. I thank the members for their opening 
statements and we will now start with Panel I.
    We are very honored to have Craig Manson, the Assistant 
Secretary of Fish, Wildlife and Parks, Department of Interior.
    Now, Judge, this is your first time in front of this 
Committee, isn't it?
    Mr. Manson. Yes, it is, Mr. Chairman, and I am very pleased 
to be here.
    The Chairman. We welcome you here. The judge has an 
enviable record of what he has been able to do, and we are 
grateful that he has decided to lend some of this valuable 
background he has had with the Department of Interior, and we 
are honored that you could be here with us today.
    Rebecca Lent, Deputy Assistant Administrator of Fisheries, 
National Marine Fisheries Service. We are grateful for you to 
be here, also.
    Ms. Lent. Thank you.
    The Chairman. Now we are not going to limit these two folks 
to time. We want to hear everything they have to say on this 
important issue.
    Now the rest of you I hope you have got your presentations 
within 5 minutes because we are going to run out of time, as we 
do around here. So we are looking forward to hearing from all 
of you when your time comes, but we are going to have to limit 
you.
    With that, Mr. Secretary, we will turn to you.

  STATEMENT OF CRAIG MANSON, ASSISTANT SECRETARY FOR FISH AND 
      WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE INTERIOR

    Mr. Manson. I thank you very much, Mr. Chairman.
    During the past several weeks, there has been much 
discussion about the use of good science in our decisionmaking. 
We recognize that individuals who have been directly impacted 
by the Endangered Species Act view it as inflexible. Given the 
impact that our resource management decisions have on 
communities and individuals, the species conservation decisions 
that we make must be based on the best available science. Our 
data and scientific information must meet the highest possible 
ethical and professional standards. At the outset, I want to 
say that improving our science has been one of Secretary 
Norton's highest priorities, and it will be one of mine.
    H.R. 2829 and H.R. 3705 seek to ensure independent 
scientific review of the science underlying our decisions. 
Indeed, this is one of the positive aspects we have taken out 
of the National Academy of Sciences' review of the U.S. Fish 
and Wildlife Service's decisions in the Klamath matter.
    ``Independent scientific review'' can be a broad concept 
that goes beyond the traditional expectations of a simple peer 
review process. With this thought in mind, I offer the 
following principles that we believe will form a strong basis 
from which to work. We will keep these principles in mind as we 
go forward in this process.
    First, there is no monopoly on good science. The Department 
must cast a broad net to take advantage of the independent 
scientific expertise of groups like the State Fish and Wildlife 
agencies. We believe that this will ensure that our decisions 
are based on the best available science, not just one group's 
or another's interpretation of the science.
    We must also acknowledge that science is not exact, that 
even expert opinions can differ. Where there are differing 
interpretations of the science behind our decisions, we must 
provide opportunities for both Department scientists and 
stakeholders to air those differences and, wherever possible, 
resolve them. It must be an open process.
    Finally, as I noted previously, our resource management 
decisions can impact both communities and individuals. For this 
reason, we need to implement a robust, independent review 
process for significant resource decisions. Yet we must also 
recognize that not all decisions have the same impact. The 
scientific review process should reflect this fact, and it 
should have the flexibility to be adjusted accordingly.
    Although we support the general concepts advanced by these 
bills, we have concerns with structural and budgetary impacts 
of enacting this legislation. We also believe that the 
Department has existing authority to implement improvements 
that will greatly enhance the science that we use. For example, 
the Joint Fish and Wildlife Service/National Marine Fisheries 
Service ``Policy on Information Standards Under the Endangered 
Species Act,'' published in the Federal Register on July 1, 
1994, provides criteria, establishes procedures, and provides 
guidance to field biologists and managers regarding the use of 
scientific information in the decision process. We must ensure 
that this policy is fully and effectively implemented.
    We must also recognize that independent scientific review 
will not, in and of itself, guarantee that good decisions are 
made. Thus, other efforts to ensure that high standards of 
scientific integrity and ethics are in place throughout the 
Department are vital to maintaining public trust and confidence 
in our decisionmaking processes.
    At a hearing before this Committee on March 6, 2002, Dr. 
Steve Williams, Director of the Fish and Wildlife Service, told 
the Committee that he is in the initial stages of developing a 
multi-faceted approach to ensure and enforce high standards of 
scientific integrity and ethics in addressing the Fish and 
Wildlife Service's responsibilities. I believe the steps 
outlined by Dr. Williams will provide long-term emphasis on 
professionalism and ethics.
    At that hearing, Dr. Williams also conveyed our commitment 
to fully utilize good science support in the administration of 
the ESA, including bringing independent scientific expertise 
into that process. We plan to seek advice from respected 
wildlife management professionals, academia, the States and the 
private sector. The Department is also examining which 
decisions and processes from all bureaus, not just the Fish and 
Wildlife Service's ESA activities, would benefit from the 
addition of peer review. The findings of this review will be 
rapidly implemented.
    Another initiative that we are developing will assemble 
multi-disciplinary teams that will be assigned to assist Fish 
and Wildlife Service regional office staff on an as-needed 
basis. It is our belief that utilizing these teams-- to be made 
up of senior-level agency staff--will bring both experience and 
multi-decisional thinking to large-scale and difficult issues. 
We hope to implement this effort soon.
    We believe that all of these administrative initiatives are 
consistent with the intent of H.R. 2829 and 3705.
    As I previously mentioned, we appreciate and support the 
intent of these bills to further ensure the application of 
sound science and peer review. Nevertheless, we do have 
concerns as they are currently drafted. In my written 
testimony, I go into quite a bit of detail on some of those 
issues.
    In general, both bills offer prescriptive solutions and 
lack flexibility in implementation. For example, both bills 
prescribe which decisions, regardless of the complexity of the 
underlying science or nature of the underlying issues, would 
act as triggers requiring independent scientific review.
    We are additionally concerned that the considerable new 
process required will impact the Fish and Wildlife Service's 
ability to provide consultations and other decisions in a 
timely manner.
    Mr. Chairman, our ultimate goal is to ensure that better 
decisions are made. We believe that independent scientific 
review can help ensure that there is better science behind our 
ESA decisions. Many of our policies encompass the principles 
and intentions behind H.R. 2829 and H.R. 3705. We look forward 
to working with the Committee as we strengthen the scientific 
integrity of our decisions. I believe we need to be more 
creative and more consultative as we move forward to improve 
the implementation of the ESA.
    We hope we can develop a system that can contain stronger 
safeguards to ensure our decisions are grounded on sound 
scientific footing, but yet have the flexibility to ensure that 
decisions which truly need independent scientific review are 
the decisions that receive it. We are prepared to work with the 
Committee toward that end.
    Mr. Chairman, that concludes my statement, and I will 
certainly answer any questions that you or any of the members 
have on this important topic.
    [The prepared statement of Mr. Manson follows:]

 Statement of Craig Manson, Assistant Secretary for Fish and Wildlife 
               and Parks, U.S. Department of the Interior

    Mr. Chairman and Members of the Committee, I am Craig Manson, 
Assistant Secretary for Fish and Wildlife and Parks at the Department 
of the Interior (Department). This is my first occasion to appear 
before you, and I appreciate the opportunity to present the 
Department's views regarding H.R. 2829, the ``Sound Science for 
Endangered Species Act Planning Act of 2001,'' and H.R. 3705, the 
``Sound Science Saves Species Act of 2002.''
    We greatly appreciate the Committee's interest in endangered 
species conservation. For the past several weeks, there has been much 
discussion about the use of good science in our decision-making. We 
recognize that some individuals who have been directly impacted by the 
Endangered Species Act (ESA) view it as inflexible. Given the impact 
that our resource management decisions can have on communities and 
individuals, the species conservation decisions we make must be based 
on the best available science. Our data and scientific information must 
meet the highest possible ethical and professional standards. At the 
outset, I want to say that improving our science has been one of 
Secretary Norton's highest priorities, and it will be one of mine.
    H.R. 2829 and H.R. 3705 seek to ensure independent scientific 
review of the science underlying our decisions. Indeed, this is one of 
the positive aspects we have taken out of the National Academy of 
Science's review of the U.S. Fish and Wildlife Service's (Fish and 
Wildlife Service) decisions in the Klamath matter.
    ``Independent scientific review'' can be a broad concept that goes 
beyond the traditional expectations of a simple peer review process. 
With this thought in mind, I offer the following principles that we 
believe will form a strong basis from which to work. We will keep these 
principles in mind as we move forward in this process.
    First, there is no monopoly on good science. The Department must 
cast a broad net to take advantage of the independent scientific 
expertise of groups like the state fish and wildlife agencies. We 
believe that this will ensure that our decisions are based on the best 
available science, not just one group's, or another's, interpretation 
of the science.
    We must also acknowledge that science is not exact, and that even 
expert opinions can differ. Where there are differing interpretations 
of the science behind our decisions, we must provide opportunities for 
both Department scientists and stakeholders to air those differences 
and, wherever possible, resolve them. It must be an open process.
    Finally, as I noted above, our resource management decisions can 
impact both communities and individuals. For this reason, we need to 
implement a robust, independent review process for significant resource 
decisions. Yet we must also recognize that not all decisions have the 
same impact. The scientific review process should reflect this fact, 
and it should have the flexibility to allow it to be adjusted 
accordingly.
    Although we support the general concepts advanced by these bills, 
we also have concerns with the structural and budgetary impacts of 
enacting this legislation. We also believe that the Department has 
existing authority to implement improvements that will greatly enhance 
the science we use. For example, the joint Fish and Wildlife Service/
National Marine Fisheries Service (NMFS) ``Policy on Information 
Standards Under the Endangered Species Act,'' published in the Federal 
Register on July 1, 1994 (59 FR 34271), provides criteria, establishes 
procedures, and provides guidance to field biologists and managers 
regarding the use of scientific information in the decision process. We 
must ensure that this policy is fully and effectively implemented.
    We must also recognize that independent scientific review will not, 
in and of itself, guarantee that good decisions are made. Thus, other 
efforts to ensure that high standards of scientific integrity and 
ethics are in place throughout the Department are vital to maintaining 
public trust and confidence in our decision-making processes.
    At a hearing on March 6, 2002, Dr. Steve Williams, Director of the 
Fish and Wildlife Service, told this Committee that he is in the 
initial stages of developing a multi-faceted approach to ensure and 
enforce high standards of scientific integrity and ethics in addressing 
the Fish and Wildlife Service's responsibilities. We believe that the 
steps outlined by Dr. Williams will provide long-term emphasis on 
professionalism and ethics.
    At that hearing, Dr. Williams also relayed our commitment to fully 
utilize good science support in the administration of the ESA, 
including bringing independent scientific expertise into that process. 
We plan to seek advice from respected wildlife management 
professionals, academia, States, and the private sector in this 
endeavor. The Department is also examining which decisions and 
processes from all bureaus--not just the Fish and Wildlife Service's 
ESA activities--would benefit from the addition of peer review. The 
findings of this review will be rapidly implemented.
    Another initiative that we are developing will assemble multi-
disciplinary teams that will be assigned to assist Fish and Wildlife 
Service regional office staff on an as-needed basis. It is our belief 
that utilizing these teams--to be made up of senior-level agency 
staff--will bring both experience and multi-dimensional thinking to 
large-scale and difficult issues. We hope to implement this effort 
soon.
    We believe that all of these administrative initiatives are 
consistent with the intent of H.R. 2829 and H.R. 3705.
    As I previously mentioned, we appreciate and support the intent of 
these bills to further ensure the application of sound science and peer 
review. Nevertheless, we do have concerns with the bills as currently 
drafted. We believe that the additional processes added by the two 
bills would be costly to implement. These process issues include, for 
example, assembling and compensating the independent review boards and 
implementing the review board provisions themselves. Moreover, both 
bills offer prescriptive solutions and lack flexibility in 
implementation. For example, both bills prescribe which decisions--
regardless of the complexity of the underlying science or the nature of 
the underlying issues--would act as triggers requiring independent 
scientific review.
    We are concerned that the considerable new process required in both 
bills will impact the Fish and Wildlife Service's ability to provide 
consultations and other decisions in a timely manner and, in some 
cases, may compromise the Fish and Wildlife Service's ability to meet 
statutory deadlines. For example, Section 3 of H.R. 2829 requires that 
all listing decisions, de-listing decisions, development of recovery 
plans, or jeopardy findings, must be reviewed by an independent panel 
before becoming final, with an opinion to the Secretary within 3 
months. For listing decisions, it would be difficult to accommodate 
this three month provision and still meet the one year statutory time 
frame between proposed and final rule-makings. The bill would make it 
necessary to extend comment periods to a minimum of 120 days.
    Section 3(c) of H.R. 3705 contains similar review provisions that 
are equally problematic. Neither bill would extend the existing 
statutory deadlines for making decisions on petitions. With the 
additional time needed to comply with these new requirements and the 
increased workload imposed by these and other provisions in the 
legislation, it is likely that the Department would not be able to meet 
the statutory deadlines in many cases, opening the door to additional 
litigation.
    Similarly, section 3(d) of H.R. 3705 would allow ``any person'' to 
request an independent review of jeopardy Section 7 biological 
opinions. Currently, the Fish and Wildlife Service is obligated to 
provide an opinion within 135 days of the request unless the time 
period is extended by mutual consent. The process in H.R. 3705 would 
increase the time period by at least 120 days, and probably longer. It 
should also be noted that allowing any person to request review of 
these findings would invite persons not associated with a particular 
consultation process to request review of information developed through 
that process. In particular, it would allow an individual or 
organization who wanted stronger or more restrictive reasonable and 
prudent alternatives (RPAs) attached to the opinion--not just an 
unhappy applicant--to trigger the review process. The resulting delay 
in reaching a final decision could have a detrimental economic impact 
on an applicant willing to accept the proposed RPAs.
    Mr. Chairman, our ultimate goal is to ensure that better decisions 
are made. As I previously stated, we believe that independent 
scientific review can help to ensure that there is better science 
behind our ESA decisions. Many of our policies, both in existing 
practice and new initiatives, encompass the principles of, and many of 
the intentions behind, H.R. 2829 and H.R. 3705. I have presented, in 
very summary fashion, some of the general implementation problems that 
we have identified in these bills. We look forward to working with the 
Committee as we strengthen the scientific integrity of our decisions. I 
believe we need to be more creative and consultative as we move forward 
to improve our implementation of the ESA.
    We hope that we can develop a system that contains stronger 
safeguards to ensure our decisions are grounded on sound scientific 
footing but, yet, has the flexibility to ensure that the decisions 
which truly need independent scientific review are the decisions that 
receive it. We stand ready to work with the Committee toward that end.
    Mr. Chairman, this concludes my prepared statement. I will be 
pleased to respond to any questions you may have.
                                 ______
                                 
    The Chairman. Thank you, Mr. Secretary. We appreciate your 
statement.
    Dr. Lent, you folks notice on the back wall we have a bunch 
of lights on, and we have got four votes coming up, but I think 
we can get your testimony in, and I would like to before we 
break for a vote. So we will turn the floor to you, ma'am.

      STATEMENT OF REBECCA LENT, Ph.D., DEPUTY ASSISTANT 
ADMINISTRATOR FOR FISHERIES, NATIONAL MARINE FISHERIES SERVICE, 
     NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION [NOAA]

    Ms. Lent. Thank you, Mr. Chairman.
    The Chairman. Pull the mike closer to you.
    Ms. Lent. It is my first time, too. Thank you, Mr. 
Chairman, and thank you to the members of the Committee.
    I appreciate the opportunity to come here and talk about 
NMFS's views on the proposed legislation. Dr. Hogarth asked 
that I reiterate our commitment at the Fisheries Service to 
improving the quality and the quantity of data that we use in 
our policy decisions, also reiterate our commitment to issue a 
biological opinion, a draft biological opinion, by April 12th 
so that we can be on our way to delivering water to the farmers 
in the Klamath.
    The National Marine Fisheries Service supports efforts to 
improve the quality of science used in implementing the ESA. 
Our goal is to ensure that Federal policy decisions are based 
on the best scientific and commercial data available. We are 
working closely with our partners at the Fish and Wildlife 
Service to find the ways that we can improve Federal 
implementation of ESA, the administrative process, the science. 
We appreciate the efforts made by Congress and the members of 
this Committee to seek ESA decisions that are based on better 
science and the use of peer reviews.
    As my colleague mentioned, we did implement standards in 
1994 to provide better direction for information for science-
based decisions. These promote the evaluation of all scientific 
and commercial information to ensure that it is reliable, 
credible, impartial and that it represents the best available 
science. Data and science evolve. We always have more to learn, 
and we need to get that information and those data incorporated 
into our decisions.
    Our policy is that ESA listing, delisting, biological 
opinions and jeopardy decisions be based on primary and 
original sources and that they be reviewed at the management 
level to verify their scientific credibility. We do consider 
information from a range of entities, including local, State 
and Federal agencies, tribal Governments, academic and 
scientific groups and private citizens, private sector groups.
    The opinions of independent peer reviews are summarized in 
biological opinions. We get our peer reviewers from the 
academic and scientific community and the private sector. The 
peer reviews don't always support our decisions, but we 
consider them carefully in reaching our final decisions.
    Some of the policies and practices that we already have in 
place are similar to those in 2829. Using data, we use data 
from landowners, we use data from fishermen in reviewing our 
decisions, and the listing process and recovery planning. We 
use information from the States in making listing 
determinations and recovery plans. And listing determinations 
and recovery plans are peer reviewed.
    Although we are already implementing these measures, we are 
willing to review our existing procedures to see how they might 
be improved. We are concerned, as our colleagues at Fish and 
Wildlife Service, that some of the requirements in 2829 could 
make it more difficult for us to meet statutory deadlines. 
Improvements are possible we know, but we need to issue 
biological opinions that meet timeliness and satisfy other 
legal requirements.
    We are also concerned that some of the provisions of H.R. 
3705 could result in delays in issuing biological opinions, and 
that could impede economic activities that are awaiting 
decisions of those biological opinions. Allowing a third-party 
review could extend listing determinations by 285 days. So more 
time could improve the scientific review, but it also limits 
our ability to expedite processing of biological opinions that 
often seem to be urgent activities.
    So, while we have concerns about these bills, we want to 
work with you to continue to ensure that NMFS's actions under 
ESA are based on the best scientific and commercial data 
available, we want to improve the quantity and quality of data 
available, we want to work with Congress and our partners at 
the Fish and Wildlife Service to see that we reach these goals.
    Mr. Chairman, I want to emphasize that the scientists at 
the Fisheries Service are some of the best fishery biologists 
and marine mammologists in the world. Some of them are leaders 
in their field. We don't always fully understand the complex 
relationships between fish and mammals. We want to extend the 
funding allowance, we want to improve our understanding of 
living marine resources, natural history, environmental 
factors, but in the meantime we are using, and we will continue 
to use, the best scientific information available to guide us 
to make our decisions. When we don't have perfect information, 
we still need to make those decisions.
    Thank you, Mr. Chairman. Thank you, members of the 
Committee.
    [The prepared statement of Ms. Lent follows:]

   Statement of Dr. Rebecca Lent, Deputy Assistant Administrator for 
  Fisheries, National Marine Fisheries Service, National Oceanic and 
        Atmospheric Administration, U.S. Department of Commerce

    Mr. Chairman and members of the Committee, I am pleased to be here 
today on behalf of William Hogarth, the Assistant Administrator for the 
National Marine Fisheries Service (NMFS). I welcome the opportunity to 
discuss with you our views regarding H.R. 2829 and H.R. 3705, two bills 
that would amend the Endangered Species Act of 1973.
    Although both H.R. 2829 and H.R. 3705 specifically address the 
Department of the Interior's implementation of the Endangered Species 
Act (ESA), NMFS welcomes the opportunity to comment on these bills as 
they affect ESA decisionmaking generally NMFS supports the goals of 
improving the quality of science used to implement the ESA and to 
ensure that Federal policy decisions are based on the best scientific 
and commercial data available We are already working with the United 
States Fish and Wildlife Service (FWS) to identify areas where we can 
improve Federal implementation of the ESA administratively
    Before I comment more specifically on the bills, I would like to 
outline our current process for utilizing scientific data and 
information on ESA-related actions.
    NMFS is a partner with the FWS in implementing the Endangered 
Species Act. Together, we have sought to administer the ESA efficiently 
and consistently while using the best available scientific and 
commercial data. This is sometimes difficult, particularly when policy 
decisions must sometimes be made with data or science that is still 
developing. NMFS is responsible for over 50 listed species that are, 
for the most part, wide-ranging, highly migratory and cover millions of 
square miles of ocean and thousands of miles of U.S. rivers, streams 
and coastline. Several species are co-managed by NMFS and FWS, such as 
the Atlantic salmon and four species of sea turtles Others include 
anadromous and freshwater species that migrate through the same 
watersheds, and require close coordination between the agencies.
    The ESA requires the Services to use the best available scientific 
and commercial data when implementing the Act. That is the standard we 
use for listing determinations as well as writing biological opinions 
In 1994, NMFS and FWS provided further guidance to our staffs through 
policies on information standards and peer review. Let me describe 
those policies in greater detail.
Information Standards.
    To assure the quality of the biological, ecological and other 
information utilized by the Services to implement the Act, we require 
NMFS biologists to evaluate all scientific and commercial information 
that will be used to make decisions under the Act to ensure that the 
information is reliable, credible, and represents the best available. 
Further, our biologists gather and impartially evaluate biological, 
ecological and commercial information that disputes official positions, 
decisions, and actions proposed or taken by the Services, and they are 
required to document their evaluation of information that supports or 
does not support a position being proposed as an official agency 
position on a status review, listing actions, recovery plans, 
biological opinions or permits.
    Also, they must use primary and original sources of information as 
the basis for recommendations to place a species on the list of 
candidate species; add a species to the threatened and endangered list; 
remove a species from the list; designate critical habitat; revise the 
status of a species, issue a scientific research or incidental take 
permit, or make a determination that a Federal action is likely to 
jeopardize a species or destroy or adversely modify critical habitat. 
These sources are retained as part of the administrative record 
supporting an action and referenced in all Federal Register notices and 
biological opinions. Further, the Services must conduct management-
level review of documents developed and drafted by Service biologists 
to verify and assure the quality of the science used to establish 
official positions, decisions, and actions taken by the Services to 
implement the ESA.
Peer Review
    It is NMFS' policy to incorporate independent peer review in 
listing and recovery activities during the public comment period. For 
listing, we solicit the expert opinions of three appropriate and 
independent specialists regarding pertinent scientific or commercial 
data and assumptions relating to the taxonomy, population models and 
supportive biological and ecological information for species under 
consideration for listing. We summarize in the final decision document 
the opinions of all independent peer reviewers and include all reports, 
opinions and other data in the administration record of the final 
decision.
    For recovery plans, we actively solicit independent peer review to 
obtain all available scientific and commercial information from 
appropriate local, state and Federal agencies, tribal governments, 
academic and scientific groups and any other party that may possess 
pertinent information during the development of recovery plans. Where 
appropriate, we use independent peer review to review scientific data 
relating to the selection or implementation of specialized recovery 
tasks. We summarize in the final recovery plan the opinions of all 
independent peer reviews requested to respond and include the reports 
and opinions in the administrative record.
    It is our policy to select peer reviewers from the academic and 
scientific community, tribal and other native American groups, Federal 
and State agencies and the private sector. Those selected must have 
demonstrated expertise and specialized knowledge related to the 
scientific area under consideration.
    If there is a scientific disagreement concerning the listing of a 
species, the ESA provides for NMFS to extend the statutory rulemaking 
deadline for six months to consider the uncertainty. NMFS may appoint a 
special independent peer review group to resolve any unacceptable level 
of scientific uncertainty. The results of this review become part of 
the permanent administrative record. The public is given an opportunity 
to review reports and provide comments for actions where there is a 
formal public comment period such as listing, designating critical 
habitat and developing a recovery plan.
    We devote a significant portion of our budget to ensure that our 
scientists stay up-to-date in their respective fields, and that they 
incorporate state-of-the-art analytical techniques and methods to 
assess and understand species and their ecosystems. Science is a vital 
component to the development of sound ESA decisionmaking. That is why 
nearly half of NMFS' full time employees across the nation work in the 
Protected Species program in our Science Centers.
Contents of Petitions
    In 1996, NMFS and FWS published specific guidance on what a 
petition must include before it will be accepted. This guidance covers 
petitions to list a species, petitions to change the status of a 
species, or to designate critical habitat. The 1996 guidance augments 
information standards outlined in joint-NMFS and FWS regulations issued 
in 1984.
Role of States
    NMFS and FWS recognize the important role of States in species 
recovery, and have worked to foster partnerships with States in this 
regard. In 1994, the Services published a policy clarifying the role of 
States in activities undertaken by the NMFS and FWS to implement the 
ESA. Whether through species conservation prior to listing, listing 
itself, consultations, habitat conservation plans or recovery plans, we 
acknowledge that States possess broad trustee responsibilities over 
fish, wildlife and plants and their habitats. We agree that state 
agencies compile valuable scientific data and expertise on the status 
and distribution of species.
    State agencies also have close working relationships with local 
governments and landowners and are in a unique position to assist NMFS 
and FWS with species conservation. With regard to biological opinions, 
it is Service policy to inform state agencies of Federal actions that 
may adversely affect listed species and to request information from the 
States that would assist the Services in analyzing the effects of the 
action. The Services and/or the appropriate Federal agency provide 
States with copies of the final biological opinion, and we encourage 
Federal agencies to share draft biological opinions with the States 
when the opinion may affect state activities.
Time Allowed for Peer Review, Science and Biological Opinions
    As Dr. Hogarth testified last week before the House Resources 
Committee hearing on the National Academy of Sciences report on the 
Klamath Basin, NMFS is aware of concerns about the scientific validity 
of the information used to develop biological opinions, and we are now 
in the process of addressing these concerns in the biological opinion 
for the Klamath Basin. However, NMFS is required by law to make 
decisions based upon the best scientific and commercial data available. 
In writing a biological opinion we use all the information available to 
us. Frequently, information used to develop an opinion is derived from 
a biological assessment or evaluation that is submitted from the agency 
or entity requesting consultation, and NMFS cannot control whether the 
information in such an assessment has previously been peer reviewed.
    Both NMFS and FWS issue a large number of biological opinions every 
year. While we would, of course, prefer to always use information that 
has first been peer reviewed, time constraints do not always allow that 
to occur. The statutory time frame for completing biological opinions 
is short. Under existing procedures, action agencies and applicants are 
permitted to review and comment on draft opinions and may extend the 
consultation schedule to insure that they have a reasonable amount of 
time to conduct their review. They may also seek additional review by 
outside experts.
Views on H.R. 2829 and H.R. 3705
    H.R. 2829, the ``Sound Science for Endangered Species Act Planning 
Act,'' would require the Secretary of the Interior to give greater 
weight to scientific or commercial data that is empirical or has been 
field-tested or peer-reviewed. While we support the goal of basing our 
decisions on sound science and peer reviewed science, we believe that 
if we give greater weight to scientific or commercial data that is 
empirical or field tested, when evaluating comparable data, we may not 
be using the best information available. There are other scientific 
methods (e.g., modeling and statistical analyses) that produce valuable 
scientific data. It is usually a combination of various types of 
scientific data that form the basis of our evaluations.
    Our current policies and practices already reflect some of the 
language in this bill. For example, we do request data from landowners 
or any other party with information about a species when we are in the 
process of listing a species or preparing a recovery plan. This 
information becomes a part of the administrative record. Peer review is 
already required for listing determinations and development of recovery 
plans. However, this bill's requirement for peer review (e.g., 
recommendations from the National Academy of Science, compensation for 
peer reviewers and including jeopardy biological opinions found in 
Section 3) goes beyond what is in place now by the Service and would 
make it more difficult to meet the statutory timeframe for ESA 
decisions.
    Section 4 of the bill calls for the use of information from states 
for recovery plans. Again, this is a current practice of the Service 
and often, there is a state representative on the recovery team itself. 
NMFS supports opportunities for the action agency and the applicant to 
participate in the development of biological opinions and, in fact, our 
regulations cover some of the proposals here. We would be glad to work 
with the Committee to expand meaningful participation in a way that, 
again, would be within the statutory deadlines for completing opinions.
    H.R. 3705, the ``Sound Science Saves Species Act of 2002,'' also 
covers using sound science by addressing the contents of petitions to 
list a species and independent peer review of ESA decisions including 
jeopardy biological opinions. I will focus my remarks on Section 3(d) 
and the requirement for independent peer review of jeopardy biological 
opinions.
    NMFS is concerned that this proposal could interfere with existing 
or new economic activities that require a biological opinion, because 
it could block the action agency or applicant from taking any action 
for at least 30 days after receiving a biological opinion if any third 
party requests independent scientific review of the opinion. By itself, 
this language extends the consultation period from 135 days to 165 
days. The additional 90 days for scientific review would extend the 
consultation to 255 days, and public notice requirements would extend 
the consultation to 285 days.
    Even without the additional administrative procedures, these 
provisions more than double the amount of time needed to complete 
consultations. These changes would not necessarily change the outcome, 
increase the degree to which action agencies or applicants are involved 
in the outcome, or increase the scientific rigor of the consultation. 
At the same time, they would limit the flexibility and authority of the 
Secretary to expedite the processing of biological opinions for urgent 
activities.
    In addition, the provisions requiring the establishment and 
selection of Independent Scientific Review boards could duplicate or 
compete with existing Federal, state, tribal, and local efforts to 
provide personnel and resources for peer review of ongoing species 
recovery projects, such as the Independent Scientific Review Panel that 
currently reviews hundreds of millions of dollars worth of salmon 
recovery projects in the Columbia River Basin in the Pacific Northwest.
    Mr. Chairman, while we express concerns with some provisions of 
these bills, we recognize that we must continue to ensure that all 
actions taken to implement the Endangered Species Act are performed 
using the best scientific and commercial information and data 
available. We must also strive to improve the quantity and quality of 
data available. We look forward to working with Members of Congress and 
our partners at the FWS to bring about more effective implementation of 
the Endangered Species Act.
    This concludes my testimony, Mr. Chairman. I would be glad to 
answer any questions you may have.
                                 ______
                                 
    The Chairman. I thank you, Dr. Lent.
    We are going to stand in recess and try to get everybody 
back just as soon as we can. We have a series of four votes. So 
relax, folks, because we are going to be about a half-hour or 
better.
    Thank you.
    [Recess.]
    Mr. Pombo. [Presiding.] If we could call the hearing back 
to order. If I could have our first panel rejoin us at the 
witness stand.
    I call the hearing back to order. First off, I would like 
to apologize to our panel and all of our witnesses for the 
delay in the hearing for the recess. It was beyond our control, 
but I apologize to you for that.
    Mr. Manson, I would like to start with you, if I may. Can 
you describe for me and maybe clarify what the current peer 
review process is that you have adopted or that the Agency has 
adopted by rule. What process do you have to go through in 
order to peer review?
    Mr. Manson. Right. I think you are referring to what I 
referred to in my testimony, the 1994 policy in the Federal 
Register. What that policy requires is that the Fish and 
Wildlife Service, in its various decisions, consider a range of 
information. In fact, I will just, if you don't mind, turn to 
it, as it appeared in the Federal Register in 1994.
    On listing, it says, ``Solicit the opinion of three 
appropriate and independent specialists, summarize in the final 
decision document the opinions of those independent peer 
reviewers.'' A same sort of process is, a similar process is 
required for recovery, although it doesn't indicate a number of 
peer reviewers. It just says, ``Utilize the expertise and 
actively solicit independent peer review and document the use 
of that peer review.'' It does indicate that they should be 
selected from academic, and scientific, and tribal, and Federal 
and State agencies.
    Mr. Pombo. Is that a requirement on a listing or other 
decisions that are made?
    Mr. Manson. In listing, it is a requirement, and on 
recovery planning it is a requirement.
    Mr. Pombo. Is it required that they review all of the 
scientific data that has been collected?
    Mr. Manson. When you say ``all of the scientific data that 
has been collected,'' the policy itself would require that they 
review that that is collected from the independent peer 
reviewers who are selected, if that makes sense.
    Mr. Pombo. Maybe you could explain that to me.
    Mr. Manson. Well, it does not explicitly require a review 
of all of the independent data that may exist, but only that 
which comes from the selected peer reviewers.
    Mr. Pombo. What if an outside organization developed a 
biological opinion and submitted that to be reviewed by Fish 
and Wildlife as part of a listing process?
    Mr. Manson. If they did it in the course of the public 
comment period on the rule, that would be reviewed.
    Mr. Pombo. And what if it was not part of that process?
    Mr. Manson. Then there is no requirement that it be 
reviewed.
    Mr. Pombo. One of the issues that has been raised is that 
if we actually went through and put a requirement of a peer 
review process in place on a number of different decisions, 
that it would delay or take up a period of time in the process. 
Could you comment on that, in terms of balancing a requirement 
for more accurate or in the search of more accurate scientific 
information versus make any quick decision.
    Mr. Manson. Yes, I can tell you this, that the goal should 
not be to make quick decisions. The goal should not be to make 
quick decisions. The goal should be to make decisions that have 
scientific integrity in them.
    Now there is no doubt that some process of peer review 
might lengthen that process. It does not have to be one that 
unnecessarily delays a timely decision, and by timely I mean 
one that is made with all due deliberation given the scientific 
evidence. So I think there are ways to craft a peer review 
process and put it in place without unduly delaying a timely 
decision.
    The concern that we have with the particular bill, as it is 
drafted, is that it conflicts with some of the other existing 
timeframes that are already in the act.
    Mr. Pombo. The statutory deadlines.
    Mr. Manson. Right. Right.
    Mr. Pombo. Would an adjustment to those statutory deadlines 
so that it fits within a balance in terms of the search for 
better scientific information, you know, instead of just 
putting an arbitrary deadline in, could we adopt a deadline 
which matches with a better effort in obtaining science?
    Mr. Manson. That is certainly a possibility. We would be 
willing to come up with the Committee on coming up with a 
process that didn't run afoul of the other statutory deadlines 
or however it would be that we could fit these two processes 
together.
    Mr. Pombo. Thank you. My time has expired.
    Mr. Faleomavaega?
    Mr. Faleomavaega. Thank you, Mr. Chairman. I want to thank 
Secretary Manson and Ms. Lent for their testimony this 
afternoon. I think both witnesses made reference to a 
publication or a regulation issued in 1994. This is the Policy 
on Information Standards Under the Endangered Species Act. If I 
quote just specifically some of the provisions, ``To ensure 
that any information used by the services to implement the act 
is reliable, credible and represents the best scientific and 
commercial data.''
    In addition to that, they are also required to ``gather and 
partially evaluate biological, ecological and other information 
that disputes official positions, decisions and actions 
proposed or taken by the services during the implementation of 
the act.''
    I don't know if I misquoted that specific provision that 
both of you made reference to. Do the Agency biologists, are 
they expected to adhere to that policy?
    Mr. Manson. Yes.
    Mr. Faleomavaega. Ms. Lent?
    Ms. Lent. Yes, sir, that is our policy.
    Mr. Faleomavaega. Is there any way that this policy can be 
interpreted in any other way so that it does not become 
confusing for those who implement the provisions of the act?
    Mr. Manson. Well, I don't know if it is confusing or not. I 
do know that obviously there has been, in the news and in the 
public arena, discussion of scientific issues where we may not 
have had the very best science and not considered all of the 
information that might have been available, and we are moving 
to fix that. I made reference to Director Williams' management 
initiatives, which include a Code of Ethics for scientists in 
the Department as well.
    So, to the extent that the policy is not clear, that I 
think is a management problem, and we are moving to deal with 
that.
    Mr. Faleomavaega. I also noted, Mr. Secretary, that I take 
it this must be the official position of the administration 
that the two bills are too costly? It appears that the current 
administrative procedures are quite adequate to meet the 
requirements of the law, and it seems you also mentioned that 
the bills also lack flexibility.
    I think this seems to be the very issue of the bottom-line 
issue of why we are here today.
    Mr. Manson. Right.
    Mr. Faleomavaega. It seems to suggest that it does not have 
the flexibility, at least the current provisions of the law. 
But I have just cited you with this policy standard that was 
provided in 1994, and I had asked earlier are there any 
provisions of this policy information standard that you feel is 
not confusing, that seems to be quite clear and is stated quite 
clearly? I mean, is there any area that there could be 
differences of interpretation on how the phrases of this 
standard could be taken differently than the way that it is 
currently being implemented?
    I am just trying to--
    Mr. Manson. I personally don't think so. I think it is 
clear, certainly clear to me, but again, if there have been 
instances where it has not been adhered to, then those are 
appropriate for us to deal with from a management perspective.
    But, in addition, we continue to believe, as I said in my 
testimony, that we need a more robust independent scientific 
review process, and we think that we can accomplish that, and 
we are ready to work with the Committee to see that we move in 
that direction.
    Mr. Faleomavaega. Correct me if I am wrong, Ms. Lent. You 
seem to suggest in your testimony that the two bills proposed 
would only extend delays in the process of implementing the 
Endangered Species Act. It does not expedite the work. It seems 
that that is just the opposite of what the bills are trying to 
do is to expedite the work and not to make any more unnecessary 
delays. I may be wrong on this, but am I wrong in interpreting 
what you stated in your testimony, Ms. Lent?
    Ms. Lent. You are correct, Mr. Congressman. There are areas 
where we feel this could delay consultation, for example, and 
delay people being able to move ahead with their economic 
activities.
    However, I also emphasize that there are some areas in the 
bills that we are already implementing, and we are pleased to 
see that. We have a peer review process, and a process, and 
standards for scientific and commercial data, and we are 
pleased that there are those areas of overlap.
    To the extent that these policies in 1994 are not clear, we 
continue to develop guidance, and guidelines, and training for 
our staff to make sure this is clear, and it is consistently 
applied.
    Mr. Faleomavaega. Mr. Chairman, could I have one more 
question?
    Given the recent announcement made by the National Academy 
of Science, what is basically the administration's response to 
the concerns that were issued by the National Academy of 
Science? Is there any merit to their concerns? Is the 
administration going to seriously address it or just continue 
things the way they are?
    Mr. Manson. Let me start off on that.
    We took the National Academy report very seriously, and as 
a result there is, in the Klamath Basin, a new consultation 
process underway, and both of the services, the National Marine 
Fisheries Service and the Fish and Wildlife Service, expect to 
have a draft biological opinion out by April the 12th, which is 
enough time to move the process along so that the season can 
start timely up there.
    The second thing I would say is that, as we have looked at 
the whole issue of science and the way science is done and 
applied in the Department of Interior, at least, that is where 
it was an opportunity, the National Academy report was an 
opportunity for us to develop the principles that I laid out in 
my testimony. That, along with other issues, presented an 
opportunity for Director Williams to develop his management 
plan that he laid out before the Committee on March the 6th.
    So business will be done differently in the Department of 
Interior. Now let me add to that that we have many, many 
outstanding employees who do an excellent job. We think the new 
measures that Dr. Williams has laid out will strengthen those 
employees who have done an excellent job and will give guidance 
to those who need particular guidance. I like to think of the 
process as one of continuous improvement, and that is where we 
are going in Interior at least.
    Ms. Lent. If I may add to that, Mr. Congressman, we also, 
at the Fisheries Service, take this National Academy of 
Sciences' review very seriously. We have gone through the 
interim report, we have written to the National Academy of 
Sciences with some follow-up questions. We will be able to 
incorporate their responses to the follow-up questions in our 
final biological opinion, and the draft biological opinion on 
April 12th will also reflect what we have learned through this 
process.
    Thank you.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    In the interest of time, Mr. Chairman, I would like to ask 
unanimous consent to submit this list of questions for our 
friends to respond to and be made part of the record.
    Mr. Pombo. Without objection.
    Mr. Faleomavaega. Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Walden?
    Mr. Walden. Thank you very much, Mr. Chairman.
    I understand, from what I have heard, one of your concerns 
is this bill, either bill, would be too costly. Can you tell me 
what a peer review costs?
    Mr. Manson. Well, for example, if we are talking something 
on the scale of the National Academy report, then are talking 
many, many, many thousands, tens of thousands of dollars.
    Mr. Walden. And that would be a fairly expansive look, 
right, for peer review?
    Mr. Manson. Right.
    Mr. Walden. So tens of thousands of dollars is a pretty 
good estimate.
    Mr. Manson. I don't have an exact figure for what something 
like Klamath would cost, but I can get that for you.
    Mr. Walden. All right.
    Mr. Manson. In fact, I am told that it was $385,000.
    Mr. Walden. Do either of you have an extra $134 million in 
your account?
    Mr. Manson. No.
    Mr. Walden. You don't. Because I ask that, and I do it in a 
semi-serious way because that is the economic loss, according 
to Oregon State University, based on the decisions of your 
agencies that the National Academy of Sciences has said was not 
based on sound science.
    Mr. Manson. Right.
    Mr. Walden. So I am willing to spend $300,000 to get it 
right, to get a second opinion at least. I hope the 
administration understands the significance of the importance 
of getting good peer review.
    Dr. Lent, can you explain for me the peer review that was 
done on the Hardy studies, the flow studies on the Klamath 
River, Hardy I and the current data that is being used under 
Hardy II?
    Ms. Lent. I understand that the Hardy II study was not peer 
reviewed.
    Mr. Walden. Was Hardy I?
    Ms. Lent. I am not aware of whether it was or not.
    Mr. Walden. Can you describe for me how those data are 
collected and for whom they are being collected?
    Ms. Lent. Under the Hardy study, Mr. Congressman?
    Mr. Walden. Yes.
    Ms. Lent. I am not aware of the specifics of that. I can 
certainly get back to you on that. Again, the policy of the 
Agency is to use data from all sources and consider all sources 
of data. There may be more weight given to data and studies 
that are peer reviewed.
    Mr. Walden. Do you think there should be more weight given 
to those studies that are peer reviewed?
    Ms. Lent. We believe in the peer review process. However, 
we often have to take decisions based on whatever information, 
best information available. Sometimes it is information that is 
not peer reviewed. It is information provided by user groups, 
buy fishermen.
    Mr. Walden. So you wouldn't object to the provisions in my 
bill then that allow for landowners to simply submit and have 
their data acknowledged.
    Ms. Lent. Absolutely, Mr. Congressman, and we already do 
that.
    Mr. Walden. The criteria that I have heard outlined today, 
which sounds good, I am glad your agencies are taking these 
steps, and that is really done administratively, isn't it?
    Mr. Manson. That is right.
    Mr. Walden. Is there anything that would preclude the next 
administration, if it were to be a different color on the maps, 
from having different administrative requirements regarding 
these issues?
    Mr. Manson. Well, frankly, that is why there are elections.
    Mr. Walden. Thank you, and I am glad of the outcome of the 
last one. But that is my point, is that while you are making 
steps that I personally think are valid and good, and I even 
hear from the minority side that they think these criteria are 
good, there is nothing to stop some other administration from 
reversing that now, is there?
    And so that is part of why I think we ought to get together 
and figure out a way to put it into statute so we have some 
long-term consistency here, so that the data we use we can rely 
upon and know that it has at least been peer reviewed and is 
sound, we get a second opinion, because I have just seen too 
much hardship and loss in the Klamath Basin.
    I am not here, despite the environmentalist news releases 
that are floating around, to gut the ESA. I am here to try and 
get agreement where we can have sound science and know it, 
where we can get a second opinion. You have to have that to 
even publish a medical journal, I believe. Most scientific 
journals require peer review, don't they, before you can 
publish? Should we ask for anything less than that in these 
decisions?
    So I hope you will work with us, as you have indicated you 
will, to work out the timeline conflicts because I think those 
are real, they are not intentional, and I appreciate your 
willingness to work with us on that.
    Dr. Lent, how would you rectify a situation where an 
employee did not abide by the process that you have outlined in 
your testimony regarding the way information is collected and 
used?
    Ms. Lent. Mr. Congressman, I think the most important way 
to deal with that is to have the training and the information 
up front on how these activities under ESA are conducted. These 
documents are reviewed at the management level, and we have 
accountability, both at the employee level and the management 
level for those reviews.
    Mr. Walden. There are issues that have come to light before 
this Committee in the last few months involving scientists that 
knew what they were doing was wrong when they submitted lynx 
hairs to try to test the lab, and they had an alternative way 
to do it.
    There is a report out just now, last week, I believe, about 
I think it was the Forest Service on spotted owl timber sales, 
that now taxpayers have spent upwards of $24 million because 
they did overflights and said this looks like habitat, but 
never did the on-the-ground work, and a court ruled that they 
were arbitrary and capricious in their actions. That is the 
Forest Service, I realize it is not your agency, but I hope you 
can understand why some of us are as concerned as we are about 
trying to get back to where we can trust the science we are 
getting, trust the decisions we are having to live under and 
why we feel so forcefully. It is not meant personally at all, 
it is just from conviction that something has to change.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Otter?
    Mr. Otter. Thank you very much, Mr. Chairman.
    Thank you folks for being here. I apologize for not getting 
here early enough to hear your verbal testimony, but I assure 
you I will read the written testimony that you have submitted.
    I would like to continue along the lines a little bit of 
Mr. Walden because coming from Idaho, both Mr. Walden and I 
have faced many of the same problems.
    One of the things that I am most concerned about is that it 
appears to me that one Federal agency uses one set of science, 
another Federal agency uses a different set of science in 
pursuit of the same laudable goal, and that is the survival of 
the species, whether it be plant or animal.
    I would be in hopes that we could do two things. No. 1, we 
could get a scientific basis upon which all of the Government 
could agree is valid, and therefore would be providing us with 
answers that we can go forward and do the correct thing, but I 
think something needs to happen long before we arrive at that 
station. I think you two individuals are going to have an awful 
lot, a large role to play in that because in Idaho right now, 
you know, I have got 650,000 people that live and work on the 
watershed. Everything they do, they have been born on that 
watershed generation after generation, and lived, and worked, 
and recreated, and raised their families, and when they die, we 
dig up part of that watershed and put them in that grave and 
replace the watershed.
    The problem right now is everybody is suspicious of a 
Government report. Can you imagine what would happen to an 
individual with, as Mr. Walden said, the folks in Wenatchee 
National Forest were truly valid in their effort to test the 
voracity of the labs that were testing the lynx hair, can you 
imagine what would have happened to the logger that went into 
that test area and pulled the hair off of that test patch? Can 
you imagine what would have happened to anybody that filed an 
IRS report which was in error to test the voracity of the 
accountants and the tax lawyers at the IRS?
    How can this Government ever again go forward with an 
individual and a private citizen and hold them responsible for 
action that they have done on purpose and still have 12 people 
someplace in this Government that we know about that falsified 
that report in the Wenatchee National Forest, that falsified 
the reports that Mr. Walden just referred to relative to the 
spotted owl?
    My concern for this is the 650,000 people that live on my 
watershed, on the watershed in the First Congressional District 
of Idaho. My concern is also for all of the folks that lost 
their jobs when we shut down 38 lumber mills in my district in 
the last 8 years. My concern continues to be for the lives of 
those folks that have been inalterably changed because we no 
longer have those job stations, we no longer have those 
opportunities available to them. My concern is for the folks 
that live in the Silver Valley that have withstood assault, 
after assault, after assault from the Environmental Protection 
Agency, and the National Marine Fisheries and other agencies 
that have sought to create a Superfund site that probably would 
be the largest in the continental United States.
    But setting all of that aside, there are a couple of 
questions that I really need to know the answer to.
    It has been the practice of the Government agencies right 
now, any of those that contribute to the listing of an 
endangered species, that when it is suspected that it may be 
endangered, usually all activity within the potential habitat 
is drawn to a halt until that agency can investigate whether or 
not there truly is an endangered plant or an endangered species 
in that area. This has happened time after time.
    My concern, obviously, is for when you stop all of that 
activity at a potential site. Is there any priority given to 
reach a satisfactory answer as to that potential listing so 
that we can hurry up and get back to living while we are 
studying whether or not something is truly endangered?
    Ms. Lent, I would ask you that question.
    Ms. Lent. Thank you, Mr. Congressman.
    We have consultations going on all of the time, too many 
consultations, too little time and lots of deadlines, but we do 
have a system for prioritizing it. Obviously, when we are in a 
situation where we need to prioritize because of economic 
activities being stopped, this is taken into account.
    Mr. Otter. Have you ever heard of an open season on an 
endangered species? That is not a loaded question. The reason I 
ask that question is the specific Northwest salmon run, which 
is an endangered species, and the headlines in the newspapers 
all up and down the Salmon and the Snake river are on our 
record fish catches. In fact, the U.S. Fish and Wildlife and 
the Idaho Department of Fish and Game have recently increased 
the take to 15 fish a day because there are so many of them.
    Now, obviously, those are hatchery fish, some of those are 
hatchery fish, because we know that we have got every 
postdorsal fin out of those, every one of those hatchery fish, 
and there has been no cross-breeding between them. Now we know 
that with certainty because some Government biologist did their 
science and told us that, and we are expected to believe that. 
But I do not know how you can have an open season on an 
endangered species. That has been one of the real conflicts 
that I have had ever since I got back.
    But if you want to pursue that, I would have a list for you 
and all of the rest of the folks that are engaged in 
establishing the endangered species and the habitat, I would 
have a big list on those endangered species that I would like 
you to declare an open season on as well.
    Thank you, Mr. Chairman. I appreciate it.
    Mr. Pombo. Thank you.
    Mr. Osborne?
    Mr. Osborne. Thank you, Mr. Chairman.
    I wasn't here earlier, and I apologize for having to ask 
you this question, but, Dr. Lent and Mr. Manson, are you 
recently appointed or how long have you been in your present 
positions?
    Mr. Manson. I was confirmed by the Senate on January 25th. 
I have been on the job for 29 days.
    Mr. Osborne. OK.
    Mr. Manson. I am not looking for any particular 
consideration for that.
    [Laughter.]
    Mr. Osborne. No. Well--
    Mr. Manson. Just answering just the facts, sir.
    Mr. Osborne. That is a good point. It is well taken.
    Ms. Lent. Mr. Congressman, I am not a political appointee. 
I have been at the Fishery Service for 10 years, which I guess 
makes me a good target.
    Mr. Osborne. We are not here to target anybody. I was just 
kind of interested in knowing your background.
    Just a follow-up on an issue that Mr. Walden raised 
earlier, and that is the amount of spending required by the 
bills. I think we all know the cost to the Klamath Basin. I 
have been involved in a situation in the State of Nebraska 
which has been unpleasant, to say the best. We have 56 miles of 
river, the Platte River, that has been designated as critical 
habitat for the whooping crane, and that was done in 1978. I 
think really the designation got out ahead of the science 
because since that time they have done electronic tracking of 
18 whooping crane, and there weren't that many. That was about 
35/40 percent of the total population. They did it for a period 
of two and a half years, and at no time did any of those cranes 
ever even land in the Platte Valley. Less than 1 percent of the 
whooping crane population has even been seen near the Platte 
River during that 20-some-year stretch and none of them use the 
river itself, and yet that is designated as critical habitat.
    Now that wouldn't be too bad, except there have been a lot 
of modifications. They have designated 140,000 acre feet of 
water per year for the endangered species. Now that is water 
that is generally lost to irrigation, to power and is very 
expensive and very difficult because water is short in that 
area. We also have no new depletion since 1997, no new wells 
can be dug in the alluvion of the Platte River unless there is 
an offset, unless another well is shut down.
    We have been ordered to push sediment into the Platte River 
because they want pulse flows, which will result in flooding 
and also remove sediment from the river. So now they want to 
replace the sediment that the pulse flows will cause, and they 
even at one point talked about 100 dump truckloads a day each 
day for maybe as long as 100 years to replace the sediment. Now 
they have even backed off a little bit on that, but they want 
to bulldoze some islands.
    So what I am saying is this is a substantial inconvenience 
and tremendous cost. It is estimated that the cost of the plan 
alone, just the cost of getting a cooperative agreement between 
Colorado, Nebraska, Wyoming to furnish all of this water and 
the sediment replacement and so on, will be somewhere in the 
range of $160 million. Now that does not say anything about the 
cost of the water, no new depletions, replacing the sediment. 
That is just to formulate the plan.
    So what I would really like to emphasize with you is it is 
critical that we get it right the first time. Right now we are 
not getting it right, and we are paying a huge cost. I mean, 
the cost of another study or a 6-month delay or whatever is a 
tiny fraction of what cost we are exacting from farmers and 
other people who own the land.
    So that is the thing I just want to emphasize, to drive 
home to you. It is not just Klamath. There are other places 
where this is happening.
    I guess the question I have--I have kind of violated our 
rule. You know, we invite experts in, and then we make a 
speech, which is kind of endemic to this occupation--but if it 
does appear that there has been a mistake made in the 
designation, do you feel that your agencies are willing to 
backtrack or to make a new designation, to rectify a mistake? 
Either one of you or both.
    Mr. Manson. Let me address that first.
    If there is evidence that a critical habitat designation 
needs to be revisited on a scientific basis, then I expect the 
Fish and Wildlife Service to review that scientific evidence 
and revisit the critical habitat designation if necessary.
    Mr. Osborne. Thank you.
    Doctor?
    Ms. Lent. Mr. Congressman, I would echo that comment, that 
when we receive petitions to list or delist based on new 
information, also, when we receive information that might 
change consultation process, the information upon which a 
consultation is based, we will reinitiate consultation.
    Mr. Osborne. I appreciate that. And what conversation I 
have had with Secretary Norton would certainly fall in line 
with what you have said, and we appreciate that because, 
obviously, we are going to try to revisit this situation in the 
Platte Valley.
    My time has expired, Mr. Chairman.
    Mr. Pombo. Mr. Radanovich?
    Mr. Radanovich. Thank you. Thank you, Mr. Chairman.
    Just briefly I want to mention, and I don't know if the two 
panelists are going to be leaving here after your testimony, 
the next two panels can offer I think some valuable insight 
into problems that many people are having with the Endangered 
Species Act.
    One of those panel members will discuss two things here in 
Washington; the dumping of sludge into the Potomac River and 
also the Wilson Bridge, which I would like to highlight to you 
and ask you to turn your attention to that. Because if Klamath 
terms were applied to the dumping of the sludge in the Potomac 
and the Wilson Bridge, construction on the bridge would be 
halted at this moment, and they would be hauling sediment 
through Georgetown in about 15 dump trucks per day, and you 
would be halting the dumping of the sludge into the Potomac.
    It is my big problem with the Endangered Species Act, as 
vague as it is, it is allowed to be interpreted in rural parts 
of this country, where there are no votes, but basically 
ignored in urban America, and we are seeking justice in that.
    So go take a look at those two, and if you care to stop the 
bridge construction so that the Endangered Species Act can be 
dealt with here in the Congress, I would applaud you for it, as 
well as stopping the dumping in the Potomac.
    Thank you.
    Mr. Pombo. Mr. Rehberg?
    Mr. Rehberg. Thank you, Mr. Chairman. I ask unanimous 
consent to enter a letter and an article in the record, if I 
might, please.
    Mr. Pombo. Without objection.
    [The information submitted for the record by Mr. Rehberg 
follows:]
                 Assault by the Environmental Movement
                      (the great prairie dog hoax)
                          gary marbut 06.02.01
    Let's see if we can understand this. There's an animal that has 10 
million members in 11 states stretching from Mexico to Canada, and it 
is also on the verge of extinction and must be protected by listing 
under the Endangered Species Act (ESA). This is the claim that the 
National Wildlife Federation (NWF) has made about the Black-tailed 
Prairie Dog in its petition for listing to the U.S. Fish and Wildlife 
Service (FWS). To understand this, we'll have to dig a little deeper.
    In July of 1998, the NWF submitted a petition to the FWS asking it 
to use its authority under ESA to list and protect Black-tailed Prairie 
Dogs under ESA.
    Prairie dogs, of course, are not dogs, they are rodents.
    NWF bills itself as the nation's largest conservation organization. 
In this case, ``conservation'' could be defined as ``we care more for 
animals, plants and the natural environment than we do for Man and his 
needs''.
    NWF predicates its petition for listing on the presumption that it 
can demonstrate the shrinkage in prairie dog populations over time, and 
that such shrinkage is destined to lead to extinction of the prairie 
dog without interference by the Federal Government. We will look at 
these assumptions in a moment, but first, it is important to understand 
the philosophical orientation of the people making the argument.
    In reading the NWF petition for listing, it stands out that what 
concerns the NWF even more than threat to prairie dogs is the loss of 
habitat in general, especially to agriculture. It becomes apparent when 
reading the petition that the NWF sees as the only long-term solution 
to the ``endangered'' status of the prairie dog the restoration of the 
animal throughout its original habitat--move the people out and move 
the rodents in.
    The mentality of the people setting policy for this 
environmentalist organization is that Man is an unnatural element in 
any ecosystem, and that true balance can only be restored by taking 
modern Man out of the equation. Thus, it stands to reason that 
especially human agricultural endeavors must be halted in order to 
restore critical endangered critters such as the prairie dog.
    It is also true, according to the environmentalist mindset, that 
there has been frustratingly little control over what private people 
can do with their private property. Then, along comes ESA, and suddenly 
there is a tool to restore the ``natural order'' by stripping people of 
the choice about how they utilize any private property containing an 
endangered animal or plant.
    And, what better life-form to choose for this great power shift 
than one alleged to have once occupied most of the West. The Montana 
Prairie Dog Management Plan (Montana Plan), a privately-crafted 
document inspired by NWF-type thinking recognizes this when it says, 
``Any prairie dog conservation strategy that addresses prairie dogs on 
a State-wide basis must address the private landownership factor.''
    So, what exactly is the basis for the extravagant claims of prairie 
dog habitat and population reduction used as the underpinning for 
claims of imminent extinction? NWF quotes as authority the Lewis and 
Clark diaries where it is asserted that ``this anamal appears here in 
infinite numbers.''
    NWF makes similarly vague claims to ``establish'' the ``fact'' that 
prairie dogs once occupied vast regions where they now do not, in 
unimaginable numbers.
    In truth, there probably has been a lot of ground once occupied by 
prairie dogs which has been plowed and planted, making it unavailable 
for these rodents. There have been extensive campaigns to eradicate 
prairie dogs with wholesale poisoning, and the plague does occasionally 
make substantial inroads in their populations. Also, it is claimed by 
the enviros that recreational shooting is significantly to blame for 
alleged declines in prairie dog populations. What is very debatable is 
both the extent of early prairie dog numbers and range, and the success 
of elimination or reduction attempts, including by recreational 
shooting.
    Of course, the petition to list the prairie dog as threatened or 
endangered presumes that without government management, the critter 
will become extinct. However, there are arguments to the contrary that 
sneak into the listing petition. The petition mentions one prairie dog 
population in Colorado in which 95% of the dogs were poisoned, but 
where the population was back to 100% of original numbers in just five 
years! The NWF petition casually admits, ``on a distribution map black-
tailed prairie dogs appear to occupy most of their original range of 
100-250 million acres in the United States.''
    The junk science used to establish the baseline for the claims of 
shrinking prairie dog numbers and habitat ought to amaze anyone. The 
Montana Plan says, ``The black-tailed prairie dog ecosystem on the 
Great Plains was extensive prior to settlement. It might have dominated 
as much as 10-20% of the landscape, but there is no written record to 
verify this.'' Sure, prairie dogs might have been planted by 
extraterrestrial visitors too, but there's no ``written record'' to 
verify this either.
    It is also useful to understand that the FWS would gain a lot of 
bureaucratic prestige from becoming the manager of a species that 
numbers in the millions and is spread over at least 11 states.
    So, the NWF submitted its petition to list prairie dogs under ESA 
to a sympathetic FWS. But, there was a problem. How could the FWS 
justify listing as on the verge of extinction an animal numbering over 
10 million in 11 states? The answer is that they couldn't. They knew 
that they wouldn't last a day in Federal court defending such a 
decision. I recently spoke with counsel at the well-reputed Mountain 
States Legal Foundation in Denver, and was given the informal but 
concurring verbal opinion that there's no way the FWS could sustain a 
decision to list prairie dogs in court.
    The FWS was temporarily stuck, and needed to find a way out. A 
clever resolution to the problem would be to not list prairie dogs at 
all, but to cause all of the resultant protections to happen anyway. In 
a successful burst of imagination, the FWS issued a letter saying that 
prairie dogs were warranted for listing and endangered, but that they 
wouldn't list them just now because they had too many other species to 
list. And, they continued, if the states in which prairie dogs now live 
didn't pick up the slack and protect the critters, the FWS would 
probably take the management prerogative out of their hands and list 
the animal Federally.
    Suddenly, the fish and wildlife agencies of 11 states were 
scrambling to protect prairie dogs, and convincing their policymakers 
to give them whatever authority was needed just to protect the state 
from the FWS. This was a great win/win situation for the state fish and 
wildlife agencies because they were suddenly in the position to 
dramatically expand their agencies to service an animal with huge range 
and numbers, requiring major new expenditures of manpower and money.
    The first on the agenda of items the FWS demanded states accomplish 
was to change state laws to designate prairie dogs as a protected 
animal. Local committees and ``study groups'' were drummed up by the 
state fish and wildlife agencies in all states to convince landowners 
that unless they caved in to the demands for changing state laws to 
protect these rodents,the FWS would list them and regulate the 
landowners out of business.
    Panicked landowners came to support the efforts to give state fish 
and wildlife agencies statutory authority acceptable to the FWS to 
``manage'' prairie dogs. In Colorado, shortly after the legislature 
gave the fish and game commission the authority to manage prairie dogs, 
the commission outlawed any killing of these rodents. Other states are 
expected to follow suit.
    In Montana, a bill was introduced to allow the Department of Fish, 
Wildlife and Parks (MDFWP) management authority over prairie dogs. At 
every hearing on the bill, the threat was made that ``if we don't 
change our laws and manage prairie dogs the way the FWS wants us to, 
the FWS will list prairie dogs and take the prerogative out of our 
hands and we won't have any control at all.'' The chief proponent of 
this view was the MDFWP, which, of course, stands to gain immense 
bureaucratic prestige (manpower, money and mission) with the assumption 
of management authority over prairie dogs.
    In the public hearing testimony on the Montana prairie dog bill 
before the Senate Fish and Game Committee, this author told committee 
members, ``I first testified before a committee of the legislature in 
1971. In the many years I've participated in the formulation of public 
policy before the legislature, this bill is the greatest hoax to ever 
be perpetrated upon this body.''
    So, here is the hoax: The 11 states containing prairie dogs are 
stampeding to do what the FWS can't do (regulate prairie dogs), because 
the FWS has threatened that if the states won't do what FWS can't, FWS 
will do what it can't and the states will lose control. The current 
leading advocates of this effort have become the state fish and 
wildlife agencies, who stand to gain significant bureaucratic prestige 
from managing such an abundant and widespread species. To gain this 
bureaucratic advance, state agencies are glad to scamper to effectively 
do the bidding of the FWS and the environmentalists, operating on the 
announced theory that they are avoiding the dreaded FWS listing.
    There is no way that the FWS could get away with listing prairie 
dogs as endangered, because there are so very many of them, spread so 
widely.
    There are more prairie dogs in these 11 states than there are elk, 
deer, antelope, moose and coyotes combined. To assert that they are on 
the verge of extinction is nothing short of ludicrous.
    However, during the Clinton years, America has been treated to such 
a vulgar lesson in the abuses of Federal power that few state decision-
makers are willing to take the alleged risk of the threatened FWS 
prairie dog listing. That is how this great hoax is being successfully 
perpetrated.
    The Montana Shooting Sports Association is the primary organization 
asserting the rights and prerogatives of gun owners and hunters in 
Montana. MSSA President, Gary Marbut, grew up on a 5,000-acre cattle 
ranch in Western Montana, is also an officer of the Western Montana 
Fish and Game Association, Montana's oldest and largest regional 
organization of hunters and anglers, and is a lifetime hunter, a 
student of precision rifle, who hunts elk with a revolver.
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    Mr. Rehberg. Is it Dr. Manson?
    Mr. Manson. No.
    Mr. Rehberg. I am sorry. I misunderstood.
    Mr. Manson, you are familiar with the warranted, but 
precluded designation within the Endangered Species?
    Mr. Manson. Yes.
    Mr. Rehberg. As far as the two pieces of legislation that 
we are talking about today, would the black tail prairie dog be 
put into that category if these two pieces of legislation had 
passed the Congress?
    Mr. Manson. That I cannot answer because, if I understand 
your question, it is if we had the type of peer review that 
these two bills would institute, would that have resulted in 
the same decision to make that species warranted, but 
precluded?
    Mr. Rehberg. That is correct.
    Mr. Manson. I am afraid I can't answer that. I have not 
seen the specific science that went into that determination.
    Mr. Rehberg. That has actually been one of our problems. We 
cannot, for the life of us, see what science was used in making 
that determination.
    Is the warranted, but precluded category, I am asking this 
question because I don't know it, and that is does it need to 
be reviewed each year?
    Mr. Manson. I don't believe we review those every year.
    Mr. Rehberg. Are there different categories of warranted, 
but precluded that you are aware of?
    Mr. Manson. Not that I am aware of.
    Mr. Rehberg. I guess I was struck by Dr. Lent's comment 
about the prioritization of time because I am told that, in 
fact, they do have to be reviewed on an annual basis, and if 
they do have to be reviewed on an annual basis, wouldn't it 
make sense to the administration that the time and effort that 
you spend having to continue to reconsider this category for 
something that, for the life of us, we still don't get it? It 
would save you time and money if you were to support something 
like these two pieces of legislation.
    Mr. Manson. Well, in fact, we do support the bills in 
concept, and we do agree that there ought to be a robust 
independent peer-review system. The problems that the 
Department of Interior has with the bills, I would characterize 
as more procedural than substantive.
    Mr. Rehberg. Within the consideration of your 
administration at this time, coming up with something 
administratively to do the same thing, albeit cheaper, are you 
making a determination that you will not include some of what 
we consider to be the junk science or, I don't know what I am 
trying to say, Mr. Chairman.
    It seems like when the comment is made that the user 
groups, such as the fishermen, and the hunters and all, you 
know, that has been one of our complaints historically about 
the Endangered Species, that it doesn't seem to take much to 
raise the flag, but it takes a lot to lower the flag, and the 
deck is kind of stacked against those that don't want them 
listed, because if a fair peer reviewer considered, any 
ideological human being would say, well, clearly, the black 
tail prairie dog shouldn't have been considered for listing in 
the first place.
    Mr. Manson. Well, certainly, science ought to be judged on 
its scientific merit and not on whether it came from one 
particular group or another. It ought to be judged solely on 
its scientific merit, and I think that a robust peer-review 
process helps ensure that science is judged only on its 
scientific merit.
    Mr. Rehberg. Thank you. I would like to echo Mr. 
Radanovich's comments as well. We have watched the Wilson 
Bridge and the Potomac issue with some interest, and 
unfortunately there are those within the administration that 
seem to be thwarting our attempts to see a little bit of 
fairness, and I hope that you will go back to your 
administrators and anyone that will listen within the 
administration to tell them that we do want a fair 
consideration on that issue because it doesn't look fair to us 
from west of the Mississippi.
    Thank you, Mr. Chairman.
    Mr. Pombo. Thank you.
    I am going to go ahead and dismiss this panel at this time. 
Thank you for your testimony. Thank you for answering 
questions. I will tell you that I know there are a number of 
members of the Committee that had additional questions. They 
will be submitted to you in writing. If you could answer those 
in a timely fashion so that we could include them in the 
hearing record, I would appreciate it.
    Mr. Manson. Thank you, Mr. Chairman.
    Ms. Lent. Thank you.
    Mr. Pombo. I would like to call up our second panel of 
witnesses.
    Mr. Robert Gordon, Stephen Lilburn, Peter Illyn, James 
Anderson, and Andrew Dobson, if you would join us at the 
witness table, please.
    Those of you that are standing over here, please feel free 
to take the seats here in the front. Just go ahead and fill in.
    Thank you very much. I think you are all familiar with the 
timing system, the series of lights in front of you. You will 
all be allowed 5 minutes for oral testimony. Your entire 
written testimony will be included in the record, but if you 
could just kind of summarize that and include it in the 5-
minute oral testimony, we would appreciate it.
    Mr. Gordon, if you are ready, you may begin.

    STATEMENT OF ROBERT E. GORDON, JR., EXECUTIVE DIRECTOR, 
                 NATIONAL WILDERNESS INSTITUTE

    Mr. Gordon. Thank you, Mr. Chairman.
    I appreciate the opportunity to testify on behalf of the 
National Wilderness Institute on proposals to improve science 
used in ESA decisionmaking. NWI has been highly critical of 
ESA. We understand the frustrations by those in rural America 
who see their communities, livelihoods, and homes threatened by 
the application of this law, often triggered by highly 
questionable data. Such is the case in Klamath, where Federal 
officials withheld water from those who use it to provide food 
and fiber to the rest of us on unsubstantiated grounds, 
according to the National Academy of Sciences.
    I have good friends in Klamath who struggle to make sense 
of why Federal agencies behave this way and jeopardize their 
ranch and their ability to care for their two little boys. 
While I understand such frustrations, NWI's criticism has not 
been on economic or social grounds, but because ESA has not 
worked well in terms of wildlife conservation. I believe this 
is, in part, because it depends almost entirely on punitive 
regulation and to trigger that regulation, agencies must have 
at least a patina of scientific basis.
    Consequently, determining an appropriate conservation 
management regime that can lead to an endangered species being 
brought back becomes less important than triggering the ability 
to regulate by listing. How many are on the list, not how many 
have been taken off, has become the measure.
    Testifying today, however, is a bit different for me 
because I want to use this opportunity to talk about something 
in my backyard so to speak, where I fish, and canoe and hike, 
and why peer review of science used to justify Federal actions 
with regard to endangered species management is a good idea in 
general.
    While agencies have been quick to take water from Western 
family farms and ranches on account of an endangered shortnose 
sucker, Federal agencies have done everything possible to 
enable the nighttime dumping of hundreds of thousands of tons 
of sludge, including 10,000 tons of aluminum through a national 
park into an American heritage river in the Chesapeake Bay 
tributary, and according to Federal biologists, in the 
``primary, if not only,'' potential spawning site for the 
endangered shortnose sturgeon on the Potomac.
    The dumping comes from the water treatment plant run by the 
Corps and EPA permitted that provides drinking water in the 
D.C. area. It produces sludge from a process of chemically 
forcing the impurities from river water by the addition of 
alum, as do many other facilities. But unlike other facilities 
on the Potomac, the Chesapeake Bay in EPA's Region 3 or on the 
East Coast of the United States, rather than treat or landfill 
the sludge from its settling basis, the Corps typically, under 
cover of night, dumps it into the Potomac, the equivalent of 15 
dump trucks a day.
    For purposes of comparison, in Virginia such facilities are 
limited to discharging no more than 30 milligrams per liter 
total suspended solids to prevent smothering of aquatic life. 
This facility has discharged as high as 241,000 milligrams per 
liter. Here is what the tail end of a dump looks like early in 
the morning in C&O Park above Chain Bridge. EPA allows this 
while a new permit is considered since the last one expired in 
1994.
    One of the factors that seems to have stopped the building 
of a sludge facility, according to the Corps and EPA documents, 
is that sludge-carrying trucks would have to go through 
``affluent'' neighborhoods.
    The EPA required a study of the discharges and has accepted 
the study in its entirety. That study argues that there is 
little effect and that with sufficient dilution, everything 
will be just fine. A peer review conducted by the Institute for 
Regulatory Science, and released yesterday, disagrees. The 
review suggests that the discharge toxicity test samples were 
biased. That yellow line indicates the concentration of one of 
the three key pollutants in toxicity tests compared with the 
actual concentrations of that pollutant for all discharge 
represented by the bars.
    The peer review found that the risks to the aquatic 
community were underestimated. When the Corps dumped sludge, it 
can cover two football fields' worth of MPS river bottom, 4 to 
5 inches deep, in about 4 hours. Not surprisingly, the review's 
No. 1 recommendation for management of the facility is urging 
the operator to stop dumping.
    Perhaps the peer review will force different behavior. 
These agencies know there are problems. The National Park 
Police have filed reports about dead eels left on park lands in 
the sludge's wake. Police have reported discharges so ``highly 
chlorinated'' that it ``burned their eyes and throats from 30 
feet.''
    Police records show an assistant United States attorney 
this December discussed this with an EPA special agent and 
declined to pursue it. Within weeks of being issued inspection 
reports detailing violations, the Corps testified to the Park 
Subcommittee that they abide by their CWA permits.
    I appreciate the opportunity to speak to you, as I have 
been trying to put a stop to this for 2 years now. And despite 
whatever differences that might exist, I cannot imagine that 
any member of this Committee supports this outrage. I know 
Secretary Norton, EPA Administrator Whitman, and the National 
Marine Fisheries Service Administrator are well aware of this, 
as is the Corps. Why they will not do their jobs and stop this 
is unclear. Peer review, however, has exposed the bogus science 
for what it is.
    Thank you.
    [The prepared statement of Mr. Gordon follows:]

  Statement of Robert Gordon, Executive Director, National Wilderness 
                               Institute

    Mr. Chairman, my colleagues and I have spent a great deal of time 
studying the strengths and weaknesses of the Endangered Species Act. We 
support efforts to improve the scientific standards used to promote 
conservation of rare plants and wildlife, and I appreciate this 
opportunity to discuss why better science will make the endangered 
species program more effective.
    One of the many problems now plaguing implementation of a 
responsible and effective endangered species program is its faulty 
listing process. Under the current program the evidentiary standards 
for listing are, in a word, bad. I use the word bad because it is an 
apt acronym for ``best available data'', or, as it says in Sec. 4 
``best scientific and commercial data available''. The problem with 
best available data, or BAD, is that best is a comparative word. Thus 
the data need not be verified, reliable, conclusive, adequate, 
verifiable, accurate or even good. The best available data standard 
hampers the effectiveness of the program.
    Data from the various government reports on endangered species 
demonstrate how the current standards result in far too many mistakes. 
For example, one of three grounds for removing a species from the list 
of endangered species from the list is ``data error.'' The fact that 
this category is often needed demonstrates that solid, verified 
scientific information is not required for a listing. Numerous species 
that have been removed from the endangered and threatened list were 
originally listed based on erroneous data. A look at some of these 
``data errors'' makes a strong argument against the B.A.D. standard.
    Regarding one data error the Federal Register states: ``As a result 
of the Indian flapshell turtle's inclusion on Appendix I of CITES [a 
United Nations endangered species list] the Service subsequently listed 
the species as endangered.'' After listing, rather than before, a 
``'literature review was conducted to see if supporting evidence 
justified its current endangered status. No such supporting data could 
be found.'' In a further attempt to find supporting information, the 
Service then contacted turtle experts such as Dr. E. O. Moll, who 
happened to be researching in India at that time. Moll stated that it 
was ``seemingly the most common and widespread turtle in all of India--
How it ever made Appendix I is a big mystery.''
    The story of another data error, the pine barrens tree frog, is 
similar. Only those pine barrens tree frogs found in the frog's 
southern range were listed. After listing, FWS worked with Florida 
officials to gather information about how many frogs actually existed. 
According to the Federal Register, ``Data were presented which expanded 
the species' known Florida distribution from 7 Okaloosa County sites to 
a total of over 150 sites...'' in 3 counties. Further studies including 
Alabama areas revealed a total of 165 more sites than were believed to 
exist when a fraction of this frog's population was listed--a pretty 
big error.
    The Mexican duck, another error, was determined to be essentially a 
``blue-eyed version'' [not literally] of a common duck, the mallard. 
Almost comically, the Federal Register states ``all reports and 
observations of `Mexican ducks' in the United States and Northern 
Mexico must now be interpreted to be of only `Mexican-like ducks'.'' 
The notice went on ```Mexican ducks' are only identifiable segments of 
the entire population, just as brown-eyed and blue-eyed individuals are 
phenotypic segments of the human species.''
    The tumamoc globeberry, a vine that is the most recent data error, 
was delisted by FWS on June 18, 1993. After including this plant on the 
endangered species list for 7 years, FWS determined, ``surveys have 
shown Tumamoc to be more common and much more evenly distributed across 
its range than previously believed''.'' Although never really 
endangered, during its 7 years on the list this plant soaked up over 
$1.4 million in funds from the Corps, BLM, DOD, NPS, USFS, and the 
Bureaus of Indian Affairs, Mines and Reclamation and was the basis for 
FWS to issue a jeopardy opinion on the Tucson Aqueduct.
    It is difficult to know just how many species have been listed on 
poor grounds but there is evidence to suggest that the number is 
significant. In a review we did a few years ago of 306 recovery plans 
we found there was little hard information about the status of listed 
species. Recovery plans regularly call for ``searches for additional 
sites,'' ``searches for additional populations'' and ``surveying 
suitable habitat for additional populations.'' Few recovery plans state 
that we reliably know how many of a particular Federally regulated 
species exist. Following are a few example drawn from USFWS approved 
plans.
         Alabama Lamp Pearly Mussel: `Other aspects of the 
        ecology of this species are totally unknown.' and that `The 
        historically restricted distribution of L. virescens and lack 
        of information about changes in various stream populations 
        prevents a more precise determination of the reasons for the 
        species decline.'
         Atlantic Green Turtle: `More information is needed 
        before detailed distribution maps or estimates of population 
        number and structure can be made...' `The number of nests 
        deposited in Florida appears to be increasing, but whether this 
        number is due to an increase in the number of nest or more 
        thorough monitoring of the nesting beeches is uncertain.'
         Cave Crayfish: `Sufficient data to estimate 
        population size or trends is lacking.'
         Higgins' Eye Mussel: `The historical distribution of 
        L. Higginsi is difficult to accurately assess because of the 
        taxonomic problems involving the species complex to which it 
        belongs.' The plan also states: `Numerically L. higgensi may be 
        less rare today than previously thought, but in all probability 
        this reflects a significantly greater collecting effort and the 
        ability of a larger number of collectors to identify it.'
         Hualapai Mexican Vole: `...the subspecies is 
        considered poorly defined owing to limited material 
        available...'
         Kentucky Cave Shrimp: `The very small estimated 
        population size of the species at the time of listing 
        (approximately 500 individuals) made it stand out as being 
        extremely vulnerable to extinction. Since the time of listing, 
        new populations have been discovered...Population 
        estimates...range from approximately 7,000 to 12,000 
        individuals.'
         Knowlton Cactus: `Because there is inadequate 
        biological data for P. Knowltonii and because there is only one 
        viable population, downlisting and delisting criteria cannot be 
        established at this time.'
         Louisiana Pearlshell Mussel: `With practically no 
        information on the life history, population levels, and habitat 
        requirements for this species, an estimate of the cost of 
        recovery to the point of downlisting is not possible.'
         Mona Iguana: `The status of the Mona Iguana prior 
        to...1972...only can be inferred.'
         Palos Verdes Blue Butterfly: `The historical 
        distribution of the butterfly is unknown...'
         Red Hills Salamander: `There is no evidence that the 
        animal has occurred outside its present range within historic 
        times...' and `Comparative data relating temporal trends in 
        population densities are unavailable...'
         Virgin Islands Tree Boa: `Population trends cannot be 
        determined because of lack of data.' The plan also states `lack 
        of available information on this secretive, nocturnal snake 
        precludes formulation of a quantitative recovery level'
         Painted Snake Coiled Forest Snail: `Information on 
        the snail's ecology and natural history is almost completely 
        lacking.'
         In at least 79 of the 306 plans I reviewed there was 
        some degree of uncertainty regarding the taxonomic 
        classification of an endangered plant or animal.
    Many of the species which have been officially declared as 
recovered actually were listed based upon inaccurate data. Three birds, 
the Palau dove, Palau owl and Palau flycatcher, considered recoveries 
and are limited to a small island nation of Palau about 400 miles east 
of the Philippines. While FWS calls them ``recoveries,'' a GAO report 
states that ``although officially designated as recovered, the three 
Palau species owe their recovery more to the discovery of additional 
birds than to successful recovery efforts.'' Similarly, John Turner, 
former FWS director revealed during a Senate hearing that the Rydberg 
milk-vetch, a plant which is one of the few other supposed recoveries 
was delisted because ``further surveys turned up sufficient healthy 
populations.'' In plain English, another mistake.
    There are a few other species that some people cite as successes. 
One of these, the American alligator, is thriving, but remains listed 
as threatened due to a technicality. However, like other officially 
``recovered'' species, the alligator probably should never have been 
listed. Florida wildlife officials think the alligator's population 
dynamics were misunderstood at the time of listing. Even the National 
Wildlife Federation pointed out in its magazine that the ``familiar and 
gratifying'' recovery story of the alligator was ``mostly wrong.''
    From USFWS's reports and statements we know that a large number of 
the species removed from the list, as well as many others still 
lingering there, should have probably never been on it in the first 
place. We know that many of the Act's recoveries are really data 
errors. We know that for most species we have only qualitative 
estimates of uncertain value. For a great number of species we know 
little--as demonstrated by recovery plans which basically state that or 
which call for a population survey as one of the first steps. And we 
know that two of the most famous endangered species, the northern 
spotted owl and the snail darter, were both undercounted.
    The weak best available data standard is exacerbated not only by a 
lack of reliable baseline data but by ideological agendas, programmatic 
incentives and institutional interests that further skew the program 
away from sound science. This process not only results in unnecessary 
costs but also wastes conservation resources that otherwise would be 
more effectively used. Those who want to see responsible and effective 
endangered species programs have a serious obligation to honestly 
address this situation, because these errors cause conflict, drain 
resources and may plague the Act to the point where it comes to be 
generally considered as another well-meaning government program gone 
bad.
    The subjectivity of the standards under which the current program 
operates also allows the law to be enforced very selectively. Economic 
activity has been almost shut down in parts of the country, 
particularly the rural west, to protect possible, potential habitat of 
species of highly questionable authenticity from harm that is 
speculative. While in other areas major developments never seem to be 
inconvenienced by a need to protect species they affect.
    Bad conservation science not only misdirects conservation efforts 
toward unjustified activities; it also blocks protective action where 
it is truly needed. A glaring example of this occurs here in Washington 
where massive amounts of harmful, foul-smelling sludge are permitted to 
be discharged by the Washington Aqueduct through a National Park and 
into the Potomac where it smothers the spawning beds of the endangered 
shortnose sturgeon. The Parks Subcommittee recently held a hearing on 
these midnight dumpings and sought a peer review of the science being 
used to justify continuation of this midnight dumping through a park.
    The peer review panel found that the study was--inconsistent with 
established scientific and engineering standards and industry 
practices,'' that, ``Selective collection, application, and 
interpretation of data leave key questions unanswered and introduce an 
element of subjectivity into the reviewed study,'' and that ``There are 
a number of conclusions made in the Report that are based on selective, 
qualitative interpretation of the data.''
    Those who have seen Draconian enforcement of the ESA in their 
districts may wonder why there is apparently so little conflict between 
rare species and human activities in other areas. They may be a 
surprise to learn that in the government's own back yard ESA is simply 
not enforced the way it is elsewhere. Here, the benefit of the doubt is 
not given to the endangered species. Here, economic considerations 
outweigh species protection. Here, science, or what purports to be 
science, is employed to provide cover so that needed projects can 
proceed unimpeded by the ESA.
    Let me quote from the scientific panel that reviewed a study EPA 
and the Corps of Engineers planned to rely upon to justify continued 
discharge of toxic sludge here in Washington:
         Virtually all of the interpretation is focused on 
        explaining why the aquatic aluminum standard should not be 
        applied down gradient of the Washington aqueduct. However, very 
        little of this interpretation is supported by the presented 
        data.
         In sum, the Report does not appear to contain 
        sufficient analysis and study to substantiate the conclusion 
        that sediment discharges have no adverse impact on essential 
        fish behavior such as feeding and seeking shelter.
         ``The Washington Aqueduct's sludge discharges can 
        harm fish or other aquatic life within designated mixing zones 
        through toxicity, chemo-sensory disruption, or other 
        environmental stress or by affecting essential behavior 
        patterns, such as feeding, migrating, spawning, or seeking 
        shelter.''
    The review panel's primary recommendation for the Washington 
Aqueduct is that dumping into the Potomac be stopped.
    ``The operator of the Washington Aqueduct should be urged to 
undertake an effort to avoid discharges into the Potomac River...'' 
through, as the first choice, ``Construction of a treatment plant on-
site for solids dewatering prior to off-site on-land disposal of the 
solids.'' This is really no more than almost every other similar water 
treatment plant does.
    The National Wilderness Institute has gone to court to try to force 
a number of very reluctant Federal agencies to end the political 
favoritism and special treatment used to exempt this area from needed 
conservation and recovery efforts for endangered species that occur 
here.
    There are other examples I could give of how the current scientific 
standards apparently allow selective non-enforcement to occur. There 
are some highly endangered invertebrates, similar to the listed fairy 
shrimp though far rarer and far more endangered, that occur in a few 
springs in the Washington area. One of these small crustacean species 
is known from only one location, another from only two locations. Yet 
petitions to have them listed have been arbitrarily rejected.
    Another example of the sorry state of endangered species science 
was exposed a few years ago when Secretary Babbitt bragged that a 
couple dozen species will ``...be flying, splashing and leaping off the 
list,'' and claimed that his plan to delist species proves ``the 
Endangered Species Act Works...period.'' This claim proved to be false.
    Of the species Babbitt planned to delist several were already 
extinct or were taxonomically invalid. Many other species never had 
been actually endangered, they had been undercounted or the threat to 
them had been overestimated. Some others on Babbitt's list had actually 
improved but did so primarily because of events unrelated to the 
Endangered Species Act such as the ban on DDT or management by state 
agencies or private conservation efforts. Here is a list of the 
Secretary Babbitt's species and the real reason for their possible 
delisting.

    Common Name -- LReason

    Guam broadbill -- LExtinct
    Oahu tree snail -- LExtinct
    Oahu tree snail -- LExtinct
    Oahu tree snail -- LExtinct
    Mariana mallard -- LExtinct
    Truckee barberry -- LTaxonomic Error
    Virginia roundleaf birch -- LTaxonomic Error
    Lloyde's hedgehog cactus -- LTaxonomic Error
    Ewa Palains' akoko -- LTaxonomic Error
    Dismal swamp southeastern shrew -- LData Error
    Virginia northern flying squirrel -- LData Error
    running buffalo clover -- LData Error
    Tinian monarch -- LData Error
    Hawiaian hawk -- LData Error
    Island night lizard -- LData Error
    Hoover's wooley star -- LData Error
    Missouri bladderpod -- LData Error
    tidewater goby -- LData Error & Non-ESA
    Aleutin Canada goose -- LData Error & Management
    bald eagle -- LNon-ESA Factors
    peregrine falcon -- LNon-ESA Factors
    Columbian white-tail deer -- LNon-ESA & Management
    brown pelican -- LNon-ESA
    Eureka Valley evening primrose -- LPre-ESA/Management
    Eureka Valley dune grass -- LPre-ESA/Management
    Columbia white tail deer -- LPre-ESA, Est. Refuge & Hunting 
Restriction
    Robbin's cinquefoil -- LManagement Activities
    Loch lomond coyote thistle -- LManagement Activities
    Heliotrope milk vetch -- LManagement Activities
    parhump poolfish -- LManagement Activities
    heliotrpoe milkvetc -- LManagement Activities
    spring-loving centaury -- LEstablished Refuge
    Ash Meadows sunray -- LEstablished Refuge
    Ash Meadows gumplant -- LEstablished Refuge
    Ash Meadows amargosa pupfish -- LEstablished Refuge
    gray wolf -- LHunting Restriction
Poor Scientific Standards are a Threat to Private Conservation.
    The relationship between private ownership of land and conservation 
is of special interest to NWI. Private conservation is actually more 
important to the environment than government efforts. Although the 
Federal Government owns vast amounts of land, private land is often 
richer in wildlife, plants and water. When I speak of private 
conservation, I do not refer only to for-profit environmental 
organizations but also commercial activities--ranching, farming, 
forestry, recreation industries and others--that make tremendous 
contributions to conservation as a byproduct of business activity. The 
North Maine Woods land, for example, is a vast area--over two million 
seven thousand acres--of privately owned commercial forest land that 
provides not only extensive wildlife habitat and public recreation 
opportunities, but contributes to our economy. Much of this land is 
still owned by the many descendants of the original landowners who got 
the land when Maine became a state in 1820.
    In some cases, conservation is directly related to a business 
enterprise. Sea Lion Caves, a for-profit organization, protects the 
only mainland rookery of the Steller sea lion. It is a major tourist 
attraction on the Oregon coast and receives over 200,000 visitors 
annually. Had not the area been privately owned, developed and 
protected, especially when the State of Oregon paid a bounty for 
slaughtered sea lions, the sea lions caves area would undoubtedly be 
void of sea lions and other marine life and this natural wonder would 
probably not exist today.
    The opportunities to improve the quality of our environment by 
creating incentives for property owners are not limited the case of Sea 
Lion Caves but are vast. In Utah, Deseret Livestock's land produce elk 
that have a higher calving ratio, preferable bull to cow ratio and a 
higher average weight that on adjoining public land. In Texas private 
ranchers are providing habitat and thereby maintaining a total number 
of a rare African antelope that is greater than in Africa itself. In 
these cases not only are the landowners and the species benefiting from 
private conservation activities but also the public. If any of these 
beneficial activities made the property owner vulnerable to a 
regulatory taking of his property, they would surely be reduced in size 
and scope and might not occur at all.
    Michael Bean of the Environmental Defense Fund described the 
problem in a talk to U. S. Fish and Wildlife Service employees when he 
said there is ``increasing evidence that at least some private land 
owners are actively managing their land so as to avoid potential 
endangered species problems.'' He went on to say:
        The problems they are trying to avoid are the problems stemming 
        from the Act's prohibition against people 'taking' endangered 
        species by adverse modification of habitat. And they're trying 
        to avoid those problems by avoiding having endangered species 
        on their property. Because the woodpecker primarily uses older 
        trees for both nesting and foraging, some landowners are 
        deliberately harvesting their trees before they reach 
        sufficient age to attract woodpeckers, in their view, and in 
        fact before they reach the optimum age from an economic point 
        of view. In short, they're really nothing more than a 
        predictable response to the familiar perverse incentives that 
        sometimes accompany regulatory programs...
    Sam Hamilton, former USFWS State Director in Texas, said, ``The 
incentives are wrong here. If I have a rare metal on my property, its 
value goes up. But if a rare bird occupies the land, its value 
disappears.''
    Other wildlife officials have pointed out how listing a species 
under the present law can further imperil its prospects. Larry 
McKinney, Director of the Resource Protection Division of the Texas 
Parks and Wildlife Department stated:
        I am convinced that more habitat for the black-capped vireo, 
        and especially the golden-cheeked warbler, has been lost in 
        those areas of Texas since the listing of these birds than 
        would have been lost without the Endangered Species Act at all.
    The current combination of politicized science and the perverse 
incentive structure created by some regulations hurts wildlife 
conservation because less desirable management decisions than would 
otherwise occur are made. Upgrading the scientific standards of the 
endangered species program is a necessary first step in making this 
program a truly effective conservation tool.
                                 ______
                                 
    [The Inland Action Inc. ``San Bernardino International 
Airport and Trade Center Issue'' submitted for the record by 
Mr. Gordon follows:] 
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    Mr. Pombo. Thank you.
    Mr. Lilburn?

  STATEMENT OF STEPHEN LILBURN, PRESIDENT, LILBURN CORPORATION

    Mr. Lilburn. Mr. Chairman and members of the Committee, 
thanks for the opportunity to speak with you today.
    I am an environmental planning consultant from San 
Bernardino, California. My specialty is securing permits for 
both industry and Government, and I practice principally in the 
Western States, primarily in California.
    I am here today representing Inland Action, which is a 
nonprofit, nonpartisan group from the area, concerned about the 
economic well-being of what we call the Inland Empire, which is 
essentially Riverside and San Bernardino Counties.
    I have worked with the Endangered Species Act throughout my 
career, prepared and negotiated Section 7 consultations, 10A 
consultations, HCPs, banking agreements, biological opinions, 
programmatic permits, environmental assessments, impact reports 
and impact statements. I always sit across the street or the 
aisle from the Service typically, often representing 
Governments, both State and local, in that process.
    I am here today to speak in support of H.R. 2829, Mr. 
Walden, and 3705, Mr. Pombo. Both are similar in their 
approaches to improving the act. I have provided my written 
testimony and will simply summarize my position.
    In California, where land use authority doesn't come 
quickly or cheaply, the ESA is now the most cumbersome, costly 
and difficult land use permit to secure. Let me restate that. 
The Federal Endangered Species Act is the most difficult land 
use entitlement process in California. I the impacts both 
private and public properties, private industry, public 
agencies alike. It doesn't make any difference. Its 
implementation is being driven now in California, particularly, 
by lawsuits, judicial interpretation and settlement agreements 
between the Service and the myriad of special interest groups 
that initiate those lawsuits, and then there is always the 
interpretation of the individual representing the service that 
you are sitting across the table from.
    Congressional intent is never discussed. The ramification 
of these listings on the public, of course, are tremendous, and 
I know a number of you have personal experiences with those. At 
the very least, Congress should ensure that the assumptions and 
baseline science supporting them is accurate and complete. I 
have provided three examples in my written testimony, which I 
have personal experience about--the Arroyo Southwestern toad, 
the San Bernardino kangaroo rat, and the Delhi Sands flower 
loving fly.
    I have referenced two documents, copies of which I have 
provided to staff so they could be entered into the record. The 
first is a short discussion with maps on impacts to the former 
Norton Air Force Base by the San Bernardino kangaroo rat 
listing, and the other is a report I wrote a few years ago on 
the impacts of the listing of the Delhi Sands flower loving fly 
on the San Bernardino County Hospital. This is the site where 
we spent $3.5 million moving our county hospital 250 feet north 
to protect 2 acres on which we suspected there may be eight 
flies. This comes to a cost of $441,000 per fly which, by the 
way, from a patient standpoint, is the equivalent of serving 
527 inpatients or over 25,000 outpatients.
    I believe both of these listings would have been questioned 
if they had been subject to scientific peer review. If 2829 or 
3705 were to authorize a review committee, I would encourage 
you to provide as broad-based a committee as possible, bring 
some balance and expertise beyond just biology, but I am 
thinking along the lines of spacial data applications, and land 
forms, and some expertise in that area.
    Be critical of the listing's potential for success and be 
specific in the Act so that it is clear that what is expected 
of the committee, and later what is expected of us, is clear to 
those interpreting it, otherwise some Tenth Circuit judge is 
going to be telling us what you really meant to say, and that 
is what we will be doing.
    I appreciate the opportunity to speak with you today.
    [The prepared statement of Mr. Lilburn follows:]

    Statement of Stephen T. Lilburn, President, Lilburn Corporation

    My name is Stephen T. Lilburn. I am an environmental planning 
consultant from San Bernardino, California. I am the president of 
Lilburn Corporation, a consulting group that specializes in securing 
land use permits for industry and government. I am also past president 
and current chair of the environmental committee for a citizens group 
called Inland Action.
    I have been consulting in the areas of environmental regulatory 
compliance for 24 years. My practice is centered in the area of the 
National Environmental Protection Act (NEPA), the California 
Environmental Quality Act (CEQA), the California Surface Mining and 
Reclamation Act (SMARA), the Endangered Species Act (ESA or Act) and 
various state and Federal processes. My work is conducted in the 
western states, principally in California. A resume of my professional 
experience is attached.
    I have been asked to testify on behalf of H.R. 2829 by Mr. Walden 
and H.R. 3705 by Mr. Pombo.
    I have reviewed both bills and see both as an attempt to interject 
scientific peer review into the endangered species listing process. I 
support both bills in concept.
    I would suggest that these advisory committees [(3705) p. 13-23 and 
(2829) p. 5-21] composed of individuals with biological science 
expertise, also include those with expertise in spatial distribution 
(geography), climatology and geomorphology. All these resource areas 
are critical in the analysis of single and multi-species habitat 
delineation and threat assessment. Biology is the basis of species 
protection but habitat management and recovery potential is a much 
broader issue requiring broader expertise. A review committee should 
have enough background to question the broadest aspects of species 
viability and background presentation.
    In light of recent 10th Circuit Court decisions regarding economic 
effects in California, it may also be appropriate to include an 
individual with expertise in economics and cost benefit analysis. This 
may be critical in analyzing the impact of implementation and 
feasibility of conservation and attempts at recovery.
    Many question the need for refinement of the ESA; however, working 
with the Act on a daily basis it is my opinion that many of the 
problems associated with its implementation by the U.S. Fish and 
Wildlife Service (USFWS or Service) is the lack of specific 
congressional intent within the Act. Unless you want the Service or a 
court to interpret the Act, Congress should be more specific in their 
intent and direction.
    I have spoken with several of the framers of the original Act and 
it is clear that it was not initially intended as a tool for land use 
regulation. Yet that is certainly what it is today. In fact, few had an 
understanding of the depth and breath of regulation that would evolve 
with this Act.
    A lack of specific congressional intent has led to an Act that is 
now driven by law suits, judicial interpretation and legal settlements. 
Listing packages are being processed not by need or scientific 
justification, but by volume based on settlement agreements dictating a 
number of listings to be completed within a fixed time frame.
    Listings are being processed without knowing the extent of or 
availability of critical habitat needed for survival. This process can 
take years after the listing to develop and is itself subject to 
litigation. Yet you would think that critical habitat for a species 
survival would be fundamental in the evaluation of a species threat. In 
addition, listings do not include recovery plans or consider the 
financial feasibility of their implementation. If we are going to 
commit to a species protection, can we expect to wait years following 
its listing to determine a plan for its survival. And typically, no one 
critically reviews or questions the field data, assumptions, techniques 
or accuracy of the information presented in these listing applications.
    The result in California is that the ESA is being implemented as 
interpreted by biologists and attorneys at USFWS as directed by courts 
and settlement agreements. It has turned into the single most complex 
land use regulatory process in the state of California. More Section 
10A (private lands) consultations are conducted annually in California 
than in all the other states combined by the largest USFWS staff 
dedicated to this effort in the country. Every consultation, Section 7 
or 10, is individually negotiated as interpreted by staff at that time. 
No two agreements are identical. Although based on biologic intent, the 
process has affectively become one of the most costly, time consuming 
and complex real estate transaction processes in the state. All of this 
without the benefit of a single real estate professional on the part of 
USFWS.
    To refocus on the listing process and the Bill at hand, I know of 
at least two incidences where emergency listing were initiated with the 
specific intend of affecting those negotiations in progress. In both 
cases peer review may have questioned the listing process and its 
supporting data.
1. Arroyo Southwestern Toad
    On December 16, 1994 the USFWS determined the Arroyo Southwestern 
Road to be endangered. At the time, biologists at USFWS were consulting 
on a project in the Los Padres National Forest that could impact 
wetlands habitat associated with the toad. By listing the toad the 
occupied habitat would be subject to formal consultation and probable 
conservation. Discussions with biologists following the listing 
indicated that they believed the toad had been eliminated in most of 
its historic range and that listing the species would not impact 
projects much beyond the area in question. Their data indicated their 
distribution was extremely limited and their survival exceptionally 
compromised. This of course was not true. Based on subsequent studies, 
we now know that the toad occupies several river and stream habitats in 
Orange, San Diego and San Bernardino counties, its historic range. 
Several state and local projects are now consulting on impacts to this 
species.
    I wonder if forced to discuss the listing package, its assumptions 
and potential ramification of the decision with a peer review group, 
the Service would have reacted with the same rush to adopt the listing 
package. A detailed discussion of the literature and study results 
appeared four years later as the species recovery plan began to 
circulate in draft form.
    I believe the process of listing without immediate consideration of 
actual occupied habitat and a strategy for recovery, allows for 
emergency listing to act as a means of protecting potential habitat. 
Thus, it transfers the burden of proof of species occupancy to the 
property owner. A logical conservation strategy but based on time, cost 
and recovery potential, an unfair burden to the private property owner 
or public land use authority.
    I wonder if objective critical review of the facts would support 
past listing rationale.
2. San Bernardino Kangaroo Rat
    The San Bernardino kangaroo rat was emergency listed in January 
1998. At the time, USFWS personnel had been in heated negotiations with 
a land user and property owner to complete consultation on potential 
impacts to plant species in the upper reaches of the Santa Ana River. 
As indicated in the listing package and notes of both the USFWS 
personnel and land users, both sides were extremely frustrated with the 
state of discussions. The land user's representative, operating under 
an approved land use permit indicated in a meeting that, if a 
resolution was not reached soon, several more months, he would proceed 
with the approved site clearing. Within one week, the rat was emergency 
listed. The principal rational for listing, threats to take rats by a 
property owner.
    This obviously changed the balance of the discussion throwing 
leverage back to the USFWS. The area was also the home of the largest 
Federal public works project at the time, the Seven Oaks Dam. Upon 
publication of the listing, construction at the Dam was halted because 
several acres of borrow area had yet to be cleared within San 
Bernardino kangaroo rat habitat. Within 24 hours from initiation, the 
local USFWS office was able to prepare and approve a biologic opinion 
for the Dam on the impacts of continuing its construction on San 
Bernardino kangaroo rat (USFWS Biological Opinion for the Seven Oaks 
Dam, February 4, 1998). The Biological Opinion determined that the 
project would remove 70 acres of occupied habitat and issued a take 
permit. The land user blamed for the threat has negotiated to this day 
to receive permission to use the property originally in question.
    The threatened property, approximately 300 acres, was suspected to 
be occupied on approximately 60 acres at the time. Since it was 
possible to remove 70 acres of occupied habitat without significant 
impact to the species, it would appear that the emergency was 
overstated or in-fact non-existent. I wonder if a scientific review 
panel would have supported this science based listing decision.
    The ramifications of the San Bernardino kangaroo rat listing extend 
even further with the critical habitat currently being considered. It 
includes the runways, golf course and open space of the former Norton 
Air Force Base currently under redevelopment. This ``historic range'' 
was graded and developed in the 1940's. The open space is currently 
mowed seasonally to help maintain another sensitive plant species, the 
Santa Ana woolly star, which thrives there. It is hard to understand 
how the San Bernardino kangaroo rat will adapt to annual mowing. The 
scientific justification for including this area in the critical 
habitat for the San Bernardino kangaroo rat screams for objective 
review.
    I believe that scientific peer review of listing packages should 
extend to critical habitat designation and recovery plan proposals. 
Ideally these would all proceed concurrently. In light of the Arizona 
Cattle Growers Association (ACGA vs. USFWS) decision, it would seem 
that scientific review of each aspect of the listing and protection 
would benefit from review both to quality and thoroughness of process 
and compliance with the intent of the Act. Emphasis should be placed on 
significance and actual injury to species. The more detail and 
clarification of congressional intent that can be inserted into the Act 
the more likely the USFWS will be able to meet that intent and avoid 
litigation. As I stated earlier--litigation is driving ESA in 
California and ESA is now the most costly, cumbersome and time 
consuming land use approval process in the state.
    Another issue currently outside the consideration of these two 
bills but of needed consideration by the Committee, is the economic 
cost benefit of listing species. This is not to imply that the cost of 
implementation should out way protection, however it should be a 
consideration in weighing the viability of protection and recovery and 
would be useful in identifying funding needs and resources for habitat 
management. Let me give one example of which I am directly familiar.
    The Delhi Sands Flower Loving Fly (DSFLF) was listed in September 
1993. The fly lives in remnant sand dunes in and around Colton, 
California. It is clear that this fly is very rare. Only a few 
specimens reside in collections and it is rarely seen in the field. At 
the time of its listing, nothing was known of it larval habits below 
the sand including its lifespan or emergence sequence. A total 
population of 300 adults at emergence was estimated. Its historical 
range was approximately 24,000 acres of what was now urbanized southern 
California. The most populated habitat was in-fact within the property 
of an active cement plant.
    Upon listing, it was discovered that a newly designed County 
hospital was being constructed within potentially occupied habitat. 
This resulted in a consultation with USFWS. The ramifications of this 
effort where documented in a paper I prepared in 1994 and revised in 
1996 for Inland Action. I brought a copy of that paper with me today 
(Impacts of Mitigation for the Endangered Delhi Sands Flower Loving Fly 
on the San Bernardino County Medical Center, Inland Action, 1994; 
revised 1996).
    In summary, that consultation resulted in the movement of the 
hospital footprint 250 feet north, a redesign of the facility and the 
set aside of 1.92 acres of fly habitat believed to be occupied by eight 
flies. The cost of this effort in 1994 was $3,310,000 dollars or 
$413,774 per fly, by 1996 the cost had risen to 3.5 million or $441,000 
per fly.
    Since the listing, only two private sites within the habitat of the 
fly have completed consultation with the Service. What concerns me 
about the DSFLF listing is that if the habitat is looked at from a 
regional prospective, it becomes apparent that the conditions 
contributing to the historical habitat no longer occur. Aeolian sand 
sources upwind of the area are no longer available having been covered 
by development or mined. Much of the historic habitat has been altered 
by farming or development. The area is the most heavily urbanized 
portion of the San Bernardino Valley. Biologists for both the Service 
and the private sector will readily admit that the feasibility of 
successful protection of this species is very doubtful. To date 
consultation efforts and mitigation expenses for this species probably 
exceed 100 million dollars including halting a Federal enterprise zone 
funded by $650 million dollars in HUD bonds.
    I would like to think that scientific review by an objective, 
involved oversight committee would have asked hard questions regarding 
this listing, the impacts of its implementation and the feasibility of 
its implementation and the potential success of the effort.
    The examples I have presented sound outrageous but should not be 
considered atypical. They are the norm and they are the reason why 
listing packages proposed under this Act need careful scrutiny before 
resources, both personnel and financial, are committed.
    I support both of these bills as an initial effort to specify the 
congressional intent expected in the ESA. Critical oversight is long 
overdue. California is paying the price in untold millions of dollars 
for this lack of control. I also believe that if, after close scrutiny 
and critical review of every aspects of a species conditions and 
circumstances, it is determined to warrant endangered status, that it 
is then in the national interest to protect the species. Its protection 
and survival should then be budgeted for at the Federal level and a 
commitment guaranteed. The scientific review panel should determine if 
the data warrants a national commitment to a species protection.
    Thank you for your time and consideration.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mr. Illyn? And I apologize if I mess up your name.

  STATEMENT OF PETER ILLYN, EXECUTIVE DIRECTOR, RESTORING EDEN

    Mr. Illyn. You have got it. It is million without an ``M,'' 
Illyn.
    I am here today to talk about the Biblical principles of 
environmental stewardship. I am the executive director of an 
organization called Restoring Eden. Our official name is 
Christians for Environmental Stewardship. I recognize that I am 
not a scientist, and I am not here to talk about the specific 
aspects of scientific analysis and peer review, but I am here 
to remind this Committee that there is moral implications to 
the extinction of species.
    From a Christian perspective, these are very simple. I 
travel throughout the country. I live in Washington State, in 
the Gifford Pinchot, and I travel down to the Klamath Basin, 
and I spent 10 years as a minister in the Foursquare Church, 
which is a very conservative evangelical denomination.
    I would like to say that I am humbled to be here today 
because I recognize the difficulty of this task, and I have 
talked with farmers in Klamath Basin, and I know what it is 
like to lie in bed at night and stare at the ceiling and 
realize that your world has radically changed, but I also read 
in Proverbs 31, Verse 8, the verse that says, ``Speak out for 
those who cannot speak for themselves.'' Our group, Restoring 
Eden, works to make sure that the voice of all of God's 
creation, which is part of all of God's household, does have a 
voice.
    There is a misnomer that says, ``God created the Earth for 
us.'' God created the Earth for God's pleasure, and we are a 
part of it. Throughout creation, at every instance, God said it 
was good, and when God put humanity in the midst of creation, 
God called it very good. We are a part of the Earth, but we are 
not the point of the Earth.
    I travel and speak all around the country, and I recognize 
that thousands upon thousands of Christians are recognizing 
that the viability, the protection of species is, first and 
foremost, a moral issue. I recognize you are faced with the 
difficult task of making economic, and scientific, and cultural 
decisions, but for those of us extinction is not stewardship.
    In Genesis we read, ``God created the different species and 
called them good; God blessed the different species; God 
protected the different species,'' and you all know the 
covenant God made with Noah to protect the different species.
    My favorite verse though, should I ever get a tattoo this 
will be it, it says, ``The Earth is the Lord's and everything 
in it.''
    And, also, ``In wisdom you made them all, the Earth is full 
of your creatures.''
    When I read that verse and recognize what it says, it says 
in wisdom you made them all. It says that somehow in the wisdom 
of God, which I don't even pretend to understand, he also made 
the flower loving fly, and he made the suckerfish, and he made 
the spotted owl, and God made all of creation according to 
God's purpose, and it is not my place to destroy what God 
called good. It is not my place to stand aside and let, for 
economic or even political reasons, allow the destruction of 
God's good creation.
    God entrusted us to tend and keep the garden. We are 
allowed, and we are even expected, to eat from the fruitful 
bounty of the garden. But just because we have power, doesn't 
mean we have the right to trample and defile that same garden. 
There is no Christian justification to destroy the fruitfulness 
of the Earth or to blaspheme the wisdom of God that is 
expressed in biodiversity. Again, extinction isn't stewardship. 
We believe it is sin caused by our arrogance, our ignorance, 
and our greed, and I am part of a grassroots movement that is 
growing throughout the country of people recognizing this fact.
    I would like to close with two quotes, the first being the 
Patriarch Bartholomew of the Orthodox Church, who writes, ``To 
commit a crime against the natural world is a sin. For humans 
to cause species to become extinct and to destroy the 
biological diversity of God's creation, these things are 
sins.''
    But since not many people here are Antiochian Orthodox, I 
would also like to read what Reverend Billy Graham wrote. He 
said, ``It is not right for us to destroy the world that God 
has given to us. He has created everything; as the Bible says, 
`The God who made the world and everything in it is the Lord of 
Heaven.''' To drive to extinction something he created is 
wrong. He has a purpose for everything. We Christians have a 
responsibility to take the lead in caring for the Earth. Again, 
I say extinction isn't stewardship.
    I applaud the difficult decisions you have and the choices 
you have to make, but we do feel that, bottom line, as we 
travel around the country, the work is simple. God is a good 
God, God made a good Earth, and God calls us and entrusts us to 
be good stewards, and that is the moral message that we are 
taking out and the response that we are hearing in communities 
throughout the country.
    [The prepared statement of Mr. Illyn follows:]

      Statement of Peter Illyn, Executive Director, Restoring Eden

    My name is Peter Illyn. I'm here today to testify about the 
biblical principles of environmental stewardship and how these relate 
to the protection of endangered species. I have read the bills that are 
being discussed here today. I realize that I am not a scientist and 
cannot accurately testify about the specific aspects concerning 
scientific analysis. I am, however, a preacher. I would like to discuss 
the theology of creation care and how this is becoming a growing 
movement within the church.
    I spent 10 years as a minister and a preacher in the Foursquare 
Church, a conservative evangelical denomination. I am now the Executive 
Director for a ministry called Restoring Eden. I live in SW Washington, 
and spent five years as a professional outfitter in the Gifford Pinchot 
National Forest. I also do some networking with churches in the Klamath 
Basin. I am well aware of the recent events in both places.
    I am humbled to be here today as I recognize the difficulty of your 
task. The protection of endangered species is a very complex and 
interwoven problem. Most potential solutions have ecological, political 
and/or economic ramifications. But as I travel through-out the country 
speaking about the call to care for God's creation, I am amazed at what 
I see and what I hear. Thousands upon thousands of Christians have 
recognized that extinction of species is first and foremost a moral 
issue.
    The Bible is clear on this subject. Humans have no right to wipe 
out that which God called ``good.''
    In Genesis we read:
        That God made the different species (and called them good.)
        That God blessed the different species (and told them to fill 
        the earth.)
        That God protected the different species.
        And that God made a covenant with the different species.
    In Psalms we read two more biblical and theological truths.
        ``The earth is the Lord's and everything in it. (Psalm 24:1).
        ``In wisdom you made them all, the earth is full of your 
        creatures.'' (Psalm 104:24)
    These scriptures reveal the heart and the will of God as it relates 
to the protection of biodiversity. In wisdom and in goodness, God 
created, blessed, protected and made a covenant with the all the 
different species. God called them to fruitfulness; to fill the earth. 
We are a part of creation, but we are not the point of creation.
    God entrusted us to tend and keep the garden. We are allowed, even 
expected, to eat from the fruitful bounty of God's garden. But we have 
no right to trample the garden; to destroy the fruitfulness, to 
blaspheme the wisdom of God expressed in biodiversity.
    Extinction isn't stewardship. It is sin caused by our arrogance, 
our ignorance and our greed. I'm part of a grassroots Christian 
movement that is taking place in churches and in college campuses 
through-out the country. We are Bible-believing Christians who 
recognized that we have a God-given responsibility; yea, a moral duty, 
to be stewards of the earth.
    We are seeing the beginning of a new morality, one that will be 
used by future generations to judge the environmental decisions made by 
this committee and enacted by this Congress. We do not stand alone in 
this. Almost every major denomination in the country has a position 
condemning the human caused extinction of species.
    Patriarch Bartholomew of the Orthodox Church writes, ``To commit a 
crime against the natural world is a sin. For humans to cause species 
to become extinct and to destroy the biological diversity of God's 
creation,''.these things are sins.''
    And the Rev. Billy Graham is quoted as saying, ``It is not right 
for us to destroy the world God has given us. He has created 
everything; as the Bible says, ``The God who made the world and 
everything in it is the Lord of heaven'' (Acts 17:24) To drive to 
extinction something He created is wrong. He has a purpose for 
everything. We Christians have a responsibility to take the lead in 
caring for the earth. The Lord said we are to look after his Garden,'' 
and he said ``we are responsible for it.''
    In the past few years, our ministry, Restoring Eden, has developed 
relationships at over 40 Christian colleges. We have members in 
hundreds of churches through-out the country. Our call is simple. God 
is a good God. God made a good earth. And God calls us to be good 
stewards.
    Thank you.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mr. Anderson?

   STATEMENT OF JAMES J. ANDERSON, Ph.D., RESEARCH ASSOCIATE 
 PROFESSOR, SCHOOL OF AQUATIC AND FISHERY SCIENCES, UNIVERSITY 
                         OF WASHINGTON

    Mr. Anderson. Thank you, Mr. Chairman. It is an honor to be 
here talking about this very important issue, how to bring peer 
review to the Endangered Species Act.
    I am a scientist, I grew up as a scientist, I think as a 
scientist, and I also realize and always thought that the best 
science, one of the components of best science was it was peer 
reviewed and reproducible. As I started to look at the 
Endangered Species Act, I realized that peer review was not 
really part of the process, and so peer review, external peer 
review, needs to be part of the Endangered Species Act. I think 
this has brought out some problems, and many of these have been 
brought up today.
    I will list just a few: The delisting of the Oregon coho, 
just with the stroke of a pen; the pygmy owl, they set aside 
its critical habitat; the reevaluation of the Northwest salmon 
is going to go on. There is 19 critical habitats which are 
going to be reevaluated; and, of course, the Klamath National 
Academy of Sciences' review. All of these are reversals of 
decisions that were made by agencies.
    I think the reason these happened is because the agencies 
felt they were protected by the Endangered Species Act from 
standing up to do science with peer review, and I think you are 
trying to address that with your bills. Now the agencies 
realize, of course, that peer review is important. Recently, 
there was a review of the habitat conservation plans. Twenty-
five percent of them do have review boards. This is actually 
quite a low number. The study that evaluated these concluded 
quantitatively that those 25 percent were the best of the 
habitat conservation plans. The ones which had no peer review 
were the worst. So I think there is much evidence to show that 
the peer review is good, external peer review is very 
important.
    Now I would just like to mention a couple of types of peer 
review because it is a complex issue how we get peer review in 
a standardized form.
    Now, in the Klamath example, there was a single one-time 
review panel that came in, looked at the situation, made their 
comments, and then they moved out. In terms of the Columbia, 
which I am quite familiar with, Columbia River endangered 
salmon, there is a standing scientific review panel which then 
oversees 11 technical recovery teams. So these are standing 
panels, and they are working on a very complex situation to 
deal with a very complex issue, the recovery of many stocks in 
the Pacific Northwest.
    What these point out to me is that a bill that, as you try 
to introduce peer review into the Endangered Species Act, it 
must be scalable. So, for a small issue, it can be done in a 
very efficient fashion with a small group, and for a large 
issue, like Columbia River salmon, there might be a need for 
some kind of standing group, as an example that I just 
mentioned. So scalable is one of the things that the panels 
need to consider in developing this peer review system that 
needs to be standardized.
    As I looked into what peer review is, I found a number of 
references and quite a bit of literature on how peer review 
should be done. Secretary Manson was also mentioning that they 
are looking into this, and there are a lot of studies, and I 
would encourage the Committee to bring this information 
together to put together a very good bill that will address the 
complex issues. So bringing together this information, and of 
course doing it in a timely fashion because there are many 
important issues that need to be addressed, and peer review 
needs to be part of making these decisions.
    With that, I will conclude my testimony. Thank you.
    [The prepared statement of Mr. Anderson follows:]

Statement of James J. Anderson, Research Associate Professor, School of 
         Aquatic and Fishery Sciences, University of Washington

    My name is James Anderson; I am a Research Associate Professor in 
the School of Aquatic and Fishery Sciences at the University of 
Washington. For over two decades I have conducted research on the 
influence of the Columbia/Snake River hydrosystem on salmon. I have 
also published articles on animal behavior and human decision 
processes. I have been involved in a number of review processes. 
Currently I am a member of the California Environmental Water Account 
(EWA) Review Panel. The EWA is a new water management tool designed to 
protect fish from harmful impacts of state and Federal water exports 
from the Sacramento-San Joaquin watershed.
    I wish to thank the Resource Committee for this opportunity to 
testify on H.R. 2829 and H.R. 3705 which would amend the Endangered 
Species Act to give greater weight to science. My testimony focuses on 
the need for peer review of Endangered Species Act (ESA) decisions.
The Problem
    As enacted in 1973, the ESA requires the Secretary to make 
determinations solely on the basis of the best scientific and 
commercial data available. Although this directive is clear and 
powerful it has one significant omission: its determination of the best 
science does not follow the procedures used by the scientific 
community. In the science community, work is judged by peer review. 
However, the ESA has no formal requirement for peer review. It is true 
that the agencies responsible for implementing the ESA spend 
considerable time reviewing petitions and soliciting public opinion; 
however, these activities simply do not provide the disciplined 
analysis of independent external peer review. Because critical ESA 
actions and decisions are not peer reviewed, agency scientists are 
inadvertently susceptible to acting as if their decisions are protected 
by the Endangered Species Act. Recent history has proven otherwise. In 
three cases the courts reviewed agency decisions and found them 
deficient. In another case, a National Academy of Sciences review 
criticized the agency decision as scientifically unfounded. These 
after-the-fact reviews were highly controversial; regardless of their 
final outcomes, which are not clear at this time, they will have 
significant impacts on both the environment and the economy. They are 
compelling examples of the need to strengthen the review process in the 
ESA.
     In September 2001, a U.S. District Court ruled to de-list 
Oregon coho, stating that the National Marine Fisheries Service (NMFS) 
had been ``arbitrary'' in distinguishing between ``two genetically 
identical'' salmon ``in the same stream'' (NMFS 2001a, Kaiser 2001).
     In September 2001, a U.S. District Court set aside the 
Fish and Wildlife Service designation of pygmy-owl critical habitat. 
The judge noted that the habitat designated included areas not surveyed 
for, but in which the agency scientists thought pygmy-owls could live 
(ESWR 2001).
     In February 2002, the National Academy of Sciences 
released a report criticizing the judgment of Federal fisheries 
biologists on the recommended water restriction to protect suckerfish 
in Upper Klamath Lake (Science Scope 2002).
     In March 2002, the National Marine Fisheries Service 
agreed to rescind critical habitat designations for 19 west coast 
salmon listed under the Endangered Species Act. The settlement was 
triggered in part by the National Association of Home Builders' 
discovery of an inter-agency memo stating ``when we [NMFS] make 
critical habitat designations we just designate everything as critical, 
without analysis of how much habitat an ESU needs'' (NHBA 2002, NW 
Fishletter 2002a).
The ESA Current Review Processes
    Currently, the ESA allows agencies to make decisions without 
independent peer review of the major steps including: 1) decisions on 
petitions to add and remove species to endangered and threatened 
species lists, 2) decisions on jeopardy opinions, and 3) plans for 
recovery.
    As the ESA is now implemented, public opinion is solicited on 
recovery planning, but not on the decision to list a species, or on 
jeopardy opinions. For example, in the case of the Columbia River 
salmon recovery plan, thirty-five parties, other than Action Agencies, 
commented on the NMFS Final 2000 FCRPS Biological Opinion (NMFS 2001b). 
Because the letters and supporting documentation represented thousands 
of pages, responses, typically a paragraph in length, were made to 
categories of comments.
    Although there is no requirement to provide peer review in 
developing recovery plans agencies are beginning to do so. In a 
sampling of 43 US Fish and Wildlife Service (USFWS) Habitat 
Conservation Plans, 11 plans employed science advisory boards with half 
the members from within government and the remainder with industry, 
academic and environmental affiliations (Harding et al. 2001). The 
National Marine Fisheries Service set up a two-tier review structure in 
2000. A six member Science Review Panel (NMFS 2000c) oversees the work 
of nine Technical Recovery Teams (NMFS 2001d) that set biological goals 
needed for salmon recovery in the Northwest and California. The 
Northwest Power Planning Council has implemented a similar process 
through its Independent Scientific Advisory Board and Independent 
Scientific Review Panel (NPPC 1997).
A Case for Additional Review
    Review through solicitation of public comments (NMFS 2000) is 
important but is ineffective in providing substantive inputs to 
decisions. The importance of peer review was quantitatively illustrated 
in a study of 208 habitat conservation plans (Kareiva et al. 1998). In 
a detailed study on 43 of the plans, the 11 that included science 
advisory boards in the plan formation were of significantly higher 
quality than the plans without boards. In the lowest quality plans, 
biological experts were not consulted (Harding et al. 2001). From my 
own observations, the NMFS two-tier review process and the NPPC review 
process provide substantive reviews of the recovery process. However, 
all these review processes address actions after the species are 
listed. The decisions to list species and designate critical habitat 
are solely the responsibility of the overseeing agencies, which act 
without external guidance and review.
    Although we can only speculate on how peer review would have 
altered the outcomes of the four cases noted previously, it is highly 
probable that through peer review the agencies would have been 
compelled to address the scientific weaknesses in their decisions, 
making them less vulnerable to challenge. Furthermore, stronger 
scientific foundations in agency decisions serve all parties. The ESA 
states that critical habitat designation will be based on the best 
science while also taking into consideration the economic and other 
relevant impacts. The recent court decisions have emphasized this 
important balancing of needs and impacts. Peer review will better 
illuminate the strengths and limitations of the science, which will 
facilitate a fair balance between parties with differing standpoints on 
the needs of the species and the needs of the economy. As the examples 
illustrate, non-reviewed ESA decisions can be one-sided and vulnerable 
to court challenges.
The Science of Peer Review
    Peer review is an imperfect process that can be manipulated, or 
simply fail for procedural reasons. Fortunately, considerable research 
has gone into the peer review process and many of the pitfalls have 
been identified and can be avoided. However, peer review in regards to 
the important task of species recovery does appear to have its own 
challenges and the structure of peer review in the ESA should be 
carefully considered. Hundreds of articles have addressed the subject. 
In preparing this testimony, I relied on a comprehensive and 
extensively documented study by Kostoff (1997a, b) that addressed peer 
review issues, Federal agency peer review practices, and recommended 
peer review processes plus a thoughtful discussion of peer review 
issues by Ford (2000). From these works, a number of salient points on 
ESA peer review emerge.
     The Review Process: For an efficient peer review of ESA 
actions the process must be understood, developed, and standardized.
     The Agency: Success requires senior management's 
commitment to high-quality reviews. Rewards and incentives are required 
to encourage such reviews.
     The Review Manager: Functionally, a review process has a 
manager that guides the questions and discussion in the review. The 
manager generally selects the participants, and if the manager does not 
follow the highest standards in selecting the reviewers, the review's 
outcome may be substantially influenced before the review process 
begins.
     The Reviewers: The selected reviewers should be competent 
in the required subdisciplines and, together the group, should cover 
the topic. The group should also include generalists that that can 
address the overall issues and larger questions. Reviewers come to a 
process with a standpoint that influences their approach. For example, 
a conservation biologist and an agriculture economist are likely to 
have different perspectives in reviewing critical habitat designations.
Specifics as Related to H.R. 2829 and H.R. 3705
    The intent of H.R. 2829 and 3705 is to strengthen the use of 
science in actions pertaining to the listing, jeopardy opinions, 
recovery actions and the delisting of endangered and threatened species 
as determined under the Endangered Species Act (ESA). Both H.R. 2829 
and 3705 would introduce independent peer review into the procedural 
steps of the ESA. H.R. 2829 would implement review boards on: 1) the 
species listing process, 2) the species de-listing process, 3) 
determinations of jeopardy, and 4) development of recovery plans. H.R. 
3705 would implement review boards on: 1) reviewing scientific 
information in listing petitions, 2) decisions to add and 3) remove a 
species from a list, and 4) decisions on jeopardy.
    It is my belief that enactment of either bill would improve the 
implementation of the ESA. I believe it is critical that the review 
process involve listing, de-listing, recovery actions and jeopardy 
opinions. However, I believe an improved bill would draw further from 
studies of the peer review process and meld with existing review 
processes.
    Issues arise about how to incorporate existing review processes 
into an amended ESA. In the case of the West Coast Salmon, the existing 
peer review process addresses questions related to recovery and 
jeopardy. However, the process is not standardized and its 
responsibilities are not fully articulated. For example, is the Science 
Review Panel allowed to review NMFS harvest policies (NW Fishletter 
2002b), will it review the new habitat designations promised by NMFS, 
or the new rules needed to disentangle Oregon's wild and hatchery coho? 
The National Academy of Sciences review of the Klamath water policy was 
akin to the review structure outlined in H.R. 2829. The peer review 
processes for the Klamath and the Columbia basins are different, the 
Klamath involving a one-time National Academy of Sciences review, the 
Columbia involving an ongoing process closely connected with the 
agency. Which structure best fits into the ESA? What can be learned 
from each, and how can ongoing review processes be incorporated into a 
bill? Scientific studies on peer review indicate that these issues need 
to be understood and a formal process developed and standardized.
    Peer review processes, if not carefully constructed, may be either 
too small or too large. A brief three day panel may be sufficient to 
review research proposals, but is insufficient to review a complex 
program. On the other hand, a multi-year review by a large working 
group such as was conducted on the Columbia River by PATH (Marmorek 
2000), can become unmanageable through its complexity and advocacy 
(Anderson 2000, Marmorek et al 2002). An alternative peer review 
process, the Science Court, mimics a legal procedure, with advocates, 
critics, and a jury. It is a unique and potentially powerful technique, 
but like any tool, can be misused if not understood and applied 
properly (Kostoff 1997). Kostoff noted that the Science Court probably 
had more debate and surfacing of crucial issues than any other concept 
he evaluated; however, it was time-consuming compared to a standard 
panel assessment.
    Before peer review is incorporated into the ESA questions such as 
the size of panels, their tenure, the process of selection, and the 
extent of their responsibilities need to be resolved. Congress should 
not delay in this effort because the nation faces many important 
decisions on endangered species and these decisions will be better made 
with sound science founded in critical independent peer reviews.
References
    Anderson, J.J. 1999. A Personal In-side Review of PATH. http://
www.cbr.washington.edu/papers/jim/handout.html.
    Endangered Species & Wetlands Report (ESWR). 2001. Pygmy-owl 
critical habitat set aside, listing upheld. 6:12.
    Ford, E.D. 2000. Scientific Method for Ecological Research 
published by Cambridge University Press
    Harding, E.K et al 2001. The scientific foundations of habitat 
conservation plans: a quantitative assessment. Conservation Biology, 
15:2, pp 488-500.
    Kaiser, J. 2001, When is a coho salmon not a coho salmon? Science 
294, pp.1806-1807.
    Kareiva, P., et al. 2001. Using science in habitat conservation 
plans. Report released by the American Institute of Biological Sciences 
and the National Center for Ecological Analysis and Synthesis (4 June 
2001, www.nceas.ucsb.edu/projects/hcp).
    Kostoff, R.N., 1997 Research Program Peer Review: Principles, 
Practices, Protocols http://www.dtic.mil/dtic/kostoff/
Peerweb1index.html.
    Kostoff, R.N. 1997. Peer Review: The Appropriate GPRA Metric for 
Research. Science 277, pp. 651-652.
    Marmorek, D. R., et al. (34 co-authors). 1998. PATH final report 
for fiscal year 1998. Compiled and edited by ESSA Technologies, 
Vancouver, British Columbia, Canada. BPA web site: http://
www.efw.bpa.gov/Environment/PATH/reports/1998Final/1998Final.pdf.
    Marmorek, D. and C. Peters. 2001. Finding a PATH toward scientific 
collaboration: insights from the Columbia River Basin. Conservation 
Ecology 5(2): 8. [online] URL: http://www.consecol.org/vol5/iss2/art8.
    National Home Builders Association (NHBA), 2002, Federal agency 
proposes settlement, agrees that salmon, steelhead habitat must be 
determined by sound science. http://www.nahb.com/news/salmon.asp.
    NMFS. 2000. Three Additional Public Hearings Announced on Proposed 
Regulations to Protect Salmon and Steelhead. http://www.nwr.noaa.gov/
1press/4drulephnew.htm.
    NMFS. 2001a. Summary of the Alsea Valley Alliance v. Evans U.S. 
District Court Decision. http://www.nwr.noaa.gov/occd/AlseaSummary.pdf.
    NMFS. 2001b. Response to comments on 2000 FCRPS Biological Opinion. 
http://www.nwr.noaa.gov/1hydrop/hydroweb/docs/Final/respcomm.pdf.
    NMFS. 2001c. Science Review Panel Appointed to Guide West Coast 
Salmon Recovery http://www.nwr.noaa.gov/1press/050300--1.htm
    NMFS. 2001d. West Coast's First Salmon Recovery Team Appointed; 
Will Examine Puget Sound Chinook, Chum, Sockeye http://
www.nwr.noaa.gov/1press/040400--1.htm.
    NMFS. 2001c. Science Review Panel Appointed to Guide West Coast 
Salmon Recovery http://www.nwr.noaa.gov/1press/050300--1.htm
    NMFS. 2002, Response to Salmonid Delisting Petitions Announced. 
http://www.nwr.noaa.gov/occd/PetitionFindingsFRN.html
    Northwest Power Planning Council (NPPC). 1997. Independent Science 
Groups http://www.nwcouncil.org/fw/science.htm.
    NW Fishletter. (2002a). NMFS says it's sorry over harvest critique. 
NWF 138/Feb.27.2002. http://www.newsdata.com/enernet/fishletter/4
    NW Fishletter. (2002b). NMFS caves on critical habitat. NWF 139/
March.15.2002. http://www.newsdata.com/enernet/fishletter/6.
    Science Scope. 2002. Water Warning, Science 295, 945.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mr. Dobson?

    STATEMENT OF ANDREW DOBSON, Ph.D., ASSOCIATE PROFESSOR, 
   DEPARTMENT OF ECOLOGY AND EVOLUTIONARY BIOLOGY, PRINCETON 
                           UNIVERSITY

    Mr. Dobson. Thank you. I would like to thank you for this 
opportunity to present this testimony. As a scientist, a 
professor at Princeton University, I have a range of serious 
concerns about the legislation before us today.
    One concern is the bill would limit scientists' ability to 
use some of the most important mathematical tools, as well as 
data. It allows us to examine endangered species. A second 
concern is that the bills distort and misunderstand the nature 
of the peer review process. The third concern is that these 
bills, particularly the excessive use of peer review, would 
create time delays in the legislative process that will not 
only increase the risk of extinctions, but also frustrate 
landowners and lawmakers.
    In the 1990's, the Ecological Society of America drafted a 
white paper that addressed science and the Endangered Species 
Act. The National Academy did the same thing. Both of those 
reports say the act, as it stands, is a powerful and sensible 
way to protect biological diversity.
    I am submitting a copy of the Ecological Society paper to 
the written record. I also have with me a letter signed by many 
eminent conservation biologists criticizing the act, and I 
would also like that to be submitted to the written record.
    [The information submitted by Mr. Dobson follows:]
    [GRAPHIC] [TIFF OMITTED] T8289.006
    
    Mr. Dobson. Being here today means that I have stopped 
working for 4 days on a mathematical model that predicts the 
spread of an infectious disease that could either be introduced 
accidentally into a population of endangered species or 
inadvertently into the human population by bioterrorists. There 
is a direct analogy between the type of mathematical models I 
build for that process, and the ones we use to see whether 
species go extinct.
    There is an important example of this type of modeling, 
direct analogy to the type of things we do with the Endangered 
Species Act. Consider the outbreak of foot-and-mouth in Britain 
last year. Within 2 weeks of that epidemic starting, the 
Government was entirely dependent on a group of ecologists to 
predict the outcome of that epidemic. Ultimately, determining 
when the Prime Minister called the election was determined by a 
group of scientists who predicted when the epidemic would end.
    If the same thing happened here, you would have to come to 
a bunch of ecologists to tell you what would happen if you had 
another epidemic, the same group of people who look at 
endangered species. If we were to follow the same procedures, 
as I laid out in these bills, rather than develop mathematical 
models and use those to predict what would happen, these bills 
suggest we should just watch people dying and collect that 
data.
    Now some of the proponents of the bills might want to stand 
by their principles, but I get the feeling that their staff, as 
in the Postal workers, would find that a bit of a hard nut to 
swallow.
    If we look at the Endangered Species Act, it is 
fundamentally sound. It is one of the few pieces of legislation 
that require many important decisions to be based solely on 
science. Unfortunately, from a scientific point of view, the 
proposed bills don't seem to have any understanding of how 
science works. To talk of data as being peer reviewed, seems to 
simply illustrate a lack of comprehension between the product, 
which is data and the process of producing it, which of course 
has to be peer reviewed.
    The main problem with all of this peer review is that it 
slows down the rate at which species get listed and, as I said, 
upsets policymakers. It makes them, not only policymakers, it 
upsets landowners, the people whom these decisions most affect.
    There also seems to be an underlying assumption that a 
National Academy of Sciences committee could be assembled at 
any time to sit in judgment on any vaguely contentious case. 
Although such a committee could come up with a suitably august 
judgment, what seems to be happening here and what this bill 
effectively says is it is the equivalent of going to the police 
and saying we are going to take away your speed detectors, and 
we are going to let you guess the speed of vehicles, and if you 
are wrong, the person that you have said was speeding has to go 
to the Supreme Court to debate over speeding tickets. That is 
the equivalent calling in the National Academy.
    The main problem with the Endangered Species Act is it is 
massively underfunded. Both of the costs that were quoted early 
on exceed the annual cost that the Department of Interior has 
to pay for the Endangered Species Act, which is around $125 
million.
    Let me make a pertinent comparison here. The current levels 
of funding for the Endangered Species Act are equivalent to 
less than 6 hours of the annual Pentagon budget. Indeed, the 
Pentagon will spend more time during the course of this hearing 
than is actually spent on the Endangered Species Act. I don't, 
and I am a father, as well as a scientist, I don't consider 
that national security is that large an issue for the future 
well-being of my children as having a healthy environment to 
live in.
    To conclude, what I would like to say is that I think the 
proposed bills are sheep in sheep's clothing. They will make 
the Endangered Species Act more wooly and slow-witted. What is 
really needed is a bill that reflects one of the ESA's major 
successes, the reintroduction of wolves into Yellowstone. Such 
a bill would have the teeth of cutting-edge science and the 
focused ability to allow landowners to benefit from the 
presence of endangered species on their land, just as the 
Yellowstone Park and surrounding economy have benefited from 
the reintroduction of wolves.
    Thank you for the opportunity to talk to you today. I am 
available at any time. I am busy with infectious diseases, but 
I am happy to address written questions.
    [The prepared statement of Mr. Dobson follows:]

  Statement of Andrew Dobson, Professor of Ecology and Epidemiology, 
                          Princeton University

    Thank you for the opportunity to present this testimony. As a 
scientist, I have a range of serious concerns about the legislation 
before us today. One concern is that the bills would limit scientists' 
ability to use some of the most important mathematical tools used 
widely in the scientific community today and could limit tools of the 
future. A second concern is that the bills distort and misunderstand 
the nature of the peer review process.
    In the mid-1990s the Ecological Society of America drafted a white 
paper that addresses science and the Endangered Species Act. Similarly, 
the National Academy of Sciences National Research Council published a 
detailed final report entitled ``Science and the ESA.'' Both these 
studies, by two of the largest and most eminent associations of 
scientists in this country, reached the same basic conclusion: ``The 
Act is a powerful and sensible way to protect biological diversity'' 
(Ecological Society of America); and ``There has been a good match 
between science and the ESA.'' (National Research Council). I am one of 
the authors of the Ecological Society of America report, which I am 
submitting for the record. In addition, I have here, which I'm also 
submitting for the record, a letter signed by a number of leading 
scientists that raises concerns that the bills before you could 
seriously impact the way best available science is defined and 
considered. Also submitted is a paper from Science on the geographic 
distribution of endangered species in the United States, which 
illustrates that a relatively small area of land is needed to conserve 
endangered species. I greatly appreciate the opportunity to share a few 
additional thoughts with you today.
    1) There are distinct similarities between conserving endangered 
species and preventing disease outbreaks:
        A) LPreventing an endangered species from going extinct and 
        controlling the spread of pathogens and infectious diseases 
        present similar challenges. Both exercises seek to make the 
        world a healthier place--both require a mix of mathematics, 
        statistics, and the collection and analysis of data from the 
        laboratory and field.
        B) LAs an important example of this consider last year's 
        outbreak of foot and mouth disease in the United Kingdom. 
        Within two weeks of the outbreak starting the government was 
        entirely dependent upon a group of mathematical ecologists and 
        the models they developed to predict the effectiveness of a 
        control strategy for the epidemic. Their predictions for when 
        the epidemic would die out ultimately determined when the 
        government could hold the National election. If there were a 
        similar disease outbreak in the US--of livestock or humans--you 
        would need the aid of similar models and expertise. It's the 
        same mathematical problem as preventing species go extinct.
        C) LMany of the people involved with the conservation of 
        biological diversity are the same people involved with 
        controlling infectious diseases of humans and domestic 
        livestock. All of the people at the cutting edge of those 
        disciplines use a mixture of mathematical models, long-term 
        data, and experiments to understand the natural work.
    2) The Endangered Species Act and the proposed changes to the peer 
review process
        A) LThe Endangered Species Act is fundamentally sound. It's one 
        of the few pieces of legislation that require many important 
        decisions to be based solely on science. As the Ecological 
        Society white paper points out: ``Biologists in the agencies 
        responsible for implementing the Endangered Species Act 
        generally try to use the best scientific information and 
        methods available. Failure to use the best available 
        information and methods is generally due to inadequate budgets 
        and overworked staff.'' Ecological Society of America 9.
        B) LFrom a Scientific point of view the proposed Bills don't 
        seem to have any understanding of how science works. To talk of 
        data as being ``peer-reviewed'' simply illustrates a lack of 
        comprehension between the product (data) and the process of 
        producing it and reasoning from it (which may need to be peer-
        reviewed).
        C) LA key point here is that both of these bills propose peer 
        review for jeopardy opinions, but not for non-jeopardy 
        opinions. This creates an egregious asymmetry in the way that 
        species would be dealt with. In particular it will slow the 
        listing process for species for which simple and effective 
        protection may be developed, while focusing agency attention on 
        a tiny minority of species. As the Ecological Society pointed 
        out in their white-paper: ``For species deserving protection, 
        delaying the decision to provide protection and recovery will 
        bring most of these vulnerable species even closer to the brink 
        of extinction, restrict the options available for achieving 
        recovery, and increase the eventual cost of the recovery 
        process.''
        D) LThere also seems to be an underlying assumption that an NAS 
        committee could be assembled at any time to sit in judgement on 
        any vaguely contentious case. While such a committee may 
        eventually come to a suitably august judgement, in most cases 
        the local agency people will know much more about the species 
        in question. However, the last thing that scientists (and 
        agency people) need is to be bogged down in an endless peer-
        review process. There is no career incentive for scientists to 
        take part in such reviews. Equally there is no incentive for 
        the NAS/NRC to endlessly spend their time reviewing each 
        transgression of the ESA. The proposed Bill effectively 
        suggests the equivalent of removing speed detectors from the 
        police, allowing them to guess the speed of vehicles, and then 
        suggesting that traffic offenders appeal to the Supreme court 
        over speeding tickets.
    3) Funding for the Endangered Species Act
        A) LThe main problem with the ESA is it is massively under-
        funded. The annual funding for implementation of the ESA in the 
        Department of Interior is around $125 million. This year the 
        Administration has requested just $9 million for listing and 
        critical habitat designations. Last year the FWS estimated that 
        it needs $120 million to process the current backlog of needed 
        listings and critical habitat designations. According to the 
        FWS there are more than 250 species waiting for protection 
        under the ESA. The longer we leave them unlisted, the harder 
        and more expensive it will be to effectively protect them once 
        listed.
        B) LLet me make a pertinent comparison here: the current levels 
        of funding for Endangered Species are equivalent to less than 
        six hours of the annual Pentagon budget and less than half 
        their Advertising budget. Yet conservation of biological 
        diversity is an equally important National and International 
        Security issue. As a scientist and epidemiologist, I would 
        argue that the health and security of my children is as 
        dependent upon a healthy and intact environment, as it is upon 
        military preparedness.
        C) LAs an example consider that more than half the people in 
        this room will probably die from a natural resource exhausted 
        in our lifetimes--antibiotics capable of effectively 
        controlling harmful bacteria. Antibiotic resistance is a direct 
        example of misuse of natural resources (and a wonderful example 
        of evolution in action). This proposed bill will allow similar 
        misuses of natural resources that will ultimately reduce the 
        quality of life for most Americans. Again its ironic that we 
        see biological weapons as a threat to National Security, while 
        discussing bills that have all the potential to create 
        biological disasters that may have a huge impact on human 
        health.
    4) The importance of conserving biological diversity
        A) LBiological diversity is the world's ultimate resource--it 
        supplies humans with food, medicine, and ecosystem services. 
        The global economy and whence global security are wholly 
        dependent upon a healthy and intact environment.
        B) LBiological diversity is produced by the world's most 
        powerful force--evolution by natural selection. This creates 
        the ultimate irony. The Endangered Species Act isn't designed 
        solely to protect biological diversity. Its long-term goal is 
        to protect us from the folly and short-term greed of our own 
        actions. Nature can ultimately and relatively effortlessly 
        recover from some of the effect of human activity, although the 
        loss of any species is irreversible. The more pertinent 
        question is can humans coexist with nature in a way that will 
        maintain a healthy and secure world for our children?
        C) LThe proposed Bills change the definition of best available 
        science by removing some of the principal scientific tools such 
        as mathematical modeling and population viability analysis and 
        replacing them with ``expert opinions'' that may be easily 
        distorted by significant conflicts of interest. This again 
        illustrates a deep lack of understanding of the scientific 
        process. Science is only viable when it uses the most up-to-
        date variety of tools to develop insights into the underlying 
        process. Each member of the committee should ask themselves 
        ``If you were ill, would you trust a physician who restricted 
        himself to the use of nineteenth century technology and 
        diagnostic techniques?''
        D) LThe Bills we have discussed today cannot easily be tinkered 
        with and fixed ``they will suffocate the Fish and Wildlife 
        Service under a flood of pointless additional bureaucracy. This 
        is most clearly illustrated by its emphasis upon inappropriate 
        peer-review and the removal of the use of mathematical analysis 
        from the Listing Process. This is the direct equivalent of 
        saying: ``We have lots of `soon to be unemployed friends' at 
        Arthur Anderson, let's get them to run the economy and let's 
        also do away with the models developed by Alan Greenspan and 
        his colleagues at the Federal Reserve''. Instead members of the 
        committee should realize there are deep similarities between 
        the mathematical models that economists use and those used by 
        ecologists. In essence, economics is just the ecology of money 
        and jobs. As the global economy is a wholly owned subsidiary of 
        the natural economy, the future health and wealth of the planet 
        depends upon a dialogue between economists and ecologists. The 
        common language of this dialogue is mathematics. As it is in 
        all the sciences.
        E) LI personally find it unfortunate that these bills are under 
        discussion. Today's debate is occurring at a time when we 
        should be strengthening the science and funding for the 
        Endangered Species Act. Indeed, if the US is genuinely 
        concerned with long term, global security, we should actually 
        be debating the ratification and signing of the Convention on 
        Biological Diversity. The continuing failure of the US Congress 
        to endorse and strengthen these fundamental pieces of 
        environmental legislation increasingly reflects a chronic long-
        term misunderstanding of the major underlying processes that 
        determine human health, wealth, and global security.
                                 ______
                                 
    [NOTE: The Ecological Society of America report entitled 
``Strengthening the Use of Science in Achieving the Goals of 
the Endangered Species Act'' has been retained in the 
Committee's official files. It is also available at http://
www.esa.org/pao/esarpt.htm. The Science Magazine article 
entitled ``Science and the Protection of Endangered Species'' 
by H. Ronald Pulliam and Bruce Babbitt has also been retained 
in the Committee's official files. It is available at http://
www.sciencemag.org/cgi/content/full/275/5299/499.
    Mr. Pombo. Well, I thank you. I thank the entire panel for 
your testimony.
    Mr. Dobson, your testimony somewhat intrigues me. I had the 
opportunity to read your testimony last night, your prepared 
testimony, and there are a number of things that I think that 
you may be a very brilliant man who may understand science more 
than I ever will, and I will give you that, but I don't think 
you have a clue how the Endangered Species Act works in the 
real world and what the impact is.
    In 1995, they listed the fairy shrimp in my district. It 
was based upon one of your mathematical models. They took a 
right-of-way that they surveyed. They determined that a certain 
amount of habitat was being lost within that area, and based 
upon that information that they had, it was listed as an 
endangered species. Subsequent to that, they found out that 
they do not just live in that one area, but they live 
throughout California. I contend that if they had had a peer-
review process in place, if they actually had field data, that 
they would never have listed that particular species. And, in 
fact, one of the people that was hired by Fish and Wildlife 
Service to peer review their work, at the time that we had a 
hearing, said that he had never seen all of the information 
that was presented at that hearing and would support delisting 
the fairy shrimp based upon that. Those are the kind of things 
that we are trying to get at.
    Now, as far as the peer-review process, I have yet, in the 
10 years that I have been doing this, met two scientists who 
agreed what peer review was, and you know that as well as I do. 
It is in the eye of the beholder, it is in the eye of whichever 
scientist is having his work peer reviewed, they come up with 
different opinions.
    Now, Mr. Anderson, in your testimony you talked about the 
different ways to peer review work. I have read some of those 
reports that you talk about and am committed to finding the 
best way to peer review the information that Fish and Wildlife 
and NMFS bases their decisions on. It may not be the way that I 
do it in my bill. The way that we came to was, in consultation 
with the minority and kicking back and forth different ideas of 
ways to do this, this was the way that we came up with that 
everybody seemed to have the least problem with.
    There were a number of other ways that we looked at that we 
could do this. It was the best way that we felt would fit 
within the job that we assigned to Fish and Wildlife Service 
and to National Marine Fisheries. It may not be the best way, 
and if you have other ways of doing that, if you think that 
there is a better way of doing that, I am willing to listen to 
that. I am willing to take those ideas. I am willing to take 
that to Fish and Wildlife and ask them will this work, is this 
a better way of doing it?
    All we are trying to do is find a way to have the decisions 
that are made by Fish and Wildlife Service and by NMFS, to have 
those decisions based upon as accurate a science as we can 
possibly come up with at the time that those decisions are 
made. Most of us sitting up here don't feel that that is 
happening. A lot of my constituents don't feel like that is 
happening under the way that we are doing it right now. We are 
trying to find a better way of doing it.
    If the decisions on the fairy shrimp, if they had done a 
full-blown scientific biological survey, and they had done the 
field surveys, and they came back with the decision that it was 
in danger, we could live with that. But the question that was 
pulled in was that the science was faulty. From the very 
beginning, before it was ever listed, they were told the 
science was faulty. And as a direct result of that, it has cost 
people in my district millions of dollars in order to meet the 
implementation, the cost of the implementation of the 
Endangered Species Act on what I believe was a faulty listing 
from the very beginning.
    We are just trying to figure out the best way to do this. I 
don't sit up here in front of you and claim to be a scientist, 
and I don't sit up here in front of you and tell you that I 
have got all of the ideas. All I can tell you is that I have 
chaired over 30 hearings on the Endangered Species Act, I have 
listened to dozens of scientists, to hundreds of witnesses, and 
we are trying to come up with the best way to answer these 
questions.
    So, having said that, Mr. Walden?
    Mr. Walden. Thank you very much, Mr. Chairman. I appreciate 
your comments.
    I just want to make one comment. I believe, Dr. Dobson, 
your analysis on hoof-and-mouth disease or foot-and-mouth 
disease, I understand why you do mathematical models and run it 
out and see it, but actually there would be data collected in 
the field, wouldn't there, ahead of that? Because, obviously, 
there was an outbreak, and cattle were dying, right?
    Mr. Dobson. Exactly.
    Mr. Walden. So you looked at the rate that they were dying 
at, correct?
    Mr. Dobson. No, you look at the rate at which the disease 
is spreading the population.
    Mr. Walden. Oh, so you do measure the population?
    Mr. Dobson. That is exactly the analysis process. You are 
trying to extrapolate into the future, which is what we are 
trying to do with the Endangered Species Act--how will 
manipulations that we make to the environment affect whether 
that population increases or decreases.
    Mr. Walden. But there is field data collected.
    Mr. Dobson. Yes, it is a happy dialog between data and 
models.
    Mr. Walden. Right. I don't object to any of that. My point 
is but how do you design your model if you never had field 
data? If there had never been an outbreak--
    Mr. Dobson. You do both at the same time. You use the model 
to design how you collect and interpret the data.
    Mr. Walden. But if there is never--
    Mr. Dobson. In the limited budget, it tells you how to 
increase the efficiency of the data collection.
    Mr. Walden. Right. But my point is data gathered on the 
ground provides the foundation for you to model, right?
    Mr. Dobson. No, it is a two-stage process. You do both.
    Mr. Walden. Right.
    Mr. Dobson. You could write a model without any data, based 
on your biological understanding of the system, a simple model, 
which would then allow you to collect data--
    Mr. Walden. Where would you get the biological 
understanding of the system if there had never been an outbreak 
of the disease?
    Mr. Dobson. Well, all diseases work in roughly the same 
way. You have a healthy population, you add a disease, people 
get sick. That is a simple thing you can write down as a--
    Mr. Walden. So every disease is equal in the way it 
spreads?
    Mr. Dobson. Well, no. The thing you want to do is collect 
the data that allows you to quantify the rate it spreads, 
depending on--
    Mr. Walden. Thank you. That is my point. That is all I am 
saying here is if you collected actual data in the field, 
shouldn't that have a higher value? Isn't that an incredibly 
important part of any modeling that would occur thereafter? Can 
you have a model without any data collection from the field?
    Mr. Dobson. Our entire understanding of the structure of 
the universe is based on models, as much as it is on data 
collected from the field.
    Mr. Walden. As much as it is data collected from the field.
    Mr. Dobson. Well, actually, our understanding of the 
structure of the universe is more based on mathematical models 
than it is on data collected from the field.
    Mr. Walden. But there had to be data collected from the 
field, right? Some measurements made, correct? How fast things 
are expanding and--
    Mr. Dobson. Yes, but you wouldn't have known to go and 
measure those things without the models.
    Mr. Walden. I understand. But my point is we have had some 
decisions made where they basically run models and give higher 
value to the models than actual data that has been collected. 
It seems to me that if we have--don't you operate where there 
are standards for how data is collected?
    Mr. Dobson. Absolutely.
    Mr. Walden. We ask for that in my bill, too, that the 
Secretary would set standards for how the scientific data is 
collected. Is that a bad thing?
    Mr. Dobson. The models help you set those standards. They 
tell you the sample sizes you need to see whether you are 
actually measuring the right birth rates and mortality rates 
that you need.
    Mr. Walden. Right. I don't have any problem with modeling, 
but I think you have to have standards, and you have to have a 
basis for those standards, and how you collect the data and 
include the data that is out there.
    Mr. Gordon, where do you see this peer review effort? I 
mean, how critical is this to the decisions?
    Mr. Gordon. I think it could be a valuable addition. I 
think that there is a track record of making mistakes and 
finding that out later. Now you have got to recognize that the 
Endangered Species Act incorporates kind of the assessment that 
you want to shoot first and ask questions later, and that is 
particularly true in the case of the emergency listing, as 
opposed to the regular listing process.
    But I think the standards have been weak enough, right now 
the law is the best available data. Some people use the acronym 
``BAD,'' because best doesn't mean it has to be good or 
reliable or even sufficient to reach a scientific conclusion. 
As a consequence, you have a lot of things that get listed that 
may not merit protection.
    Now I have heard a lot of people argue that, well, if you 
subjected that decisionmaking process to peer review, it would 
increase the amount of time that it takes to list a species, 
and therefore further imperil them and cost money. But you have 
to put that in the context of how the act works overall, and 
would requiring higher standards that cause species that 
shouldn't be listed not to get listed and thereby funds not to 
be expended on them be available for other species that truly 
merit endangered species status, would that be worth more? I 
think when you have provisions like emergency listing, it may 
well be.
    I think that right now the standards are subjective enough 
that they allow a lot of political consideration. For example, 
in the case of something called the Indian flapshell turtle, 
this was added to the list based on the grounds that it had 
simply been added to Appendix 1 of CITES, which is the 
international version of the Endangered Species Act. Based on 
that, it was, de facto, added to the endangered species list. 
After that, a data search was done to see if that listing was 
merited, and the Fish and Wildlife Service found that, in fact, 
it was seemingly the most abundant aquatic turtle species in 
all of India. Then it was delisted. Well, you know, it is just 
a paperwork exercise, but listings and delistings cost tens of 
thousands of dollars each time, and in that sense, you see here 
was some money that was wasted on something that didn't merit 
it because there were very loose standards.
    On the flip side, I will say my organization filed a 
listing petition for a crustacean that occurs in Virginia. It 
had not been seen since 1947, and it has only been seen once 
since 1947. And when we petitioned the Fish and Wildlife 
Service to list it, it came to the conclusion that since it has 
been seen once since 1947, it indicates that it is rare, but it 
is not in imminent danger of extinction. Now I think that is on 
the other side of the list. Here is where a peer review would 
merit a species being listed, despite the Agency's decision. So 
I think it could affect things in both directions.
    Mr. Walden. Thank you.
    Mr. Pombo. With the Committee's indulgence, Mr. Gordon, 
hearing you say that, we had testimony that there could be 
800,000 fairy shrimp in one mud puddle, and yet it is 
endangered, and seeing it once since 1947 means it is rare, but 
not endangered?
    Mr. Gordon. It wasn't in imminent danger of extinction. I 
think the exact words were since it has been seen since 1947, 
it still persists, and therefore is not in imminent danger of 
extinction.
    I don't know, I mean, it seems to establish a new standard 
that, in fact, you have to be extinct to merit listing, but it 
was quite shocking, I thought.
    Mr. Pombo. I hadn't heard of that one.
    Mr. Gordon. But I don't think that decision would pass peer 
review.
    Mr. Pombo. Do you have a copy of that that you could submit 
for the record, please?
    Mr. Gordon. Yes, I do.
    [NOTE: The information submitted by Mr. Gordon, Inland 
Action Inc.'s ``Impacts of Mitigation,'' has been retained in 
the Committee's official files.]
    Mr. Pombo. Thank you.
    Mr. Otter?
    Mr. Otter. Thank you, Mr. Chairman. I thank the panel for 
being here.
    My earlier statement to the first panel notwithstanding, I 
do appreciate some of the good things that have happened as a 
result of the Endangered Species Act because they have been 
instrumental in making some other decisions for us, which I 
think are important to encourage proper handling, if you will, 
of nature.
    One of the characters that I find about the Endangered 
Species Act is all of the unknowns, and if most of my 650,000 
constituents that have lived day-to-day and been adversely 
affected in some cases and in some cases helped by the 
Endangered Species Act had listened to certain members of the 
panel, they would be even more confused than they would have 
been about the importance of the Endangered Species Act.
    One of the things that I think most sincere Members of 
Congress try to do is to make things a little more 
understandable. I find many times when I go home, and I have 
voted on a bill or I have voted on an issue or took a position 
on an issue, a lot of folks, although they may get a report 
about that in the paper, don't understand the why or the where, 
and so I have to go into a much deeper explanation, and in many 
cases cite some analogy that they would be familiar with in 
Idaho. I think that that ought to be part of the process that 
we hope to achieve here. I think, in some cases, this bill does 
just that, and it makes it more understandable.
    One of the great, natural things about our Government is 
that it is mostly a voluntary Government, with some 
encouragement. You know, people pay their taxes because they 
want to make a contribution, but they also know what happens if 
they don't make that contribution. But for the most part, 
people obey the law, and they want to obey that law, but first 
they have to understand it.
    One of the other things that I have found about the 
Endangered Species Act and many of the other acts that have 
come into existence back here is that, for those people that 
have not been directly and adversely affected by it, it is 
great, but for those people that have been adversely by it, and 
they don't understand it, then it becomes something which they 
learn to hate, and they learn to have disagreement with.
    And so I have hopes that if this bill doesn't do that, I 
hope that with all of the legitimate minds and legitimate 
concerns that we have coming before this Committee, that we 
will come up with something which is a simple explanation to 
all of the folks that are adversely affected by it of the good 
that it intends to do in its implementation and, to the 
absolute best of our ability, the science that we are going to 
use to make these decisions which can affect their lives is the 
best possible science that is available to us, and that it is 
not falsified, and it is not somebody's whim. And whether it is 
a mathematical formula or if it is some other formula that 
somehow we simplify that to the point that people understand 
not only the methods that are used in order to measure the 
potential extermination of a species or a plant, but also the 
good that needs to be done as a result of keeping that in 
existence.
    Because right now, you know, I am reminded so many times, 
and I was the lieutenant Governor of Idaho for 14 years, and 
when we had a Federal agency come into the State of Idaho and 
say, ``We are from the Federal Government and we are here to 
help, you can imagine, you know, what are they going to do to 
us now?''
    I would be in hopes that we could evolve the Endangered 
Species Act and the agencies that have to deal with that to the 
same degree that OSHA was. I remember when OSHA started, there 
was probably not a more hated agency than the Department of 
Labor and the Occupational Safety and Health Act. But once they 
discovered that in order to achieve the mission that the 
Occupational Safety and Health Act hoped to attain, that they 
had to get the voluntary help of all of those people that could 
help them, and then they found great partnerships.
    One time in Idaho, for about the first 10 or 12 years, I 
guess, if an OSHA inspector walked into a plant, you know, 
everybody was scared to death, and everybody avoided making 
reports on accidents, and making reports on dangerous things 
that went on in plants because they didn't want that 
investigation. They didn't want that oversight because they 
knew that that oversight could mean the loss of the job, the 
loss of the plant, the loss of a way of life. And now, as I 
said, today, OSHA is a partner. You can drive almost anywhere 
where there are construction jobs going on, and you will see 
that the construction company is in partnership with OSHA for 
safety and health, and that is because they finally evolved 
into an agency, which we had hoped that they would, that they 
are there to help people be safe, and to protect lives, and to 
protect folks from being named.
    I would just hope that if Mr. Walden's bill doesn't do 
that, and if that is not how we are going to achieve it, and if 
this isn't one of the evolutionary steps, I hope you will find 
us an evolutionary step which the Endangered Species Act can 
become user friendly because that is what we need.
    Thank you, Mr. Chairman. I yield back the balance of my 
time.
    Mr. Pombo. Mr. Radanovich?
    Mr. Radanovich. Thank you, Mr. Chairman.
    Mr. Gordon, maybe you can help me here. It seemed at one 
time, maybe it was the Supreme Court decision at the time of 
the Tennessee Valley Authority, TVA, that when the Supreme 
Court was faced with the issue of interpreting the Endangered 
Species Act, ruled that when a habitat of an endangered species 
is discovered that all work must stop and no matter the cost or 
the disruption.
    Mr. Gordon. You are referring to TVA v. Hill, I think. It 
is one of the more famous Supreme Court rulings on the 
Endangered Species Act in regard of the construction of the 
Tellico dam in Tennessee, and the snail darter was discovered 
to be in the vicinity of the dam. The possibility the dam could 
jeopardize the snail darter, required the dam to be stopped 
midconstruction. I think the exact words of the Supreme Court 
are that the Congress intended the species to be recovered, and 
protected, and conserved ``whatever the cost.''
    Mr. Radanovich. So the decision with the suckerfish habitat 
in the Klamath area was really pretty much in keeping with the 
way that at least the courts have interpreted the Endangered 
Species Act; isn't that right?
    Mr. Gordon. With regard, perhaps, to the obligation to do 
something without concern to the economic impact when you are 
talking about something being jeopardized, although certain 
provisions of law, like critical habitat designation, allow for 
consideration of economic impact, yes. However, obviously, the 
question of the underlying data, whether it was sufficient to 
justify their actions is a different matter.
    Mr. Radanovich. In the case of the Wilson bridge and the 
Washington aqueduct, some of the stuff that the National 
Wilderness Institute has been involved in, I am aware that in 
the brief, very brief environmental assessment that they did 
for constructing the Wilson bridge there, they were aware of 
the endangered sturgeon there, but their plan for protecting 
that endangered species was to wipe out the clam beds in and 
around the bridge, which was basically the habitat of the 
sturgeon, thinking if they just wiped the habitat out, then the 
sturgeon wouldn't be hanging around to get blown up when they 
sink the pilings for the new bridge. Am I wrong?
    Mr. Gordon. Roughly, yes, the biological assessment 
prepared by the Federal Highway Administration noted that prior 
to demolition, dredging would remove the clam beds, Asiatic 
clam beds that might attract shortnose sturgeon to the area. 
Therefore, essentially, I guess that means it is functioning as 
a conservation measure to remove their food from the action 
area.
    Mr. Radanovich. It apparently wasn't the case in Klamath 
either, but also in the Washington aqueduct, in that case, the 
alum that is used to settle the water and then the discharges 
going into the river, under an EPA permit, by the way, which 
knowingly dumps this 200,000 tons of sediment into the Potomac 
River on what is known to be the spawning grounds for the 
endangered sturgeon, which is stuff that you have been working 
on, and you can verify this or tell me if I am wrong, but that 
is indeed what is happening. Why is this happening?
    Why is it that in the case of Klamath that when the habitat 
of an endangered species is found, that they basically shut the 
water off, when, in an area like on the Potomac River, with 
both the Wilson bridge and the aqueduct, you see it here, and 
people seem to turn an eye or certainly don't want to enforce 
the Endangered Species Act in that way? Do you care to 
speculate?
    Mr. Gordon. It is hard to know exactly why. There are 
several documents that hint at various reasons the agencies 
have not initiated formal consultation on the aqueduct; one 
being one of the arguments made in court was that the act of 
discharging this sludge didn't constitute an action that 
required consultation. But other than that, the records 
available that we have looked through indicate repetitively 
that there was a concern that construction of sludge treatment 
facility would require trucks to remove sludge through effluent 
or ``high-value real estate.'' Additionally, there was a 
concern that the aqueduct's customers, the aqueduct is on a 
pay-as-you-go basis, and it serves D.C., Arlington, and Falls 
Church and parts of Fairfax, that they would have to pay the 
cost of constructing a water treatment facility.
    EPA's own analysis, however, showed that right now 
customers of the aqueduct are at comparable or lower rates than 
most of the adjoining jurisdictions, and that increase in cost 
wouldn't be much more--it would bring them on par, essentially, 
with other folks.
    The only other rationale I have seen explained is that the 
EPA has argued that by the year 2010, water clarity limits 
would be in place on people who are above the point where the 
aqueduct withdraws water and that these new clarity limits or 
controls will reduce the amount of sediment going into the 
Potomac, so that by the time the water reaches the aqueduct, 
the sediment will be reduced, so there will be no concern by 
the year 2010 that this enormous point source is dumping. So I 
guess they kind of rather focus on the pig farmers, and the 
chicken farmers, and the cow-calf operations or rural areas and 
cities and towns above Washington, as opposed to the point 
source here in Washington.
    Mr. Radanovich. Does it suggest to you that maybe one 
endangered species is a little more important than perhaps 
another endangered species?
    Mr. Gordon. Well, in fact, that argument has been made. The 
National Marine Fisheries Service has hinted that there is some 
possibility that these sturgeon have come over from the 
Delaware River. Now they haven't gone on and said that means 
you can go ahead and blow them up, but they have kind of thrown 
that idea out, that these fish are from the--there is a 
potential that they have Delaware blood or mixed with Delaware 
shortnose sturgeon, and therefore we can take them.
    Now, under the law, you could issue a take statement that 
would allow shortnose sturgeon in the Potomac of Delaware 
origin to be taken by blowing up the bridge, but you have to go 
through formal consultation or you would have to issue an 
incidental take statement, and they haven't done any such 
thing.
    Mr. Radanovich. Interesting.
    Mr. Illyn, I would like to kind of explain to you something 
that happened out in California and get your reaction to that, 
if I have a little bit of time.
    In January 1997, we had a big flood. A warm rainstorm came 
in the middle of river and caused floods throughout the 
Western--you got it up in Washington. You know what happened. 
During that time, there were floods in the San Joaquin Valley 
near Sacramento when a levee broke and killed three people. The 
story is that goes beyond that is that the levee was known to 
be in bad shape for 6 years. In fact, for 6 years they were 
trying to get permits from the Fish and Wildlife Service to go 
in and effect repairs, but since it was the habitat of the 
elderberry bark beetle, they wouldn't allow them to fix this 
weakened levee. Finally, they did get a permit, but I think it 
was like a week before the storm. They didn't have the time to 
get the equipment in and get it fixed, and the levee broke and 
killed three people.
    I think after that, Mr. Pombo and Mr. Herger came to 
Washington to try to change the Endangered Species Act so that 
under a threat of human life, water agencies, such as this one, 
could go in and effect those repairs and protect human life. 
That measure lost by 80 votes in Congress. It was quite 
alarming to people like me.
    In an instance like this, where the Endangered Species Act 
was directly responsible for the death of three people, do you 
think that is good?
    Mr. Illyn. Well, I can't address the facts in the case 
because I just take your comments, but we red flag when we see 
what we consider the either/or mentality that says it is 
farmers versus fish, it is loggers versus the spotted owl. So 
we take the stand that we are a part of creation, and we have 
to work together. Obviously, all legislation and circumstances 
don't always work out the way people plan. So I guess I can't 
specifically address your issue. I avoid being put in 
situations where the mentality seems to be it is people versus 
creation. If we are already at that point, then we failed as 
stewards.
    Mr. Radanovich. If there is a case of imminent danger to 
human life, do you think that the Endangered Species Act ought 
to be modified so that water agency could go and effect those 
repairs? I mean, this is a small thing. I mean, I don't think 
you see anybody up on this podium who wants to wipe out the 
Endangered Species Act, and I think that there are many of us 
that believe that if we go into this thing with a balanced 
attitude, we can protect human life and preserve a species, but 
in this case, the Endangered Species Act was directly 
responsible for the death of three people, and the Congress 
could not change that law. So, basically, the same thing could 
happen again.
    If that is the case, do you think that the Endangered 
Species Act needs to be modified?
    Mr. Illyn. During those same floods, we had numerous mud 
slides in Oregon and Washington that killed many--killed people 
up in Bainbridge Island, killed folks down, I believe, in the 
Roseburg area, and the mud slides came down the hill and 
destroyed homes as well. I mean, so--
    Mr. Radanovich. Did the Endangered Species Act or 
maintaining the Endangered Species Act, did it cause those 
accidents?
    Mr. Illyn. What I see is that it was unsustainable logging 
on steep hillsides that caused that accident.
    Mr. Radanovich. Sir, never mind. You are not going to 
answer my question. But I have got another question, if I may.
    Mr. Pombo. OK. Go ahead.
    Mr. Radanovich. Mr. Dobson, I enjoyed your testimony.
    Would you care to comment on the issues on the Washington 
aqueduct or the Wilson bridge, as far as the unequal 
enforcement of the Endangered Species Act? Because this is 
really what we are asking for. I mean, can you tell me if an 
endangered species, do you think an endangered species found in 
Central Park in New York should be just as protected as an 
endangered species found in the Klamath Basin?
    Wait. Let me clarify that. Knowing the Supreme Court says, 
when a habitat of an endangered species is threatened, you all 
must cease and desist, no matter what disruption or no matter 
what the cost, until that species is taken care of?
    I don't believe your mike is on.
    Mr. Dobson. I would think that a case such as Central Park, 
which is bound to be inflammatory, you would have to have some 
special sort of hearing than just apply the law in a very, very 
pedantic way. That seems to be what is happening in Washington. 
But I have to admit straight away, it is not a situation with 
which I have knowledge.
    Mr. Radanovich. You might want to get familiar with it.
    Thank you very much.
    Mr. Pombo. Thank you. I am going to dismiss the panel. I 
want to thank you for your testimony and for answering the 
questions. If there are further questions of this panel, they 
will be submitted to you in writing. If you could answer those 
in a timely manner so that they can be included in the hearing 
record, the Committee would appreciate that. So thank you.
    I would like to call up our third panel, Mr. Simmons, Mr. 
Dueser, Mr. Vogel and Mr. Bean.
    Thank you very much. Before this panel begins, I wanted to 
take the opportunity to apologize to you on behalf of the 
Committee. I know that you have been here for a long time, and 
I appreciate you being here. I appreciate what you have to 
offer to the Committee.
    Mr. Simmons, we are going to start with you, so if you are 
ready, you may begin.

   STATEMENT OF RANDY SIMMONS, Ph.D., PROFESSOR OF POLITICAL 
        SCIENCE, DEPARTMENT HEAD, UTAH STATE UNIVERSITY

    Mr. Simmons. Thank you. I am a political scientist. I teach 
environmental policy. Occasionally, I teach a course in 
leadership and politics, where I use the Old Testament as the 
text, and I would like to begin by respectfully suggesting that 
whoever wrote Mr. Rahall's comments at the beginning of the 
hearing might ask if the 34th chapter of Ezekiel applies 
equally to mountaintop mining in West Virginia, as it is 
claimed to apply to the Endangered Species Act.
    Having suggested that, let me suggest that any attempt to 
change the Endangered Species Act is difficult because of its 
symbolic value. The act has so many symbolic messages that are 
sent that it is hard to talk about it in any sort of careful 
way, and I appreciate the Committee for attempting to consider 
some practical changes.
    It appears to me that you are trying to accomplish three 
specific things. You are trying to establish some principles. 
The first is peer review; the second is, if not the primacy of 
field data, at least elevating the value of field data in 
comparison to computer modeling; and the third is the 
establishment of a more rigorous process for listing a species.
    The listing process, by the way, I am sure you are aware, 
was dealt with, to some extent, in Mr. Miller's bill in the 
last Congress, and it appears to me that Mr. Miller's process 
lies halfway between the two of you. So somewhere in there, 
there maybe the best way for dealing with the process of 
listing a species.
    Your bills also raise some suggestions about the 
precautionary principle and for questions about what science 
is--what is science and what is policy. I think those are all 
interesting implications. I address all of those in my 
testimony, but rather than deal specifically with what is in 
the testimony, let me talk about wolves in Yellowstone, 
briefly, because it has been suggested as the appropriate 
process to follow.
    The idea of reintroducing wolves in Yellowstone has been 
around for a long time. Some of the most creative thinking that 
has been done about wolves is done by folks at Defenders of 
Wildlife, I believe. Hank Fisher, who is with the Defenders, 
has been incredibly creative in trying to figure out how you 
might reintroduce large carnivores and still have people in the 
landscape, and so I really respect and admire Hank's work, but 
what worries me is the science behind the claims about wolves 
in Yellowstone.
    It has been claimed by the former Director of the Park 
Service that there is little scientific basis for most 
objections being raised to wolf reintroduction. The president 
of the Defenders of Wildlife claim that after the court 
decision that allowed the wolf reintroduction to continue, he 
says, ``The wolf has been given a new lease on life and so has 
the principle that science, not politics, should guide wildlife 
restoration in America.''
    What I am going to suggest is that reintroducing wolves and 
having an Endangered Species Act are noble efforts, but often 
noble efforts are vulnerable to lots of odd human traits, 
including aggressiveness, dogmatism, whatever. And I think what 
happened with wolves is a good example.
    According to the recovery plan, if a minimum of 10 wolf 
packs breed in one recovery area for 3 successive years, the 
wolves in that area will be downlisted from endangered to 
threatened. So you need 10 wolf packs, a breeding pair in each 
wolf pack. You get that for three successive years, and the 
wolves get downlisted.
    Now, according to the Fish and Wildlife Service, the goal 
of 10 breeding pairs in each of three recovery areas was 
established after extensive literature review and consultation 
with a number of U.S. and Canadian biologists and wolf 
researchers. Well, a colleague of mine and I wanted to know who 
did they talk to? What studies did they review? Which experts 
were consulted?
    I had to file a Freedom of Information Act to get that 
information, and the Agency replied, the Fish and Wildlife 
Service said it had ``not contracted or undertaken any studies 
which would deal with minimum viable populations of the 
Northern Rocky Mountain wolf.'' They further said, ``There are 
no records in the files of our Denver Regional Office or the 
Cheyenne Fish and Wildlife Enhancement Office referencing any 
specific materials used in determining recovery numbers.''
    So not contracted or undertaken any studies, and no 
specific materials are in any of their files referencing any 
specific materials used in determining recovery numbers. So 
what we have is wolf recovery reports, wolf population models, 
studies regarding the possible impacts on big game based on 10 
wolf packs, a total of 100 wolves in the recovery goal. But if 
they were determined without any studies that deal with minimum 
populations, without referencing any specific materials in 
determining recovery numbers, those reports, those models, 
those studies are arbitrary.
    And if reintroducing wolves to Yellowstone, as was 
suggested in the last panel, is the appropriate model, there is 
something wrong with that model, and we need to think more 
seriously about what are the appropriate processes for 
establishing science.
    I would just like to end by suggesting that there are other 
things about the Endangered Species Act that I think are really 
important to be addressing, things like what are the incentives 
created for landowners, the ``no surprises'' policy isn't no 
surprises, safe harbors isn't safe harbors. And if the 
Committee doesn't deal with that, I would hope that the 
administration does.
    Thank you.
    [The prepared statement of Mr. Simmons follows:]

    Statement of Randy T. Simmons, Professor of Political Science, 
Department Head, Department of Political Science, Utah State University

    Mr. Chairman, thank you for the opportunity to present my views on 
H.R. 2829 and H.R. 3705. As a political scientist I understand full 
well that even talking about making the slightest changes to the 
Endangered Species Act is going to be seen by many as attempting to 
make changes to holy writ. The symbolic value of the ESA has 
successfully swamped practical considerations about changing the act 
since at least 1992. Now, however, seems a good time to consider some 
practical changes to the way science is used under the ESA.
    Although the two bills under consideration for this hearing have 
somewhat different approaches to the use of science in the listing, 
recovery planning, and consultation processes, they attempt to 
establish some common principles. Those principles are peer review, the 
primacy of field data over computer modeling, and the establishment of 
a more rigorous process for listing a species. These also have 
implications for the use of what has become known as the precautionary 
principle and for questions about what is science and what is policy.
Peer Review
    Peer review can be understood as a form of scientific quality 
control. It is commonly used in the social and natural sciences to 
establish and maintain professional standards. It is a check on the 
exuberance of researchers who might not be satisfied to let the data 
speak for itself. The American political system is based on the notion 
that politics is more likely to achieve good results if there is a 
system of checks and balances. No one is willing to assume that good 
intentions and hard work are enough to produce good political results. 
There must be checks on political exuberance, on good intentions and on 
bad ones. The same is true in science. I believe that most researchers 
mean well and conduct their studies carefully. But they will be more 
careful and more restrained in ``torturing their data'' to meet their 
own preconceptions if they know their work will be reviewed by a set of 
peers. If a good system of peer review is in place, at least two things 
are accomplished: 1) the people doing the initial work are going to 
produce a better, more defensible product, 2) the public and decision-
makers are going to have more confidence in the scientists' work.
    It is important to have a good peer review process in place, not 
just any process. The first consideration in peer review is who chooses 
the reviewers. The Fish and Wildlife Service and National Marine 
Fisheries Service established a peer review process in 1994 that 
appears to have had little effect. But that is the predictable result 
because the FWS and NMFS are selecting the peer reviewers. Under that 
system a rational bureaucrat will select peer reviews from a stable of 
weak or pet scientists who will rubberstamp his or her assessments. For 
peer review to be effective, the ability to select reviewers must be 
removed from the agencies.
    Another consideration is who is going to be the reviewer. H.R. 3705 
places such severe restrictions on who can be a reviewer that finding 
good reviewers may be impossible. H.R. 2829 provides a better process. 
For a workable alternative, the committee may want to look at the 
process the National Academy of Science used to review the Klamath 
Basin issue. The Administration and Congress could have the NAS 
establish a permanent committee to oversee ESA science and have that 
committee prepare periodic assessments.
    One more consideration is whether peer reviews should be anonymous. 
I do not know of data that demonstrate that this is preferable to 
having reviews signed. My preference is that reviewers identify 
themselves so that their reputation stands behind their reviews.
Field Data and Computer Models
    Whether field data should be considered superior to computer 
projections is a contentious issue among endangered species analysts. 
The best example is the conflict over rates of species loss. Some claim 
human actions are causing the sixth great species extinction. Edward O. 
Wilson, for example (1992:280) estimates that in rain forests ``the 
number [of species] doomed each year is 27,000. Each day it is 74, and 
each hour 3.'' Adding possible rain forest extinctions to those that 
may be occurring in the rest of the world leads him to think that, 
worldwide, more than 100 species are going extinct daily. The London 
Zoological Society's internet site, Web of Life (2001), claims that 
``an average of 137 life forms are driven into extinction each day--or 
50,000 a year.'' If such claims are correct, then somewhere between 
one-quarter to one-half of all species will disappear in our lifetimes.
    These claims are based on the species-area relationship, a 
theoretical tool for estimating species loss. It is widely accepted and 
used by biologists and ecologists as a theoretical tool. The problem 
for policy discussions is that the grand predictions of species loss 
are not supported by field data. That is, by counting species that are 
known to have gone extinct, it is not possible to justify claims that 
100 species per day are disappearing. IUCN can only identify about 1000 
extinctions in 400 years. In the 10,000 years before Europeans came to 
North America, just two North American bird species are known to have 
gone extinct, the flightless marine duck and a small turkey. In the 
last 200 years five bird species have been lost. Internationally, the 
documented loss of mammals and birds has increased in the last 150 
years from about one species every four years to one each year (Lomborg 
2001: 254). That is a disturbing number, but far less disturbing than 3 
per hour.
    I am not arguing that computer modeling is inconsistent with doing 
sound science, just that field data may not support the claims made by 
the modelers. Part of the scientific method is to draw conclusions 
about the future based on available information and theories about what 
the information means. As the available information improves or changes 
or theories are modified, the conclusions about the future can then be 
changed. Scientists who base predictions about future species losses do 
just that--they revise their predictions as available information 
changes. What ought to be important for endangered species policy is 
that there is a process in place to make sure that as more field data 
becomes available, it is used to modify policy conclusions.
Improving the Listing Process
    Among the more persistent complaints about the Endangered Species 
Act are claims that there is little rigor in the listing process and 
that landowners are often ambushed as species that occur on their 
property are listed without landowners having adequate opportunity to 
participate in the listing process. These bills address each of these 
issues. First, requiring peer review will make sure that those 
proposing a listing meet the standards of the scientific process. 
Second, by requiring the Secretary to consider data from landowners and 
other affected interests ensures that the Secretary takes more 
information into account.
    H.R. 3705 takes the notice requirements one step further by 
requiring the Secretary to publish the petitions to list species on the 
Internet, publish the receipt of the petitions in a local newspaper in 
the affected area, and notifying the Governor of the affected state. 
H.R. 3705 also creates a review of the Secretary's finding on a 
petition to list or delist a species. These changes would help the 
affected state and landowners by providing them notice and an 
opportunity to present the Secretary with more information, earlier in 
the process. In turn, providing the Secretary with more information 
earlier in the process would help the Secretary to make better 
decisions.
    One improvement in the petition process was included in Mr. 
Miller's H.R. 960 from the 106th Congress. Section 104 of that bill 
improved petition requirements by calling for more information in the 
listing petition. H.R. 2829 could be enhanced by including these 
improvements. H.R. 3705 increases these requirements even more than Mr. 
Miller's bill. While it would be valuable to increase the requirements 
beyond what Mr. Miller called for, the only concern I have is that the 
requirements in H.R. 3705 may be more cumbersome than is necessary.
The Precautionary Principle
    One argument the committee may hear is that taking the time for 
reviewing the science behind agencies' proposed decisions might be 
dangerous. If we are going to err, such arguments go, we should err on 
the side of caution and caution demands moving ahead quickly to protect 
a species that may be in trouble.
    But if we want to exercise caution, it would be useful to know 
which the cautious decision is. For example, environmental groups and 
some agency personnel argued that exercising caution in the Klamath 
Basin meant increasing stream flows down the Klamath. But increasing 
those flows from the reservoir meant that more warm water was added to 
the river, potentially raising the water temperature to higher than 
lethal levels. Which was the cautions thing to do, add the water or 
not? As the NAS has shown, there was no scientific basis for adding the 
water, just the strong feelings of some well-meaning agency 
bureaucrats.
    Sound science requires just that--sound science. Sound science does 
not mean that we act ``cautiously'' when we don't know what ``acting 
cautiously'' means in a given case. As the Klamath situation shows, if 
we act cautiously as some argue, we actually do more harm than good. 
This is neither cautious nor sound.
Science and Policy
    Sound science is also not policy decisions cloaked as scientific 
decisions. One of the aims of these bills is to separate out policy and 
science. It is obvious that the drafters of these bills recognize there 
is a great deal of uncertainty in science and that is why, I believe, 
they want to establish clear, workable review processes--they hope the 
reviews will highlight where the science is relatively certain and 
where it is not certain. That highlighting can help separate science 
from policy. Where the science is relatively clear, the policy choices 
are often relatively clear. But when the science is not clear and a 
choice has to be made anyway, it is important that it is clear that a 
political decision, as opposed to a scientific decision, is being made. 
Again, the Klamath Basin is an example. When the policy was established 
to increase river flows and keep Upper Klamath Lake at high levels, the 
FWS and NMFS claimed these were scientific decisions. The NAS disagrees 
and claims that the decision did not have a substantial scientific 
basis. Agencies must make policy choices, but they should disclose what 
is science and what is policy.
Conclusion
    I thank the Committee for the opportunity to testify on these 
bills. I hope we can make some changes so the ESA will work better for 
species and people alike. I will be pleased to answer any questions.
                                 ______
                                 
    Mr. Pombo. Thank you.
    I believe it is Mr. Dueser?

 STATEMENT OF RAYMOND D. DUESER, Ph.D., PROFESSOR OF FISHERIES 
    AND WILDLIFE, ASSOCIATE DEAN OF THE COLLEGE OF NATURAL 
                RESOURCES, UTAH STATE UNIVERSITY

    Mr. Dueser. Correct, Ray Dueser.
    Good afternoon. It is an honor to be here. I am a professor 
of Fisheries and Wildlife at Utah State University, and I have 
been involved with endangered species work now for the better 
part of the last 20 years. I have served on one recovery team 
and been involved as an advisor to a number of others. So I am 
fundamentally here as a working scientist who has seen the 
Endangered Species Act primarily from the perspective of 
recovery planning and implementation.
    My message today is simply that we need to find a way to 
expand the role of science in the administration and 
interpretation of the Endangered Species Act. The act, as 
written, is expressed in terms of best data available. We have 
heard that referred to several times today. My sense of it is 
that referring simply to best data available is really 
understating the role of science, particularly the ecological 
sciences, in their potential contribution to endangered species 
restoration.
    Science brings more to the table than data. It brings 
principles, it brings theories and hypotheses, it brings 
scientific methods, it brings standards and expectations. How 
do we inject each of these things somewhat more explicitly into 
endangered species restoration? How do we, in fact, bring all 
of science to bear, not just the relatively narrowly focused 
issue of good data?
    The best answer I have come up with to this question really 
focuses on the process of peer review. I know you have heard a 
lot about peer review today. You will probably hear more. Peer 
review is a critical issue. It is the reality check, if you 
will, that we apply to all of the other parts of science, to 
hypotheses, theories, even sampling methods. Peer review is the 
heart of the both basic and applied science. If we can find a 
way to increase the importance, the significance, and the 
application of peer review, we will have gone a long way I 
think toward making the implementation of the Endangered 
Species Act more reliable and a lot more acceptable, if you 
will.
    Frankly, I am a little surprised. I mean, I am not 
surprised in this particular case, but I am disappointed. The 
tone of the bills that we are here to discuss today is fairly 
negative, there is an air of skepticism and almost an air of 
disappointment in these bills. In my own experience, I have to 
say I have seen recovery teams at work. I have seen them work 
very effectively. I would like to suggest that those who are 
really skeptical about the implementation of the Endangered 
Species Act try to spend a couple of days somewhere in a hotel 
with a recovery team. Try to get to see how those folks work, 
see what kind of questions they bring to the table, see what 
the issues are, see what their sensitivities are. I know it is 
not universally true, but certainly in my own experience, the 
level of concern, the level of commitment, and frankly the 
level of expertise that these teams tend to bring to the job is 
really substantial. I think you would find it reassuring to 
observe these folks at work. I think you would find the 
attitudes, the knowledge, the skills, and so forth of these 
people very encouraging, particularly given the constraints 
under which recovery teams operate.
    Having said that, and I know you won't be able to spend a 
lot of time in the room with recovery teams, I understand that. 
It seems that it would be really helpful to know how often 
train wrecks like Klamath Basin actually occur. Probably every 
Member of Congress has a story. I really don't know that, but 
it may well be the case. Certainly, I don't really have that 
understanding. Klamath is a disaster. There is no question 
about that, and I sympathize with the folks out there. The 
folks in the Klamath Basin must feel like they have been 
abandoned by their Government in some ways, and while the 
Government was headed out of town, it sort of took the family 
silver with it.
    But I just don't know how often these kinds of extreme 
events occur. It might be worth the National Academy 
undertaking a study, as a matter of fact, to try to put this 
whole issue in a broader perspective.
    Thank you.
    [The prepared statement of Mr. Dueser follows:]

         Statement of Raymond D. Dueser, Utah State University

GREETINGS AND SALUTATIONS
    Mr. Chairman, Members of the Committee. I am honored to have this 
opportunity to appear before you to speak on the issue of the role of 
science in the implementation of the Endangered Species Act (ESA).
    My name is Ray Dueser. I am a Professor of Fisheries and Wildlife 
and Associate Dean of the College of Natural Resources at Utah State 
University. I am proud to reside in the 1st Congressional District of 
Utah. I am affiliated with a number of professional societies and 
organizations which have publically-stated interests in the re-
authorization of the ESA, and I have worked been engaged in endangered 
species research and recovery since 1984. I have worked with the U.S. 
Fish and Wildlife Service, several State agencies and a host of private 
conservation organizations on issues related to the ESA. I have been 
especially deeply involved with the recovery of the endangered Delmarva 
fox squirrel (Sciurus niger cinereus) on the beautiful Eastern Shore of 
Maryland. Nevertheless, I am here today simply as an informed citizen, 
invited by a member of the Committee, and not as a representative of 
the organizations with which I am affiliated. Any reference to 
positions these organizations may espouse relative to the ESA are based 
on my knowledge as a reader of the scientific literature.
THE ENDANGERED SPECIES ACT OF 1973
    The ESA of 1973 is widely regarded as a landmark piece of 
legislation. The purposes of this Act are:
        ``to provide a means whereby the ecosystems upon which 
        endangered species and threatened species depend may be 
        conserved, to provide a program for the conservation of such 
        endangered species and threatened species, and to take such 
        steps as may be appropriate to achieve the purposes of the 
        treaties and conventions set forth [elsewhere in this Act]'' 
        (16 U.S.C. 1531 et seq.).
    These few words effectively changed how America manages and 
conserves its rich natural heritage of animals, plants and ecosystems.
    To accomplish these far-reaching objectives, the Act provides a 
process for determining whether a species is at risk of extinction, 
removing the ``threats'' that endanger the species, and restoring the 
species to a viable condition. The essential steps in this process 
include: (1) identifying and listing ``threatened'' and ``endangered'' 
species of animals and plants on the basis of their risk of extinction, 
(2) designating the ``critical'' habitat required for the survival of 
the species, (3) providing immediate protection against acts that would 
further jeopardize the species, (4) developing and implementing a plan 
for the recovery of the species to a viable condition, and ultimately 
(5) ``delisting'' the species when the threat of extinction has been 
reduced (Carroll 1996). The strict provisions of the Act vest 
substantial regulatory and enforcement powers with the Fish and 
Wildlife Service (FWS) of the U.S. Department of the Interior (for 
terrestrial and freshwater species) and the National Marine Fisheries 
Service (NMFS) of the U.S. Department of Commerce (for marine and 
anadromous species).
    In formulating this Act, Congress required that all decisions made 
under the ESA be based ``... solely on the basis of the best scientific 
and commercial data available ...'' [Section 4. (b), emphasis mine]. 
Science and scientific data have thus served to inform ESA decision-
making from the very beginning. This strong reliance on scientific data 
is meant to ensure the factual basis, objectivity and reliability of 
decisions regarding the status of species, their critical habitats and 
their risk of extinction.
THE SCIENTIFIC UNDERPINNINGS OF THE ESA
    The first wide-ranging review of the scientific principles 
underlying the ESA was motivated by a 1992 letter from the leaders of 
Congress to the Chairman of the National Research Council (NRC). The 
Congress requested that the NRC convene a ``Committee on Scientific 
Issues in the Endangered Species Act'' to study several scientific 
matters related to the ESA (NRC 1995). The distinguished membership of 
this Committee represented expertise in ecology, systematics, 
population genetics, wildlife management, risk and decision analysis, 
ESA legal and legislative history, economics, and the implementation of 
the ESA from both public and private perspectives. The Committee was 
asked to review a host of thorny scientific issues and how they relate 
to the ESA. These issues included the species concept, conservation 
conflicts between species, the role of habitat conservation, recovery 
planning, risk analysis and decision-making under uncertainty, and 
issues of timing in the ESA decision-making process
    The overall conclusion of this wide-ranging review was that ``... 
the ESA is based on sound scientific principles'' (NRC 19995:4). 
Indeed, this review stands today as one of the clearest summaries of 
the scientific underpinnings of the ESA.
THE ROLE OF SCIENCE IN ESA IMPLEMENTATION: A SELF-CONSCIOUS REVIEW
    The ESA has emerged over the past quarter century as a public 
policy lightening rod. This act provides a ``voice'' for the animals, 
plants and ecosystems of America, and for those citizens who value 
natural diversity as a core element of the American heritage. In doing 
so, however, it frequently creates conflict over the enforcement of the 
public's will in a society founded on the core concept of individual 
rights. This is particularly true when conflicting demands are made on 
a shared public resource such as water or timber and when the public's 
interest in the survival of a species somehow constrains the use of a 
privately-owned resource such as land.
    Despite the intended reliance of the ESA on a strong foundation of 
science, there has emerged on multiple fronts over the past several 
years the realization that the scientific base for ESA implementation 
should be both broader and deeper. For example, many of the 
professional and scientific societies whose members are involved with 
endangered species research and recovery have taken a self-conscious 
approach to assessing and enhancing the value of their science to 
recovery planning and implementation. Similarly, the academic and 
research community recently has undertaken several large-scale, 
scholarly reviews designed to identify both the realized and potential 
contributions of ecological science to endangered species recovery.
    The Ecological Society of America in 1992 established an ad hoc 
Committee on Endangered Species to ``... undertake an analysis of how 
scientific information could be used more effectively to assist in the 
preservation of the Nation's biological resources'' (Carroll et al. 
1996:2). The Committee found that ecological science might be used more 
effectively in the listing process, the establishment of recovery 
priorities, and the delisting process. Among the Committee's 
suggestions were three based directly on advances in ecological science 
that post-dated the passage of the ESA in 1973:
    (1) LRevise the scientific guidelines for setting priorities in the 
listing process to include (A) the ``inclusive benefits'' afforded by 
the protection of a species, (B) the ecological role played by a 
species in a community, (C) the ``recovery potential'' of a species, 
and (D) taxonomic distinctness.
    (2) LExpand the use of ``population viability analysis'' to (A) 
examine the prospects for a species' recovery in a variety of 
biological-environmental contexts, (B) identify alternative ways to 
recover and sustain a species, perhaps at different economic and/or 
social costs, and (C) improve the odds of success for recovery plans.
    (3) LIncrease the likelihood of successful recovery by (A) 
spreading the risk and (B) planning and acting expeditiously.
    Carroll et al. (1996) were generally encouraged by the obvious 
influence of ecological science on the implementation of the ESA up to 
that time, and were optimistic about the potential contributions yet to 
be made.
    The academic and research community recently focused close scrutiny 
on the Habitat Conservation Plan (HCP) concept within the ESA. 
Introduced through amendment of the ESA in 1982, the HCP is essentially 
a land use plan that allows a non-federal landowner to obtain an 
``incidental take permit'' for a listed species in exchange for making 
conservation commitments on that land. The HCP is intended to minimize 
and mitigate the taking. This take permit authorizes a landowner to 
carry out specified development activities on the land, even if those 
activities alter protected habitat or otherwise harm (``take'') 
threatened or endangered species. The HCP concept was developed as a 
means of reducing the level of tension between the FWS and private-
sector landowners. Given the rapid proliferation in both the number of 
approved HCPs and the cumulative acreage represented by these 
agreements, questions arose in the mid-1990s about both the scientific 
basis of HCPs and the effectiveness of the HCP as a recovery and 
conservation tool (James 1999).
    The American Institute of Biological Sciences (AIBS) and the 
National Center for Ecological Analysis and Synthesis (NCEAS) recently 
collaborated on a critical review of 208 HCPs written and approved in 
compliance with the ESA. A more detailed analysis was applied to a 
representative subset of 43 HCPs. This review was undertaken, among 
other reasons, to ``... identify ecological theory and methods that can 
be applied to strengthen the design, management and monitoring of HCP 
areas'' (Kareiva 1997). The final report was posted on the NCEAS Web 
site in January 1999 (Kareiva et al. 1999). The major finding was that 
many of the HCPs recommended conservation actions that were not 
supported by the ``best available data.'' While using the ``best 
available data'' may have justified an HCP legally (and politically), 
that data still may not have been sufficient to support the approved 
management actions. Sufficient supporting data simply did not exist in 
many cases. Insufficiency took a variety of forms, including the lack 
of information about current status and population trends, the absence 
of quantitative estimates of the proposed ``take'' of the species or 
its habitat, and the lack of information about the likely efficacy of 
proposed mitigation strategies.
    Given this finding, Kareiva et al. (1999) made a host of 
recommendations for improving the HCP agreement process, including:
    (1) LImportant data gaps should be acknowledged explicitly in the 
HCP. The uncertainty resulting from these gaps may, in some cases, be 
offset by more stringent mitigation requirements.
    (2) LManagement and monitoring should be viewed as an exercise in 
``adaptive management'' (Walters 1986), in which management and 
monitoring are designed to provide feedback (and possible corrective 
insights) into future management decisions.
    (3) LProposed HCPs should be reviewed by independent, qualified 
advisory panels.
    Amendments that were made to the FWS habitat conservation planning 
handbook in the months after release of Kareiva et al. (1999) 
incorporated many of these recommendations, and thereby significantly 
improved the HCP process.
    The ESA stipulates the development of a recovery plan for most 
threatened and endangered species. This plan then guides decision-
making related to the recovery program and directs the actions of 
managers in the implementation of the program. Through a collaborative 
effort supported by the Society for Conservation Biology, the FWS and 
NCEAS, Boersma et al. (2001) undertook an extensive systematic review 
of a random subset of recovery plans for the 931 listed species for 
which the FWS was responsible in 1998. This large sample, representing 
nearly 20% of the listed species for which a recovery plan had been 
approved at that time, included 85 plant and 96 animal species; 100 
single-species, 29 multiple-species, and 6 ecosystem recovery plans; 
and 68 species plans which had been revised at the time of the review 
and 113 plans which had not been revised. Boersma and a team of 325 
researchers drawn from the ranks of faculty, post-docs and graduate 
students at 19 universities exhaustively reviewed the selected plans 
for a long list of attributes such as plan length, length of time 
between listing and plan completion, number and composition of 
individuals on the recovery team, and number of species included in the 
plan. They also scored each plan for scientific content based on 
factors such as the amount of biological and natural history 
information available for the species, prescribed management actions, 
monitoring protocols, and recovery criteria.
    Boersma et al. (1999) used the FWS ``trend'' category for each 
species as an index of recovery plan effectiveness. Each species was 
classified as improving, stable, declining, extinct or unknown. These 
data were then used to test four principal hypotheses:
    (1) LRevised plans would be more effective than unrevised plans.
    (2) LPlans developed by a diverse group of authors would be more 
effective than those written only by Federal agency employees.
    (3) LPlans in which recovery criteria were explicitly linked to a 
species biology would be more effective than those lacking such links.
    (4) LMulti-species plans would be more effective than single-
species plans, because they incorporate a broad view of threats and 
tend to be more integrative.
    Analysis of this massive and complex data set yielded several 
general results and more than a few surprises:
    (1) LRecovery plans tend not to improve in effectiveness with 
revision.
    (2) LParticipation of non-federal team members in plan development 
seems to have a positive influence on plan effectiveness.
    (3) LThe value of linking recovery goals to species biology is less 
clear-cut than expected, but nonetheless important for effective 
recovery planning.
    (4) LMulti-species plans tend to be less effective than single-
species plans.
    (5) LManagement tends not to be monitored sufficiently to determine 
whether it is working, effectively precluding the use of adaptive 
management as a recovery protocol.
    (6) LRecovery plans typically take too long to write, delaying the 
implementation of management.
    (7) LPlan length is not a good predictor of plan effectiveness.
    Overall, the results reported by Boersma et al. (2001) tended to be 
more ambiguous than was anticipated. They nevertheless confirmed the 
value of using sufficient, defensible data in recovery planning, 
implementation and monitoring. The authors concluded with a call for 
increased reliance on adaptive management in the revision of recovery 
plans, the inclusion of diverse perspectives and viewpoints in the 
recovery planning process, close linkage between species biology and 
recovery goals, and close monitoring of multi-species recovery plans. 
They repeatedly call for the incorporation of more, better and relevant 
science in recovery planning.
    An even more extensive analysis and synthesis of this data set has 
been completed by Hoekstra et al. (In press), and will be published in 
June 2002, as an issue of the journal Ecological Applications. I have 
seen the abstracts, but not the manuscripts for this set of papers. 
Review of even the abstracts confirms the creative commitment of the 
academic and research community to expand the role of sound--i.e., 
reliable, relevant and sufficient--science in conservation management. 
Publication of this volume no doubt will represent an historic 
benchmark in the evolution of ecological science as a self-conscious 
servant of public policy.
WHEN SCIENTIFIC WORLDS COLLIDE: A TRAGIC CASE STUDY
    The recent experience of the resource managers and citizens of the 
Klamath River Basin (KBR) of southern Oregon illustrates what can 
happen when scientific worlds collide. The water resources of the Basin 
are managed by the U.S. Bureau of Reclamation (BOR), while the 
threatened and endangered fish of the Basin are managed (protected) by 
the FWS (shortnose sucker and Lost River sucker) and the NMFS (Southern 
Oregon/Northern California Coasts coho salmon), under the ``best 
science available'' administrative and regulatory requirements of the 
ESA. A sequence of decision-making occurred within and among these 
agencies in 2001 that ultimately precipitated both a management tragedy 
in the form of shaken public confidence and a human tragedy in the form 
of economically and socially stressed communities. Without wishing to 
offend by brevity, I will attempt to summarize the essential facts (as 
I have received them) in a few sentences.
    In January 2001, the BOR issued a biological assessment that 
operation of the Klamath Basin (Water) Project would be harmful to the 
welfare of the threatened coho salmon without specific constraints on 
stream flows in the Klamath River. The BOR then proposed relatively low 
monthly minimum flows for 2001. In April 2001, the NMFS issued a 
biological opinion that operation of the Klamath Project as proposed by 
the BOR would place the coho salmon in jeopardy. The NMFS then 
formulated a reasonable and prudent alternative (RPA) incorporating, 
among other things, monthly minimum flows in the Klamath River higher 
than those proposed by the BOR.
    Similarly, in February 2001, the BOR issued a biological assessment 
that operation of the Klamath Project would be harmful to the welfare 
of the endangered suckers without specific constraints on water level 
in the Klamath lakes. The BOR proposed to operate the lakes at very low 
monthly elevations. In April 2001, the FWS issued a biological opinion 
that operation of the Project as proposed by the BOR would place the 
coho salmon in jeopardy. The FWS then formulated an RPA incorporating, 
among other things, monthly lake levels higher than those proposed by 
the BOR.
    In meeting its statutory responsibilities to provide water to its 
users, the BOR proposed to operate with low lake levels, low flows and 
significant irrigation diversions. In meeting their own statutory 
responsibilities to enforce the ESA in the protection of threatened and 
endangered fish, the FWS and NMFS proposed to operate with high lake 
levels, high flows and reduced diversions. The FWS and NMFS biological 
opinions and RPAs prevailed, and water management in the Basin was 
changed for 2001. No irrigation water was provided to farmers for the 
2001 growing season. To further complicate matters, 2001 was a year of 
historic drought in the Basin.
    Recognizing the benefits of stringent peer review of scientific and 
technical judgements, the Departments of the Interior and Commerce 
jointly requested an NRC review of ``... the scientific basis for the 
biological opinions that resulted in changes of water management for 
year 2001'' (NRC 2002:xi). The NRC recently issued an interim report on 
the matter in which it found, among other things, that:
    ``... all components of the biological opinion issued by the USFWS 
on the endangered suckers have substantial scientific support except 
for the recommendations concerning (higher) minimum water levels for 
Upper Klamath Lake (emphasis mine)'' (NRC 2002:2).
    ``... there (also) is no scientific basis for operating the lake at 
mean minimum levels below the recent historical ones (1990-2000), as 
would be allowed under the USBR proposal'' (NRC 2002:3).
    ``... (there is no) clear scientific or technical support for 
increased minimum flows in the Klamath River main stem'' (NRC 2002:3).
    ``... reduction in main-stem flows, as might occur if the USBR 
proposal were implemented, cannot be justified'' (NRC 2002:3).
    The interim NRC report thus concluded that there was no substantial 
scientific basis for either maintaining higher lake levels for the 
endangered suckers or maintaining higher minimum river flows for the 
threatened coho. The report also concluded that there was no 
substantial scientific basis for the USBR proposals to maintain both 
lower lake levels and lower river flows. With respect to minimum lake 
levels and minimum river flows, both sides in the dispute were 
operating without strong scientific support. Important elements of the 
RPAs stipulated by the FWS (high lake levels) and the NMFS (high river 
flows) were without sufficient scientific support. In reality, the 
position of the BOR (low lake levels and low river flows) also were 
without sufficient scientific support--but the FWS and NMFS RPAs had 
priority.
    The outcome for the Klamath Basin was an economic nightmare. But 
from the perspectives of the agency parties involved, each was trying 
to meet its mandate: more water for people (BOR), more water for lake 
fish (FWS), and more water for river fish (NMFS). Each of these 
agencies behaved in a risk-averse manner from its own perspective, 
seeking to maximize the gain (and minimize the risk) for its 
constituents. BOR wanted to ensure plenty of water for irrigators--so 
it proposed to maintain uncommonly low lake levels and river flows. FWS 
wanted to ensure plenty of water for its lake fish--so it proposed to 
maintain unusually high lake levels. NMFS wanted to provide plenty of 
water for its river fish--so it proposed to maintain unusually high 
stream flows. And all of this occurred in a year of abnormally low 
water availability!
    Final resolution of this controversy awaits further review by the 
NRC committee. Nevertheless, this incident already has precipitated 
intense public scrutiny of the reliance on ``the best science 
available'' in the implementation of the ESA, including the listing, 
recovery and downlisting sections of the law. Others on this panel are 
more qualified than I to comment on the details of the biological 
assessments, biological opinions and NAS review involved in this 
particular case. The recent release of the Final Biological Assessment 
by the BOR (USBR 2002) strongly suggests that constructive steps are 
being taken to formulate--based on the best science available--a more 
balanced approach to resource management in the Klamath Basin.
CONGRESS' OWN SEARCH FOR SOUND SCIENCE
    In the meantime, there is substantial interest in this case even 
within this Committee. The letter inviting me to testify indicated that 
the hearing would concern two proposed amendments to the ESA--H.R. 2829 
introduced by Mr. Walden of Oregon and H.R. 3705 introduced by Mr. 
Pombo of California--which are intended to enhance the role of 
scientifically credible data, independent peer-review and public 
involvement in the implementation of the ESA. I have neither 
legislative experience nor legal training. There undoubtedly are fine 
points and nuances in the subject bills that elude me. With this 
caveat, I have nevertheless tried to review these bills from the 
perspective of a working scientist with some ESA experience. As I read 
it, H.R. 2829 would:
     (1) Lrequire the Secretary of the Interior, when evaluating 
otherwise comparable data, to ``... give greater weight to scientific 
or commercial data that is empirical or has been field tested or peer-
reviewed,''
     (2) Lrequire the Secretary to establish (written) criteria for the 
admissibility of scientific and commercial data to be used in a listing 
determination,
     (3) Lrequire the submission of ``... data obtained by observation 
of the (candidate) species in the field ...'' prior to a status 
determination,
     (4) Lmandate both the ``acceptance'' of landowner-provided data on 
the status of a species and the inclusion of this data in the record 
for any status determination,
     (5) Lrequire the Secretary to publish ``... a description of 
additional scientific and commercial data that would assist in the 
preparation of a recovery plan,''
     (6) Lrequire the Secretary to solicit the submission of such data 
by any interested party, and describe any plans ``... for acquiring 
additional data,''
     (7) Lrequire the independent, scientific review of any proposed 
listing, delisting, recovery plan, jeopardy opinion or RPA decisions 
rendered by the Secretary,
     (8) Lrequire the evaluation and consideration of any such 
independent, scientific reviews in a final determination
     (9) Lrequire the Secretary to actively solicit and consider 
information provided by States in any Section 7 consultation, and
    (10) Lensure the right of ``... any person who has sought 
authorization or funding from a Federal agency for an action that is 
the subject of the consultation'' to be fully informed about (and 
throughout) the process.
    Similarly, as I read H.R. 3705, it would:
     (1) Lmandate the basic types of scientific information to be 
included in a petition,
     (2) Lrequire that the Secretary acknowledge receipt of such a 
petition, and provide public notice of the petition to each landowner 
possibly affected by the petition and to the Governor of each State 
possibly affected by the petition,
     (3) Lrequire the independent, scientific review of petitions and 
findings regarding petitions, including review of ``... the sufficiency 
of all relevant scientific information and assumptions in the petition 
relating to the taxonomy, population models, and supportive biological 
and ecological information ...''
     (4) Lrequire the independent, scientific review of ``Whether the 
methodology and analysis supporting (a) petition meet the standards of 
the academic and scientific community'' and ``Whether the petition is 
supported by clear and convincing evidence ... that the petitioned 
action may be warranted,''
     (5) Lrequire the appointment and convening of a review board to 
conduct an independent, scientific review of any finding issued by the 
Secretary,
     (6) Lrequire full public disclosure of the findings of the 
independent review board, any points of disagreement between the 
Secretary and the board, and the basis for resolution on any such 
disagreement,
     (7) Lrequire an independent review of jeopardy opinions issued by 
the Secretary, and
     (8) Lstipulate that any species for which a petition (for listing 
or delisting) has been declined ``... may not be considered (again) by 
the Secretary for one year.''
    Both of these bills emphasize increased use of ``good'' (i.e., 
relevant and reliable) and sufficient science in ESA decision-making, 
enlarge the role of peer review in the evaluation of ESA decisions, 
increase the amount of public disclosure about the decision-making 
process, and increase Federal-State consultation. Both would provide 
for greater scientific and public scrutiny of the ESA process, and both 
would appear to set a demanding performance standard for the Secretary 
of the Interior. Each of these changes has the potential to improve the 
operation of the ESA in significant ways.
    On the other hand, these improvements would come at some real cost 
of bureaucracy, time delays and expense. Given the volume of review and 
comment already required for ESA implementation each year, and the 
apparently significant expansion of review called for in these bills, 
the expense of administering the ESA is likely to go up dramatically. 
Furthermore, the plan to compensate decision reviewers with cash 
payments would produce another substantial new expense. Without an 
accompanying increase in budgets, these requirements will reduce the 
amount of funding available for actually implementing recovery. These 
bills have the potential to harm recovery programming in the absence of 
new funding.
    Furthermore, as I understand them, each bill prompts several 
specific questions and comments. For example, would the requirement in 
H.R. 2829 that the determination of threatened or endangered status be 
``... supported by data obtained by observation of the species in the 
field--preclude the reintroduction of an extirpated species that might 
not have been seen in a region for 50 years or more? Also, what are the 
implications of the proposed requirement that landowner-provided data 
about the status of a species on the land be included in the rule-
making process? Not all ``data'' represents information. The 
information content of ``data'' often is determined significantly by 
the sampling protocol and procedure(s) by which the ``data'' was 
obtained in the first place. Also, is the call in both bills for 
increased reliance on the use of ``empirical data'' a procedure for 
minimizing the role of analytical and simulation models in the decision 
process? (Often, such models are the only way to integrate complex data 
into a simplified but realistic description of overall system 
behavior.) Finally, in H. R. 3705, the disqualification for service on 
review boards of anyone ``who is, or has been, employed by or under 
contract to the Secretary or the State in which is located the 
(subject) species'' would have the effect in most cases of eliminating 
any and all otherwise ``qualified'' individuals.
    It is gratifying to see the members of the Congress and the members 
of the academic and research community both so deeply engaged in the 
search for ways to make to science--meaning scientific data, scientific 
principals and scientific reasoning--increasingly relevant to the 
administration and implementation of the Endangered Species Act. The 
ESA merits no less than our combined best efforts. Thank you for your 
consideration.
PARTIAL LIST OF REFERENCES
    Kareiva, P. 1997. Habitat conservation planning for endangered 
species. National Center for Ecological Analysis and Synthesis. < 
www.nceas.ucsb.edu/nceas-web/projects/97KAREI2-org>.
    Kareiva, P. et al. 1999. Using science in habitat conservation 
plans. National Center for Ecological Analysis and Synthesis. 
www.nceas.ucsb.edu/nceas-web/projects/hcp>.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mr. Vogel?

 STATEMENT OF DAVID VOGEL, SENIOR SCIENTIST, NATURAL RESOURCES 
                        SCIENTISTS, INC.

    Mr. Vogel. Mr. Chairman and members of the Committee, thank 
you for the opportunity to testify at this important hearing. 
My name is David Vogel, and I am here to support H.R. 2829 and 
H.R. 3705 because concepts in these bills will significantly 
improve the scientific integrity and implementation of the 
Endangered Species Act.
    I am a fisheries scientist who has worked in this 
discipline for the past 27 years, including 15 years with the 
U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service. I have been extensively involved in ESA 
issues, including research on threatened and endangered 
species, listing of species, Section 7 consultations, 
biological assessments, biological opinions and recovery 
planning.
    Mr. Chairman, I only have two points to make here today: 
First, to point out where and how some aspects of the ESA can 
damage scientific implementation of the act and, last, how this 
serious problem can be rectified through peer review and 
placing greater weight on empirical, instead of theoretical, 
information.
    The most recent, prominent example where the ESA process 
went awry occurred last year in the Klamath Basin. When I 
started working on endangered species issues in this region 
more than 10 years ago, the ESA process was open and dialog 
occurred among all parties. It allowed for scientific data, and 
information exchange and technical input from all individuals. 
However, over time, the process became closed. This resulted in 
a series of actions where only selected information and 
individuals were included in the formulation of two biological 
opinions that cutoff water to the Klamath project. Other highly 
relevant scientific information was either overlooked or 
ignored.
    Additionally, the agencies gave greater weight for 
theoretical information to support an assumption for high lake 
levels and high reservoir releases without acknowledging 
empirical data that did not support their premise.
    As you know, a recent National Academy of Sciences' review 
of those opinions concluded, among other findings, that there 
was insufficient scientific justification to support the Fish 
Agency's assumptions on lake levels and reservoir releases. 
Notably, the Academy's 12 committee experts were unanimous in 
their conclusions on both biological opinions.
    The ESA allows one individual to essentially serve as judge 
and jury. This process permits the following undesirable 
scenario: An inexperienced individual has a speculative idea 
that evolves into an assumption. Over time, that assumption 
turns into a fact. Ultimately, the presumed fact becomes a 
mandate under the Endangered Species Act. In my experience, 
once this occurs, it is next to impossible to change.
    A more rigorous scientific approach is essential for the 
welfare of species. It would allow for the development of 
scientific alternatives that, in my experience, will lead to 
innovative measures to avoid impacts to listed specie and, more 
importantly, develop proactive actions for improving habitats 
and increasing populations.
    Without question, there is uncertainty in science. However, 
peer review will, at a minimum, disclose what is known and what 
is not known when empirical data are not available. This can 
culminate into the most well-informed resource management 
decisions. Too often the doubtfulness is not revealed in the 
present-day ESA process. Scientific debate is not only common, 
but is expected and must occur in order for our knowledge to 
advance.
    I would like to emphasize that peer review is used in other 
Government work on natural resources. For example, I have been 
performing multidisciplinary research for CALFED, a 
collaborative effort among 23 State and Federal agencies to 
improve water supplies and the health of the ecosystem in 
California. Peer review of my work and the work of many others 
for CALFED is mandatory. Why should it be any different with 
the ESA, when the natural resource ramifications are greater 
and more global? At the very least, peer review will elevate 
ESA technical issues to a higher scientific standard of quality 
and instill greater confidence in the decisions.
    In conclusion, the existing ESA does not ensure sufficient 
and balanced scientific input. These circumstances can, and do, 
work to the detriment of the Endangered Species Act. This 
problem can be rectified through peer review and placing 
greater weight on empirical, instead of theoretical, 
information. Good science will lead to good policy, and because 
science is constantly evolving, so should policy.
    These bills will ensure that the Endangered Species Act 
progresses with science to the ultimate benefit of fish and 
wildlife resources.
    Thank you.
    [The prepared statement of Mr. Vogel follows:]

   Statement of David A. Vogel, Senior Scientist, Natural Resources 
                            Scientists, Inc.

    Mr. Chairman and members of the Committee, thank you for the 
opportunity to testify at this important hearing. My name is David 
Vogel. I am a fisheries scientist who has worked in this discipline for 
the past 27 years. I earned a Master of Science degree in Natural 
Resources (Fisheries) from the University of Michigan in 1979 and a 
Bachelor of Science degree in Biology from Bowling Green State 
University in 1974. I previously worked in the Fishery Research and 
Fishery Resources Divisions of the U.S. Fish and Wildlife Service 
(USFWS) for 14 years and the National Marine Fisheries Service (NMFS) 
for 1 year. During my tenure with the Federal Government, I received 
numerous superior and outstanding achievement awards and commendations, 
including Fisheries Management Biologist of the Year Award for six 
western states. For the past 12 years I have worked as a consulting 
scientist on a variety of projects on behalf of Federal, state, and 
county governments, Indian tribes, and numerous other public and 
private groups. During my career, I have been extensively involved in 
Endangered Species Act (ESA) issues including research on threatened 
and endangered species, listing of species, Section 7 Consultations, 
Biological Assessments, Biological Opinions, and recovery planning. I 
have been a long-time supporter of the fundamental principles of the 
ESA.
    Mr. Chairman, I am here to enthusiastically support H.R. 2829 and 
H.R. 3705 because these bills will significantly improve the scientific 
integrity and implementation of the ESA. First, providing peer review 
when necessary is a proactive approach to prevent the probability of 
faulty decisions that may be unbeneficial, if not harmful, to species. 
Second, giving greater weight to empirical information (as compared to 
theoretical) will increase the probability that the best possible 
decision is made when it comes to the welfare of fish and wildlife 
species. These two measures described in the bills will result in 
substantive improvements and instill greater confidence in future ESA 
actions.
The ESA Scientific Process: When It Works and When It Does Not
    During my career, I have observed many examples of when the ESA 
process is effective and when it is not effective. I have had extensive 
involvement with both USFWS and NMFS implementation of the ESA and have 
seen successes and failures. I have observed examples where the lack of 
outside input and insufficient emphasis on empirical data served to 
undermine the ESA process. The most recent, prominent example took 
place in the Klamath basin. When I started working on endangered 
species issues in this region more than 10 years ago, the ESA process 
was open and dialogue occurred among all parties. Scientific data and 
information were exchanged and the ESA process allowed for technical 
input from all individuals. However, over time the process became 
closed. This culminated into a series of ESA-based actions where only 
selected information and individuals were included in the formulation 
of the two final Biological Opinions that cut off water to the Klamath 
Project in 2001. Only certain information was used by the USFWS and 
NMFS and additional relevant science-based information was either 
overlooked or ignored. The agencies gave greater weight to theoretical 
information to support an assumption for high lake levels and high 
reservoir releases without acknowledging empirical data that did not 
support their premise. As you know, a recent National Academy of 
Sciences' (NAS) review of the 2001 Klamath Biological Opinions 
concluded (among other findings) that there was insufficient scientific 
justification to support USFWS's demand for higher-than-historical lake 
levels for two species of endangered suckers and NMFS's demand for 
higher-than-historical reservoir releases for threatened coho salmon. 
Notably, the NAS committee members were unanimous in their conclusions 
on both Biological Opinions.
    In my experience, a common factor in all instances where the ESA 
process worked effectively has been when the process was open, 
constructive, and collaborative. The Federal employees sought input 
from knowledgeable scientists and stakeholders both within and outside 
the government on all sides of the issues. Sometimes scientific debate 
ensued, but the process improved the agency's decision-making 
abilities. This open method worked not only to the benefit of 
potentially affected parties, but also the listed species. This works 
well because many individuals within USFWS and NMFS do not have all the 
information and expertise necessary to make the most appropriate 
decisions and ensure the welfare of species. Simply because an 
individual works for the Federal Government does not guarantee his or 
her scientific authority on fish and wildlife. Commonly, the Federal 
agencies have people with little or no practical field experience in 
administering the ESA. Having worked within the USFWS and NMFS for 15 
years, I believe these two Federal agencies need all the technical 
assistance they can get. I have worked with many outstanding credible 
biologists. Conversely, I have observed many inexperienced biologists. 
Additionally, I have seen a high turnover rate in some Federal offices 
resulting in the agency losing their most knowledgeable staff. Peer 
review would provide these agencies with that necessary technical 
assistance, if needed. Why wouldn't biologists in these agencies be 
expected to effectively use the best available scientific information 
and perspectives? The current ESA does not ensure this situation; H.R. 
2829 and H.R. 3705 will. Good science and the best application of 
accepted scientific principles demand diversity in perspectives and 
opinions, as well as data/information input from more than sources who 
are ``like-minded''.
Benefits of Peer Review and Empirical Data
    Inserting peer review into the ESA process is an overdue concept. 
Furthermore, providing greater weight to empirical, instead of 
theoretical, information makes sense. These are good measures, not bad, 
for fish and wildlife resources. The lack of application of good 
scientific principles in ESA processes can serve to the detriment of 
these resources. A more rigorous scientific approach is essential for 
the ESA. It allows for the development of scientific alternatives that, 
in my experience, will lead to innovative measures to avoid impacts to 
listed species, and, importantly, develop proactive actions for 
improving species habitats and increasing the populations.
    Selective, one-sided use of information is inappropriate in the ESA 
process. In some recent ESA procedural actions, one-sided information 
was used whereas alternative information was overlooked, ignored, or 
casually dismissed. The existing process allows one individual to 
essentially serve as judge and jury. Peer review will provide balance 
and fair treatment of all information. This is particularly important 
when other valid, relevant empirical data are available. When the 
stakes and ramifications are high on both sides of an issue, peer 
review becomes all the more important. Peer review will also insulate a 
Federal employee from outside pressure that could influence the 
individual's actions in an improper direction. This latter example 
points out the fact that it is necessary to protect these people from 
``peer-pressure'' science and engage peer-review science.
    Although scientists are supposed to be the most-demanding critics 
of their work, they sometimes succumb to their strong belief in a 
particular hypothesis. When this occurs, the scientist becomes attached 
to that belief and acquires a parental affection to his or her 
hypothesis. Sometimes the affection is so strong, the individual 
overlooks or ignores empirical data that is contrary to the person's 
belief. In this context, the existing ESA process permits the following 
undesirable scenario: an inexperienced individual administering the ESA 
has a speculative idea that evolves into an assumption. Over time, that 
assumption turns into a fact. Ultimately, the presumed fact becomes a 
mandate under the ESA. In my experience, once this occurs, it is next 
to impossible to change. Such circumstances can be prevented with 
appropriate peer review and better use of empirical information instead 
of conjecture or theories.
    There is uncertainty in science. Peer review will, at a minimum, 
disclose what is known (placing the greatest weight on empirical data) 
and what is not known when empirical data are not available. This can 
culminate into the most-well-informed resource management decisions. 
Too often the doubtfulness is not revealed in the present-day ESA 
process or is inappropriately veiled behind the over-used phase, ``the 
best available information''. Scientific debate is not only common, but 
is expected and must be part of the process in order for our knowledge 
to advance and not remain stagnant. The scientific basis or validity of 
decisions under the ESA will be improved with these bills.
    Peer review is common in many other forums of government work on 
natural resource issues. For example, I have been performing multi-
disciplinary research for CALFED in the Central Valley of California. 
CALFED is a collaborative effort among 23 state and Federal agencies to 
improve water supplies in California and the health of the San 
Francisco Bay-Sacramento-San Joaquin River Delta watershed. Peer review 
of my work and the work of many others for CALFED is mandatory. Why 
should it be any different with implementation of the ESA when the 
natural resource ramifications are greater and more global?
    I want to emphasize that peer review is not necessary for each and 
every ESA action. The legislation could specify thresholds of potential 
ESA procedures that would require peer review based on factors such as 
calculated risks to the species, potential economical impacts, 
petitions by affected or concerned individuals, etc.
    Additionally, it is important to recognize that instances will 
arise where some individuals on either side of a controversial ESA 
issue will not agree with the outcome of peer review. But at the very 
least it will elevate technical issues in the ESA to a higher 
scientific standard of quality and instill greater confidence in the 
decisions. I have never heard anyone say that peer review is enjoyable, 
but I firmly believe it is necessary for the advancement of science and 
the welfare of the species.
Conclusion
    In conclusion, many future errors in implementing the ESA could be 
minimized through a proper peer review of the agencies' rationale for 
their actions and by placing greater weight on empirical, instead of 
theoretical, information. However, it is imperative that the execution 
of peer review not be made into a facade of ``like-minded'' individuals 
or agencies promoting or protecting their hypotheses, policies, or 
positions. Data must be examined with clear objectivity using widely 
accepted, fundamental scientific principles. Agency policies and 
positions are not part of the objective equation or scientific process. 
Good science will lead to good policy and because science is constantly 
evolving, so should policy. H.R. 2829 and H.R. 3705 will ensure that 
the Endangered Species Act progresses with science to the ultimate 
benefit of fish and wildlife resources.
                                 ______
                                 
    Mr. Pombo. Thank you.
    Mr. Bean?

    STATEMENT OF MICHAEL BEAN, CHAIRMAN, WILDLIFE PROGRAM, 
                     ENVIRONMENTAL DEFENSE

    Mr. Bean. Thank you, Mr. Pombo and Mr. Walden. I appreciate 
the time you have spent today listening to testimony. I 
appreciate your interest in this topic.
    I am Michael Bean. I am the Chairman of the Wildlife 
Program of Environmental Defense. I have, for the last 25 
years, been deeply involved in endangered species issues as a 
nonscientist working very closely all of that time with many 
scientists.
    I have also had the pleasure of serving as a member of the 
Board on Environmental Studies and Toxicology of the National 
Academy of Sciences, the board which was one of the two boards 
under whose auspices the recent Klamath study was done and the 
board under whose auspices the 1995 study on science and the 
Endangered Species Act was done. I have also served on a number 
of study committees for the National Academy of Sciences.
    I very much share the view that decisionmaking under the 
Endangered Species Act should be inclusive. The Fish and 
Wildlife Service should reach out for input from other 
scientists. I do, however, fear that the bills that you two 
gentleman have offered will probably not accomplish a good 
objective, and let me explain what my concerns with the bills 
are.
    First, both of you, and others on this Committee, have said 
that their objective is to ensure the use of good science and 
the best scientifically based decisions in the Endangered 
Species Act, but I notice a considerable disparity as to when 
the special requirements of peer review are required.
    For example, in your bill, Mr. Pombo, when the Secretary of 
Interior determines that there is sufficient evidence 
warranting proposal of a species, then additional science is 
needed before that step can be taken. On the other hand, when 
the Secretary determines that a proposal of a species is not 
warranted by his status review, there is no requirement in your 
bill for similar peer review.
    In your bill, Mr. Walden, when the Secretary makes a final 
decision to list a species, peer review is required to make 
sure the science is right. But if the Secretary goes through a 
rulemaking process, at the end of which he concludes that 
listing is not appropriate, your bill does not require that 
that decision receive peer review.
    And both of your bills require that when the Secretary 
carries out a Section 7 consultation that results in a 
determination of jeopardy to the species, there must be peer 
review in order to ensure that the best possible science 
underlies that decision. But when, as is the case about 98 
percent of the time, the Secretary determines that jeopardy 
will not result from a proposed action, there is no requirement 
for peer review then.
    I think a skeptic looking at that would wonder whether the 
objective really is improving the quality of science and 
decisionmaking in general or just improving the quality of 
science when decisions are made to extend protection to 
endangered species, rather than to withhold it.
    The second point I would make, and this echoes 
administration testimony, I do believe that the imposition of 
peer review requirements will require significant additional 
resources and time for the Fish and Wildlife Service and the 
National Marine Fisheries Service to do that. The statutory 
deadlines currently in the law will be difficult to meet, and I 
think you are both familiar that both this administration and 
its predecessor have complained vigorously about the fact that 
they have been whipsawed by frequent litigation driving their 
agenda. Most of that litigation has been because they have been 
unable to meet the existing deadlines. My concern is that the 
new procedural requirements will make it even less likely that 
they can meet those deadlines in the future.
    The last point I would make about the bills is that, in 
some respects, and I say this with due respect to both of you, 
I think the bills do not reflect an understanding of some 
scientific principles that scientists would readily comprehend.
    There is, I would note as a threshold matter, there is a 
tension between, on the one hand, saying you want the Fish and 
Wildlife Service to use the best available scientific data and 
your trying to prescribe in the bill which data should always 
be given preference over other types of data. I think that is 
an inherent tension.
    It also is troubling that, in some respects, there is a 
sort of flawed understanding. For example, data is, I believe, 
never peer reviewed. Data is gathered. Data is collected. It is 
used as the basis for reasoning to reach results. The reasoning 
may be persuasive or unpersuasive, and that reasoning may be 
peer reviewed, but the data itself is not. Yet this bill seems 
to assume it is.
    So my conclusion is that I am very supportive of the goal 
of improving the quality of decisionmaking. I am very much of 
the belief that it is helpful to the Fish and Wildlife Service 
to have external input, but I also believe that it is a mistake 
to try to prescribe that in a form and format that applies 
across the board to all of the decisions we have been talking 
about today because I think the nature of these decisions are 
simply such that a single, uniform approach doesn't work in 
every case.
    Thank you.
    [The prepared statement of Mr. Bean follows:]

Statement of Michael J. Bean, Chairman, Wildlife Program, Environmental 
                                Defense

    Thank you for the opportunity to present this testimony on behalf 
of Environmental Defense.
    The two bills that are the subject of today's hearing address 
various aspects of the role of science in the administration of the 
Endangered Species Act. That is a very important topic, one for which I 
hope I can offer a helpful perspective.
    Before addressing the substance of the two bills, I will briefly 
describe for the committee my experience and that of my organization 
relevant to the topic at hand. The organization for which I work, 
Environmental Defense, was founded in 1967 by a group of scientists 
concerned about the effects of the pesticide DDT on wildlife. Their 
efforts eventually led to the elimination of widespread use of DDT in 
the United States, an action that has made possible a dramatic 
improvement in the status of the nation's symbol, the bald eagle, as 
well as the peregrine falcon, brown pelican, osprey, and still other 
species.
    Beginning with the scientists who founded Environmental Defense, we 
have throughout our thirty-five year history been firmly committed to 
finding scientifically sound solutions to environmental problems. Our 
staff is drawn from fields as diverse as biology, hydrology, 
toxicology, biochemistry, engineering, medicine, anthropology, ecology, 
economics, and law. My training is in law, but my career has been spent 
working closely with scientists and with scientific organizations. I 
have, for example, served on the Board of Environmental Studies and 
Toxicology of the National Research Council of the National Academy of 
Sciences, the very board under whose auspices the recent preliminary 
study pertaining to the Klamath Basin was done, and the board that 
produced the 1995 report, Science and the Endangered Species Act. I 
have frequently published articles with scientists as co-authors, and 
have written for a wide variety of scientific journals, including the 
Journal of the Washington Academy of Sciences, Quarterly Review of 
Biology, Nature, Natural History, Bioscience, Conservation Biology, 
Marine Pollution Bulletin, and Conservation Biology in Practice. For 
the last of these journals I serve on the editorial advisory board. I 
also have served as a peer reviewer of manuscripts submitted for 
publication in various of these journals.
    One other aspect of my background warrants mention. I work closely 
with landowners on projects to enlist their cooperation in the 
conservation of endangered species. Indeed, finding ways to enlist 
landowners--particularly private landowners--as allies, rather than 
adversaries, of endangered species conservation has been the overriding 
focus of my work for the past half dozen years. I am convinced that the 
help of private landowners is essential for recovery of many endangered 
species. After all, they own the land where recovery must occur, and 
only they have the ability to manage that land in ways that facilitate 
recovery. My colleagues and I at Environmental Defense are cooperating 
with landowners to help endangered species in many different parts of 
the country. We work with forest landowners in Virginia, the Carolinas, 
Georgia, Alabama, and Mississippi, with ranchers in Texas and Utah, and 
with farmers in California. In my experience, winning the cooperation 
of landowners, particularly ``working landscape'' landowners such as 
farmers, ranchers, and foresters often depends on four things: (1) 
keeping things simple; (2) expediting agency decisions; (3) providing 
agencies with adequate resources to make speedy and intelligent 
decisions; and (4) giving landowners real and meaningful incentives to 
manage land (and water) for the benefit of endangered species.
    The two bills before the committee today do not address these 
needs. They make aspects of the Endangered Species Act still more 
complex, rather than simpler; they slow agency decision-making, rather 
than expedite it; they provide no new resources to cope with new 
procedural obligations; and they do nothing to create positive 
incentives for conservation action by private landowners. All of that 
is not to deny that there is a problem with the scientific bases for 
decision-making under the Endangered Species Act. These bills, however, 
misdiagnose that problem and prescribe a remedy that will do little or 
nothing to solve it. More troubling still is that in places, the bills 
reveal a dizzying ignorance of science itself.
    The fundamental problem with the scientific bases for decision-
making under the ESA is hardly new. The National Research Council 
acknowledged it in its 1995 study, Science and the Endangered Species 
Act. Many of the key decisions required by the Endangered Species Act, 
including whether a species should be listed as endangered, and whether 
a particular action is ``likely to jeopardize the continued existence'' 
of any such species are at bottom judgments about the risk of 
extinction that a species faces. The amount and quality of information 
underlying such judgments affects one's confidence in them, yet, as the 
National Research Council report noted, ``there will always be 
uncertainty in the estimates of risk used to trigger decisions under 
the ESA, requiring policies and processes for making decisions with 
incomplete and uncertain data'' (p. 175, hardcover edition). 
Underscoring this inherent uncertainty, the National Research Council 
noted that ``for even the best-studied endangered species, essential 
pieces of information might be lacking, yet decisions must be made--(p. 
159). The ``best studied'' endangered species, of course, are very few, 
for, as the National Research Council noted, ``our biological 
understanding of many rare, threatened, or endangered species does not 
extend far beyond a taxonomic description and a coarse geographic 
distribution,'' yet ``that lack of data should not be the basis for 
failure to list a species if other information is available to indicate 
that listing is otherwise warranted'' (p. 182).
    Since listing decisions and jeopardy determinations are, by 
definition, judgments about the risk of extinction that are always made 
with incomplete data, it is erroneous and misleading to label such 
judgments as correct or incorrect. Yet, that is exactly what the Pombo 
bill (H.R. 3705) requires when it obliges the Secretary to evaluate a 
review board judgment that differs from his own prior judgment about 
the need to list a species. A somewhat similarly flawed understanding 
of the nature of these decisions is reflected in the Walden bill (H.R. 
2829) requirement that the Secretary ``give greater weight to 
scientific or commercial data that is empirical or has been field 
tested or peer-reviewed.'' Making sense of this requirement is a 
challenge, inasmuch as data--the factual information used in 
reasoning--are never peer-reviewed. Instead, data are collected and 
then used to test hypotheses. Peer review focuses on whether the use of 
data (i.e., the reasoning) is sound. Peer review may call into question 
whether data were properly collected, or whether the right kinds of 
data were collected, but the data themselves are not peer-reviewed. Nor 
does it make much sense to refer to data that are ``field tested'' for 
much the same reasons. Thus, rather than improve scientific decision-
making, this language is likely only to cause scientists to wonder what 
Congress could possibly have meant. Perhaps what the drafters of this 
language really intend is to discourage the use of models--which 
typically employ both known information and assumptions to predict 
future outcomes--in endangered species decision-making. Here again, the 
National Research Council has addressed the use of models in endangered 
species decision-making, noting that ``although most of these models 
have shortcomings, they do provide valuable insights into the potential 
impacts of various management (or other) activities'' (p. 142).
    One can only hope that the apparent aversion to the use of modeling 
reflected in the Walden bill does not extend to the realm of hurricane 
prediction. Predicting where, or whether, hurricanes will make landfall 
is akin to predicting that a species may go extinct in the foreseeable 
future. Both deal with significant uncertainties. At least two members 
of this committee, Mr. Jones and Mr. Gilchrest, are likely to remember 
Hurricane Felix of August 1995. It churned for days off the mid-
Atlantic coast with wind gusts of 145 miles per hour, one of the 
longest-lived hurricanes on record. Hurricane warnings from South 
Carolina to Chesapeake Bay prompted mass evacuations of beach 
communities at the height of the tourist season. The lives of millions 
of people were disrupted, as were thousands of businesses. And yet, the 
hurricane never came ashore. It was, in the end, a false alarm. The 
National Weather Service, relying on its most sophisticated models, 
erred on the side of caution, and properly so, because the consequence 
of not issuing a warning and being wrong would have been far more 
disastrous. In much the same way, if we find out after the fact that we 
should have protected a species, but didn't, the consequence is the 
loss of the species. Some members of this committee may debate how 
important that is, but this much they cannot debate--it is 
irreversible.
    The bills now before the committee are also flawed in their 
understanding of the threats affecting species. For example, the Pombo 
bill would require that petitions to list species present clear and 
convincing evidence that ``the population of the species is declining 
or has declined from historic population levels and beyond normal 
population fluctuations for the species.'' What this entirely overlooks 
is the fact that some species can be in serious peril of extinction as 
a result of demonstrable threats, even though no decline in population 
has occurred. A ready example is the Devil's Hole pupfish of Nevada, 
which has been on the endangered list since 1967, even though its 
population has been relatively constant for millennia. Because the 
pupfish occurs only in one desert pool, the threat of groundwater 
depletion has long been recognized as putting that species at risk of 
extinction. Thus, for species like the pupfish, that occur in highly 
restricted habitats and are vulnerable to clearly recognized threats, 
the Pombo bill would impose a requirement impossible to fulfill.
    Both bills would impose significant new procedural requirements 
that would make it virtually impossible to meet many of the statutory 
deadlines prescribed by the ESA. For example, both bills require 
additional independent reviews and new Federal Register notices for 
listing decisions and jeopardy determinations under Section 7 of the 
ESA. Both listing decisions and Section 7 consultation requirements are 
subject to statutorily prescribed deadlines. It is worth noting that a 
very large portion, perhaps most, of recent Endangered Species Act 
litigation is due to the government's failure to make listing and other 
decisions within the statutorily prescribed deadlines. Indeed, the 
administrators of the Endangered Species Act in both the Clinton and 
Bush administrations have decried the fact that their agendas have been 
driven by litigation, much of which consists of various deadline suits. 
The new procedural requirements of these two bills virtually guarantee 
that the government will miss even more of its statutory deadlines, 
thus exacerbating the very problem that has vexed the current and 
former administrations.
    Each of the above problems could, I presume, be fixed by better-
informed and more careful drafting. However, the end result would still 
be a pair of bills that fail to address the central needs for well-
informed decisions and an effective Endangered Species Act. For the 
former, the central need is adequate resources to generate more and 
better information about imperiled species, their needs, and the likely 
impacts of human activities upon their survival prospects. For the 
latter, the central need is a set of significant incentives for 
landowners to cooperate with endangered species conservation efforts. 
These bills provide neither.
                                 ______
                                 
    Mr. Pombo. Mr. Walden?
    Mr. Walden. Thank you very much.
    Mr. Bean, I appreciate that. I appreciate the comments that 
you have made. You have hit on some things, frankly, that 
others have not addressed, and I appreciate the manner in which 
you have raised them and the ones that you have raised.
    Let me ask you a question. If we were to change this 
legislation to require peer review on no listing decisions and 
no jeopardy decisions, would that ease your view?
    Mr. Bean. Well, it certainly would ease my concern that the 
bill is not balanced, if you will, in when it chooses to 
require peer review. It would, I have to admit, exacerbate the 
other problem I mentioned, which is the problem of resources 
and time because you will be imposing these requirements to a 
larger set of activities.
    Mr. Walden. Certainly. Certainly. No, I understand that. 
Because I actually thought we had it fairly well covered by 
doing listings, delistings, consultations, and recovery 
programs, but I have not really focused on this other issue of 
no jeopardy decisions and no listing decisions, and I would be 
open to discussing that.
    Your comment about data is interesting as well because it 
is probably the inartful way we drafted this. Obviously, what 
we are after is to talk about how the data are collected, what 
are the protocols that are in place, and then are the 
conclusions drawn from those data correct. As you may or may 
not know, the situation in Klamath, the NAS said, yes, a number 
of the decisions made were accurate and the science is there to 
back it up, and then there are these others where either they 
looked at the science wrong or, in many cases, the decisions 
weren't supportable.
    The interesting thing that I think draws me into this 
discussion on the ESA is what the National Academy of Sciences 
found was that decisions that were made didn't help the 
farmers, clearly. They got their water cutoff, but it 
potentially could have hurt the coho salmon by calling for 
releases of water out of reservoirs at a temperature which 
would be lethal, potentially, to the very fish that are on the 
endangered list.
    And so I guess that is where I have become an even stronger 
advocate for peer review because here you have the ``Perfect 
Storm,'' if you will, of bad decisions, according to the NAS, 
saying it didn't help the environment, it didn't help the 
farmers. What if we had had that peer review first? Maybe we 
could have avoided both potential problems.
    Mr. Bean. Well, perhaps in that case. I do think it is 
important, though, to emphasize one characteristic of 
endangered species decisionmaking. Fundamentally, all of these 
decisions, the decision that a species should be on the list or 
not on the list, the decision that a particular course of 
action will cause jeopardy or not cause jeopardy, those are 
fundamentally judgments about probabilities, certainly. They 
are not simple questions like sort of, ``Who is buried in 
Grant's tomb?'' These are judgments about likelihood of 
extinction as a result of some future events.
    Peer review or certainly external review is helpful to the 
Fish and Wildlife Service in making those decisions, but it 
doesn't change the fundamental fact that, at bottom, somebody 
has to decide, based on the evidence at hand--
    Mr. Walden. I understand that.
    Mr. Bean. --it either does or doesn't, and that is often 
going to be a decision on which reasonable people will 
disagree.
    Mr. Walden. Absolutely, and I fully understand that.
    I guess, as a policymaker, I want to get to the point 
where, when we make those judgment calls, we can probably both 
agree that the data that leads up to the decision is beyond 
reproach and that the decisions are backed up by the data that 
we have.
    Mr. Bean. I would like to think that as well, but 
experience tells me that when these decisions are made, they 
will always be made on the basis of less data than one would 
like to have.
    Mr. Walden. I understand, but we have also witnessed some 
decisions of late, a court suit down in California on a logging 
case where the Agency just simply didn't do the work on the 
ground, and then they were capricious in the way they operated. 
We have got to get that out of the process, and that is where I 
am hoping we can get there.
    Mr. Vogel, can you describe how the Agency peer review 
operates, as opposed to the independent peer review process 
included in the bills we are discussing today?
    Mr. Vogel. I can tell you, based on my experience, there 
has been a wide variety of how the agencies have performed peer 
review, if they, in fact, even do perform peer review. In the 
Klamath instance, it clearly was a very closed process. They 
did not allow for significant outside input, particularly if 
there were alternative scientific perspectives brought to bear 
in the process.
    I was very pleased to hear Craig Manson say today that from 
now on, if I understood his comments, that it will be an open 
process because it definitely was not last year.
    My experience, based on working for the agencies, and with 
the agencies, and being on the other side of the issues in some 
cases, is that too often the agencies seek like-minded 
individuals to support their arguments, where, in my 
perspective, I think it is more important to actually go out 
and seek alternative perspectives to challenge. So I think that 
is one of the big deficiencies.
    I am concerned that if administratively the agencies say, 
``Trust us. We will do all of our own peer review process,'' 
they won't aggressively seek those outside alternative 
perspectives on these issues.
    Mr. Walden. Mr. Chairman, if I can just make one other 
comments.
    Mr. Pombo. Have at it.
    Mr. Walden. I can't resist, but to follow up on--is it Mr. 
Dueser?
    Mr. Dueser. Dueser.
    Mr. Walden. --when you said the people in Klamath must have 
felt abandoned by their Government. Let me suggest they didn't 
feel ``abandoned,'' they felt attacked by their Government. It 
has been an extraordinary experience over the last year and 
especially now, in light of the NAS findings, what they went 
through. You can imagine the deep-seated anger that exists 
there about this act, this Government, the decisions made by 
this Government, the losses suffered, and the lack of 
improvement, frankly, in the habitat there in the intervening 
year.
    I mean, that is probably to me the most frustrating thing 
is we have known for 10 or 20 years what needs to be done to 
improve water quality, and quantity, and fish passage, and I 
can rattle them off. I have got them memorized now. It is about 
five pages of items. For some reason, we have never gotten them 
done. We have got a little irrigation dam blocks 95 percent of 
the suckerfish on Chiloquin Dam on the Sprague River. We had 
Dr. Lewis here last week saying the suckers would be lining up 
to breed if we could just, I have visions of rabbits, if you 
could just get passage, and they have been telling us that for 
a long time. We have passed a bill in this chamber to do that, 
and the Senate has got it bollixed up.
    You know, there are things that were promised that would 
improve water quality and quantity in this basin. The 
Government has got to get at it and do the things that would 
make a difference, many of which have been outlined by Mr. 
Vogel and others in the work they have done that would really 
improve the habitat and give us the water we need for 
everybody.
    So the real crime in that basin is that the Federal 
Government promised the tribes the water, and they promised the 
farmers, if they would come out, veterans, if they would come 
out and settle and use this productive land that had been 
reclaimed, they would have the water. Then we passed the 
Endangered Species Act and promised it to the species. And 
every one of those is a claim somebody is coming at you on, and 
we have run out of water, and we have got to figure out how to 
fix that.
    I, occasionally, get on my soap box here on that issue. I 
apologize, but I feel pretty darn strongly about it.
    Thank you, Mr. Chairman.
    Mr. Pombo. I think we have all heard you talk about Klamath 
at some point before.
    Mr. Dueser, I tell you that I would glad accept your offer 
to go sit down with one of the recovery teams and watch and 
listen to the process that they go through, but at the same 
time, I would make the offer to you that, in your statement you 
talked about Klamath and how you didn't know if there were that 
many cases like Klamath that were out there, and I would make 
the offer to you. You name which Western State you want to go 
to, and I will take you there, and you can sit down with a 
group of farmers or homebuilders or property owners and hear 
the same kind of story. I won't even set it up for you. I mean, 
you just tell me which State you want to go, and we will do 
that.
    Mr. Dueser. I understand that must be the case. You know, 
in Utah, where we are really beginning now to make some 
progress in this area is through a lot more public involvement 
and community commitment to conservation programming, and this 
works for us on some of the smaller issues. You know... you 
have prairie dogs in some part of the State, yeah, you can deal 
with that. An issue that involves the entire Pacific Northwest, 
old growth forests and so forth... that is going to be a little 
trickier perhaps to create community-based programming. But 
certainly for--
    Mr. Pombo. It is not. It really isn't, and I have always 
contended that if they really wanted to solve the problem with 
any number of these different endangered species cases that we 
have had, they could; you know, at least reach a consensus 
where the people who actually live and work in that community 
could continue to live and work in that community, and we could 
do a better job of recovering the species.
    On the forest issues, Quincy Library Group is a perfect 
example of how the community actually got together and solved 
the problem. Unfortunately, for them, they have had a very 
difficult time convincing the Federal Government that they 
could actually do it. The Federal Government usually thinks 
that they know more than anyone else, so they have held up 
their efforts in order to do that, but I think that they have 
proven that they can do that.
    I think that just about on every one of these there is a 
way to move forward, and it does involve public participation, 
it does involve the community that is actually impacted by the 
decisions being involved. Unfortunately, under the current 
implementation of the act, that very, very rarely happens, and 
that is a major problem.
    Mr. Dueser. Well, community-based programming is certainly 
starting to pay huge dividends in the State of Utah and 
elsewhere I think in the inter-mountain West.
    Mr. Pombo. Mr. Simmons, you come at this from I think 
probably a different angle than a lot of the folks who have 
testified before this Committee in years past. I think you 
probably have a greater understanding of what we have to deal 
with in terms of trying to deal with this act. It has become, 
you know, the law of the land. It is the preeminent law of the 
land. It takes precedence over any other function of our 
Federal Government. And when you talk about making any change, 
removing one comma from the act, the accusations that are made 
are that you are trying to gut the act.
    Unfortunately, the media that covers this issue rarely 
takes the time to actually understand the legislation. They 
just repeat what accusations are being made. And the folks out 
in the real world outside the Beltway very seldom hear, I 
think, an unvarnished truth of what the debate is and what we 
are trying to do. I appreciate your testimony. I appreciate you 
being here.
    Mr. Bean, I understand what your concerns are. I spent some 
time reading your testimony last night and trying to understand 
exactly where you are coming from because you and I have had 
the opportunity over the years to talk, to interact on this on 
a number of occasions.
    I think that, when it comes to my legislation, you kind of 
just make a general statement about what is included and what 
is not included, what is peer reviewed, what is not peer 
reviewed. I went back and looked at my bill in relationship to 
the existing law, and when it comes to the jeopardy opinion, 
you are correct. It does not require peer review on a no 
jeopardy opinion. It does require a peer review on every 
listing petition, based upon what decision, not based upon what 
decision the Secretary makes. It requires a peer review on a 
listing petition.
    So the information, what I am trying to get at, is the 
information that he or she is basing their decision on is the 
best science that we can possibly put together at that moment 
in time, regardless of what decision they make, yes or no, on 
the list, off the list, threatened, endangered, it is the best 
decision, the best science that we can gather at that 
particular point.
    That is the attempt that is being made, and I think that in 
your written, as well as in your oral testimony here today, 
that you somewhat misstate what the act actually does or what 
the law does or my amendment does in context of what the law 
actually says.
    So I would like to disagree with you on that point.
    Mr. Bean. May I address that, sir?
    Mr. Pombo. Yes.
    Mr. Bean. I will certainly re-read your bill very 
carefully. However, my understanding is, with respect to 
petitioned actions, your bill requires--potentially requires--
peer review at two points; one, when the Secretary makes a 
determination as to whether a petition presents substantial 
evidence. You are correct. In that instance, as I understand 
your bill, whether his decision is, yes, it does present 
substantial evidence or, no, it does not, your bill appears to 
require peer review, either outcome.
    However, the next stage of the process, some 90 days later, 
is a determination whether or not proposal may be warranted. At 
that stage, your bill, as I understand it, says that if the 
determination is that a proposal of the species may be 
warranted, peer review is required. On the other hand, if the 
Secretary decides that a proposal is not warranted, peer review 
is not required by your bill. That is what I meant to say in my 
testimony and thought I said.
    Mr. Pombo. Well, the goal of this particular legislation is 
to get the best available science that we can, which I do not 
believe is currently the case. I think that, even though there 
are areas where we do disagree in terms of the Endangered 
Species Act, I think we would both have to agree that there are 
times when the science that the decisions are based upon is not 
exactly the best that we could do.
    I would also like to say to the entire panel that, as we 
work our way through this process, and in an effort to move 
this legislation and other legislation that has been 
introduced, there are other areas, and Mr. Bean points this out 
and a couple of you have stated this as well, that there are 
other areas of the act that need to be addressed. There are 
other problems with implementation that need to be addressed, 
and I wholeheartedly agree with you. There are other areas that 
we need to make legislative changes to.
    And as we work our way through this entire process, first, 
with the science bill, later on with habitat issues, with 
incentives for property owners, I look forward to working with 
you. Any ideas that you have for ways that this would work, I 
would be more than happy to take those and see if there is any 
way that we could make that fit.
    In terms of this particular legislation, you guys have 
other ways of doing peer review, send them to us. I am not a 
scientist, as I have said before. I know Mr. Bean said he is 
not a scientist. There are scientists who have testified today 
that they like what we did, there are scientists who have 
testified that they didn't like what we did.
    So, if you have other ways of doing this, have at it. I am 
open to it. And we will see if we can put together a bill that 
actually works, so that when all of you are sitting down and 
trying to make this work out in the real world, we get 
something that works a little better than what we have now.
    But I want to thank you all for your testimony, for 
answering questions. I will remind you that there are 
additional questions that other members of the Committee will 
submit in writing to you. If you can answer those in writing, 
for the benefit of the Committee, it would be greatly 
appreciated.
    I would, also, before I close the hearing, say that the 
hearing record will be held open for 10 days. We had a number 
of other people who did want to testify whom we were not able 
to accommodate. I know that I received a request from 
homebuilders, as well as others, that they wanted an 
opportunity to testify here today. The record will be held 
open. If anybody has additional testimony that they would like 
to submit to be part of the record and to be considered as part 
of our decisionmaking process in this, please submit that to 
the Committee, and it will be included in the record.
    So thank you all very much, and the hearing is adjourned.
    [Whereupon, at 5:53 p.m., the Committee was adjourned.]

    The following information was submitted for the record:
     American Farm Bureau Federation, Statement 
submitted for the record
     Garczynski, Gary, on behalf of the National 
Association of Home Builders, Statement submitted for the 
record
     Marbut, Gary, President, Montana Shooting Sports 
Association, Letter submitted for the record by The Honorable 
Dennis Rehberg

    [The statement of The American Farm Bureau Federation 
follows:]

            Statement of The American Farm Bureau Federation

    Last year the Bureau of Reclamation, acting on recommendations 
contained in biological opinions from the US Fish & Wildlife Service 
(FWS) and the National Marine Fisheries Service (NMFS), shut off the 
flow of irrigation water to over 1400 farms and ranches in the arid 
Klamath Basin in Oregon and California. The water was needed, the 
agencies concluded, to keep lake and river levels high enough for 
endangered sucker and salmon. Farmers suffered severe financial 
hardship as their fields lay fallow. Communities suffered as businesses 
closed, and residents moved away. Desperate farmers sought to sell 
their farms for a fraction of their worth.
    The National Academy of Sciences (NAS) was asked to review the 
scientific basis for the decision to favor fish over farmers. Its 
preliminary report issued last month finds that there was not 
sufficient scientific evidence to support the decision to deny water to 
the Klamath Basin last year.
    The most celebrated case involving an endangered species remains 
the snail darter. This small fish halted a multi-billion dollar water 
project in Tennessee. A lawsuit over this human-endangered species 
conflict went to the Supreme Court, and remains the only substantive 
case on the Endangered Species Act (ESA) to have been decided by that 
forum. Following the decision in Tennessee Valley Authority v. Hill, 
Congress passed a law exempting the Tellico Dam project from the 
strictures of the act.
    A few months later, several more areas were found to be inhabited 
with snail darters. The species was soon thereafter downlisted from 
``endangered'' to ``threatened.'' Millions of taxpayer dollars were 
wasted because of incomplete scientific information.
    These are but two examples why it is critically important that 
decisions made under the ESA be made on the basis of sound science. The 
ESA is so pervasive and its provisions so restrictive that there is 
simply too much at stake for farmers, ranchers and others for ESA 
decisions to be made with inadequate or incomplete scientific 
justification.
    The ESA needs to be changed to ensure that decisions are based on 
sound science instead of agency whim. H.R. 2829 and H.R. 3705 are steps 
in the right direction to accomplish this. Both bills provide for 
increased emphasis on verifiable, field-tested scientific data, and 
both bills provide for a system of scientific peer review of agency 
decisions.
    Much of the problem arises from the scientific standard applicable 
to ESA decision-making. ESA decisions currently are required to be made 
on the basis of ``the best scientific and commercial data available.'' 
The ``best'' scientific data available might be as little as one 
monograph on the subject by a student working toward a master's degree 
who might have an interest in having the species listed.
    The ``best scientific data available'' standard is really no 
standard at all. It provides no incentive for agencies involved in 
species decisions to obtain accurate and up-to-date information 
necessary to make an informed decision. All too often, decisions are 
made on outdated or misinformed data. Unverified hypotheses or 
assumptions made by one researcher often become truth for the next 
researcher who does nothing more than glance through the earlier work.
    Often, the correct scientific data is easily obtainable through 
little effort. For example, in the case of a listing of the five snails 
in Idaho, the Idaho Farm Bureau Federation hired an independent 
biologist to check the FWS data. With minimum effort, he readily 
discovered that these snails exist in far greater numbers and in a 
greater number of places than determined by the government. Such 
information, however, was largely ignored in the final decision.
    With affected species occupying greater habitat areas and affecting 
more basic, pre-existing human activities (as opposed to new, proposed 
projects) than ever before, there is too much at stake to make such 
decisions based on inadequate scientific evidence
    The ESA also requires the Secretary of the Interior to ``determine 
whether any species is an endangered species or a threatened species.'' 
This requirement implies a burden of proof on the Secretary to justify 
such a finding. It implies a minimum scientific requirement that must 
be met. In practice, however, the FWS has ignored this minimum 
requirement, made decisions without regard to sufficiency of the 
evidence and forced landowners and others challenging a decision to 
carry the burden of proof.
    We are troubled that private landowners are being required to prove 
that government data is incorrect. Private landowners do not have the 
resources that are available to the government; and even in the face of 
contradictory evidence, there is no guarantee that the government will 
accept it. We submit that precious time and resources will be saved if 
the listing agency or the agency making the decision is required to do 
it right in the first place.
    Furthermore, requiring an affected private person to disprove the 
government's data places the ultimate burden of proof for ESA decisions 
on the private party. Instead, the burden of proving that a species 
deserves to be listed or that certain management prohibitions are 
appropriate should be on the government agency proposing the action. 
The act requires the FWS to make decisions whether or not to list 
certain species, and those decisions should at the very least be based 
on sound science. The agency has greater resources available to it, is 
in a better position to obtain required data and should be required to 
justify its actions.
    The term ``best scientific and commercial data available'' must be 
defined or clarified to incorporate minimum scientific standards and 
procedures necessary to sustain a decision that a species be listed or 
that some other action be taken. This amendment is necessary to ensure 
that decisions affecting entire regions of the country are not being 
made on outdated information or on bare assumptions that could easily 
be disproved.
    Once such a standard is in place, there must be an unbiased, 
objective review prior to a decision to ensure that the proffered data 
meets minimum scientific standards.
    To accomplish this, we suggest the creation of a truly independent 
peer review process to scrutinize ESA decisions prior to their proposal 
to ensure that there is sufficient scientific data to support the 
conclusion. Providing independent scientific peer review for most types 
of agency decisions will both validate the scientific conclusions of 
the agency and also help to restore public confidence in agency 
decision-making. Independent evaluation will lessen the possibility 
that decisions will result from any bias by the scientist.
    Independent peer review does not change the statutory standard of 
using the ``best scientific and commercial data available,'' but it can 
inform the agency whether there is a sufficient scientific basis for 
making a determination to list, de-list or designate critical habitat. 
It may help restore the agency's responsibility to justify its 
decisions. Decision-making authority would still rest with the agency, 
with the report of the independent peer review panel being part of the 
administrative record.
    The peer review process must be streamlined so that it can be used 
for all agency ESA decisions. It must be a process that will not unduly 
prolong the decision it is supposed to review. The National Academy of 
Sciences process that was used in the Klamath decision is not suited 
for review of agency decisions on a routine basis. We look forward to 
working with the committee to craft a workable process.
                                 ______
                                 
    [The statement of Mr. Garczynski follows:]

 Statement of Gary Garczynski on behalf of the National Association of 
                       Home Builders on H.R. 3705

    Chairman Hansen and members of the Resources Committee, I am 
pleased to share with you the views of the National Association of Home 
Builders (NAHB) concerning the ``Sound Science for Endangered Species 
Act Planning Act'' (H.R.2829) and the ``Sound Science Saves Species 
Act'' (H.R. 3705). My name is Gary Garczynski. I am a homebuilder and 
developer from Woodbridge, Virginia, and the 2002 President of the 
National Association of Home Builders. I submit this testimony on 
behalf of our 205,000 NAHB members.
    When homebuilders develop land and construct homes and apartments, 
the process may occur within or adjacent to an area where there may be 
endangered or threatened species or their habitats. As a result, in 
seeking to comply with the Endangered Species Act (ESA), many of our 
members are prevented from developing their property or are required to 
submit to extensive mitigation requirements in order to move forward.
    For years, private landowners, who have been burdened with carrying 
out the responsibilities of the ESA, have repeatedly questioned the 
science behind the decisions made by the Federal agencies implementing 
the ESA. Because of the vast and often severe social and economic 
impacts of each ESA decision, the aggregate results of erroneous ESA 
decisions are broad, harmful effects on the housing market and the 
national economy, and at times damage to the species we are trying to 
protect. Legislation that requires better science to help prevent 
accidental or intentional errors in ESA decision-making is long 
overdue.
    As members of this committee know, for over a decade the political 
realities of the diverse interests in the U.S. Congress and on this 
committee have made reaching consensus on ESA reforms very difficult. 
However, given the recent public attention to ESA errors and the 
introduction of narrowly focused reform legislation before us, I 
believe that Congress must act on the heightened urgency to pass 
reforms to this act.
    The two bills before this committee, H.R. 2829 introduced by 
Congressman Greg Walden (R-OR) and H.R. 3705 introduced by Congressman 
Richard Pombo (R-CA), are steps in the right direction to provide more 
effective protection to endangered species while making certain that 
regulatory burdens placed on specific segments of the public are 
scientifically sound and defensible. These narrow legislative changes 
to the Act, through the requirements of sound science, would address 
many of the systemic problems in the ESA, on which I will elaborate 
below.
    Setting aside the community benefits of developing balanced 
neighborhoods, the economic impact of home building extends itself deep 
into the economy of the U.S. The economic activity generated by home 
building is three to four times the typical homebuyer's down payment. 
Hence, a typical $34,000 down payment on a new home generates nearly 
$160,000 in new economic activity (the underlying land value is 
subtracted from the calculation). Many aspiring homebuyers are just on 
the edge of being able to qualify for a mortgage and make the required 
payments. Even a small change in home prices, interest rates or delays 
in construction can determine whether they can buy a home.
    Home builders are generally entrepreneurial members of the small 
business community. 82 percent of home builders build fewer than 25 
homes a year and 60 percent of our members build fewer than ten homes a 
year. Many of these small-volume builders and subcontractors do not 
have the capital to withstand the devastating effects of an accidental 
or intentional error in an ESA decision.
    Therefore, NAHB believes the listing of species as threatened or 
endangered and the designations of critical habitat for those species 
must be based on reliable, accurate and solid biological and scientific 
data.
    The following publicly reported events, although somewhat recent, 
are not isolated occurrences but are the latest in a chain of examples 
of bad Federal agency decisions based on faulty or absent scientific 
data. Considered individually, they demonstrate how single decisions 
under the Endangered Species Act (ESA) can have a widespread effect on 
the regulated community. Considered cumulatively, these events signal 
fundamental and systematic problems with the ESA.
     Several Forest Service and Fish and Wildlife Service 
employees admit to planting false samples of Canadian lynx hair in 
Washington state national forests.
     A scientific review by the National Academy of Sciences 
reveals that Fish and Wildlife and the National Marine Fisheries 
Service did not have enough scientific evidence to justify cutting of 
irrigation water to hundreds of farmers in the name of protecting fish.
     The Forest Service used faulty data of spotted owl 
habitat to block logging projects in California and as a result, has 
recently agreed to pay one logging company $9.5 million in damages.
     The National Marine Fisheries Service has agreed to 
rescind the overly broad critical habitat designations for 19 salmon 
species and re-designate based on better science and economics.
Six Necessary ESA Reforms for Science
    The ESA calls for the use of the ``best scientific data 
available.'' However, there is no definition of this phrase within the 
Act or in implementing regulations. Therefore, the following reforms 
are necessary to define what constitutes the phrase ``best scientific 
data'' and to ensure that ESA decisions are made stronger and more 
defensible, while providing protection to our threatened and endangered 
species.
I. Reliable, Accurate and Solid Data
    The underlying data used by the agencies in making ESA decisions 
must be reliable, accurate, and solid. Species should be listed on the 
basis of field-tested data, including actual observation of the 
species, not merely on population projections and speculation. 
Currently under the ESA, a species can be listed as endangered or 
threatened based on one letter from a landowner claiming that ``there 
are less of the species than there used to be.'' The golden-checked 
warbler was listed on the basis of one letter from a private 
individual. This is unacceptable. Although this type of information may 
constitute ``best science available'' under the current ESA, the 
agencies should not be allowed to continue to make such fundamental and 
important decisions based upon such a blatant lack of information about 
the species. Petitions to list a species should be founded on clear and 
convincing evidence that a listing is warranted.
    There are other important decisions made by the Federal agencies 
that are based on flawed or absent data. For example, as a result of a 
lawsuit brought by NAHB and 17 other organizations and municipalities, 
the National Marine Fisheries Service agreed to rescind its critical 
habitat designations for 19 salmon and steelhead species in the Pacific 
Northwest due to the lack of science and proper economic 
considerations. In 2000, NMFS designated critical habitat for these 
populations covering 150 watersheds over the states of Washington, 
Oregon, Idaho, and California. Thousands of our members within this 
four-state area were encompassed by this over-broad and expansive 
designation. Many of their projects were prevented or were subjected to 
expensive mitigation requirements.
    The lack of science in these decisions is best summed up by a 1998 
inter-agency memo from Donna Darm, the then Acting Regional 
Administrator for the National Marine Fisheries Service, when she said, 
``When we make critical habitat designations we just designate 
everything as critical, without an analysis of how much habitat an ESU 
needs . . .'' NAHB strongly believes that ESA reform is overdue and 
that Congress should act now to prevent these grievous errors from 
happening again.
    In another recent development, the Forest Service has agreed to pay 
$9.8 million to a logging company for four cancelled timber sales. The 
settlement arose out of a February 1998 decision by an U.S. Court of 
Federal Claims judge that Forest Service officials knew their 
scientific data regarding the California spotted owl was faulty before 
canceling several timber sales.
    These ESA decisions have far-reaching consequences for the public. 
Therefore, the Federal agencies must be able to support these decisions 
with sound and defensible science to justify that the hardships 
inflicted on the public are absolutely necessary to protect and 
conserve these species.
    Both H.R. 2829 and H.R. 3705 seek to give greater credibility to 
field-tested and empirical data. H.R. 2829 sets minimum standards for 
the scientific and commercial data used in listings and H.R. 3705 
requires minimum standards for the listing petitions used to initiate 
the protection of a particular species.
II. Consideration of New or Additional Data
    The Federal agencies must be required to consider any additional or 
new science involving the species or its habitat. Once a species is 
listed, or its critical habitat is designated, the agencies often 
ignore additional or new science that supports the de-listing of that 
species, or removal of protections for its habitat. When the Fish and 
Wildlife Service listed the Coastal California gnatcatcher as a 
threatened species in 1993, it refused to seriously evaluate evidence 
that the population was not a valid subspecies and was genetically 
indistinguishable from the millions of gnatcatchers in Baja, Mexico. 
The best scientific data available on this issue, the first-ever range-
wide genetic study of the gnatcatcher (co-authored by the original 
petitioner for the listing and published in the October edition of the 
Journal of Conservation Biology) now demonstrates that the Coastal 
California gnatcatcher is not a distinct subspecies and is not 
genetically distinguishable from the millions of gnatcatchers in Baja, 
Mexico. However, the Coastal California gnatcatcher remains on the ESA 
list and the battle regarding its removal is now being fought through 
litigation.
    In another example, the Fish and Wildlife Service is still 
continuing to regulate areas in Tucson, Arizona as ``potential or 
suitable habitat'' for the cactus-ferruginous pygmy owl although a 
court has invalidated the critical habitat designation for that 
species. The Fish and Wildlife Service is requiring our members to set 
aside 80 percent of their property as undeveloped. Yet, both survey 
protocols and reports by local biologists in the area show that there 
is no scientific justification for those requirements and that in fact, 
many of the areas being regulated are not suitable habitat for the 
pygmy owl at all. However, the Fish and Wildlife Service refuses to 
take this data into consideration and often dismisses it outright. 
Scientific studies conducted by entities such as landowners, 
biologists, municipalities, and consultants must be taken into 
consideration by the agencies.
    H.R. 2829 seeks to require agencies to accept data from landowners 
regarding a species or its habitat. This is an important step in 
ensuring that regulatory decisions under the ESA are always based on 
the most up-to-date and reliable science available.
III. Independent Peer Review of Scientific Conclusions Must Include 
        Underlying Data
    Independent peer review must be required of underlying scientific 
data supporting ESA decisions. It is extremely important that the peer 
review take place outside and independent from the agency making the 
policy decision. Furthermore, it is vital that the review encompasses 
the materials used to support the decision. For example, review of an 
ESA ``jeopardy determination'' will not reveal the fundamental problems 
with the science unless all documentation used to reach that jeopardy 
determination can also be examined and reviewed. Likewise, not only 
should a proposal to list a species be reviewed, but also the 
underlying biological data, including any species counts, population 
models, and other relevant information used in that listing decision.
    The best example of this is the recent independent study conducted 
on the scientific and biological data used by the Fish and Wildlife 
Service and National Marine Fisheries Service in the decision to cut 
off irrigation water to hundreds of farmers in the Klamath basin. The 
National Academy of Sciences reviewed the supporting data and found no 
justification for the decision to cut off the irrigation to the farmers 
in the name of protecting the threatened and endangered fish. In fact, 
the review showed that allowing the water to remain in the basin was 
likely harmful to the fish due to the temperature level of that water. 
Without this independent review, the agencies would have continued to 
withhold water from the farmers and possibly harm the fish they are 
mandated to protect under the ESA.
    Both H.R. 2829 and H.R. 3705 contain provisions that would require 
independent peer review of ESA decisions and the underlying scientific 
and biological data supporting those decisions. H.R. 2829 would require 
peer review of species listings, de-listings, recovery plans, and 
jeopardy determinations. H.R. 3705 requires peer review of the 
underlying petition used to request that a species be listed as 
threatened or endangered and of jeopardy determinations.
IV. Public Access to Science
    Any scientific and biological data used as a basis for a regulatory 
action affecting a landowner should be open for that landowner to 
review. If the Federal agencies require a landowner to submit to 
specific regulatory requirements due to the presence of an endangered 
species or its habitat, the landowner should have the opportunity to 
request the biological and scientific data used by the agency to 
determine those requirements. Often our members are forced to bring 
litigation under the Freedom of Information Act (FOIA) in order to view 
the information that the agency is using to justify placing 
restrictions on our members' property. A landowner should not have to 
rely on the ``word'' of the Federal agencies that an action the 
landowner will take might effect a particular species or its habitat. 
In many cases, the agencies will not even disclose to landowners where 
particular species or the boundaries of critical habitat are located. 
This affords a great amount of discretion to the Federal agencies to 
regulate as they see fit, without obligation to base their actions upon 
actual biological or scientific data.
    For example, the Fish and Wildlife Service has refused to turn over 
information disclosing where particular members of the cactus-
ferruginous pygmy owl exist in Southern Arizona. Without knowing where 
the species are located, our members cannot make the appropriate 
decision to avoid particular areas and they are forced to submit to 
permit denials or project modifications simply based on what they are 
told by the Fish and Wildlife Service.
    H.R. 2829 provides the ability for a landowner to review 
information used by the agencies in biological opinions and the 
alternatives developed for the particular project under that opinion. 
However, another piece of legislation, H.R. 3706, introduced by 
Congressman Pombo would require the agencies to release information 
regarding a particular species or its critical habitat to the owner 
property affected by such species or habitat. NAHB fully supports that 
legislation as a means to prevent situations like that in Arizona where 
our members are not even allowed to obtain information about species or 
habitat on their property, yet are still required to be extensively 
regulated by the agencies.
V. Manifest Requirements
    Situations like those involving the false samples of lynx hair 
demonstrate that there must be strict manifest and reporting 
requirements for the tracking of biological and scientific data. Such 
requirements will compel the agencies to demonstrate both the origins 
and handling of the data. Amendments requiring better science for the 
ESA should encompass a requirement that the Federal agencies develop 
comprehensive manifest and reporting requirements for collecting and 
tracking scientific data. For example, the Department of Transportation 
has regulations covering the sample collection and ``chain of custody'' 
requirements for drug samples collected for chemical testing. The 
Resource Conservation and Recovery Act (RCRA) contains provisions to 
track the transport and storage of hazardous materials. These types of 
quality control requirements would help to ensure that the biological 
and scientific data used in making ESA decisions is sound and would 
also work to hold those responsible for false data samples accountable 
for their actions.
    Currently no legislative proposals exist to address the need for 
manifest and reporting requirements within the agencies. NAHB believes 
that these requirements are necessary to ensure the validity of the 
underlying scientific and biological information used in ESA decisions 
and urges your attention to this needed reform.
VI. Agency Responsibility for Data Collection
    Any scientific and biological data used as a basis for an ESA 
regulatory action, such as a listing or critical habitat designation, 
is the obligation of the Federal agency to collect. Often the Federal 
agencies pass their obligations to collect scientific and biological 
data under the ESA onto the landowner. For example, in many areas of 
the country, landowners are required to conduct ``survey protocols'' of 
their property to determine if there are species or potential habitat 
present. The protocols require a landowner to prove the non-existence 
of a listed species or its habitat by conducting surveys at various 
times of the year. In many cases, the failure of a landowner to find a 
species is not considered proof that it does not exist on their 
property, and the Federal agencies still regulate the landowner under 
the ESA. Survey protocols impose real, time-consuming and costly 
burdens on the regulated community and put the burden of proving where 
species are on the landowner not the Federal agency where it belongs. 
These survey protocol requirements are being forced upon landowners by 
Federal agencies in Pennsylvania, Massachusetts, California, Arizona, 
and Texas.
    The committee should keep in mind that the responsibility to 
conduct proper science in their ESA decisions is frequently passed on 
to individual landowners. Our members are often unfairly burdened by 
requirements to complete extensive science that often does not have a 
direct relationship to the effect that the project will have on the 
species or its habitat. In strengthening the requirements for 
scientific and biological data, the committee should remind the 
agencies of their obligation to complete these scientific requirements.
Conclusion
    In conclusion, species protection without essential scientific 
basis has an unjustified real and direct impact on our members and 
others in the regulated community. NAHB supports the goals of the ESA 
in protecting endangered and threatened species and their habitats, but 
these protection measures must be based on reliable, accurate and solid 
biological and scientific data. Our members are often prevented from 
developing their property or must submit to extensive mitigation 
requirements based upon what are often hypothetical and speculative 
impacts to species and their habitats. Greater weight must be given to 
updated science that is empirical, peer-reviewed and it should be 
accessible to the affects.
    Both H.R. 2829 and H.R. 3705 will provide more accurate, reliable, 
and solid data that is independently peer reviewed. H.R. 2829 also 
requires the consideration of new and additional information pertaining 
to species and habitat. While manifest and reporting requirements are 
not provided by these proposals, we urge the committee to consider 
those requirements as necessary measures to ensure the validity of ESA 
decisions. NAHB also asks Congress to reinforce the agency 
responsibility to conduct these scientific studies and data collections 
pertaining to species and habitat before being allowed to make 
regulatory decisions under the ESA. Landowners must not be required to 
bare the weight of these responsibilities.
    Continuing to apply unsound, unreviewable, and at times fraudulent 
evidence in ESA decisions could endanger the very species it seeks to 
protect, and it will certainly continue to unfairly raise the cost of 
housing, lock families out of the housing market, and have harmful 
effects on our economic recovery.
    We look forward to working with you and other members of the House 
Resources Committee on the important issue of sound science in 
implementing the Endangered Species Act. H.R. 2829 and H.R. 3705 
represent narrow legislative solutions to documented science problems 
with the ESA. I urge this committee to support this legislation and 
move it to the floor of the House of Representatives for consideration. 
I appreciate the committee's leadership on this issue and your 
consideration of NAHB's views.
                                 ______
                                 
    [A letter submitted for the record by Mr. Marbut follows:]
                  Montana Shooting Sports Association
                            January 22, 2002

Field Supervisor
U.S. Fish and Wildlife Service
420 South Garfield, Suite 400
Pierre, South Dakota 57501

Dear Sir,

    It is our understanding that the U.S. Fish and Wildlife Service 
(FWS) Finding by which the Black-tailed Prairie Dog (hereinafter PD) 
was determined to be ``warranted but precluded'' for listing as a 
threatened or endangered species under the Endangered Species Act (ESA) 
is coming up for annual review and reconsideration. We wish this letter 
to be considered as official comment upon this annual review and 
reconsideration.
    In general, we object to the Finding that PDs are actually 
warranted for listing. We observe that the FWS has relied too heavily 
on the assertions and claims of the petitioner, the National Wildlife 
Federation (NWF). In doing so, the FWS has replaced its responsibility 
to apply honest and accurate science to this issue with the advocacy 
which constitutes the position of the petitioner. Specifically, the 
USFWS has relied far to heavily on the assertions made by petitioner in 
their petition without verifying these assertions with scientific 
data--without sufficient fact checking.
    Throughout the finding, there are hedge terms used that demonstrate 
the FWS lacks certainty or scientific proof. For example, the Finding 
(as published in the Federal Register of February 4, 2000) uses the 
phrase ``we believe'' about 32 different times. We assert that an issue 
as consequential to various stakeholders as the listing of ten million 
animals, occupying vast areas of many states, as threatened or 
endangered must be done according to hard facts and proof, not merely 
someone's belief. These facts and proof must be able to be stated as 
facts, not the simple reiteration of the wishes and beliefs of the 
petitioner wildlife advocates. Such a decision needs to be based on 
real science, not wishful pseudo-science.
    Allow me to discuss some specific areas of real concern about the 
ongoing position of FWS that PDs are warranted for listing.
    1. There are no adequate benchmarks to document the historic range 
and habitat of PDs. In much of its publicity pushing PD listing, the 
petitioner NWF claims that PDs now occupy only 1% of their historic 
habitat (Denver Post, January 06, 2002). This assertion is repeated by 
the FWS in its Finding. Although there is little doubt that many acres 
of historic PD towns have been tilled into cropland, and some acreage 
has been lost to human habitation, there is actually no census data 
whatsoever to validate current claims of PD habitat and range a 
century, two centuries or five centuries ago. It's all guesswork.
    For example, the ``A SPECIES CONSERVATION PLAN FOR THE BLACK AND 
WHITE-TAILED PRAIRIE DOGS IN MONTANA'' (the Montana Prairie Dog 
Conservation Plan of 1999, adopted by the Montana Department of Fish, 
Wildlife and Parks) points out on page 10, ``The original abundance of 
prairie dogs in Montana is unknown. Despite the reputation for 
occurring in incredible numbers, many 19th century Montana journalists 
recorded very little about prairie dogs. The Lewis and Clark journals 
probably contain the best accounts of prairie dog colonies in Montana. 
Lewis and Clark reported that prairie dog colonies along the Missouri 
River were common, some were 3 to 7 miles long, and that their last 
encounter with prairie dogs was at the Three Forks of the Missouri 
(Burroughs 1961).
    While this makes for an interesting tale, it is hardly scientific 
information or accurate census data upon which it may be validly 
concluded that we have lost 99% of historic PD habitat. We object to 
the unsupported and unsupportable premise in the Finding that PDs 
currently occupy only 1% of their historic range.
    2. The data we have now suggests significantly higher numbers of 
PDs extant than the lowball estimates of the petitioner NWF that seem 
to be the primary basis for the Finding. For example, recent inventory 
of habitat by the Colorado Division of Wildlife suggests much more 
extensive extant PD habitat in that state than the amount considered by 
FWS in its decision to award PDs (and NWF) the ``warranted'' status. As 
with estimates of the historic range and habitat of PDs, the numbers 
used for the current range and habitat are somewhere between guesswork 
and blind acceptance of the assertions made by petitioner and wildlife 
advocate NWF in its petition to list. Although a lot of more accurate 
census and habitat measurement has been done since the first FWS 
decision to call PDs warranted for listing, the truth is that we still 
don't have complete and reliable numbers for PD habitat extent, 
although the more we look, the more we learn that PDs are much more 
numerous than the numbers upon which the original Finding is based. We 
object to designation of PDs as ``warranted'' for listing based on 
inexact and lowball estimates of current numbers.
    3. Much weight is given to the effects of plague on PD populations. 
While there is little doubt that plague constitutes a potential threat 
to PDs, we certainly challenge the use of the plague threat as any 
proper basis for listing PDs. First, we do not believe that the ESA 
contemplates giving governmental agencies the power to determine which 
species will prevail as a Darwinian success in the natural environment. 
No doubt there is an ongoing conflict between PDs and the plague 
bacillus (one species against another), but the ESA does not 
contemplate making the FWS the final arbiter of which species ought to 
be given an advantage over others. Second, although the NWF and the FWS 
point back to the earliest noticed effects of plague on PD populations, 
there is no proof whatsoever that these first observations constitute 
the first occurrence of that phenomenon. This is similar a child's view 
that the Universe began with their first conscious memories. The 
finding states in its conclusion. ``Plague is a new phenomenon in North 
American ecosystems.'' With the same scientific validity, one might 
just as well state that microbes only happened since the microscope was 
invented. Much is made of the presumption that plague is a new and 
artificial factor in PD populations, and one for which the FWS must 
regulate and compensate, only because the FWS has not yet demonstrated 
an earlier existence of the phenomenon. This is not science.
    So, we object to factoring plague into the listing decision because 
it is an intervention into the natural order and among species not 
supported by the ESA, and because there is no proof that plague is not 
a naturally-occurring phenomenon. It may be that the rise and fall of 
PD numbers because of plague is as natural as the ebb and flow of the 
tides, not exactly something the FWS is obliged to rush to fix.
    4. It is a strange mindset indeed that would assert that inadequate 
regulation is a threat, especially coming from a governmental agency. 
There is absolutely no limit to the mischief that could be done to the 
liberties of the people under this theory. Of course, the regulations 
contemplated are not regulations to regulate PDs, but to regulate 
people. The theory that government must step in to regulate people who 
are inadequately regulated--that if a regulatory vacuum can be 
identified, it must be filled--is indeed novel, and is inconsistent 
with the republican and limited form of government mandated by our 
constitution and especially asserted in the Tenth Amendment thereto. 
While it is not surprising that a government agency would think this 
way, it is at best a bit strange, and at worst dangerous. We object to 
the application here of the theory that a regulatory void is a threat 
that must be corrected with government intervention.
    5. Synergistic effects. In its rush to sweep PDs into its wide 
regulatory loop, the authors of the Finding are indeed grasping at 
straws. It is hard to imagine locating a more classic example of a non 
sequitur than this statement from the Finding: ``The synergistic effect 
of various factors adversely influencing black-tailed prairie dog 
populations are largely unknown. Nevertheless, these influences are 
considered a moderate threat.''
    This is, apparently, what passes for science in this Finding. Allow 
me to offer a semantic equivalent, but in different words: ``Because we 
don't know what it is, and can't identify or describe it, it must be 
really bad.'' We object to the use of such obvious nonsense 
masquerading as science.
    6. In the conclusion of the Finding, which justifies the 
``warranted'' status for PDs, FWS states: ``Overutilization via 
recreational shooting is considered a threat of low magnitude. Local 
populations may be impacted by shooting; however, significant rangewide 
population declines due to this factor are not likely.''
    All the other extant ``threats'' to PDs listed in the finding are 
listed as ``moderate magnitude''. Of all the threats, the only one 
listed as ``low magnitude'' is recreational shooting. Notwithstanding 
this, the ONLY regulatory effort being pushed by states, in response to 
the FWS finding, that is so strict that it carries potential court-
imposed fines and jail time for compliance failure, is recreational 
shooting. So, PD hunters are the only ones who can go to jail for 
failure to protect PDs. We object to this effective discrimination and 
criminalization against a particular class of people, PD hunters, with 
only the most flimsy justification.
    7. Finally, we object to the notion that the ESA was intended to 
apply to a species that numbers over ten million examples in 11 U.S. 
states, not to mention uncountable PDs in Canada and Mexico. We do not 
believe that PDs are on the brink of extinction or in need of 
protection forced upon the several states by the Federal Government, 
whether by an actual listing of PDs, or by the threat to list them if 
the states don't get with the program and do under state law and with 
state money those corrective and protective things the Federal agencies 
would like to see done. We believe the use of the ESA by the FWS under 
these circumstances constitutes an abuse of power and responsibility.
    For all of these reasons, we recommend that the FWS drop its 
``warranted'' designation of Black-tailed Prairie Dogs, and forego for 
the indefinite future any further consideration of listing this species 
as either threatened or endangered.

Sincerely yours,

Gary Marbut
President

cc: Senator Conrad Burns
   Representative Dennis Rehberg
   Gale Norton, Secretary of the Interior
   Montana Department of Fish, Wildlife and Parks
   MT FWP Commission
   Mountain States Legal Foundation
   Montana Shooting Sports Association members
   Media

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