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



 
H.R. 4840, ``SOUND SCIENCE FOR ENDANGERED SPECIES ACT PLANNING ACT OF 
                                2002''

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

                          LEGISLATIVE HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                      ONE HUNDRED SEVENTH CONGRESS

                             SECOND SESSION

                               __________

                           June 18 & 19, 2002

                               __________

                           Serial No. 107-130

                               __________

           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              Anibal Acevedo-Vila, Puerto Rico
Greg Walden, Oregon                  Hilda L. Solis, California
Michael K. Simpson, Idaho            Brad Carson, Oklahoma
Thomas G. Tancredo, Colorado         Betty McCollum, Minnesota
J.D. Hayworth, Arizona
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 June 18 & 19, 2002...............................     1

Statement of Members:
    Hansen, Hon. James V., a Representative in Congress from the 
      State of Utah..............................................     1
        Prepared statement on June 18, 2002......................     3
        Prepared statement on June 19, 2002......................    29

Statement of Witnesses:
    Calvert, Hon. Ken, a Representative in Congress from the 
      State of California........................................    24
    Cannon, Hon. Chris, a Representative in Congress from the 
      State of Utah..............................................    21
        Prepared statement of....................................    22
    Cubin, Hon. Barbara, a Representative in Congress from the 
      State of Wyoming...........................................    13
        Prepared statement of....................................    14
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon, Prepared statement of.....................    12
    Duncan, Hon. John J., Jr., a Representative in Congress from 
      the State of Tennessee.....................................    18
    Flake, Hon. Jeff, a Representative in Congress from the State 
      of Arizona.................................................    20
        Prepared statement of....................................    21
    Gallegly, Hon. Elton, a Representative in Congress from the 
      State of California, Prepared statement of.................    26
    Gibbons, Hon. Jim, a Representative in Congress from the 
      State of Nevada............................................    19
    Hogarth, Dr. William, Assistant Administrator for Fisheries, 
      National Oceanic and Atmospheric Administration, U.S. 
      Department of Commerce.....................................    35
        Prepared statement of....................................    37
    Inslee, Hon. Jay, a Representative in Congress from the State 
      of Washington..............................................    20
    Manson, Craig, Assistant Secretary for Fish and Wildlife and 
      Parks, U.S. Department of the Interior.....................    30
        Prepared statement of....................................    33
    Osborne, Hon. Tom, a Representative in Congress from the 
      State of Nebraska..........................................     5
        Prepared statement of....................................     8
    Otter, Hon. C.L. ``Butch'', a Representative in Congress from 
      the State of Idaho.........................................    23
    Radanovich, Hon. George P., a Representative in Congress from 
      the State of California, Prepared statement of.............    26
    Rahall, Hon. Nick J. II, a Representative in Congress from 
      the State of West Virginia.................................     4
    Rehberg, Hon. Dennis R., a Representative in Congress from 
      the State of Montana.......................................    16
        Prepared statement of....................................    17
    Solis, Hon. Hilda L., a Representative in Congress from the 
      State of California, Prepared statement of.................    27
    Walden, Hon. Greg, a Representative in Congress from the 
      State of Oregon, Prepared statement of.....................    27
Additional materials supplied:
    American Society of Civil Engineers, Statement submitted for 
      the record on H.R. 4840....................................    63
    Thune, Hon. John R., a Representative in Congress from the 
      State of South Dakota, Statement submitted for the record..    63


 LEGISLATIVE HEARING ON H.R. 4840, TO AMEND THE ENDANGERED SPECIES ACT 
  OF 1973 TO ENSURE THE USE OF SOUND SCIENCE IN THE IMPLEMENTATION OF 
 THAT ACT. ``SOUND SCIENCE FOR ENDANGERED SPECIES ACT PLANNING ACT OF 
                                 2002''

                              ----------                              


                         Tuesday, June 18, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

                              ----------                              

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

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

     The Chairman.  The Endangered Species Act of 1973 sought 
to create a means by which threatened and endangered species 
and their ecosystems could be preserved from extinction. Like 
most other laws, it began with good intentions. Landmark 
species that were obviously imperiled, such as the American 
bald eagle, California condor, grizzly bear, and gray wolf were 
made the subject of the new conservation measures.
    But this has changed dramatically in the last 30 years. We 
are here today because the act's good intentions have been 
convoluted by courts, Federal agencies, and a few special 
interest groups. As a result, we have a law that punishes 
landowners for good stewardship of their private property. We 
have a law that does not give priority to field-tested peer 
review science. We have a law that does not protect species.
    We can talk for weeks about the best way to fix all the 
problems of the Endangered Species Act and never reach a 
conclusion. In fact, that is what we have been doing for years. 
That is why this Committee has decided to take a different 
approach.
    The legislation before us takes one specific issue and 
proposes a commonsense solution. I believe this legislation is 
a step in the right direction to put the Endangered Species Act 
back on track and truly protect species that are in need of 
protection.
    This Committee believes that a good starting point is to 
ensure that all policy decisions are made with sound science. 
It only makes sense that decisions with such far-reaching 
effects and consequences should be based on scientific 
information that can be defended before a Committee of experts 
from the scientific community. We know from experience that 
decisions are only as good as the data that goes into them. As 
I said earlier this year, unless policy decisions are based on 
sound science, good decisions are possible only by chance.
    Sound science is founded upon two basic principles: honest 
scientists and legitimate scientific process. When both of 
these are together, good results are produced and good 
decisions are made. But lately the agencies' use of sound 
science has been questioned, and rightly so.
    The Committee held hearings in March that dealt with the 
submission of false samples of hair from the threatened 
Canadian lynx by scientists participating in an interagency 
survey. If this incident had not been report by a retiring 
Forest Service employee on his last day of work, the false 
samples could have influenced management decisions in 15 
different States and 57 national forests. Fortunately, this 
Committee was notified and we took appropriate action.
    An even stronger argument for a sound science standard 
exists in last year's tragedy at Klamath Basin. The Secretary 
of the Interior was forced to shut down the irrigation water to 
more than 200,000 acres of cropland in California and Oregon 
because of biological opinions issued by the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service. 
These opinions that claim higher lake and stream flows were 
necessary to protect three endangered species of fish. The lack 
of irrigation water throughout the warmest months of the year 
contributed to a direct loss of approximately $135 million and 
long-term losses exceeding $200 million.
    Because many people argued that the decision to cutoff 
irrigation water was not based on sound science, Secretary 
Norton asked the National Academy of Sciences to conduct an 
independent review of the data used in the biological opinions. 
The NAS panel preliminarily found that the high water levels 
could actually be lethal to the fish in the Klamath River 
because of the increased water temperature.
    The panel also found that the data in the biological 
opinions could not justify the conclusion. Because of the lack 
of a sound science standard for ESA decisions, both the farmers 
and the fish were harmed.
    I have heard many other horror stories like those. No one 
knows how many decisions were made based on false data or by 
simple human error. That is why we need this legislation.
    We all understand that this legislation will not resolve 
the entire sound science debate. Congress cannot legislate 
ethics, no matter how hard we try. But we can improve the 
process. This legislation integrates the sound science standard 
into the decisionmaking process. It gives greater weight to any 
scientific or commercial study or other information that is 
empirical or has been field tested or peer reviewed. It 
prohibits the Secretary of the Interior from determining that a 
species is endangered or threatened unless data collected in 
the field supports such a determination.
    This legislation also revises the contents of a listing 
petition and establishes a higher threshold to be met before 
the petition can be considered.
    This legislation also establishes a peer review process by 
a board composed of scientists that meet National Academy of 
Sciences standards. Peer review would be initiated for the 
listing and delisting of species as endangered or threatened, 
the development of recovery plans, and in jeopardy opinions if 
the Secretary finds that there is significant disagreement or 
significant economic impact. This board would submit a report 
within 90 days, describing their opinion as to the scientific 
validity of the determination, along with any recommendations 
they may have. Additionally, this legislation provides for 
improved interagency cooperation and use of State information.
    This is necessary legislation and I believe a commonsense 
solution to one problem with the Endangered Species Act. I look 
forward to today's discussion and turn to the gentleman from 
West Virginia.
    [The prepared statement of Mr. Hansen follows:]

    Statement of The Honorable James V. Hansen, a Representative in 
                    Congress from the State of Utah

    The Endangered Species Act of 1973 sought to create a means by 
which threatened and endangered species and their ecosystems could be 
preserved from extinction. Like most other laws, it began with good 
intentions. Landmark species that were obviously imperiled, such as the 
American bald eagle, California condor, grizzly bear, and gray wolf, 
were made the subject of the new conservation measures.
    But this has changed dramatically in the last 30 years. We're here 
today because the Act's good intentions have been convoluted by courts, 
Federal agencies, and a few special interest groups. As a result, we 
have a law that punishes landowners for good stewardship of their 
private property. We have a law that does not give priority to field-
tested, peer-reviewed science. We have a law that does not protect 
species.
    We could talk for weeks about the best way to fix all of the 
problems of the Endangered Species Act and never reach a conclusion. In 
fact, that's what we've done for years. That's why this Committee has 
decided to take a different approach. The legislation before us takes 
one specific issue and proposes a common-sense solution. I believe this 
legislation is a step in the right direction to put the Endangered 
Species Act back on track and truly protect species that are in need of 
protection.
    This Committee believes that a good starting point is to ensure 
that all policy decisions are made with sound science. It only makes 
sense that decisions with such far-reaching effects and consequences 
should be based on scientific information that can be defended before a 
committee of experts from the scientific community. We know from 
experience that decisions are only as good as the data that goes into 
them. As I said earlier this year, unless policy decisions are based on 
sound science, good decisions are possible only by chance.
    Sound science is founded upon two basic principles: honest 
scientists and legitimate scientific processes. When both of these are 
together, good results are produced and good decisions are made. But 
lately, the agencies' use of sound science has been questioned, and 
rightly so. This Committee held hearings in March that dealt with the 
submission of false samples of hair from the threatened Canadian Lynx 
by scientists participating in an interagency survey. If this incident 
had not been reported by a retiring Forest Service employee on his last 
day of work, the false samples could have influenced management 
decisions in fifteen different states and fifty-seven national forests. 
Fortunately, this Committee was notified, and we took appropriate 
action.
    An even stronger argument for a sound science standard exists in 
last year's tragedy at Klamath Basin. The Secretary of Interior was 
forced to shut off the irrigation water to more than 200,000 acres of 
cropland in California and Oregon because of biological opinions issued 
by the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service. These opinions that claimed higher lake and stream flows were 
necessary to protect three endangered species of fish. The lack of 
irrigation water throughout the warmest months of the year contributed 
to a direct loss of approximately $135 million dollars, and long-term 
losses exceeding $200 million dollars.
    Because many people argued that the decision to cut off irrigation 
water was not based on sound science, Secretary Norton asked the 
National Academy of Sciences to conduct an independent review of the 
data used in the biological opinions. The NAS panel preliminarily found 
that the high water levels could actually be lethal to the fish in the 
Klamath River because of the increased water temperature. The panel 
also found that the data in the biological opinions could not justify 
the conclusions. Because of the lack of a sound science standard for 
ESA decisions, both the farmers and the fish were harmed.
    I've heard many other horror stories like those. No one knows how 
many decisions were made based on false data or by simple human error. 
That's why we need this legislation.
    We all understand that this legislation will not resolve the entire 
sound science debate. Congress cannot legislate ethics, no matter how 
hard we try. But we can improve the process. This legislation 
integrates a sound science standard into the decision-making process. 
It gives greater weight to any scientific or commercial study or other 
information that is empirical or has been field-tested or peer-
reviewed. It prohibits the Secretary of Interior from determining that 
a species is endangered or threatened unless data collected in the 
field supports such a determination. This legislation also revises the 
contents of a listing petition and establishes a higher threshold to be 
met before the petition can be considered.
    This legislation also establishes a peer review process by a board 
composed of scientists that meet National Academy of Sciences 
standards. Peer review would be initiated for the listing and delisting 
of species as endangered or threatened, the development of recovery 
plans, and in jeopardy opinions if the Secretary finds that there is 
significant disagreement or significant economic impact. This board 
would submit a report within 90 days describing their opinion as to the 
scientific validity of the determination along with any recommendations 
they may have. Additionally, this legislation provides for improved 
interagency cooperation and use of state information.
    This is necessary legislation and I believe a common-sense solution 
to one problem with the Endangered Species Act. I look forward to 
today's discussion.
                                 ______
                                 

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

    Mr. Rahall. Thank you, Mr. Chairman.
    Mr. Chairman, it is my understanding that the purpose of 
today's hearing was to allow our fellow colleagues to come 
before this Committee and relate ESA horror stories, and I am 
looking out across the room and I do not see many of them. As a 
matter of fact, I see an empty witness table at the current 
time. Maybe they are waiting to flood in at the last minute.
    I am impressed by the large number of members who chose not 
to take you up on your very kind offer, Mr. Chairman, to not be 
before the Committee today. I am just wondering, could it be 
because there are only isolated instances where the ESA has 
been a problem, and those instances have been blown out of 
proportion to be larger than life, than what they are? There 
are still, if we look at the whole perspective, there are still 
some folks who, when they hear helicopters buzzing overhead in 
the night, wonder whether they are in fact Blackhawk 
helicopters. There are still those who are concerned over a new 
world order and believe that the United Nations really controls 
America's Federal lands.
    So I am wondering if perhaps some of those people are not 
behind some of the larger-than-life-proportion horror stories 
that are related to the ESA, and perhaps they are now trying to 
destroy America's faith in the Endangered Species Act. And I do 
not mean that the Act is perfect, but I do not believe that we 
should be portraying the Endangered Species Act as being the 
source of all evil.
    Tomorrow's hearing is yet another example of what I fear 
may be a trend or a conspiracy to portray it as all evil.
    The fact of the matter is that the Endangered Species Act 
over the past 29 years has been responsible for keeping 99 
percent of listed species from going extinct. And it is a fact 
that since the law was passed in 1973, of the 129 domestic 
species listed, 59 percent have been recovered or are improving 
or are in stable condition.
    And when I look at my own congressional district in New 
River County, I see that there is the Peregrine falcon 
sightings that exist today because of the ESA. Our national 
symbol, the bald eagle, was almost extinct. I think it was it 
was Ben Franklin who proposed that our national symbol be some 
type of turkey. If not for the ESA, we might have had to 
revisit that question.
    So there are countless examples of ESA success stories and 
our country is a better place for it. So as I said in the 
beginning, I am not here to suggest that the law is perfect, 
that it cannot be implemented better. I think, for example, 
more adequate appropriations to the Fish and Wildlife Service 
could go a long way toward addressing any concerns in that 
regard.
    I have also offered to work with you, Mr. Chairman. I know 
you have been of the type that it is not ``my way or the 
highway'' position, and I appreciate that. And your staff has 
contacted mine about working on a proposal of mine, and I hope 
that we can continue to work together on this, and I appreciate 
that offer of yours to work together and I hope we can resolve 
our differences. Otherwise, I guess next week's markup will be 
a lively debate.
    Thank you Mr. Chairman.
    The Chairman. I thank the gentleman.
    The Chairman. The gentleman from Nebraska, Mr. Osborne.

STATEMENT OF THE HON. TOM OSBORNE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF NEBRASKA

    Mr. Osborne. Thank you, Mr. Chairman, I appreciate the 
opportunity to testify. I certainly do not believe the 
Endangered Species Act is evil. However, I do believe that 
there are some significant changes that could occur that would 
benefit our whole country. You have mentioned some of the 
aberrations, and I believe they are aberrations: the Canadian 
lynx problem; the Klamath Basin in which $2,500-an-acre 
cropland was reduced to $35 an acre. We have all seen that the 
national Forest Service designated 920 million visitors a year 
ago, and there are actually only 209 million. And so as a 
result of some of these issues, I think there has been a loss 
of trust and a loss of credibility among some of the 
constituents that I have.
    I would particularly like to discuss one issue that I think 
is of paramount importance to the State of Nebraska. This has 
to do with the endangered species listing of the whooping 
crane, which is certainly appropriate, because back in the 
1970's there were less than 50 whooping cranes in existence and 
so the listing was absolutely necessary. In 1978, 56 miles of 
the central Platt River in Nebraska was designated as critical 
habitat for the whooping crane, and therein began some of the 
difficulties.
    Gary Lingle, who is a program director for the Whooping 
Crane Trust--and I would like to point out that the Whooping 
Crane Trust is an environmental group. Gary Lingle would be, I 
believe, on most counts labeled as someone who was an 
environmentalist or is an environmentalist. And so he wrote a 
commentary on March 22nd of 2000. This is what he said. He 
said:
    ``From 1970 through 1998, a total of 29 years, there are 11 
years where there were no whooping cranes sighted at any time 
in the Platt River Valley.'' that is, 40 percent of the time, 
this so-called critical habitat had no whooping cranes at all.
    He goes on to say this: ``on the average, less than 1 
percent of the population of whooping cranes was ever confirmed 
in the Platt Valley during that same timeframe.'' if something 
is critical habit, you would think that more than 1 percent of 
the whooping crane population would at some time visit that 
area.
    Then he goes on to say this. He said: ``I wonder if the 
Platt River would even be considered if the Fish and Wildlife 
Service was charged with designating critical habit today? 
Certainly, no one would be willing to state on a witness stand 
that the continued existence of the species would be in 
jeopardy if the Platt River were to disappear.''
    Again, this is a commentary based on the views of someone 
who worked primarily for an environmental organization for 15 
years in the central Platt River.
    Probably the most telling study that was done was a radio 
tracking survey that was done from 1981 through 1984. And 
during that period of time, there were 18 whooping cranes that 
were fitted with radio collars and they were tracked for 2-1/2 
years. Three of those, three southbound migrations, two 
northbound migrations. Those 18 whooping cranes constituted 
roughly 20 to 25 percent of the total crane population 
existence at that time. The interesting thing was over that 2-
1/2 years, at no time did any one of those 18 whooping cranes 
visit the Platt Valley.
    Again, you would think that if that was critical habit they 
would have visited the Platt Valley at some point.
    Fish and Wildlife has monitored the Platt River with two 
airplane flights a day over that so-called critical habitat 
area, and they have had some sightings. They are currently 
claiming as much as 2 or 3 percent of the whooping crane 
population visits the Platt. However, there is no way to 
determine if those are not multiple sightings. Many believe 
that they are.
    So, at any rate, no matter how you slice it, there really 
is almost an insignificant number of whooping cranes that ever 
visit that critical habit, and most of the cranes that do only 
stay overnight. They do not mate there. They do not nest there. 
It is not a critical area.
    So you may say, so what? Maybe they made an incorrect 
designation. What does that have to do with it? In order to 
comply with this critical habit designation, we have had to 
enter into a cooperative agreement between the States of 
Colorado, Wyoming, and Nebraska. It involves three States. And 
what they have had to do is to come up with some ways to meet 
the standards. And so 134,000 acre-feet of water are designated 
to an environmental account at the present time. And this water 
is mostly stored in Lake McConaughy in Nebraska. That, of 
course, is a significant loss of irrigation water. Nebraska has 
to contribute 100,000 acre-feet, Colorado 10,000 and Wyoming 
the remaining 20-some-thousand remaining acre-feet.
    Also they have established endstream flows. Many biologists 
and people who knew something about the whooping crane said 
that 1,350 cubic feet per second at Grand Island would be 
adequate. The Fish and Wildlife said no, it would have to be 
2,400 cubic feet per second, which most people say is way too 
deep for cranes to wade around in. So anyway, that water has to 
flow down the river in April and May. It is lost to irrigation. 
It cannot be recovered for any other purpose.
    Also there are no new depletions, which means that since 
1997, no one can drill a new well, no community can water from 
the Platt River Valley. So it has certainly restricted any type 
of new development in that area. The cost is estimated to be 
$146 million. And in 10 years, phase 2 will go into effect, 
which is 417,000 acre-feet, which happens to be the total of 
all the irrigation water in the Platt Valley.
    So if we look at the Klamath Basin as a difficult 
situation, this is the same situation, only magnified many 
times over. We think this is a critical issue that needs to be 
looked at.
    Also I might mention that we are now in a comment period on 
the critical habitat for piping plover. Again, Gary Lingle 
writes this in his report. He said: ``That the central Platt 
does not offer any naturally occurring nesting habitat for 
these species, i.e. The piping plover and the least tern, is 
amply demonstrated by the fact that no tern or plover chicks 
were known to have fledged on any natural river sandbar during 
the entire decade of the 1990's.'' so for 10 years, there was 
no known fledgling or nesting activity on natural sandbars in 
the central Platt during that period of time. And yet they are 
going to designate, apparently, the central Platt and 430 other 
miles of river in the State of Nebraska as critical habit for 
the piping plover.
    Now, the concern that we have is this: In 1985, the Fish 
and Wildlife said that critical habitat for the piping plover 
was ephemeral. Ephemeral means you cannot pin it down. It 
changes day to day, week to week. Sometimes there is a sandbar, 
sometimes there is one there. So they said at that point, we 
will not designate critical habitat for the piping plover or 
the least tern because it is ephemeral. 1985.
    Now, today, they will designate 430-some miles of stream in 
Nebraska and thousands throughout Minnesota, North Dakota, 
South Dakota, and Montana. So that is certainly a change.
    Last, let me mention this, Mr. Chairman. In the 1980's, EA 
engineering did a study about the piping plover on the Platt 
River. And generally speaking, the gold standard I believe for 
many groups is that you want to go back to the way it was 
before people got there. How was it before Lewis or Clark, or 
when Lewis and Clark saw it? How many buffalo? How many prairie 
dogs, and so on? So EA Engineering tried to determine what the 
piping plover and least tern population in the Platt River was 
in the 1800's.
    In the early 1900's they can find no recorded data that 
indicates any evidence that piping plover or least tern were on 
the Platt River during those years. They said this is the 
reason why: The snowmelt off of the Rocky Mountains hits 
Nebraska in June, which causes flooding which wipes out all the 
nests. In August, the Platt River dries up, which means there 
is no habit for the young birds. Therefore, they said they do 
not believe and there is no record that there ever has been any 
habit for these birds. So the Kingsley dam was built in 1940, 
and after that time there did occur some habitat.
    So if the standard was how was it originally, what we would 
have to say is that originally it does not appear that there 
were any piping plover and least terns on the Platt River.
    Overall we feel this would be an erroneous designation. We 
feel because of the economic impact on the area, because the 
designation appears to be incorrect for the critical habitat, 
that we would like to see an independent peer review. We did 
not want to overthrow--we do not want to overturn the 
Endangered Species Act. We would like to simply see somebody 
evaluate and determine whether this is an accurate 
determination or not. It should not be Fish and Wildlife. It 
has to be an independent agency.
    With that, I conclude my testimony, Mr. Chairman, and thank 
you for your time.
    The Chairman. I thank you.
    [The prepared statement of Mr. Osborne follows:]

 Statement of The Honorable Tom Osborne, a Representative in Congress 
                       from the State of Nebraska

    Mr. Chairman and Members of the Committee, I appreciate having the 
opportunity to testify today at this important hearing. I represent a 
very large rural area in Nebraska. Ninety-seven percent of this 
district is privately owned. Currently, landowners are very concerned 
about property rights and they are especially concerned about the 
Endangered Species Act because this Act can be tremendously invasive.
    I believe there is a crisis of confidence among my constituents 
regarding the administration of the Endangered Species Act. I am going 
to mention just a few things that have happened that have led to this 
crisis of confidence. First, as you are well aware, the irrigation 
water for many farmers in the Klamath Basin was cut off abruptly, 
causing a great deal of financial hardship. There were two types of 
suckers in Klamath Lake, and coho salmon in the river below that were 
supposed to be protected by this action. As a result, the farmers lost 
their crops, some lost their farms, land values declined from $2,500 an 
acre to $35 per acre in that particular area. Oregon State University 
estimates that the loss of water cost the economy $134 million in that 
area. This was a tremendously costly and a very invasive situation.
    Recently, the National Academy of Sciences, in an independent peer 
review, determined that there was insufficient data to justify the 
decision to shut off the irrigation water in the Klamath Basin. In 
other words, they said that this was something that should not have 
happened. Factors other than the lower levels in Klamath Lake were 
endangering the sucker fish. The National Academy of Sciences 
determined that the larger releases of water, the irrigation water that 
normally went down the irrigation canals, actually harmed the coho 
salmon because this water was warmer due to being held in the lake for 
a longer period of time. So the true result was the reverse of what 
they had tried to accomplish.
    Second, more recently, in a congressional hearing, we heard from 
officials from the Fish and Wildlife Service and the Forest Service 
because seven employees of these agencies and a Washington State agency 
falsely planted Canadian lynx hair in the forests of Washington and 
Oregon. You might ask why in the world would somebody do this? Why 
would you go out and bother to take hair from a captive lynx and plant 
it in widespread areas? Apparently, this would result in a wider 
declaration of critical habitat for the Canadian lynx, which they felt 
in some way would help preserve the Canadian lynx.
    Obviously, it was a falsehood and, according to testimony, others 
within government agencies were aware of the planted lynx hair and did 
not report it. The interesting thing was that after all of this 
happened, the guilty parties were subjected to counseling as a 
punishment, and most of them received their year-end bonuses and 
raises. What kind of a message are we sending if somebody falsifies 
data and yet practically no consequences occur as a result of that 
falsification?
    Furthermore, the National Park Service recently indicated some 
false and inflated numbers of visitors. While 209 million people 
actually visited our national forests, they reported 920 million 
visitors, which was roughly a 400 percent increase. Why in the world 
would an agency do this? They certainly can count better than this. 
Some would assume that this had something to do with the fact that they 
wanted to point out overcrowding, and that maybe some more roads or 
some more areas of the parks needed to be restricted to visitors 
because of overcrowding.
    Recently here in Washington, D.C., the Environmental Protection 
Agency gave the Corps of Engineers permission to dump thousands of tons 
of sludge into the Potomac River. Of course you would think that this 
was in direct violation of the Endangered Species Act because the 
short-nosed sturgeon occupies the Potomac River and it is endangered. 
Why would they do this? How in the world could you get by with this 
when out in the West you cannot do these things? It has caused beavers 
and ducks to be mucked up to the point where they have had a hard time 
surviving. It appears that if these tons of sludge are not pumped into 
the Potomac River, they would have to be put in dump trucks and trucked 
through the city of Washington, D.C., which is not real politically 
popular in this area.
    Not surprisingly, this results in people in rural areas having the 
feeling that maybe there is a double standard and maybe people in some 
urban areas, because of the size of the population and the economic 
impact, do not pay quite the same price. This is a serious concern for 
my constituents.
    An issue that is critical to the future of rural Nebraska involves 
the Central Platte River in the State of Nebraska. In 1978, 56 miles of 
the Central Platte were declared critical habitat for the whooping 
crane. At that time, there were not very many whooping cranes, probably 
less than 50, so they were listed as an endangered species and rightly 
so. They are now doing better. There are roughly 175 whooping cranes 
that generally fly through Nebraska today.
    However, as a result of that designation, some things occurred. As 
a result, in order to protect critical habitat for the whooping crane, 
the Platte River Cooperative Agreement began to take shape. In-stream 
flows have been proposed for the Platte River, including 2,400 cubic 
feet per second of water in the critical habitat area in the spring. 
Interestingly, the original recommendation by many biologists was not 
2,400 cubic feet per second, but 1,300 cubic feet per second. By 
tweaking it one way or another, the Fish and Wildlife Service almost 
doubled the flow and the amount of water that goes down the river. They 
want 1,200 cubic feet per second during the summer, and they want pulse 
flows of 12,000 to 16,000 cubic feet per second for 5 days in May and 
June of wet years. This is a huge amount of water in the Platte River, 
and it results in some flooding. The main issue here is that it deepens 
the channels in the river when you have these large pulse flows, and 
then how do you compensate for the loss of sediment in the river?
    The problem with those pulse flows is as follows: the 12,000 to 
16,000 cubic feet per second will deepen the channel in the river and 
will remove sediment. As part of its contribution to the Cooperative 
Agreement, Nebraska is being asked to contribute 100,000 acre feet of 
water, stored in Lake McConaughy; which will be distributed down the 
Platte River when people feel the cranes might need it. Wyoming 
contributes 34,000 acre feet of water and Colorado 10,000 acre feet of 
water, so the total contribution is 140,000 acre feet of water. This is 
a fairly expensive premise.
    In addition, no new depletions are allowed in the Platte River 
basin. So we not only have these flow limits, but within 3 to 4 miles 
of either side of the Platte River, my constituents have not been able 
to establish a new well since 1997. This limits the expansion of 
communities, businesses, and farms.
    The sediment that is lost in the river from the large pulse flows 
has to be replaced. At one time, there was a proposal to haul in 100 
dump truckloads of sediment per day, and this would go on for years and 
years. You can imagine the cost of doing this. This was supposed to 
replace the sediment that these large pulse flows removed from the 
river. This proposal has been abandoned, but now the Federal agencies 
involved are reportedly talking about taking bulldozers and pushing 
islands into the river to cause more sediment. This is a very invasive 
and expensive process. The above plan is only Phase 1.
    After 10 years, Phase 2 kicks in, and requires 417,000 acre feet of 
water, which about triples the amount of water required. This would be 
practically all of the irrigation water used in the Platte River 
system. Nebraska's farmers and ranchers are rightly concerned that at 
some point the Endangered Species Act could be used in a way that would 
cut off all irrigation up and down the Platte River, which is several 
hundred miles long, and could make the Klamath Basin situation pale by 
comparison.
    For the water to get to the beginning of the habitat area, which is 
100 miles downstream from Lake McConaughy, it takes 5 days. It takes 7 
days to get to the lower end of the habitat. Water is being released 
out of Lake McConaughy to control the flow. Rain often swells the river 
in those 5 days, resulting in much higher flows in the Platte River 
those required under the Cooperative Agreement. It does not seem 
possible to accurately regulate in-stream flows when the supply source, 
Lake McConaughy, is so far from the critical habitat area.
    The current estimated cost of planning the Cooperative Agreement is 
$160 million. That is just to create the agreement. It is a small cost 
compared to the cost of the lost irrigation water, the lost power, and 
the sediment dumping.
    Many people believe that the Cooperative Agreement has been time-
consuming, expensive and burdensome to landowners. However, the aspect 
that is even more important is that the need for the Cooperative 
Agreement appears to be based on a false premise. The false premise is 
that the 56-mile stretch of the Platte River is critical for the 
existence of the whooping crane.
    The area from Lexington to near Grand Island is the critical 
habitat for the whooping crane. Because the purpose of a critical 
habitat designation is to protect habitat whose removal or damage would 
further endanger the species, one would assume that this would be an 
area that would really be critical to the migration of the whooping 
cranes as they go north and south.
    However, Gary Lingle, who served as the watershed program director 
for an environmental group called the Whooping Crane Trust for 17 
years, filed comments on March 22, 2000, with the Fish and Wildlife 
Service. The comments state: ``From 1970 through 1998, that is a total 
of 29 years, 11 years there were no whooping cranes.'' Almost 40 
percent of the time, no whooping cranes were sighted at any point in 
this stretch of river, which is supposedly critical habitat. If this 
habitat is truly critical, it does not seem likely that no whooping 
cranes would be observed in 40 percent of the years.
    The comments go on to say: ``On average, less than 1 percent of the 
population of whooping cranes was ever confirmed in the Platte Valley 
during that same time frame.'' Again, if it is critical habitat, one 
would think that a higher percentage of cranes would be observed. But 
only 1 percent or less has been seen in that region of the river over 
29 years, according to his comments.
    The most convincing evidence that I have encountered that this 
segment of the Platte River is not critical habitat is that from 1981 
to 1984, there was a radio-tracking study of 18 whooping cranes using 
electronic tracking devices. This study was conducted on three southern 
migrations and two northern migrations. Eighteen cranes at that time 
represented somewhere between 15 and 20 percent of the total whooping 
crane population. This research determined that none of those 18 
whooping cranes used the Platte River at any time during the study.
    Surely if this is critical habitat for the whooping crane, at least 
some of those cranes would have regularly used the river, but yet not 
one of them did over that 2-1/2 years. This was not a case where they 
could slip into the area under the radar screen. They were monitored 
electronically, so researchers knew their whereabouts at all times. 
They were simply not in that area of the river.
    The Whooping Crane Trust comments go on to say: ``I wonder if the 
Platte River would even be considered if the Fish and Wildlife Service 
was charged with designating critical habitat today. Whooping crane 
experts that I have visited would be hard-pressed to consider the 
Platte River, given our current state of knowledge.''
    The comments also say: ``Certainly none would be willing to state 
on a witness stand that the continued existence of the species would be 
in jeopardy if the Platte River were to disappear.'' If this area of 
the Platte River for some reason went away, he does not know of any 
experts who would say that would harm the whooping crane. Yet this area 
is designated as critical habitat, which has caused all of the proposed 
in-stream flow regulations, the proposed 140,000 acre feet of water and 
the proposed sediment dumping into the Platte River to compensate for 
pulse flows. All who live in the Platte River valley will be 
potentially impacted in some way by what appears to be an erroneous 
designation.
    When whooping cranes pass through Nebraska, a scattergram of where 
they stop is developed. The cranes travel through most of the state, 
and normally stay overnight. If this is critical habitat, they would 
stay for several days, a week, a month to regroup and mate; but they do 
not. Their stay in Nebraska is brief and, for the most part, random.
    However, this central part of the Platte River is truly critical 
habitat for a group of cranes, called the Sand Hill cranes. There are 
roughly 400,000 to 500,000 Sand Hill cranes that come into that area, 
and they spend 2 to 4 weeks every year. They come from Arizona, Texas, 
Oklahoma, Arkansas and Louisiana. They funnel into this area, and are 
heavily concentrated. They later go to their nesting grounds in Canada 
and North Dakota.
    It is possible that early on the Fish and Wildlife Service and 
others made an honest mistake. They could have assumed that the 
whooping crane has the same pattern as the Sand Hill crane, and that 
the whooping crane really needed this area to stage, to mate, to gain 
strength for the rest of their trip. But this is not the case.
    One whooping crane was apparently imprinted with the Sand Hill 
cranes. It has even been named ``Oklahoma.'' This particular crane 
flies with the Sand Hill cranes, and stays around for 3 or 4 weeks like 
the other Sand Hill cranes, because he apparently thinks he is a Sand 
Hill crane. One wonders how many of the sightings in the area have been 
of Oklahoma. He may have been sighted many times and counted 
accordingly.
    The Fish and Wildlife Service is doing everything it can to make 
the habitat fit the whooping crane. Twice a day they fly the river 
looking for whooping cranes. If you look hard enough, you may find 
something. But, still, only 1 to 2 percent of the whooping cranes are 
spotted in that area as they come north or as they go south.
    Additionally, the Fish and Wildlife Service is expected to declare 
450 miles of the Platte River, the Loup River, and the Niobrara River 
as critical habitat for the piping plover and the least tern. Ninety-
seven percent of these rivers flow through private land. Many of the 
same issues that apply to the whooping crane apply to the designation 
of critical habitat for these species.
    The Whooping Crane Trust's comments also address the piping plover 
and the least tern. ``[T]hat the Central Platte does not offer any 
naturally occurring nesting habitat for these species, i.e., the piping 
plover and least tern, is amply demonstrated by the fact that no tern 
or plover chicks were known to fledge on any natural river sandbar 
during the entire decade of the 1990s.''
    For some reason, the sand pits and the lakes and the other areas 
where the piping plover and the least tern have been successfully 
fledgling have not been declared as critical habitat only the rivers. 
This is a puzzle, at least to me.
    The Whooping Crane Trust's comments go on to say: ``This begs the 
question as to whether it is in the best interests of the species' long 
term well-being to attract them to an area where they are likely to be 
flooded or eaten by predators.'' This is the likely result because as 
the river is adjusted in the spring to hold down the flows, the birds 
nest on the sandbars in the river. Over the next 50 or 60 days, it is 
likely that the birds are going to get flooded out. The apparent intent 
of the proposed critical habitat is to attract them into an area that 
probably is going to result in their destruction. They would be much 
better off if they went to a sand pit or lake where they are not going 
to be flooded out by fluctuating river flows. The programs intended to 
save the piping plover and the least tern may actually contribute to 
their demise.
    A study done by EA Engineering in the late 1980s indicated that the 
Central Platte did not play a significant role in the maintenance of 
the least tern or the piping plover prior to the construction of 
Kingsley Dam in 1941. According to the study, there are several reasons 
for this. The first is that as the river ran unimpeded; the snow pack 
melted; and the highest water would occur in June, which was the peak 
nesting time for the piping plover and least tern. The birds were wiped 
out because that water rose and washed out the nests that are built 
near the water level. In August, the Platte River would usually dry up. 
Most years there would not be any water in the river, which meant 
essentially that there was no feed or habitat for the young birds if 
they did manage to survive. Lastly, there was no historical data of 
tern or plover sightings on the Central Platte at all during the late 
1800s and the early 1900s. The logical conclusion must be that this is 
not critical habitat that is indigenous to the species. If it is 
habitat at all, it is due to the creation of the dam. But even then, it 
has not been effective.
    Because of these questions, I have requested the Secretary of the 
Interior to provide an independent peer review by the National Academy 
of Sciences of the science used in making these decisions. It is my 
understanding that the three states involved in the Cooperative 
Agreement, Colorado, Nebraska, and Wyoming, are now interested in 
having a National Academy of Sciences study completed prior to moving 
forward with the Cooperative Agreement. These states would also like 
assurances that the data used by the Fish and Wildlife Service is 
accurate. I know that Secretary Norton is dedicated to making decisions 
based on accurate data. I have talked to her, and I believe that she is 
committed to sound science.
    It is important that those listening do not assume that I oppose 
endangered species. I enjoy wildlife and certainly do not want to see 
the whooping crane, the piping plover, or the least tern eliminated. It 
is important to remember that sometimes the Endangered Species Act may 
not only negatively impact farmers and ranchers, it may actually harm 
the species, as was the case with the coho salmon in Klamath Falls. I 
think it is only fair to say this, too. Certainly the great majority of 
Federal employees who work with endangered species are ethical and 
hard-working. I have met them and have worked with them. Unfortunately, 
it appears that an end-justifies-the-means mentality has become more 
and more pervasive. The absolute authority granted by the Endangered 
Species Act has given license, I believe, to rather serious abuses.
    For those reasons, legislation like H.R. 4840 is important to the 
true protection of endangered species. The Chairman's bill will require 
that the Secretary of the Interior set standards for the scientific and 
commercial data that is used to take actions under the Endangered 
Species Act. The bill also will give greater weight to data that has 
been field-tested or peer-reviewed, which is very important to my 
constituents who have lost faith in the process. The insertion of sound 
science into the Endangered Species Act will only serve to enhance the 
protection of these species by proving to people throughout the country 
that the species in question truly needs to be protected. I thank the 
Chairman for his efforts and the opportunity to testify here today.
                                 ______
                                 
    The Chairman. As you folks have noticed, we have a vote on. 
We have a 15-minute vote, and then two 5-minute votes following 
that. So what do you want to do?
    Mr. Rahall. We are being pretty loaded on the floor with 
votes, Mr. Chairman.
    The Chairman. First, I will recognize the gentleman for a 
unanimous consent.
    Mr. Rahall. I ask unanimous consent that all Members on my 
side of the aisle be allowed to put statements in the record, 
and Mr. DeFazio to follow immediately.
    The Chairman. Without objection, so ordered.
    [The prepared statement of Mr. DeFazio follows:]

Statement of The Honorable Peter DeFazio, a Representative in Congress 
                        from the State of Oregon

    I have been a strong advocate for Endangered Species Act (ESA) 
reform since the bill expired in 1992. I sincerely believe that we can 
make changes to the ESA that make it work better for individuals and 
communities impacted by management decisions made due to the ESA, and 
for species we are trying to recover.
    In 1995, I favored ESA reforms that would help both communities and 
endangered species. The bill I supported would have maintained the core 
principles of the ESA, but could have prevented the fish versus people 
situation that we saw in the Klamath Basin last year. The reforms would 
have involved the state in any proposed species listing. It would have 
allowed the state to propose a Habitat Conservation Plan or other long 
term recovery strategy to prevent a listing. It would have also 
required Federal agencies to weigh social and economic impacts prior to 
listing a species. Unfortunately, the moderate, bi-partisan reforms I 
supported were rejected. Instead, a virtual repeal of the ESA, by 
Representative Pombo, was pushed through the Committee. Fortunately, 
the Majority's approach to reforming the ESA was rejected by the 
Republican leadership and never allowed to reach the House floor. I 
hope that is not the direction the Committee takes this time around.
    I wholeheartedly support making sure management decisions are based 
on sound science. I don't think anyone wants to see ESA decisions being 
made based on science that is faulty or inaccurate; especially when the 
impacts of those decisions can have devastating social and economic 
impacts on local communities.
    At the same time, we must allow scientists within our Federal 
agencies to do their job, and give them the resources to do it well. 
They must be allowed to use all the tools available to them, such as 
modeling, in an effort to make good decisions based upon available 
data. In addition, simply requiring more and better science of agencies 
that are severely underfunded will lead to worse science and therefore 
worse management decisions not better. Through stringent peer review of 
some key management decisions, and the science that informs them, we 
can move a long way toward weeding out seemingly arbitrary or 
capricious management decisions. I believe this can be done without 
drastic reforms that will undermine the ESA.
    I hope the Committee recognizes that a better ESA can result from 
working together on a bi-partisan solution in the push for sound 
science. I am certainly willing to work with my colleagues on both 
sides of the aisle to ensure that the best science possible is used in 
making ESA decisions.
                                 ______
                                 
    The Chairman. The gentlewoman from Wyoming is next.
    This is kind of important stuff. I would appreciate your 
coming back at the conclusion of the gentlewoman's comment.

   STATEMENT OF THE HON. BARBARA CUBIN, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF WYOMING

    Mrs. Cubin. Thank you, Mr. Chairman. I would like to 
respond to Mr. Rahall's comments before I start my formal 
remarks.
    First of all, I do not accept that there are countless 
success stories in the Endangered Species Act, especially when 
you consider the costs to the State and the cost to private 
individuals due to their inability to use their land to make 
their living. But I accept that there are some. And I think 
what we need to do is we need to find out, as you said, Mr. 
Rahall, what the facts actually are and what is exaggerated and 
what is not exaggerated.
    Another remark that was made is 99 percent of listed 
species have been prevented from going extinct. We need to look 
at what is an endangered species. The wolf was put back in 
Yellowstone under the Endangered Species Act. There are 60 to 
70,000 Canadian gray wolves alive and well on the North 
American Continent, but they live in Canada. Because there is 
an imaginary circle drawn by Bruce Babbitt around Yellowstone 
National Park, it was determined that the gray wolf was 
endangered, even though 60- to 70,000 were alive. That is 
another thing. I do not consider that a success story for 
saving the gray wolf from extinction. So there is another area 
that we need to look at.
    There is one thing that binds most of us together who live 
in the West, it is the Endangered Species Act. While I could 
testify on how this law does not work or how it is only 
enforced in the rural West, which we know when we look at the 
Woodrow Wilson Bridge being built out here, or about how many 
billions of dollars that it has cost those who live near our 
public lands. That is not the purpose of our testimony today. 
Today I wish to share a textbook case which highlights why 
passage of H.R. 4840, the Sound Science for Endangered Species 
Planning Act of 2002, and peer-reviewed science, is so vital to 
achieve fair and just enforcement of the ESA.
    On May 13, 1998, the Preble's meadow jumping mouse was 
designated as threatened in Wyoming and Colorado. Later, in 
March 2001, the Fish and Wildlife Service reached an out-of-
court settlement with Biodiversity Associates, a quasi-local 
environmental group, to set aside critical habitat for the 
Preble's meadow jumping mouse.
    I have to add as an aside that the State of Wyoming has 
continually been thwarted when trying to determine just how the 
science was done to make these determinations, such that the 
State was forced to file a Freedom of Information Act request.
    At any rate, this action affects over 19 areas in southern 
Wyoming and thousands of square miles in Wyoming and Colorado. 
According to the Fish and Wildlife Service, these recovery 
areas were chosen through three different methods, and this 
really is important:
    First, a trapper who was holding a live mouse looked at it 
and said, it looks like a Preble's or a subspecies of the 
Preble's mouse. Very few of these eyeball judgments were 
recorded by a photograph. No pictures, just a judgment by a 
trapper looking.
    Second, the trapper took hole punches, the size of a pen 
tip, from the mouse's ear for a DNA sample. These samples were 
proven to be inconclusive in showing that the mice are Preble's 
meadow jumping mice.
    Third, a mouse died, or was killed, and the skull was used 
in morphology studies, along with comparison to other skulls 
held in museums, to measure within one-hundredth of a 
millimeter to determine if the sample skull was a subspecies of 
the mouse. These, too, have proven inconclusive to those who 
reviewed the work.
    Each time one method gets discredited, a new ineffective 
method crops up. Many times during the Preble's recovery team 
meeting, several different well-respected scientists and 
statisticians from across the country have shown that these 
approaches were totally ineffective. However, the shoddy 
science collected by the Fish and Wildlife still stands, and 
folks are still going to lose some of the beneficial use of 
their private lands to recover a jumping mouse, who no one has 
yet shown to ever have existed in Wyoming.
    Is it unreasonable to ask that a law require a sound 
scientific basis before restrictions are placed on thousands of 
acres?
    Further, in many instances private property owners, with 
good reason, did not allow Fish and Wildlife Service onto their 
property for a survey. These landowners were concerned that the 
use of their private land to support their families would play 
second fiddle to the recovery of a jumping mouse that has not 
been proven to ever have existed in Wyoming. They were 
justified in their concerns, and I do not blame them.
    I have been told that some of these private lands were 
designated through drive-by surveys--that people did not even 
get out and look at the ground--and aerial photos.
    These are real people who have real concerns, and I request 
sound science be the basis for the enforcement of ESA, not 
eyeballing mice for an identification that even DNA samples 
cannot prove conclusively.
    I request that Federal agencies cooperate with the States 
involved and not hide the data from the States to make these 
determinations. It is an unfortunate day when the science used 
to restrict public and private land is so sloppy that it must 
be hidden out of the fear that it will be exposed for what it 
is.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    [The prepared statement of Mrs. Cubin follows:]

Statement of The Honorable Barbara Cubin, a Representative in Congress 
                       from the State of Wyoming

    I thank the Committee for the opportunity to testify today.
    If there is one thing that binds those of us who live in the West 
together, it is the Endangered Species Act. While I could certainly 
testify on why this law does not work, or how it is only enforced in 
the rural west, or about the many billions of dollars it has cost those 
who live near our public lands, that is not my purpose today.
    Today I wish to share a text book case which highlights why passage 
of H.R. 4840, the Sound Science for Endangered Species Planning Act of 
2002, and peer reviewed science, is so vital to achieve fair and just 
enforcement of ESA.
    On May 13, 1998, the Preble's meadow jumping mouse was designated 
as ``Threatened'' in Wyoming and Colorado areas. Later, in March 2001, 
the Fish and Wildlife Service reached an out-of-court settlement with 
Biodiversity Associates, a quasi-local environmental group, to set 
aside ``Critical Habitat'' for the Preble's meadow jumping mouse.
    I might add as an aside that the state of Wyoming has continually 
been thwarted when trying to determine just how the science was done in 
these determinations, such that the State was forced to file a Freedom 
of Information Act request.
    At any rate, this action affects over 19 areas in southern Wyoming 
and thousands of square miles in Wyoming and Colorado. According to the 
Fish and Wildlife Service, these recovery areas were chosen through 
three different methods:
    First, a trapper, holding a live mouse, looked at it and said the 
mouse looks like a Preble's or a subspecies of the Preble's. A very few 
of these ``eye ball judgements'' were recorded by photograph.
    Second, the trapper took hole punches, the size of a pen tip, from 
the mouse's ear for a DNA sample. These have proven to be inconclusive 
in showing these mice are Preble's meadows jumping mice.
    Third, a mouse died or was killed and the skull was used in a 
morphology study, along with comparison to other skulls held in 
museums, to measure to the one-hundredth millimeter to determine if the 
sample skull was a sub-species. These too have proven inconclusive to 
those who review the work.
    Each time one method gets discredited, a new ineffective method 
pops up. Many times during Preble's Recovery Team meetings several 
different well respected scientists and statisticians from across the 
country have shown these approaches ineffective.
    However, the shoddy science collected by the Fish and Wildlife 
still stands, and folks are still going to lose some of the beneficial 
use of their private lands, to recover a jumping mouse who no one has 
yet shown to ever exist in Wyoming. Is it unreasonable to ask that law 
require a sound scientific basis before restrictions are placed on 
thousands of acres?
    Further, in many instances private property owners, with good 
reason, did not allow the Fish and Wildlife Service onto their property 
for a survey.
    These land owners were concerned that the use of their private land 
to support their families would play second fiddle to the recovery of 
the jumping mouse that has NOT been proven to ever have existed in 
Wyoming!
    They were justified in their concerns. I'm told some of these 
private lands were designated through ``drive by'' surveys or aerial 
photos.
    These are real people, who have real concerns. I request that sound 
science be the basis for enforcement of ESA, not ``eyeballing'' mice 
for an identification that even DNA samples cannot prove conclusively. 
I request that Federal agencies cooperate with the States involved, and 
not hide the data used to make determinations.
    It is an unfortunate day when the science used to restrict public 
and private land is so sloppy that it must be hidden out of fear that 
it will be exposed for what it is.
                                 ______
                                 
    The Chairman. We will stand in recess. I urge members to 
come back.
    [Recess.]
    The Chairman. The Committee will come to order.
    The last person to testify, I believe, was Mrs. Cubin from 
Wyoming. I do not see anybody on the Minority side. So next in 
line was Mr. Rehberg.

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

    Mr. Rehberg. Thank you, Mr. Chairman. I appreciate the 
opportunity to commend you, Mr. Chairman, for the introduction 
in the hearings of this opportunity on 4840. I spoke to a group 
of students this morning, and when asked how I got into 
politics, I told the story that my great grandfather created 
the Milk Control Board in Montana. My grandfather served on the 
Milk Control Board, and my dad sued them.
    That is just what the Endangered Species Act reminds me of. 
By the way, when I was Lieutenant Governor, we eliminated it, 
so it took four generations to get back to where we should have 
been in the first place.
    When the Endangered Species Act was created, it had a good 
motive, and the motive was try to save plants and animals. None 
of us disagree with the premise behind the Endangered Species 
Act. But I have to tell you when you have bumper stickers in 
the State of Montana that say, ``Shoot, shovel and shut up,'' 
something is not working.
    You have created an opportunity within the U.S. Congress 
and the court system where we are more litigation-driven than 
we are driven by creating the incentives to do the right thing. 
And so, while I hold some optimism over the legislation in 
front of us, sometimes I worry that perhaps we do not own the 
term ``reform'' when we talk about tax reform. There is good 
tax reform and bad tax reform. When we introduce legislation 
that has sound science and peer-review Committees, I worry that 
sometimes by establishing a standard such as ``sound science,'' 
that we do not own that term either, and we may not like the 
sound science that some of our colleagues on either side of the 
aisle might implement to determine what an endangered species 
is or what a critical habitat may be.
    I had an opportunity to travel to Nebraska on behalf of the 
Committee and have an endangered species hearing with 
Congressman Osborne. And with due respect to our colleague from 
West Virginia, maybe this Committee and some of the members on 
this Committee need to get out more and travel around the 
country, because they will find that emotions have not cooled 
when we are talking about endangered species.
    When people in Washington, D.C. are considering listing the 
prairie dog as an endangered species, I would like to take them 
out to my ranch and show them four towns that have entirely 
decimated the grasses on that ranch. I would like to take them 
down to Nebraska, where we were, and show them the habitat of 
the crane that has never existed, but they want to make a 
determination that it is a critical habit.
    And so I do not know if I hold out a lot of optimism that 
even this legislation will have the desired effects that we 
would like it to. I commend you for introducing it, getting the 
debate underway. I thank the Chairman for appointing me to the 
ad hoc Committee that you did to try and solve the issue. It 
was a bipartisan coalition of unlike-minded people. It took us 
2 months to decide where to meet and when, so that will tell 
you how contentious the issue is.
    But I came to the conclusion during these meetings that we 
all look at the Endangered Species Act from a different 
perspective. And while those that represented urban areas 
served on the Committee with their own desire to try to get 
back to something that was in the past, those of us who 
represent constituencies like mine in the State of Montana look 
at the Endangered Species Act as sometimes not being enforced 
consistently.
    In Montana, I frequently use the example that the good guys 
are finally suing the urbanites over the Wilson Bridge and the 
aqueduct along the Potomac. Despite the fact that there is an 
endangered species being impacted within the Potomac, it seems 
like that project carries forwards. And yet if we have a 
project that we want to consider in Montana, the project cannot 
move forward, and so the law is being enforced inconsistently.
    I hope these types of legislative proposals will allow us 
the opportunity to bring some sense back to the Endangered 
Species Act, and for that I commend you, Mr. Chairman, and 
wholeheartedly support your bill. Thank you.
    The Chairman. I thank the gentleman from Montana.
    [The prepared statement of Mr. Rehberg follows:]

   Statement of The Honorable Dennis R. Rehberg, a Representative in 
                   Congress from the State of Montana

    Mr. Chairman, I commend you for holding this hearing on your 
legislation, H.R. 4840, which amends and reforms the Endangered Species 
Act to ensure the use of ````sound science``'' in its implementation.
    The ESA as it stands is flawed in several respects:
     it is driven not by sound science but by litigation;
     it focuses on undeveloped land while discouraging 
positive management techniques to increase species populations;
     it inflicts human, economic, and social costs with little 
or no evidence of success in the recovery of endangered species; and
     it imposes undue financial and regulatory burdens on 
landowners when valuable resources are found on their property.
    It is time we do something more than discuss existing endangered 
species laws, regulations, and policies and complain about the problems 
and hardships they impose.
    It is time to, instead, address these issues and come up with real 
world solutions. It is time to take a hard look at the Act and offer 
suggestions and solutions to the unique challenges of ESA 
implementation.
    The ESA itself gives little guidance as to what information or 
````science``''--these scientists and wildlife biologists need to 
consider before justifying a species'' inclusion on the list. This 
leaves an enormous amount of discretion to those gathering information.
    However, H.R. 4840 addresses a major problem with the ESA--the fact 
that it lacks definitions as to what constitutes the ````best``'' 
science. The ````best``'' science is that which is collected by 
established standards or protocols and analyzed in the manner most 
appropriate. The ````best``'' science is not necessarily the science 
that ````proves``'' what one wants it to approve. That is simply the 
most ````convenient``'' science.
    H.R. 4840 streamlines the scientific process involved and creates 
an avenue to allow the BEST science to serve as the basis of endangered 
species decisions, as opposed to the ````most convenient``'' science.
    In Montana, the overreaching effects of the ESA affect Montanans on 
a daily basis. Foresters are precluded from harvesting timber because 
of possible implications on a species; ranchers fear for their herds 
because of wolves. But before any of that, scientists must determine 
whether a species deserves to be ````listed``'' as endangered or 
threatened.
    It is imperative that everyone reads off the same page. We need 
consistency in the Endangered Species Act, from scientific basis to 
enforcement of the law, but enforcement is another discussion for 
another day.
    In general, the ESA needs to be reformed. This legislation is the 
first step towards resolving the bureaucratic nightmare of policies and 
regulations and the multitudinous litigation associated with the Act. I 
look forward to hearing testimony on this aspect of ESA reform.
                                 ______
                                 
    The Chairman. The gentleman from Tennessee.

   STATEMENT OF THE HON. JOHN J. DUNCAN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF TENNESSEE

    Mr. Duncan. Thank you very much, Mr. Chairman. I thank you 
for calling these hearings.
    This is a very important issue. And some people are 
surprised to learn that my home State of Tennessee has the 
fourth-highest number of endangered species or candidates for 
the endangered species list. And the U.S. Supreme Court case 
mentioned in the briefing paper over the Tellico dam is a case 
that came out of my district. The construction of the Tellico 
dam in Tennessee was held up for years because of something 
called the snail darter that supposedly was endangered. And 
then, after we added many millions of dollars to the costs, and 
delays and so forth, probably several hundred million more than 
what that dam cost than what it should have, they found snail 
darters all over the whole country.
    And when you use the Endangered Species Act to tell farmers 
and ranchers and other property owners that they cannot use 
their property in the way that they wanted to, you take away an 
important element of the freedom that people have always valued 
so highly in this country, so you have a less free Nation, and 
I think that is an important consideration.
    And when you tell people that they cannot develop but just 
a small portion of their property, then you jam people closer 
together in smaller and smaller areas and you drive up the 
costs for homes and other things, and the costs of building 
projects, and those costs have to be passed on. And so who gets 
hurt by that? Not wealthy environmentalists, but the poor and 
lower-income and now the middle-income type people.
    The Washington Times in the mid-1990's ran an editorial 
that said this: ``the Federal Endangered Species Program is out 
of control. Expenditures identified in recovery plans grossly 
understate the actual costs of recovery, because many tasks 
called for in the plans do not include cost estimates, and none 
of the costs imposed on the private sector are included. The 
government has no idea of the true cost of the Endangered 
Species Program. Though unmeasured, the cost of implementing 
the Act as currently written are in the multibillions. Yet, in 
over 20 years, not a single endangered species has legitimately 
been recovered and delisted as a result of the Endangered 
Species Act.''
    They gave examples of--at that time, the Fish and Wildlife 
was trying to spend, that year, $70.2 million to help the 
blunt-nosed leopard lizard recovery, $85.9 million for the 
loggerhead turtle, $53.5 million on the Black-capped Vireo, $29 
million on the Swamp Pink, whatever that is.
    One gentleman said earlier something about a conspiracy. 
Nobody is saying this is a conspiracy. And they talked about 
helicopters and the U.N. and things that were totally off base, 
I think. When people cannot argue something on the merits, they 
sometimes get into childish sarcasm or name calling, and I am 
not saying that is what the gentleman intended to do. I do not 
think he intended that at all. But we need to talk about the 
merits of this legislation, and there need to be some changes 
to the Endangered Species Act if it is to do what it was 
intended. But we also are still going to balance that with the 
needs and desires of a free country.
    Thank you very much, Mr. Chairman.
    The Chairman. I thank the gentleman.
    The Chairman. The gentleman from Nevada.

STATEMENT OF THE HON. JIM GIBBONS, A REPRESENTATIVE IN CONGRESS 
                    FROM THE STATE OF NEVADA

    Mr. Gibbons. Thank you, Mr. Chairman. I too want to join 
and applaud you for your leadership for bringing this 
critically important issue before this Committee.
    As I have explained to this Committee on many occasions, 
those of us west of the Mississippi are in desperate need of 
some real reform on the Endangered Species Act in its 
application to the purpose of what it was created for. And if 
we fail to implement some of these commonsense changes to the 
ESA or the Endangered Species Act, the Act itself will become 
endangered.
    I think that is one of the critical reasons we are here 
today, Mr. Chairman, is to try to put some common sense back 
into it. Too often local ranchers, farmers, and State and 
county governments are finding themselves and their scientific 
data overruled by the emotion of the U.S. Fish and Wildlife 
Service, and who are often guided in their decisions by well-
funded and emotionally driven environmental groups on some of 
these issues.
    My colleagues, the abuses of the ESA and the reasons we are 
exploring this effort to reform the act, occur because the 
preservation of our wildlife is an issue driven too often by 
emotion and not enough by good, sound science that is going to 
be to the benefit of the species that it is intended to 
preserve.
    I would like to commend you, Mr. Hansen, for holding this 
hearing and for your bold efforts on this issue. And I want to 
thank the Chairman for also allowing me the opportunity to take 
this issue back to my home State of Nevada, and on July 27 we 
are going to hold a Full Committee hearing in Elko, Nevada on 
the controversial listing of the bull trout in the Jarbidge 
River in Elko County, Nevada.
    In this particular instance, let me explain, the Nevada 
Department of Fish and Wildlife had nearly 20 years' of 
scientific data recommending that the bull trout not be listed, 
because there was no threat to the population data of that 
species that they studied in that river, in that area, for 
nearly--more than two decades. And that information and that 
data was completely ignored and thrown out.
    And in testimony, the U.S. Fish and Wildlife Service 
admitted they had not studied the issue, they had no data on 
the fish, but they were going on an emotional recommendation to 
list the bull trout. They threw out the scientific data by the 
State, the State biologists, and listed the bull trout as an 
endangered species. And this action was motivated by a petition 
drive of a special interest group, Trout Unlimited, not in an 
effort to save the bull trout, but in an effort to close an 
access road to the upper parts of the river by this 
organization. So they used the Endangered Species Act, without 
science, to accomplish a purpose that had nothing to do with 
the saving of the bull trout.
    That is the kind of abuse and misuse of this Act that 
occurs in the West, and this is why we need to support H.R. 
4840. Again, I want to thank the Chairman for granting the 
opportunity to have a hearing in Elko, I certainly would 
welcome any of the members of this Committee out to the Second 
Congressional District of Nevada. I think you will find Elko to 
be much more accommodating than even Washington, D.C., and I 
hope we can continue to highlight the importance of this effort 
across the country, and I would hope that my colleagues will 
join me in Elko on the 27th.
    Thank you, Mr. Chairman, for this opportunity. I appreciate 
the opportunity.
    The Chairman. When did you say it was? The 27th?
    Mr. Gibbons. July 27. Let me repeat that. July 27 at 10 
a.m. In Nevada.
    The Chairman. If it was Wendover, we probably all be there.
    Mr. Gibbons. It is actually about 3 hours to the west of 
Wendover.
    The Chairman. The gentleman from the State of Washington, 
Mr. Inslee.

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

    Mr. Inslee. Thank you, Mr. Chairman. I guess the only 
observation I would like to make is I just wonder what people, 
200, 300, 400 years from now, will be looking at if somehow the 
Archives--somebody pulls open the Congressional Record 3- or 
400 years from now and sort of looks at our discussion about 
the Endangered Species Act and sort of asks, did our generation 
save too many species or did we save too few? And I kind of 
think the way things are going, that they would conclude that 
we did not save enough of them because the science is pretty 
compelling that we are having a rate of extinction that is 
pretty compelling, that we will have a rate of extinction that 
is extraordinary for the last 10,000 years.
    I do not know that I will be able to collect on a dollar 
bet on that, Mr. Chairman, because we will probably not be 
around then, but I will bet they will conclude we did not save 
enough. And I am not sure this bill heads in that direction, 
but as always I appreciate the discussion.
    Thank you, Mr. Chairman.
    The Chairman. Thank you.
    The Chairman. The gentleman from Arizona, Mr. Flake.

STATEMENT OF THE HON. JEFF FLAKE, A REPRESENTATIVE IN CONGRESS 
                   FROM THE STATE OF ARIZONA

    Mr. Flake. I too commend the Chairman for bringing this 
legislation forward. Most of what I want to say has been said 
more articulately by Mr. Rehberg, so I will not go on. But 
Arizona has many issues here. For example, our series of 
reservoirs are drawn down substantially now. Roosevelt Lake, 
the largest of the reservoirs, is down to about 20 percent of 
capacity. The problem is, in the meantime in the drawdown area, 
the willow fly catcher has nested, and now when we receive some 
much-anticipated rain, if it comes, we cannot fill it. We 
cannot fill it unless we charge the ratepayers substantial 
amounts, in the millions and millions of dollars, to purchase 
alternative habit elsewhere or go through other extreme 
measures.
    So we do need to inject a bit of common sense here again, 
and for that I commend the Chairman for bringing this bill 
forward.
    [The prepared statement of Mr. Flake follows:]

  Statement of The Honorable Jeff Flake, a Representative in Congress 
                       from the State of Arizona

    Dam construction has been halted in Maine; interstate highways have 
been diverted in Mississippi; on military bases and lands, everything 
from bombing range practice to amphibious landings has been curtailed, 
restricted, or cancelled. It has been used to restrict the use of 
private land for farming, ranching and development. Called by many the 
single most powerful law ever passed, the source of this land-use 
control is the Endangered Species Act (ESA). I believe the Endangered 
Species Act needs to be reformed and it needs to be done this year.
    My home state of Arizona is addressing its own concerns with the 
ESA as we speak. Roosevelt Lake, a reservoir of the Salt River Project 
(SRP), provides 1.6 million people in the cities of Phoenix, Mesa, 
Chandler, Tempe, Glendale, Gilbert, Scottsdale, Tolleson and Avondale 
with water. The endangered Southwestern willow flycatcher breeds in 
large numbers within the draw-down zone of Roosevelt Lake. After an 
extended period of drought, the capacity of Roosevelt Lake is at 20 
percent. When the rainy season arrives, and the reservoir fills, the 
current habitat of about 250 flycatchers will be submerged, thus 
causing a violation of the ESA.
    The Salt River Project has been proactively planning for such a 
time. SRP, through research and experience, estimates that to mitigate 
that loss and to develop habitat, either above the water line at 
Roosevelt Lake or elsewhere, will cost between 10 and 20 million 
dollars. The flycatcher spends its winters in the tropics of Central 
America. Currently we are uncertain whether it is the loss of this 
breeding habitat that may be causing the species to decline. Either 
way, the enormous cost of addressing its Roosevelt Lake habitat will be 
passed along to the water and power users of Phoenix and other nearby 
cities.
    As SRP plans to address its endangered species situation and we 
look to modifying the act, Zimbabwe, Namibia and South Africa have 
experimented in private wildlife management that might serve as a 
lesson to us. Tsessebe, a type of African antelope, were once 
threatened throughout Zimbabwe. They have been able to recover on 
private ranches thanks to changes in the law that granted private 
landowners full control over their land and the wildlife on it. Prior 
to this change, landowners had limited incentives to increase wildlife 
populations because the government denied them the full opportunity to 
profit from wildlife.
    Our current system is a warning to any land manager that the 
presence of an endangered species on that land--even the potential 
habitat for a species--will likely change how that land may be used. A 
regulatory taking of that land could result. This leaves no incentive 
to make land attractive to endangered species, and in fact potentially 
accelerates the destruction of that habitat.
    Reform is needed. As we look to that reform not only must we 
address sound science but we must consider innovative methods for 
change, and the advantages of environmental Federalism versus political 
centralization in our approach to the Endangered Species Act.
                                 ______
                                 
    The Chairman. Mr. Cannon from Utah.

    STATEMENT OF THE HON. CHRIS CANNON, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF UTAH

    Mr. Cannon. Mr. Chairman, I apologize for being in and out. 
We had a mark-up in the Judiciary Committee.
    I want to thank you for holding this hearing on the 
Endangered Species Act. I appreciate the comments of my 
colleagues. I would like to submit a statement for the record.
    But let me point out that I think it is important that we 
focus on what the Endangered Species Act does so that we can 
actually help species. It is my sense that we have not had a 
single species that has been removed from the list of 
endangered species through acts that come under the purview of 
the act. Rather, you had species delisted because they are 
improperly listed in the first place or because species became 
extinct or because of other actions from groups or agencies 
outside of the purview of the Endangered Species Act.
    So from my perspective, this is an enormously important 
hearing. I care about the stewardship we have of the Earth and 
the animals and the plant life on it. I hope that we can focus 
better on how we use our resources and less on a mechanism that 
is invidious, that costs huge amounts of money to people that 
are uncompensated for their losses, and which distorts our 
public processes and our systems so deeply.
    So I thank you for bringing this bill in and having this 
hearing and I look forward to it.
    [The prepared statement of Mr. Cannon follows:]

 Statement of The Honorable Chris Cannon, a Representative in Congress 
                         from the State of Utah

    Thank you, Mr. Chairman, for holding this hearing on the Endangered 
Species Act. This bill addresses one of the most basic deficiencies of 
the ESA: the lack of good science in the implementation of the Act. 
Clearly, many changes to the ESA are needed. Though H.R. 4840 is a very 
good bill, it only represents the first step towards fundamental 
reform. It is my hope that H.R. 4840 will be the first of many reforms 
of the Act.
    Simply put, the Endangered Species Act has not accomplished its 
principle aim of saving species. The original intent of the ESA was to 
conserve and protect American species of plant and wildlife that are 
threatened with extinction. While the preservation of species is a 
laudable goal, it must be achieved in a common-sense manner. The 
Endangered Species Act was never intended as a tool to limit the 
public's access to public lands or use of their own lands yet that is 
exactly how it has been implemented.
    Since its passage in 1973, the ESA has been fraught with problems. 
Numerous species have been listed improperly. Enforcement decisions 
have been speculative and often erroneous. Enormous, uncompensated 
costs have been imposed upon private landowners. And still, to this 
date NOT ONE SINGLE SPECIES has been removed from the list due to 
actions resulting from the ESA. Instead, species have been de-listed 
due to improper listing, other actions not related to ESA enforcement, 
and species extinction.
    All too often the implementation of the ESA has been based on 
questionable scientific data that have received no independent peer 
review. This simply cannot continue. H.R. 4840 will give greater weight 
to empirical or field-tested data and will create a new, more 
reasonable threshold for petitioners to meet before a listing petition 
can be considered. It's past time for the Department of Interior to use 
sound, objective and unbiased science for all listings and delistings.
    Sound science needs to be the modus operandi for implementing the 
ESA, not politics. H.R. 4840 will help remedy this problem.
                                 ______
                                 
    The Chairman. The gentleman from Idaho, Mr. Otter.

STATEMENT OF THE HON. C.L. ``BUTCH'' OTTER, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Otter. Thank you, Mr. Chairman. I would echo the 
comments that I have heard thus far of my colleague from 
Arizona, and also my colleague from Utah, and I do not see any 
need in duplicating those same comments. But it does strike me 
of the 24 species that we have on the endangered list in 
Idaho--and we have gone through all of those, time and time 
again, so I will not go through and enumerate them once more--
but we have done a better job of helping the survival of the 
law schools and the graduates from the law schools than we 
really have done on most of the species.
    So I would hope that we could move most of these decisions 
out of the courts, and do that with sound science, do that with 
the best science in many cases.
    I am wondering what science we call that in the Winachi 
National Forest, when the results were extremely clouded from 
the best scientists that were put up there to find as to 
whether or not there were Canadian lynx. And, of course, we 
have since heard of many other circumstances where the best 
science was used in order to establish a listing either of 
endangered or threatened or whatever.
    But I would not disagree with Mr. Inslee, and it is too bad 
that this is the first time in 19 months that I have not 
disagreed with him and he is not here to hear it. So maybe I 
will drop by his office and just give this speech over again.
    If I could have selected 200 years ago, I suspect in all 
appreciation and deference to my colleagues here who are LDS, 
excuse me for calling it the Mormon cricket, but we have the 
worst infestation in Idaho of the Mormon cricket. I apologize 
for that, Mr. Chairman. I cannot get any lower down here.
    So I would just say to you that that is one that 200 years 
ago, that is one I probably would have selected and said, OK, 
we will not go any further with this one. The cricket, not the 
other.
    Anyway, Mr. Chairman, I applaud you for your leadership and 
your continued efforts in order to bring some common sense to 
the whole endangered species question. Thank you, Mr. Chairman. 
I yield back.
    The Chairman. I thank the gentleman.
    The Chairman. I point out to you that the sea gulls have 
become socialists, because instead of going after the crickets 
and working hard like they should, they go to the garbage dumps 
where they get a free ride.
    Mr. Otter. If the Chairman would yield, it would be all 
right with me if you want to call them Catholic crickets, and I 
would still like to name them gone, no matter what. We have a 
devastating migration going on in Idaho right now, and we are 
without the authority to stop them from the greatest 
infestation in the location where they are, and that is all in 
the public lands. We can control them on the private lands, but 
we cannot control them on the public lands, and the result is 
they are migrating to the private lands where all the food is.
    Thank you, Mr. Chairman.
    The Chairman. The gentleman from California, Mr. Calvertse 
30.

STATEMENT OF THE HON. KEN CALVERT, A REPRESENTATIVE IN CONGRESS 
                  FROM THE STATE OF CALIFORNIA

    Mr. Calvert. Thank you, Mr. Chairman. I know for the 10 
years we have been--I have been on this Committee, we have 
discussed the Endangered Species Act and reform, and I think 
this legislation is certainly timely.
    In my own case in southern California, some people believe 
that because it is the fastest-growing area in absolute 
numbers, not in percentages like Arizona and Nevada, but in 
absolute numbers, that we are ``ground zero'' for ESA. In fact, 
the Carlsbad office is somewhat infamous, having an audit that 
you were very helpful in obtaining for that problem of 
mismanagement in Carlsbad.
    And not only do we have problems in the way the law is 
written, but the way the law is presently implemented. In many 
cases, government agencies are not properly fulfilling their 
responsibilities--and that is also wrong--and not meeting time 
guidelines and so forth that is required under both section 7 
and section 10 of the endangered species law. So I am looking 
forward to working on changing this.
    We have difficulties in California. We have the famous 
Delhi flower-loving sandfly which has caused millions and 
millions and millions of dollars, and probably in the hundreds 
of millions of dollars in difficulties in southern California. 
We would like to work with it. Unfortunately, nobody has yet 
seen the fly.
    But I remember one time that there was a mitigation that 
was considered, that they wanted to close the Interstate 10 
freeway during the alleged breeding cycle of the alleged Delhi 
flower-loving sandfly, and somebody properly pointed out that 
that might not be a reasonable mitigation, to close the 
Interstate 10 freeway. So someone in the particular office went 
back to work and apparently came up with an idea to place speed 
bumps down the Interstate 10 freeway to slow down the traffic 
to about 15 miles an hour, and that way, as the sandfly flew 
across the freeway, it would not impact itself on the 
windshield. I do not make this up, Mr. Chairman. I am just 
reporting the facts.
    We also have the Stevens kangaroo rat, the San Bernardino 
kangaroo rat, and the Pacific kangaroo rat, all of which come 
from the same base stock per se. They are all rats, but various 
kind of rats. I guess over the years they have kind of mixed 
and mingled and there are now variants of the Stevens kangaroo 
rats. We also built a wall. Somebody decided we had to keep 
rats on one side of the wall, and so they brought in the best 
engineers and somebody did a study on how high kangaroo rats 
jumped, and they figured out it was no more than 18 inches. So 
they built this wall 18 inches around this filtration plant. 
People travel from distances to see this wall. It is like the 
``great wall of rats.'' I do not make this up, Mr. Chairman. 
This wall was built. This wall now exists. Of course, if you 
fly over it, you will see that Stevens kangaroo rats happily 
live on both sides of this fence. I do not know if the Israelis 
will have any more luck with their fence than the Stevens 
kangaroo rats, but it did not work.
    Finally, just recently we are building a new dam in my 
hometown of Corona to protect our friends downstream in Orange 
County. We love those people in Newport Beach. After 30 years 
of mitigation, they finally came to the fact that they are 
actually going to build the dam. But somebody had brought up 
that the least Bell's vireo breeding cycle is about the same 
time they were going to grade, and they needed to build this 
privacy fence between where the grading operation is and the 
trees, the willow trees on which the least Bell's vireo nest. 
So we spent hundreds of thousands of dollars of taxpayers' 
money building this privacy fence so the birds can do whatever 
they are doing, without somebody on a tractor watching, I 
guess. As I said, Mr. Chairman, I do not make these things up.
    What I am trying to say is we need some commonsense reform 
this to this law. We all are concerned about the environment 
and certainly concerned about species protection, but sometimes 
we get caught in the fly, if you know what I mean. Anyway, I 
appreciate you bringing this up, Mr. Chairman.
    The Chairman. I thank the gentleman from California. I will 
state that all of the statements that are printed will be put 
in the record as entered. Any objection? If not, so ordered.
    This is going to be a very serious piece of legislation and 
I think the gentleman from California is right when he says 
common sense is what we are lacking in this. There are horror 
stories like you can't believe about this. They just go on and 
on. But it is a very emotional issue. I found that out this 
morning. I foolishly went on C-SPAN on this issue and had my 
head handed to me by a bunch of people pointing out that we on 
the Republican side don't see the big picture and that it is 
stupid to even work with it.
    Well, a lot of folks don't realize that this bill is just 
taking a little bite. We are not taking much at all. This is a 
small bite, but one to start improving the act. And I am sure 
most of us possibly would have voted for the Act in 1973. I 
remember one past speaker saying to me, the one thing is the 
biggest regret I ever had was voting for the Endangered Species 
Act, as he lost an election. Doesn't normally happen to 
speakers, as you know.
    I appreciate the testimony of each person who has been 
here, and I would like to point out to you that tomorrow at 2 
o'clock in this room that we will have the Honorable Craig 
Manson, Assistant Secretary, Fish, Wildlife and Parks, 
Department of Interior, and Dr. William Hogarth, Assistant 
Administrator for Fisheries will be here to testify on this 
bill. I appreciate having as many of you here as we possibly 
could and intend to push this and see how far we can take it. I 
think it is very important that we move this bill and cover 
some of the areas that we feel important.
    With that, I thank you all for being here and we are 
adjourned until tomorrow.
    [Whereupon, at 3:35 p.m., the Committee was adjourned.]

    [Additional material submitted for the record follows:]

    [The prepared statement of Mr. Gallegly follows:]

Statement of The Honorable Elton Gallegly, a Representative in Congress 
                      from the State of California

    Mr. Chairman, the time for reforming the Endangered Species Act is 
long overdue. The problems of the ESA, which have been highlighted by 
recent debacles such as Klamath Basin and the Canada Lynx Survey, have 
been of no surprise to most members of this Committee.
    Both in the 104th and 106th Congresses, this Committee passed ESA 
reform. I have supported both of those efforts and support this 
legislation as well. We must finally enact into law the peer reviews 
and stronger scientific controls that will make the ESA protective of 
species, while also protecting the rights of private property owners.
    While it has often been proven otherwise by outside scientific 
reviews, bureaucrats have incorrectly claimed to this Committee on 
numerous occasions that they acted on the best science available to 
them. This is small consolation to the communities adversely affected. 
Nothing can be gained by ignoring sound scientific data, including 
valid data collected from all sides of an issue.
    Mr. Chairman, the Endangered Species Act was meant to protect and 
restore threatened and endangered wildlife. I support these goals, but 
these objectives should be achieved using sound science. Instead, by 
using less than sound science on occasions, the Act has had a negative 
impact on the lives of farmers and landowners, while in some cases also 
hurting the species the Act was intended to save. The environment and 
the public's faith in the government has suffered. Let us move forward 
with improving this act.
                                 ______
                                 
    [The prepared statement of Mr. Radanovich follows:]

   Statement of The Honorable George Radanovich, a Representative in 
                 Congress from the State of California,

    Thank you, Mr. Chairman, for holding this hearing today on H.R. 
4840 to ensure the use of sound science in Endangered Species Act (ESA) 
implementation.
    In the San Joaquin Valley district that I represent in California, 
the ESA is often viewed as a threat to many individuals, especially 
those who own property. It is a threat for so many because few positive 
results and many negative results have occurred since the Act was 
signed into law in 1973.
    One such example is the new University of California, Merced 
campus, which is near my congressional district. The new UC Merced 
campus went through a very public, very laborious and very long 
decision-making process to determine the most appropriate campus site. 
Beginning in 1988, every conceivable factor was taken into account to 
develop the selected location. In fact, thirty-eight factors were 
applied to eighty-five potential sites. These factors included the 
level of local public support, availability of transportation systems, 
and environmental issues; including air and water quality, and 
endangered species. After significant adjustments of the proposed 
footprint of the University were made thanks to good and thorough 
science, the University rightfully thought that all significant 
environmental issues had been satisfactorily addressed.
    To the dismay of the University and many others, the Corps of 
Engineers said, ``maybe it would behoove you to look somewhere else'' 
to build the campus (Merced Sun-Star, April 16, 2002). Further, the 
Sacramento Bee and Modesto Bee say that the Corps ``has not received 
from the University of California evidence that this campus is the most 
environmentally benign of the alternatives.'' (Editorial, April 24, 
2002 and April 28, 2002). It now looks like the use of sound science 
does not fit into the vision of the Corps of Engineers. As a result, 
the first University of California campus in the central San Joaquin 
Valley is now being unduly delayed.
    Similarly, I have come across a situation here in our nation's 
capitol with regard to ESA and sound science. It involves the Potomac 
shortnose sturgeon and the Washington Aqueduct. As you know, the 
aqueduct, owned and operated by the Army Corps of Engineers, is the 
source of some 200,000 tons of sludge dumped into the river every year. 
The sludge, surprisingly, is dumped directly into the primary spawning 
ground for the endangered sturgeon.
    At a Subcommittee hearing I chaired last October, the Corps 
defended this practice by referring to a study they had done on the 
effects of the discharges on the river. Since I was skeptical of this 
study, I commissioned a peer review authored by a highly respected 
panel of scientists and biologists at the Institute for Regulatory 
Science. The panel's conclusion after reviewing the study was that the 
science was ``inconsistent with known scientific and engineering 
standards.'' The panel further concluded that the dumping should cease 
immediately, and a sludge treatment facility should be constructed. 
Unfortunately, the sludge dumping continues.
    These inflammatory examples demonstrate that it is critical we 
support the small steps H.R. 4840 takes ensure sound science is brought 
back into the ESA process. H.R. 4840 achieves this first by giving 
greater weight to empirical science when Federal agencies are making 
ESA decisions. Second, listing petitions, under the legislation would 
be improved by requiring each petition to contain clear and convincing 
proof that the species is in peril. Also, the legislation adds balance 
to the current implementation of the ESA by creating a peer-review 
process for the listing and delisting of species, in addition to the 
drafting of recovery plans and jeopardy opinions. Furthermore, the 
Secretary of the Interior must accept data from landowners regarding a 
species and include the statistics in the rulemaking record. As a 
farmer, I can tell you the mantra among my constituents is that if you 
find an endangered species then you ``shoot, shovel and shut-up'' 
because the consequences against landowners are so harsh. This is not 
the way to encourage landowners to protect species. The bill before us 
today would help reverse the current mindset by acknowledging data 
collected by farmers and provide a positive step toward a better-
working law.
    In closing, I hope this Committee will move forward with H.R. 4840 
as a modest bill to guarantee that Federal agencies use sound science 
when executing the ESA. With over 1,200 species currently listed, and 
very little if anything being done to actually recover endangered 
species, it is time for Congress to provide some direction to the Act. 
H.R. 4840 is a good place to start.
                                 ______
                                 
    [The prepared statement of Ms. Solis follows:]

Statement of The Honorable Hilda L. Solis, a Representative in Congress 
               from the State of California, on H.R. 4840

    Mr. Chairman, Congressman Rahall and Members of the Committee, I 
want to take this opportunity to voice my opposition to H.R. 4840, the 
Sound Science for Endangered Species Act Planning Act.
    This bill is a step in the wrong direction. If enacted, it will 
create impossible standards for listing a species for protection under 
the Endangered Species Act. Although advocates for this bill believe 
that it will add balance to the listing of endangered species, it will 
actually serve only to put our most fragile plants and animals at risk.
    I am especially concerned that we don't have enough scientists to 
do the independent evaluations that are demanded in this bill. Our 
expectations of evaluation need to be realistic so that we have a clear 
understanding of the system and the process of listing endangered 
species.
    I look forward to hearing the testimony of the witnesses and am 
hopeful that they can provide guidance for us so that we can have a 
meaningful bill that will provide for the protection of species and 
people.
                                 ______
                                 
    [The prepared statement of Mr. Walden follows:]

 Statement of The Honorable Greg Walden, a Representative in Congress 
                        from the State of Oregon

    There was ``no sound scientific basis''.
    This was the finding of 12 scientists convened by the National 
Academy of Sciences at the request off the Secretary of Interior when 
they were asked to review the science used for last year's decision to 
cut off irrigation water to nearly 1400 farmers in the Klamath Basin of 
Oregon.
    ``No sound scientific basis'' for preventing water from being 
diverted down canals like it has for nearly 100 years to grow crops.
    ``No sound scientific basis'' for destroying the livelihoods of 
many farmers and ranchers in the basin and causing some to go bankrupt.
    ``No sound scientific basis'' for the emotional turmoil in the 
basin caused by the cut off.
    ``No sound scientific basis'' that water held in Upper Klamath Lake 
to create higher lake levels would benefit the endangered sucker fish.
    And finally, ``no scientific basis'' that sending more water down 
river to the endangered coho salmon would net any benefit.
    In fact Mr. Chairman, the NAS study acknowledged that just the 
opposite should have happened in every case I listed because the 
evidence and the data showed that sucker fish kills happened less 
frequently in years of low lake levels and the hot water sent down 
river for the supposed benefit of the coho salmon was most probably 
lethal to the very fish they were trying to save.
    This is what we found when there was a sensible peer review of the 
science used to make endangered species decisions. What would have 
happened if the review had not been done? Would the water have remained 
off this year too? Possibly devastating the lives of all farmers and 
ranchers in the Basin and ending irrigated farming in the region 
forever.
    The bill before us today does not ``gut'' the Endangered Species 
Act.'' It is not ``the systematic destruction'' of the Act that some in 
the environmental committee would have you believe. It is a sensible 
amendment to a law that is out of control. It basically says that these 
decisions made by some of the most junior government employees affect a 
lot of people. Therefore, we need to make sure that these decisions are 
based on sound science and not biased or unsubstantiated information or 
views.
    By some estimations, the economic costs of the decision to shut off 
water in the Klamath Basin reached $200 million. The cost of the NAS 
review was just over $300,000. I believe that is a very good return on 
an investment.
    Mr. Chairman, you have highlighted the need for this legislation in 
many ways. You have been very generous with your time and the time of 
your staff when it comes to the Klamath Basin. The Committee has had 
several hearings on the issue including a hearing in Klamath Falls that 
was attended by more than 1500 people. But there are other areas of the 
country that have similar situations. Earlier this year, this Committee 
had a hearing on the endangered Canada Lynx and the questionable 
scientific practices that went on with the Forest Service and the Fish 
and Wildlife Service in that case. We have also highlighted some 
problems with science on the Platte River in Congressman Osborne's 
district. The list could go on and on. How many other communities have 
to be impacted before we put credibility back into the Endangered 
Species Act. I think it should be now and I think this bill is the way 
to go about it.
    The bill before us would:
Sound Science and ESA Actions
     Requires 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.
    Mr. Chairman, this bill is sensible. We should perfect it as much 
as possible and pass it as soon as possible to prevent another 
``Klamath'' from happening.
                                 ______
                                 


    CONTINUATION OF LEGISLATIVE HEARING ON H.R. 4840, TO AMEND THE 
 ENDANGERED SPECIES ACT OF 1973 TO ENSURE THE USE OF SOUND SCIENCE IN 
                     THE IMPLEMENTATION OF THAT ACT

                              ----------                              


                        Wednesday, June 19, 2002

                     U.S. House of Representatives

                         Committee on Resources

                             Washington, DC

    The Committee met, pursuant to call, at 2 p.m., in room 
1334, Longworth House Office Building, Hon. James V. Hansen 
(Chairman of the Committee) presiding.
    The Chairman. Today's hearing is a continuation of 
yesterday's hearing concerning H.R. 4840, The Sound Science for 
Endangered Species Act of 2002.
    We are pleased to have with us today the Honorable Craig 
Manson, the Assistant Secretary of Fish, Wildlife and Parks, 
the Department of the Interior; and Dr. William Hogarth, 
Assistant Administrator for Fisheries, Oceanic and Atmospheric 
Administration of the Department of Commerce. We welcome you 
gentlemen here.
    Yesterday's hearing brought up many important issues 
dealing with this legislation. I appreciate the input from my 
colleagues on both sides of the aisle. I will look forward to 
more important discussion on this matter today. I hope our 
discussion will be as productive as yesterday's.
    [The prepared statement of Mr. Hansen follows:]

    Statement of The Honorable James V. Hansen, a Representative in 
                    Congress from the State of Utah

    Today's hearing is a continuation of yesterday's hearing concerning 
H.R. 4840, the Sound Science for Endangered Species Act Planning Act of 
2002. We are pleased to have with us today The Honorable Craig Manson, 
Assistant Secretary of Fish, Wildlife, and Parks of the Department of 
the Interior, and Dr. William Hogarth, Assistant Administrator for 
Fisheries, National Oceanic and Atmospheric Administration of the 
Department of Commerce. Welcome, gentlemen.
    Yesterday's hearing brought up many important issues dealing with 
this legislation. I appreciate the input from my colleagues on both 
sides of the aisle, and look forward to more important discussion on 
this matter today. I hope our discussion will be as productive as 
yesterday's. With that, I turn the time to the Ranking Member of this 
Committee from West Virginia, Mr. Rahall.
                                 ______
                                 
    The Chairman. With that, I would turn to the Ranking Member 
of the Committee from West Virginia, Mr. Rahall, but I don't 
see Mr. Rahall here. In that case, I guess I wont.
    With that in mind, oh, we Mr. Miller here. Maybe he would 
like to give the speech for Mr. Rahall. Mr. Miller,
    Mr. Miller. I wouldn't dare speak for Mr. Rahall.
    The Chairman. OK. In that case then, does anyone else have 
an opening comment they would like to make? Mr. Osborne, Mr. 
Pombo?
    [No response.]
    The Chairman. All right. We welcome our two witnesses. It 
is good to see you gentlemen again, and we will turn to you, 
Judge Manson, and appreciate your being here.

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

    Judge Manson. Thank you very much, Mr. Chairman. I am 
pleased to be here to offer the administration's perspective on 
H.R. 4840, The Sound Science for Endangered Species Act 
Planning Act of 2002.
    We continue to appreciate the Committee's interest in this 
issue of the use of best available science, and we hope that we 
can make some progress with our comments here today and 
continue to work with the Committee on some of the issues that 
are of interest to the Congress.
    We support H.R. 4840 with some modifications that I will 
outline. If implemented, this legislation will broaden 
opportunities for scientific input and assure additional public 
involvement in Endangered Species Act implementation. We also 
believe that it will improve the Fish and Wildlife Service's 
decisionmaking process and result in increased public 
confidence in the decisions made under the Endangered Species 
Act.
    I appeared here several weeks ago as you know, to discuss 
two related bills, H.R. 2829 and H.R. 3705. And I noted at that 
time that it is important that our endangered species 
conservation decisions are based on the best available science 
because these decisions have a great impact on species, 
communities and importantly, individuals. And one of Secretary 
Norton's highest priorities is to improve the Department's 
science. I have been working with Dr. Steve Williams, Director 
of the Fish and Wildlife Service, and Dr. Chip Groat of the 
U.S. Geological Survey and Dr. Jim Tate, Science Advisor to the 
Secretary, to ensure that the Secretary's vision of improved 
science becomes a reality.
    At that hearing back in March I gave a description of the 
guiding principles that embodied the administration's view of 
how--the Department's view of how independent scientific review 
should be integrated. We believe that a framework for review 
should allow the service to take advantage of the expertise of 
outside groups such as state fish and wildlife agencies.
    On a related note, I would add that I was in Tucson 
yesterday and spoke to the Department of Defense Conservation 
Conference, and there are a number of highly qualified 
biologists and wildlife professionals working for the 
Department of Defense, and the are another group with respect 
to issues concerning the Department of Defense that is an 
example of an outside group that we should take advantage of as 
well.
    Our framework should provide an opportunity for scientists 
and other stakeholders to air the differences and 
interpretation of science, and it should provide flexibility to 
allow a more robust independent review process for significant 
resource decisions. While we continue to move ahead with our 
administrative efforts, we believe that H.R. 4840 could be a 
significant step forward in meeting that vision.
    I want to commend the Committee for its efforts in 
undertaking what is not an easy task in any context. it is 
important to note that the independent review process will not 
be a political process, but one that is meant to ensure that 
the science behind our decisions is in all cases the best 
available to our decisionmakers. In this respect H.R. 4840 
requires that an independent review of science be carried out 
by qualified individuals as determined by National Academy of 
Science standards. The Department has had significant 
experience with the National Academy of Science review process, 
and we are comfortable that this provision will help ensure a 
truly independent scientific review process.
    In reviewing this bill one is struck by the fact that a 
number of its provisions are familiar. Many have been discussed 
and presented and debated before. For example, Section 4 of the 
legislation, which requires solicitation of information from 
states and provides an opportunity for affected persons to 
participate in consultations, is substantially similar to 
provisions contained in S. 1180 in the 105th Congress 
introduced by Senator Kempthorne with the backing of the 
previous administration and Secretary Babbitt.
    I want to take a moment to mention some of the key 
provisions of the bill followed by some of our concerns. First, 
Section 2(c) would require that listing petitions contain 
certain uniform information. These are similar to provisions in 
H.R. 4579 to reauthorize the Endangered Species Act, recently 
introduced by Congressman Miller. These requirements are 
straightforward, common sense, which dictates that it should be 
included in any listing petition. Section 3, which establishes 
the requirement for independent scientific review is really the 
cornerstone of the bill, and since the March hearing additional 
language has been added, which provides that the Secretary must 
appoint a review panel for proposed jeopardy determinations and 
proposals of reasonable and prudent alternatives if the 
Secretary finds they contain significant disagreement regarding 
the determination or proposal or it may have significant 
economic impacts.
    Under the current practice the service seeks independent 
review of listings. While this provision would include both 
proposed jeopardy determinations and reasonable and prudent 
alternatives, the language will significantly narrow the number 
of actions that would be covered under this legislation. We 
believe it provides balance and is an important addition to the 
bill.
    Further, for streamlining the review processes found in 
Section 3, requirement that the Secretary develop protocols for 
independent review and ensure that science panels are provided 
with clear guidelines consistent with the protocols.
    Another provision that the Department greatly favors is 
Section 3(b) which provides that when an agency provides a 
biological assessment, it must solicit and review scientific 
and commercial that a perspective applicant for a license or 
permit believes is relevant and make that information available 
to the Secretary.
    Finally, there is a growing recognition that effective 
results in species conservation can be achieved by enabling 
those who live and work on the land to play a greater role in 
conservation of the species. The bill works toward that goal by 
creating opportunities for potentially affected parties to 
participate in the collection of data for use in the listing 
and recovery process. We believe that that type of involvement 
leads to greater scientific validity in the listing process.
    I do have several suggestions regarding some specific 
provisions of the bill. I note that my time has expired. I 
would be pleased to discuss those at the Chairman's discretion.
    The Chairman. Mr. Secretary, this is critical material to 
us, and if you want to take a couple minutes more and go 
through it, by all means. If you would rather do it afterwards 
or another time, that would be fine.
    Judge Manson. Well, I would be pleased to note just a 
couple of things that we have some concerns about. First, as I 
noted in March, we do have some concerns with the timelines 
provided in the bill and how those timelines would work in 
light of the statutory timelines already contained n the 
Endangered Species Act, specifically the review for listing and 
delisting should be concluded no later than the end of the 
public comment period. We would like to eliminate the 90-day 
period for the Secretary to consider the findings.
    Additionally I would recommend that the Committee also 
provide that the Secretary has the ability to convene a review 
panel in cases where similar questions may exist when a no-
jeopardy determination is made. Presently the bill provides 
when a jeopardy determine is made, a review panel would be 
concluded.
    Now, this change to allow a review panel where questions 
exist on a no-jeopardy determination would allow the 
Department, when warranted, to ensure that sound science 
supports these decisions and provides adequate protection to 
species.
    Additionally the bill requires the Secretary to compensate 
reviewers at a rate equivalent to a GS-14 pay grade. We 
understand and agree with the intent to improve the response 
from the independent reviewers by providing compensation, but 
our current budget constraints would make implementation of 
that provision difficult.
    In addition, we have reviewed the bill and identified a few 
technical issues which need further clarification and 
correction. These are, as I said, mostly technical in language. 
I don't think they are substantive, but we would be pleased to 
work with the Committee and the staff to address those 
technical issues.
    On the whole we believe that this is balance legislation 
that will ensure public involvement and the use of the best 
available science in our ESA decisions, and we support the bill 
with the modifications that I have noted.
    [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 U.S. 
Department of the Interior (Department). I want to thank you for the 
opportunity to present the Administration's views on H.R. 4840, the 
``Sound Science for Endangered Species Act Planning Act of 2002.'' The 
Administration appreciates the Committee's interest in ensuring the 
continued use of the best available science in the protection and 
recovery of endangered and threatened species.
    As discussed more fully below, the Administration supports H.R. 
4840 with modifications to address our concerns. We believe that, if 
implemented, this legislation will broaden opportunities for scientific 
input and assure additional public involvement in Endangered Species 
Act implementation. We also believe it will also improve the U.S. Fish 
and Wildlife Service's (Service) decision-making process and result in 
increased public confidence in the Service's decisions.
    As I noted several weeks ago when I appeared before you to discuss 
two related Endangered Species Act sound science bills, H.R. 2829 and 
H.R. 3705, it is important that the species conservation decisions we 
make are based on the best available science because our resource 
management decisions can have a great impact on species, communities, 
and individuals. One of Secretary Norton's highest priorities is 
improving the Department's science, and I am working with Steve 
Williams, the Service's Director; Chip Groat, Director of the U.S. 
Geological Survey; and Jim Tate, Science Advisor to Secretary Norton, 
to ensure that this priority becomes a reality.
    At the March 20, 2002, hearing, I provided a brief description of 
the guiding principles that embody the Department's view of how 
``independent scientific review'' should be integrated into our 
decisions. The Department believes that a framework for review should 
allow the Service to take advantage of the expertise of outside groups, 
such as state fish and wildlife agencies. It should also provide the 
opportunity for Department scientists and other stakeholders to air 
differences in interpretation of the science behind the Service's 
decisions, and it should provide the flexibility to allow a more robust 
independent review process for significant resource protection 
decisions. While we continue to move ahead with our administrative 
efforts, we believe that H.R. 4840 could be a significant step forward 
in meeting the Department's vision.
    Before I discuss the specific provisions of the bill, I want to 
acknowledge that addressing these issues in any context is not an easy 
task, and I would like to commend the Committee for its efforts in this 
regard. It is also important to note that the independent review 
process will not be a political process, but one which is solely meant 
to ensure that the science behind our decisions is, in all cases, the 
best available to our decision-makers. In this respect, H.R. 4840 
requires that an independent review of science be carried out by 
``qualified individuals,'' as determined by National Academy of Science 
(NAS) standards. The Department has had significant experience with the 
NAS review process, and is comfortable that this provision will help 
ensure a truly independent scientific review process.
    In reviewing this bill, one is struck by the fact that a number of 
its provisions are familiar; many have been discussed, presented, and 
debated before. For example, Section 4 of this legislation, which 
requires solicitation of information from states and provides 
opportunity for affected persons to participate during consultations, 
is substantially similar to provisions contained in S. 1180, introduced 
in the 105th Congress by Senator Kempthorne with the backing of the 
previous administration and then-Secretary Babbitt. As a result, we 
believe that most of the provisions are reasonable, and should garner 
bipartisan support.
    When I testified before you in March, I outlined some of the 
Department's concerns regarding the provisions in the two bills then 
being considered by the Committee. These concerns included a lack of 
flexibility and increased workload and costs, and our requirement to 
meet statutory time frames. While many of H.R. 4840's provisions are 
similar to the provisions in those two bills, the legislation addresses 
some of the Department's concerns with those bills. We still have 
concerns with increased workloads, costs, and timing requirements. If I 
may take a moment, I would like to mention briefly several of the key 
provisions of this bill followed by some of our concerns.
    First, Section 2(c) of the bill would require that listing 
petitions contain certain uniform information. These provisions are 
similar to provisions in H.R. 4579, a bill that would amend and 
reauthorize the Endangered Species Act, recently introduced by 
Representative George Miller. These requirements are straightforward, 
common sense which dictates that they should be included in any listing 
petition.
    Section 3, which establishes the requirements for independent 
scientific review of decisions, is really the cornerstone of H.R. 4840. 
These requirements are not a new proposal. Similar, albeit less 
extensive, provisions were found in S. 1180 in the 105th Congress. As 
noted above, the Department expressed some concern with the 
implementation of these provisions. Since the March hearing, however, 
additional language has been added to subsection (j)(1)(A)(iv) in 
Section 3 which provides that the Secretary must appoint a review panel 
for proposed jeopardy determinations and proposals of reasonable and 
prudent alternatives if the Secretary finds they contain ``significant 
disagreement regarding the determination or proposal'' or that it may 
have ``significant economic impacts.''
    Under current practice, the Service seeks independent review of 
listings and the development of recovery plans. Thus, while this 
provision would include both proposed jeopardy determinations and 
reasonable and prudent alternatives, the above language will likely 
significantly narrow the number of these actions that will be ``covered 
actions'' under this legislation. We believe this provision provides 
balance and, from the Department's perspective, it is an important 
addition to H.R. 4840.
    Further potential for ensuring a streamlined review process is 
found in Section 3's new subsection (j)(4)(B), which requires the 
Secretary to develop protocols for independent review and ensure that 
review panels are provided with clear guidelines that are consistent 
with the protocols. I believe that if clear protocols and guidelines 
are presented to review panels at the beginning of the process, it will 
expedite review and reporting and will keep those panels focused on 
their true role--reviewing the adequacy of the science underlying the 
decisions.
    Another provision that the Department greatly favors is Section 
3(b), which provides that when an agency prepares a Biological 
Assessment, it must solicit and review scientific and commercial data 
that a prospective permit or license applicant believes is relevant, 
and it must make that information available to the Secretary. According 
to Service career staff, the Service often has problems getting 
complete information from other agencies. Because a robust Biological 
Assessment is essential to preparation of the Biological Opinion, other 
agencies should ensure that their Biological Assessments are complete. 
Moreover, a complete and comprehensive Biological Assessment means a 
more timely Biological Opinion. The Department enthusiastically 
supports this provision.
    Finally, there is growing recognition that effective results in 
species conservation can be achieved by enabling those who live on and 
work the land to play a larger role in the conservation of species. 
H.R. 4840 works toward that goal by creating opportunities for 
potentially affected parties to participate in the collection of data 
for use in the listing and recovery processes as well as in the Section 
7 consultation process. The Department believes this type of public 
involvement leads to better species conservation decisions.
    For example, Section 4(a) of the legislation provides that, when 
conducting a consultation, the Secretary shall actively solicit and 
consider information from state agencies in each affected state. 
Secretary Norton has often cited her belief in the ``Four C's''--
Communication, Consultation, and Cooperation, all in the service of 
Conservation. Consistent with this philosophy, we believe this 
provision will further the Department's cooperative relationship with 
states in the conservation of species.
    Similarly, Section 4(b) of H.R. 4840 requires the Secretary to 
provide applicants an opportunity to participate early in the 
development of draft biological opinions, and it provides for access to 
certain information used by the Service in the development of the 
biological opinion. It also provides applicants with the opportunity to 
submit comments on and discuss findings in the draft biological opinion 
with the Secretary and the Federal agency. Finally, H.R. 4840 ensures 
that the Secretary provides reasonable justification based on the best 
data available when she declines to include in the biological opinion 
alternatives proposed by a person during the development of that 
document. The Department believes that this type of enablement will 
lead to better species conservation decisions.
    If the Chairman will allow me to make several suggestions regarding 
specific provisions of the bill to address some of our concerns. As I 
noted back in March, we do have concerns with the timelines provided in 
the bill and how those periods would work in light of the statutory 
timelines in the Endangered Species Act, and we would like to work with 
you to revise the bill on this point. Specifically, we would like to 
have the review for listing and delisting concluded no later than the 
end of the public comment period, and to eliminate the 90 day period 
for the Secretary to consider the findings.
    Additionally, I would recommend that the Committee also provide the 
Secretary with the ability to convene a review panel in cases where 
similar questions may exist when a ``no jeopardy'' determination is 
made. This small change will allow the Department, when warranted, to 
ensure that sound science supports those decisions and provides 
adequate protection to species.
    Subsection (j)(3)(E) under Section 3 would require the Secretary to 
compensate reviewers at a rate equivalent to a GS-14 pay grade. While 
we understand and agree with the intent to improve responses from 
independent scientific reviewers by providing compensation, current 
Department of the Interior budget constraints would make implementation 
of this provision difficult. Therefore, this provision must be removed.
    In addition, we have reviewed this bill and have identified some 
technical issues which need further clarification and correction. We 
are committed to working with you and the Committee to address them. 
Implementing this legislation will undoubtedly present both the 
Department and the Service with challenges, particularly in light of 
existing statutory time frames and budgets. We believe this is balanced 
legislation will ensure public involvement and use of the best 
available science in the Service's Endangered Species Act decisions, 
both now and into the future. As such, we support H.R. 4840 with 
modifications to address our concerns.
    Mr. Chairman, this concludes my statement. I am happy to answer any 
questions that you may have.
                                 ______
                                 
    The Chairman. I thank you for your testimony, Mr. 
Secretary.
    Dr. Hogarth?

 STATEMENT OF WILLIAM HOGARTH, Ph.D., ASSISTANT ADMINISTRATOR 
FOR FISHERIES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, 
                  U.S. DEPARTMENT OF COMMERCE

    Mr. Hogarth. Good afternoon, Mr. Chairman, and Members of 
the Committee. I appreciate the opportunity to discuss science 
in the implementation of the Endangered Species Act.
    As the Director of NOAA Fisheries, I am a firm believer in 
using the best available science in all of our decisions 
regarding management of our living resources, and I support the 
Committee's commitment to these efforts.
    In our 30 years of implementing ESA, our goal has been to 
administer the Act as officially and consistently as possible. 
As you know, that task is quite challenging. ESA requires NOAA 
Fisheries to use the best available scientific and commercial 
data when evaluating the impact of actions on endangered and 
threatened species. However, frequently we lack specific 
conclusive data and analysis on how a particular proposed 
project may affect a listed species or the status of a species 
considered for listing. Nevertheless, even with information 
that is incomplete, we must make a decision as mandated by the 
Endangered Species Act.
    NOAA Fisheries face an increased workload in consultations, 
listing decisions and critical habitat designations. We have 
also been subjected to increased litigation in our 
implementation of ESA. There are some areas in which the ESA 
process can be streamlined, which we are attempting to do. The 
number of actions is increasing and we must ensure the changes 
to the ESA add to the quality of the actions rather than length 
or cost to the process.
    We are also concerned about any modification to ESA that 
could increase the likelihood of litigations. While more data 
and scientific analysis is always desirable, we must focus on 
using the best possible information available.
    In my comments on specific sections of H.R. 4840, I will 
focus on how we can work together to improve the science, while 
minimizing the impact on the process, particularly any effects 
on the length of time as well as the cost of implementing the 
ESA mandate.
    Section 2(b)(D), Sound Science and Decisions, these 
provisions will require the Secretary to give greater weight to 
scientific or commercial studies that are empirical or have 
been field tested or peer reviewed. We support the goal of 
basing our decisions on sound and peer-reviewed science, and we 
agree that empirical field-tested data are important. However, 
we would not want to diminish the use of models of populations, 
habitat use and/or life histories, which frequently do 
represent the best available science and are based on field-
collected data. We welcome data from sources such as landowners 
or fishermen, for we can evaluate this data and compare it to 
data that has been systematically collected.
    Section 3, Independent Scientific Review. This section 
would require agencies to use independent scientific review 
boards to review listing or delisting decisions, recovery plans 
and jeopardy decisions. NOAA Fisheries currently uses 
independent review of use in our listing and recovery plan 
proposals during the public comment period. However, we would 
want to work with the Committee to ensure that the bill's 
requirements would not duplicate, override or compete with the 
current processes. In particular, certain specific projects 
already have independent peer-review processes under way. 
Regarding the independent peer reviews of jeopardy decisions, 
we appreciate the bill's flexibility in allowing the Secretary 
to determine whether or not decisions should be subject to peer 
review. We would hope that the bill would not preclude the 
reviews of non-jeopardy decisions as well. These are important 
decisions and we would appreciate having the opportunity to use 
reviews.
    Our primary concern with reviews is the potential for added 
time and government cost in implementing ESA. As you know, NOAA 
Fisheries is under enormous pressures to process a large number 
of ESA actions. In fact we process some 90 actions per year. 
And independent peer review process could potentially add 6 
months to each action that is reviewed, and this type of delay 
could have tremendous economic impact to businesses including 
the fishing industry when we were trying to open and close 
seasons and also public projects.
    Regarding costs. These would include creation and oversight 
of the list of the scientific reviewers and each independent 
review board. Administrative nomination and selection process, 
as well as the logistics of the meeting and travel will require 
additional FTEs. In fact the administration opposes a 
compensation position because it would require several million 
dollars not included in the Department of Commerce budget. A 
final concern regarding independent scientific review is a 
requirement that the Secretary may not delegate the authority 
to conduct all actions under this paragraph to NOAA Fisheries. 
It may only be delegated to someone who has been confirmed by 
the Senate, which would result in a significant demand on the 
schedule of the Assistant Secretary of Commerce, and would not 
be the most effective method for getting direct input into the 
process.
    Section 4, Interagency Cooperation. We agree fully with the 
intent of this section to promote interagency cooperation in 
ESA activities. Indeed we currently include information from 
states in listing and recovery activities and support 
opportunities to expand participation by states, the action 
agency and the applicant in the development of biological 
opinions. We would want to work with the Committee to ensure 
the expansion of participation is meaningful and allows us to 
meet our statutory deadlines on ESA tasks.
    In conclusion, Mr. Chairman, NOAA Fisheries recognize that 
we must continue to ensure that we integrate better science of 
ESA, actions and their policy decisions, and that our process 
must be transparent to gain public confidence in our efforts to 
recover species. We believe that we can work with the Committee 
on H.R. 4840 to reach common goals of better science and 
transparency while ensuring an effective and efficient process. 
We, as the Department of Interior, support the intent of the 
bill, and look forward to working with you and our partner 
agency to improve our implementation of ESA, and I will be 
happy to answer any question.
    [The prepared statement of Mr. Hogarth follows:]

   Statement of Dr. William T. Hogarth, Assistant Administrator for 
   Fisheries, National Oceanic and Atmospheric Administration, U.S. 
                         Department of Commerce

    Good afternoon, Mr. Chairman and members of the Committee. I am 
William T. Hogarth, Assistant Administrator for Fisheries at the 
National Oceanic and Atmospheric Administration (NOAA) at the 
Department of Commerce. I appreciate the opportunity to be here today 
to discuss H.R. 4840, the ``Sound Science for Endangered Species 
Planning Act of 2002.'' I commend you and the Committee for your 
efforts to improve implementation of the Endangered Species Act (ESA)--
and specifically, to ensure the best available science continues to 
guide agency actions and decisions regarding endangered and threatened 
species.
    H.R. 4840 builds upon areas of consensus by codifying existing 
administrative policies, incorporating provisions similar to prior 
legislative efforts that have been supported by the previous 
Administration and members from both parties, and including portions of 
legislation introduced by members of this Committee. Although NOAA 
Fisheries has a few concerns that I will describe in my testimony, we 
anticipate that these can be resolved administratively or with the 
cooperation of the Committee. It is in this spirit that we join the 
Department of the Interior in supporting H.R. 4840, with modifications 
to address our concerns.
    Since passage of the ESA almost 30 years ago, NOAA Fisheries, with 
the U.S. Fish and Wildlife Service (USFWS), has sought to administer 
the Act as efficiently and consistently as possible. As you know, our 
task has become quite challenging. As written, ESA requires NOAA 
Fisheries and USFWS to use the best available scientific and commercial 
data when evaluating the impact of actions on endangered or threatened 
species. When uncertainty exists, we must err toward the conservation 
of the species. However, we must also ensure that the policy decisions 
we make affecting a diverse range of interests are based upon sound 
science. This is difficult when decisions must be made using data and 
science that are still being developed, or does not have the confidence 
of the public.
    The situation in the Klamath Basin demonstrates how difficult our 
policy decision making can become. In 1997, NOAA Fisheries listed 
Southern Oregon/Northern California Coast coho salmon as threatened 
under the Endangered Species Act. Critical habitat was designated 
shortly after that. We acknowledge that prior to 1997, very little 
information was available regarding the relationship between Klamath 
River flows and the biological requirements of salmon and steelhead. 
Coho salmon have been difficult to study both because of its life 
history, and because the populations of coho salmon have become 
depressed. Since 1997, a number of groups have gathered data and 
developed analyses regarding the relationship between the Klamath 
Project operations and river flows, fish habitat, and water quality.
    NOAA Fisheries has worked diligently to understand and incorporate 
this information, almost as soon as we have received it, in conjunction 
with the annual planning process and consultations. During the 
development of the 2001 biological opinion, NOAA Fisheries considered 
all known minimum Klamath River flow recommendations developed over the 
past 50 years, including the Phase I Flow Study by the Institute for 
Natural Systems Engineering (The Hardy Study). Unfortunately, we did 
not have a great deal of recent data regarding the coho to analyze.
    On March 13th, I testified before this Committee regarding the 
National Academy of Sciences' draft report on NOAA Fisheries' 2001 
biological opinion regarding coho salmon in the Klamath Basin. The 
Academy concluded that ``there is no substantial scientific foundation 
at this time for changing the operation of the Klamath project to 
maintain...higher minimum flows in the Klamath River main stem for the 
threatened coho population.'' On June 1st, NOAA Fisheries issued a 
biological opinion that will begin to develop and implement a research 
program to identify and fill gaps in existing knowledge and, hopefully, 
produce better, peer-reviewed science in the Klamath Basin.
    We have many more examples of how we currently integrate science 
into policy decisions, and I would be happy to discuss those with you 
further. However, I will now provide specific comments on sections of 
H.R. 4840.
Section 2(b),(d)--Sound Science in Decisions
    H.R. 4840 includes provisions which would require the Secretary to 
give greater weight to scientific or commercial studies or other 
information that are empirical or have been field-tested or peer-
reviewed when making decisions about listing, delisting, or when 
designating critical habitat. The agencies would be required to 
promulgate regulations establishing criteria for scientific and 
commercial data, studies, and other information used as a basis for 
these determinations. It would also prohibit the agencies from 
determining that a species is endangered or threatened unless data 
collected in the field support the determination.
    We support the goal of basing our decisions on sound and peer 
reviewed science. In prior testimony, we have expressed concerns about 
giving greater weight to scientific or commercial data that are 
empirical or field tested, because we acknowledge that there are also 
other scientific methods (e.g., modeling and statistical analyses) that 
produce valuable scientific data. While it is usually a combination of 
various types of scientific data that have formed the basis of our 
evaluations, we recognize that utilizing empirical and peer-reviewed 
information enhances public confidence in decisions.
Section 2(c)--Contents of Listing Petitions
    We commend Section 2(c) of the bill, which outlines measures to 
ensure the sufficiency of the contents of petitions to add a species to 
the list of threatened or endangered species. This language is similar 
to current policies used by NOAA Fisheries to determine whether a 
petition presents information that would lead a reasonable person to 
believe that the petitioned action may be warranted. The provision will 
help ensure the consistency and integrity of information considered in 
listing petitions.
Section 3--Independent Scientific Review
    This section would require the agencies to use independent 
scientific review boards to review decisions to list a species, delist 
a species, or develop a recovery plan. Agencies would also be required 
to employ a review board if they determined that a proposed Federal 
action is likely to jeopardize the continued existence of a species, 
and also in cases where the Secretary finds that there is significant 
disagreement regarding a determination or proposal, or that a 
determination may have significant economic impact. The section defines 
who is qualified to sit on a review board, how the list of reviewers 
should be developed, the appointment of the boards, how many reviewers 
should sit on the board, their compensation (GS-14 pay), who may 
appoint boards (only those who have been confirmed by the Senate), and 
how the agencies will consider the opinions of reviewers. The 
Administration opposes the compensation provision, however, because it 
would require several million dollars not included in the Department of 
Commerce's budget.
    Currently, NOAA Fisheries incorporates independent peer review in 
listing and recovery activities during the public comment period. We 
would like to work with the Committee to ensure that these requirements 
would not duplicate, override, 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 salmon recovery projects 
in the Columbia River Basin in the Pacific Northwest. Also, we would 
caution that new independent scientific review requirements will create 
new demands on the agencies without changes to statutory deadlines.
    We commend this section of the bill for allowing the Secretary the 
flexibility to determine whether a review board is necessary for 
biological opinions that conclude that actions may jeopardize species. 
However, we would want to work to ensure that the requirement for a 
review of certain jeopardy opinions would not delay the completion of 
the biological opinion or economic activities that require a biological 
opinion. We are open to working with the Committee to ensure that a 
process is developed to maintain timely biological opinions.
    We believe that the discretion to employ review boards must be 
consistent for all listing decisions, including decisions not to list a 
species. The Secretary should be allowed the flexibility to convene a 
review board for non-jeopardy biological opinions as well as jeopardy 
opinions. This would ensure that all decisions are supported by a 
rigorous review process.
Section 4--Interagency Cooperation--Consultations under Section 7 of 
        ESA
    We commend Section 4 of the bill, which would require NOAA 
Fisheries and USFWS to actively solicit and consider information from 
every affected state. We currently include information from states in 
recovery activities, and this provision will strengthen the cooperation 
between the states and the Federal Government.
    NMFS also supports opportunities for the action agency and the 
applicant to participate in the development of biological opinions our 
existing regulations provide. We would like to work with the Committee 
to expand meaningful participation, including states, in a way that 
would continue to allow us to meet our statutory deadlines for 
completing opinions.
    Mr. Chairman, while there may be some issues that we may need to 
resolve administratively or with your help, NOAA Fisheries recognizes 
we must continue to ensure that we integrate better science into our 
policy decisions, and that our process must be transparent to gain 
public confidence in our efforts to recover species. We believe H.R. 
4840 includes some provisions to help move us in that direction. We 
look forward to working with the Committee and our partner-agency, the 
USFWS, to improve the 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. Thank you very much, Dr. Hogarth.
    And now questions for our witnesses. Mr. Pombo?
    Mr. Pombo. Thank you, Mr. Chairman.
    Mr. Hogarth, in your testimony you talked about the 
difference between using field data or commercially available 
data versus modeling, and you raised an objection to the 
preference in the bill that science had included field-gathered 
information would have a preference over modeling. And I am not 
exactly sure what your point is with raising an objection 
there. It would seem to me that actual scientific information 
that is gathered in the field would be more accurate than a 
computer model developed in an office.
    Mr. Hogarth. I think there is some truth to that. What we 
are concerned about is that if you have a limited amount of 
field-collected data, sometimes a modeling exercise, if you 
worked on your model, would give you a much better long-term 
look at the data, and to be able to project over the long term 
the impacts, rather than if you just base it on a little bit of 
data from a small area. And we think that they should use a 
combination, but we did not want to lose the opportunity to 
have the models and to try to use the models and to perfect the 
models as we get additional data. We think they go hand in 
hand.
    Mr. Pombo. I don't dispute what you are saying in terms of 
your answer, but I would call into question what is in your 
prepared testimony, because I think the answer that you gave to 
the question is different than the impression at least that is 
left by your prepared testimony.
    Mr. Hogarth. Thank you. I will look back at that because it 
is not that we oppose the field data. We think you should have 
specific data.
    Mr. Pombo. The purpose, I believe of including that is that 
a lot of times it has come to our attention over the past 
several years that your agency and others put more weight 
behind a computer-generated model than they do behind actual 
biological evidence that is gathered in the field, and that has 
many times called into question the validity of the answer that 
you come to.
    I would also like to ask you, in terms of your prepared 
statement you state that: ``We would want to work to ensure 
that the requirement for a review of certain jeopardy opinions 
would not delay the completion of the biological opinion or 
economic activities require a biological opinion.''
    What we are attempting to do in the bill is force you to 
use good science before you make your decision, and what you 
are saying in your prepared statement is: we will use good 
science as long as it doesn't delay us. And you are at odds 
with what I think the purpose of this bill is in terms of 
sometimes it is better for you to be delayed a month or two in 
coming to a final decision and making the right decision, 
versus you just making your decision based upon whatever 
science you have.
    Mr. Hogarth. Maybe again not worded as clearly as we 
tried--we did not want to add delays to this process under the 
mandates we have, plus at certain times not only are we using--
you know, we do this process to open a fishery, and then, for 
example, we have to do a Section 7 consultation, a biological 
opinion for many of the fisheries that we open each year. And 
we are concerned that if we have a delay in any of these that 
that would cause undue hardship on the industry. We would like 
to try to work to make sure we do this up front and within the 
timeframe that we have and not add an additional 90 days or so 
to the process is what we are getting at. Some we are under 
important mandates and some we can plan ahead and some are 
fishing season connected.
    Mr. Pombo. There is I think a legitimate concern in terms 
of the 90 days. The effort that the Committee is making, that 
those of us that were drafting this legislation, was to have 
specific timelines so that things don't just drag on forever. 
There are cases where having that specific timeline may 
ultimately delay a decision that should be made, and I 
understand the concern behind that. And we have had discussions 
and I am not exactly sure how we fix that yet, but we do not 
want you to delay a decision forever because you do not have 
that statutory timeline in place, and that is one of the 
purposes behind that.
    In your testimony you state that when uncertainty exists, 
your agency must err toward the conservation of the species. 
Where is that mandate in the law?
    Mr. Hogarth. It is in the Endangered Species Act that you 
have to make--we are mandated to make the decision, plus we 
have to--I do not know the exact words on the precautionary 
approach, the principle.
    Mr. Pombo. I have not been able to find that in the law.
    Mr. Hogarth. OK. I will see if I can locate it.
    Mr. Pombo. That may be policy. That may have become common 
practice, but I don't find it in law, and if you find it 
there--
    Mr. Hogarth. I stand to be corrected, and I will look for 
it and let you know one way or the other.
    Mr. Pombo. If it is there, I would appreciate it, you 
pointing it out to me. Do you believe that erring on the side 
of the species is using good science if no science exists?
    Mr. Hogarth. Is good science? I think erring on the side of 
the species if it is going extinct is the best science, yes.
    Mr. Pombo. But if you do not have the science to back up 
that opinion, it is just your opinion that it is becoming 
extinct.
    Mr. Hogarth. That is the opinion of the--as in a group that 
we get together to make that decision, yes.
    Mr. Pombo. But if you don't have the science to back up 
that opinion, you are not using good science.
    Mr. Hogarth. Well, I think you are using what you have at 
hand to make the best decision you can make, and you make it on 
the science you have. And if you have zero science I think we 
would probably not list or we would set up a program to begin 
additional information.
    Mr. Pombo. But I think that your answer points out exactly 
why many of us believe this bill is necessary, and that is that 
a lot of times I believe that there is incomplete science 
available and decisions are being made.
    Mr. Duncan. [Presiding] Thank you very much, Mr. Pombo.
    Mr. Miller?
    Mr. Miller. Thank you, Mr. Chairman.
    And, Dr. Hogarth, let me continue with you. As I understand 
this legislation and legislation I have been involved in, that 
is we obviously are trying to make sure that the scientific 
process by which a determination is made to list or delist or 
to provide recovery plans is on the best scientific evidence. 
What I don't understand in this legislation, and your dialog 
touched on it and you touched on it in your discussion with 
Congressman Pombo, and that is why are we now giving then 
preference to one kind of information versus another? it seems 
to me there is an internal inconsistency when you say we want 
the best science, but we are going to give higher standing to 
field-tested work or we are going to give higher standing to 
commercial studies as opposed to what, as opposed to 
governmental studies? If you want the best science, it seems to 
me--the concern I have heard out there from people who have to 
live and work with the ESA on a daily basis from the commercial 
side, from our cities and counties and developers and others, 
is whether or not they are confident that all of this has been 
considered. It is not about whether it has been weighed or not 
or whether their science has been judged the best science or 
not, but in many instances I think there is a proper claim that 
sometimes it hasn't been fully considered, because maybe people 
don't like it because it is commercial. That is not the test. 
The test is does it add to the debate and is it probative and 
is it helpful in arriving at the conclusion? And so I think I 
share your concerns with this legislation that we put a 
preference for empirical field tested and peer-reviewed data. 
Is that fair to say that you have that concern? I don't want to 
put words in your mouth.
    Mr. Hogarth. No, no. That is what we say. We do have that 
concern. We want all the data to come forward and to evaluate 
it, and we don't want to just base the decision on that limited 
data and to exclude the use of models that give us some 
predictive capability. We use models in everything we do today. 
I think if you look at hurricane predictions and everything we 
do, it is based on model projections, and we think that a model 
that is field tested is an excellent way to go for the long 
term. But we use all data that we can come forward with in 
making our decisions, all data that is available.
    Mr. Miller. Because the current law says that the Secretary 
shall make a determination as required by Subsection (a)(1) 
solely on the basis of the best scientific and commercial data 
available to him--we will probably want to amend that when we 
get back to it--available to him after conducting a review of 
the status of species. I mean that is what is driving it. I 
think there are legitimate questions about whether or not that 
in fact takes place, but whether or not you are giving greater 
weight to one type of evidence versus another. Field-tested 
data may be completely flawed. One of the reasons we are here 
is because some people tried to pretend that they had field 
tested some data that didn't turn out to be real. So how do we 
give greater weight to that?
    Commercial data may be driven, as we know, by the payment 
of the contract. That is not to denigrate all commercial 
studies, but you have to weigh that in the universe, don't you, 
of what science you have available?
    Mr. Hogarth. The way we go through this process, and maybe 
this will explain it better, we put together a panel and that 
panel usually includes Federal people, State people, and 
sometimes independent people, and we bring all the data that we 
can find to that panel to make a decision or recommendation on 
listing, and then that is then reviewed up through the chain of 
command to make the final decision, but the scientists use 
every bit of data. Now, when you go to a model sometimes some 
data may be left out because you do not have the specifics of 
that that would fit into the model, but it is discussed when 
you make the final decisions on the listing or delisting of the 
process. And recovery plans also include a wide variety of 
people who come together with all of that information.
    So we use a team approach and use all the data we can get, 
but I think there are sometimes situations where people feel 
like that, ``Well, I had some data that I saw in my stream that 
wasn't given the full consideration that others may have''--
    Mr. Miller. We have anecdotal evidence. When you deal with 
endangered species everybody has a story they want to tell you 
about the guy down the street who had 100 critters on his front 
porch or something.
    The other concern for me is on page 3 of the bill. It says, 
``For the purposes of paragraph B, evidence is clear and 
convincing if a preponderance of the evidence is based upon 
reliable scientific and commercial information.'' A minute ago 
we were talking about this being the best science available. 
``The evidence is sufficient to support a firm belief.'' In one 
paragraph we have three different legal standards. We have 
clear and convincing. We have a preponderance of the evidence, 
and we have a firm belief. I don't see how this clarifies or 
keeps you out of litigation. if I have got to sue on whether or 
not there is a firm belief, I think I can probably get through 
the courtroom door. And then the question is whether or not you 
have a preponderance of the evidence based upon reliable 
scientific evidence, but the law said you have to make it based 
upon the best scientific evidence, and then of course the 
question is whether all of that meant the clear and convincing.
    In your testimony you say you are concerned about entering 
into increasing litigation, given your workload. It seems to me 
that in that paragraph alone, there is enough hooks for every 
lawyer in town to hang their coat on. Do you think that is all 
one legal standard?
    Mr. Hogarth. Well, I think that, as we said earlier, we 
think that this bill is going the right direction, but we would 
like to work to try to tighten it up some because we are 
concerned about anything that gives increased litigation. And I 
think we can work with the staff and can work through those 
issues. We all want better science, and I think we can work 
through these issues.
    Mr. Miller. The other question is, on the consultation 
process, the question is who gets involved in the Section 7 
consultations? I don't have the language right in front of me, 
but it is essentially, it looks to me like the person who gets 
to be involved is the person who has moved the action. But what 
about other people who are impacted by that action? We will 
take one close to our hearts, Klamath River. Does that mean 
just the irrigation district and/or its constituents get to be 
involved in that, or do the tribes downstream? Do the 
downstream farmers? Do the commercial fishermen, all of who are 
impacted by that decision, do they get to be involved in that?
    Mr. Hogarth. After we did the Section 7 consultation on 
Klamath and we did the biological opinion, we submitted it to 
the Bureau of Reclamation and they put it on the website for--I 
think in this instance it was--
    Mr. Miller. No, I understand that. But this one suggests 
who gets involved in the beginning of the process of Section 7.
    Mr. Hogarth. Well, basically in the beginning is the 
applicant, the one that comes forward is the one that is 
involved.
    Mr. Miller. So other impacted parties would not get to 
participate. They get to look at it on the website when it is 
done?
    Mr. Hogarth. In a draft form. They get to see a draft.
    Mr. Miller. But the immediate party gets to be involved--
    Mr. Hogarth. Right, because you negotiate with the party on 
actions that can be taken, and how you can work through the 
reasonable prudent actions, what is reasonable and--and you 
have to understand the project, so you have to work with them 
to get the details of the project and have the project--
    Mr. Miller. No, I understand that. But you also have to--my 
understanding of Section 7 is also about understanding the 
impacts and so you kind of take a survey of other agencies and 
parties to determine how they see that impact of your action; 
is that not correct?
    Mr. Hogarth. No, no. Once we understand the project we do 
the evaluation of the potential impacts of that. The only time 
you get to review that is when the draft of biological opinion 
goes out. Then everyone has a crack at saying, ``Well, you did 
this wrong or your economics are wrong.''
    Mr. Miller. I would be interested in--and you don't have to 
do it here, but in writing, let me submit a question to you 
about how this is drafted, about the beginning of that process 
before the draft is done.
    And then let me just finish, Mr. Chairman, by saying I 
thank you for your remarks because I think this has to work on 
both sides of the streets, when you list and when you don't 
list. You have got to have this kind of ability to review that 
decision with the best science. It has got to work both ways 
because both of those decisions are critical decisions to 
interested parties here.
    Mr. Duncan. All right. Thank you very much, Mr. Miller.
    Mr. Osborne?
    Mr. Osborne. Thank you, Mr. Chairman, and I thank you for 
introducing this legislation, and appreciate you two gentleman 
being here today.
    I would like to get Dr. Hogarth off the hook here a little 
bit. You have been bearing the brunt of the hearing.
    And I would like to address the remarks to Mr. Manson, and 
I would like to thank you, Mr. Manson, for what I heard to be 
general support of H.R. 4840, and I agree with you that this 
legislation in some ways would help end some of the negative 
perception of the way the Endangered Species Act is currently 
being enforced. Sometimes perception is worse than reality. And 
so I think an independent review is certainly very much in 
order.
    And I am also glad to hear you say that you would like to 
have a little bit more credence given to those most affected by 
the process, landowners, people who bear the brunt of the 
Endangered Species Act. And I can tell you from personal 
experience that many people in Nebraska have felt somewhat 
disenfranchised and feel that they have been--you know, they 
make recommendations that are largely ignored, and so I think 
this would be very much appreciated.
    And so, as you know, I have talked to you before about this 
project. I am going to take maybe a minute and just kind of go 
through it again. As you know, in 1978 there was 56 miles of 
Central Platte River was designated as critical habitat for the 
whooping crane, and out of that designation, we saw a number of 
issues come up. First of all, Fish and Wildlife said, ``Well, 
we ought to have certain instream flows in the Platte River, 
2,400 cubic feet per second in April and May, which is 
essentially non-irrigation time.'' Many recommendations were 
made in the 1,300 cubic feet per second range, which means that 
almost the Fish and Wildlife doubled the requirement. Some 
people say that is even too deep for whooping crane. So anyway, 
the instream flows are a problem.
    Sediment replacement, Fish and Wildlife said, ``Well, we 
need to put more sediment in the river,'' so we are talking 
about 100 dump truck loads a day for years and years. And then 
they changed that to pushing some islands into the stream. That 
is very expensive. So that is one of the issues. The 130,000 
acres for the conservation account of water, which is a 
tremendous amount, and so on and so on. And the reason this is 
called into question is that I think it has been pretty well 
documented that no more than 1 to maybe 2 percent, at the very 
most 3 percent of the whooping cranes in existence ever use 
that or even visit that stretch of Platte River.
    There was a study of 18 whooping cranes that had radio 
tracking devices put on them, and over 2-1/2 years none of them 
ever even approached that area. So we have kind of built a 
house of cards here. It is very expensive. It could be 
analogous to the Klamath Basin in terms of cost, because 
eventually they want to work the 417,000 acre feet, which would 
be in an environmental account which is equivalent to all of 
the irrigation water in the North Platte Valley. And if that 
was eventually taken we would have a huge economic impact.
    So from our experience with Klamath, what we are asking for 
is simply a study, independent study before we go forward any 
further. The total cost is 160 million right now, and it is 
going to get much higher than that. And I know your concern is 
the cost of a study and where is the money.
    And so what I would like to mention today, and I will give 
you a letter to this effect, currently there is a fair amount 
of money, Federal dollars going into the cooperative agreement 
to help formulate the plan. And so we are suggesting that some 
of that money be used for a study, and I think you will 
probably get some agreement by those in the cooperative 
agreement. I am not sure, but I think you will. So we would 
just like to have you take a look at that. We think that is a 
source of money that you already have. And if you could do 
this, we would very much appreciate it.
    And so I really haven't asked a question. I have made a 
statement. But I am kind of interested in this, and we have 
quite a big stake in it and appreciate your help. So any 
comments you have, I would appreciate.
    Judge Manson. Well, we would look at that and determine if 
there are monies already appropriated that could be used for 
that purpose.
    The other thing is that with respect to the 1978 
designation of critical habitat, what I would like to be able 
to look at that again and see if it would meet the current 
standards for designation of critical habitat. The one issue 
there is that the service is currently occupied with a number 
of court-ordered designations of critical habitat under court 
deadline. And if we can work past that, then we can get to 
looking at things like that '78 designation and see if it would 
meet the current standards.
    Mr. Osborne. Thank you very much. I see my time has 
expired, and I yield back.
    Mr. Duncan. Thank you very much, Mr. Osborne.
    Ms. Solis? You want to yield to Mr. Udall?
    Ms. Solis. Yes, Mr. Udall.
    Mr. Duncan. All right. Ms. Solis yields her time to Mr. 
Mark Udall.
    Ms. Solis. Mr. Chairman, he was here before I was.
    Mr. Duncan. It is listed wrong on Mr. Hansen's list. I am 
sorry. We will go to Mr. Mark Udall then.
    Mr. Udall of Colorado. Mr. Chairman, I think more 
accurately, I was here, but Ms. Solis, she sat down and was 
ready to do business and I was standing in the back, but I 
will--
    Mr. Duncan. Whichever.
    Mr. Udall of Colorado. But I will be happy to ask some 
questions.
    Mr. Duncan. Go ahead.
    Mr. Udall of Colorado. I want to thank my colleague, Mr. 
Osborne from Kansas, for not reminding people that sometimes 
people from Kansas think those of us in Colorado have actually 
taken the water from the Platte River and that is why you have 
the problems. And the folks from Nebraska as well have 
legitimate concerns, but we will continue to work with you.
    I want to thank both of the witnesses for taking time to 
come to the Hill today. And at the last hearing you testified 
that the provisions of the bill might prohibit final action on 
listings or biological opinions until a review is conducted, 
and you thought perhaps this might conflict with the statutory 
timelines in the law. I get the sense now that you don't think 
that's much of a concern. My question will be, are you not 
afraid that you might be subject to more litigation if you 
cannot meet statutory deadlines, and what type of activities 
would be impacted if biological opinions cannot become final?
    Either one of you want to respond?
    Judge Manson. Well, I did express a concern that the 
deadlines in the bill may be inconsistent with the deadlines 
that are currently in the ESA. I think that that is an issue 
that can be fixed. I do agree that the opportunity for review 
and the use of good science is important.
    There are several ways to deal with that. One, without 
amending the bill, of course, a project applicant could agree 
to an extension of the time to conduct consultations, but I 
think that I terms of making the deadlines in the bill 
consistent with the deadlines in the Act itself, that just 
requires sitting down with staff and working through some of 
the issues. I don't think that is a significant stumbling block 
to the bill.
    Mr. Udall of Colorado. Mr. Secretary, in March you 
testified that the processes required in the legislation, 
including assembling and compensating review boards, would be 
costly to implement. It doesn't appear to me that H.R. 4840 
provides any additional funding for this requirement. Do you 
still have those concerns or have you seen another way to meet 
those--
    Judge Manson. No. I am still concerned about the cost of 
compensating the review board.
    Mr. Udall of Colorado. Do you think we should include some 
further language in the legislation if it were to move ahead, 
that would provide that additional support?
    Judge Manson. Well, that certainly is at the discretion of 
the Committee. Obviously, it is not something that is in the 
President's budget currently.
    Mr. Udall of Colorado. Mr. Chairman, I want to thank the 
witnesses for taking their time to join us on the Hill today, 
and I look forward to further discussions about this very, very 
important act, the Endangered Species Act, and--
    Mr. Miller. Would you yield?
    Mr. Udall of Colorado. I would be happy to yield to my 
colleague from California.
    Mr. Miller. On that point in the discussion of the 
timelines, if I might, in what I guess is now referred to as 
the March testimony, NOAA testified that--and again, I go back 
to your discussions that you and Mr. Pombo had--that, ``We 
believe that giving greater weight to scientific and commercial 
data that is empirical or field tested when evaluating 
comparable data, we may not be using the best information.'' Is 
that consistent with your testimony today?
    Mr. Hogarth. Yes, sir.
    Mr. Miller. And I assume that is again because it is about 
taking all of the information to arrive at the best scientific 
conclusion, is it not?
    Mr. Hogarth. That is correct. We are not trying to 
belittle, by any stretch of imagination, any empirical or 
field-tested data. That is part of the package that you look 
at.
    Mr. Miller. And one of the things in this legislation is 
about fluctuations in populations and whether they are normal 
or not. It would seem to me that modeling there may be very 
helpful, because if you could model climate, wet years, dry 
years, stream flows, and then compare that with whatever we 
know about those populations, you may have a reason or you may 
have an understanding of the fluctuations in those populations. 
So modeling would contribute to the other data that is 
available, would it not?
    Judge Manson. That is correct.
    Mr. Miller. And in many instances, I assume that we believe 
the modeling is accurate. I mean, we model missile systems, and 
weapon systems, and brain surgery, and the genome. I mean, we 
do all kinds of modeling today that we have high, high reliance 
on, and a sense of reliability is I guess what I mean to say, 
that we place a great deal of reliability on, do we not?
    Mr. Hogarth. That's correct, yes. Most things, at this day 
and time, look like they have a model associated with them. I 
said earlier we predict hurricanes by models, we predict 
weather by models. We feel like we need good field data to 
verify the models, and we try to go out and gather the data 
that will supplement the models and to verify the models to 
make them more accurate. So the modeling is a vital part of 
what we do, but so is all data that people could bring forward 
because that helps you verify the model in the long run.
    Mr. Miller. Twenty-five--go ahead. You are right.
    Mr. Duncan. Mr. Udall's time has expired, and so I am going 
to go next to Mr. Walden.
    Mr. Walden. Thank you very much, Mr. Chairman. I appreciate 
the courtesy of the Committee. We are in a markup in Energy and 
Commerce right now--well, we will resume in 10 minutes, so I 
have to go back over there, but I do appreciate it.
    Dr. Hogarth and Mr. Manson, thank you for being here. I 
have read through your testimony, and Dr. Hogarth, especially 
your comments relative to the Klamath Basin because you know 
that's one concern I obviously have shared with you and this 
administration.
    In that case, do you feel the decisions made by the 
National Marine Fisheries Service last year followed empirical 
data and was there science to back them up on the river flow 
issues?
    Mr. Hogarth. We feel like the biological opinion that we 
just put out, the one that just went out, we relied a lot on 
what the NRC had said, and what the audit study said and all. 
We tried to base it on all of the data we had in hand. We 
realized that, in doing that biological opinion, a lot of that 
you know is a 10-year biological opinion, and we felt like 
there was a lot of things that needed to be field-tested based 
on NRC comments, the audit comments and our own biologists' 
opinion. So there was a lot of things built into that 
biological opinion to verify for long term.
    Mr. Walden. You are using Hardy 2 data now, right?
    Mr. Hogarth. That is correct.
    Mr. Walden. Has the Hardy 2 data that you are using been 
peer reviewed?
    Mr. Hogarth. It is in the process now. It has been, to a 
certain extent, but it is in the process of being peer 
reviewed, and also the NRC is looking at it as part of the 
final report that they will give us probably next March.
    Mr. Walden. Has there been any issue raised, that you are 
aware of, involving the baseline data used by Hardy 2? Has 
there been any change?
    Mr. Hogarth. There has been some question, and I am not 
aware of all of the details, but there has been some questions.
    Mr. Walden. My understanding is that the original data 
being used for Hardy 2 was disallowed because it was collected 
for another purpose and was not allowed to be used for 
something else, Hardy 2, and so they have had to go back and 
kind of start over.
    Mr. Hogarth. There were two, the Hardy 1 and the Hardy 2, 
and they are both I think being looked into.
    Mr. Walden. I think this was within Hardy 2, actually. You 
might want to check on that.
    Mr. Hogarth. Yes.
    Mr. Walden. Because I think that raises the issue, and I 
have had this conversation with some of my colleagues on the 
other side of the aisle. I am trying to get it where we make 
sure the science that is used is peer reviewed, whether you are 
listing or delisting, whether you are doing consultation or 
recovery or even the issue that came up about the data leading 
up to a decision to list or not list, that is fine with me if 
you want to peer review that.
    But I just watch what happened in the Klamath Basin, and 
the follow-up that the NAS did, the Research Committee for the 
NAS, that basically said both your agency, NMFS, and the U.S. 
Fish and Wildlife Service made decisions that weren't fully 
supportable by the available science.
    Mr. Hogarth. I think, from the standpoint of some of the 
temperature stuff, the NRC did say that they don't agree, we 
may be right or we may be wrong, but they don't see the 
supporting evidence on it.
    Mr. Walden. I think they said it more--
    Mr. Hogarth. And we do have--we have stated up front there 
is a lack of data on the Klamath on Coho, and that is why I 
think you are looking at a biological opinion to see that it 
does buildup to the flows, but it gives time to get the 
information. We did not stick with the 2400 CFFs that we had 
said earlier was necessary. We did go back to the NRC study, 
and we pretty much negotiated based on that.
    Mr. Walden. Let me ask you a question, following up on what 
Mr. Miller said a few minutes ago, this issue of how we weight 
the data, whether it is the field-collected empirical. In line 
8, on Page 2, talks about, ``In making any determination under 
this section, the Secretary shall give greater weight to any 
scientific or commercial study or other information that is 
empirical or has been field tested or peer reviewed.''
    That wouldn't preclude, though, him giving some weight or 
him--whoever the Secretary is on out--giving some weight to 
modeled studies. That doesn't stop that, does it?
    Mr. Hogarth. That is what we want to make clear. We hope 
not, and that is why we wanted to work it out with the staff. 
We just want to make sure that we have that option. That is 
correct.
    Mr. Walden. Are you aware of any modeling that occurs where 
there isn't field data collected?
    Mr. Hogarth. It would be very difficult, but there are 
probably some developmental models that have been done without 
a lot of field data.
    Mr. Walden. So most of them would have field-collected 
data.
    Mr. Hogarth. Yes, some good field data. That is correct.
    Mr. Walden. Because that is an issue that certainly comes 
up out in my district, and people I talk to on this issue is 
they really want to make sure that the data that are used, that 
you give some weight to that, where people have gone out and 
done in-field, in-stream studies, as opposed to somebody just 
kind of coming up with some theoretical model. That is, I 
think, really important.
    There was a question that apparently came up about the 
decisions made in the Klamath Basin on some rules versus what 
has been done here in the Washington area. Are there different 
applications of rules?
    Mr. Hogarth. Not in my opinion, they are not. We looked at 
that very closely, and I am not aware. I know there has been 
some questions about ESA and Potomac River.
    Mr. Walden. As you probably know, I think it is the short-
nosed sturgeon has been on the list forever out here, and year-
after-year raw sewage and storm runoff goes into the Potomac 
and the Anacostia by the billions of gallons, and we have heard 
all about the Wilson Bridge construction and supposedly how you 
just relocate the feeding beds of clams so that the sturgeon 
won't feed there while the bridge is being constructed. I can't 
imagine that being an alternative available to the farmers and 
ranchers in the Klamath Basin.
    Mr. Hogarth. First off, there is no evidence of shortnose 
sturgeon within 50 to 60 miles of the Washington Aqueduct. What 
few sturgeon have been seen look like it came through the 
Delaware canal, and we are not sure that that was, you know, 
but just based on water levels. We are going to find out. I can 
tell you that.
    I have heard so many comments here that we have gone 
through the Potomac River Commission and the D.C. Fishery 
Commission, and talked to the State of Maryland, and we will 
find out about shortnose sturgeon either way around and look at 
the habitat. We will do the studies to determine it, and if 
they are in the area and if they have got critical habitat, 
then we will take appropriate action based on that.
    Mr. Walden. But I understand that your agency just 
determined a ``may affect'' on those fish.
    Mr. Hogarth. Right, because the ``may affect'' is--you see 
the ``may affect'' is they are not in that area. So the ``may 
affect'' goes back to we are not sure what would happen if they 
were here. We haven't seen them in the area. We don't know. We 
have no evidence of them being in the area, and so that is the 
way--
    Mr. Walden. But shouldn't we protect that habitat just in 
case they were to stray there?
    Mr. Hogarth. I think that is a point that we are looking at 
now.
    Mr. Walden. The reason I ask that is we are having the same 
debate on lynx in my State. The Department of Fish and Wildlife 
in Oregon has said we don't think they have been here ever or 
at least, you know, like 10 cases in 100 years, and yet we are 
seeing the Federal Government come in and say, oh, gee, maybe 
we better restrict any activity in the forest around there 
because they may be showing up.
    Now I realize that is not in your agency, and I realize I 
have also run over my time, but could it be that the fish 
aren't there because of what is getting dumped in the river? I 
mean--
    Mr. Hogarth. I think if the fish were in the river, we 
would have seen them in this stretch, the 50- to 60-mile 
stretch, the other topical habitats up and down the Potomac, we 
think. That is something we will be documenting.
    As I said, the question has come up, and I think it is a 
valid question, and we need to go to get the evidence.
    Mr. Walden. Would this have been historical habitat for 
them potentially?
    Mr. Hogarth. We just don't know. It could be. I mean, there 
is some evidence that the habitat is suitable in that vicinity 
for shortnose sturgeon, as it is in some other areas of the 
river. We need to document that.
    Mr. Walden. I appreciate that.
    Thank you, Mr. Chairman.
    Mr. Duncan. Thank you very much.
    Ms. Solis?
    Ms. Solis. Thank you, Mr. Chairman, and thank you witnesses 
for being here.
    As I understand it, the law already gives both agencies the 
authority to do much of what is being presented in the bill, 
and what I would like to know is if you think this legislation 
is essential and if you are just saying you are supporting it 
for the sake of supporting it or is it going to, you know, be 
something that is going to be dramatically different from what 
you are doing?
    Mr. Hogarth. I will take the first go and then let Judge 
Manson.
    I think there are definitely, from a public perception we 
are dealing with today, a lot of criticism. The Native Species 
Act has administered the data that we make decisions on.
    I think this bill goes a long ways toward refining that, 
making it more precise, concise, and we are going to--we 
conduct ESA science in the future. So I think, from that 
standpoint, it is good. I think it does, in several instances, 
as I say, I think we need to work with the staff to look at 
timing, to look at some of the other things.
    For example, in my instance, and I think this may be an 
oversight, I am a political appointee, but I don't go through 
confirmation. Whereas, the Director of Fish and Wildlife 
Service goes through confirmation. The way this bill is 
written, we wouldn't have, you know, the Secretary or the Under 
Secretary would be the one that would have to do all of this, 
and so he would be getting data and talking to fishermen. We 
would be the ones making the decisions. I think that is 
probably just an oversight on how the bill was written.
    I do want to make sure that we talk about ``based on 
belief,'' and things like that. That is something else we want 
to talk to the staff.
    A lot of that litigation comes from process, and I hate to 
see us write another bill that sets up something that is not 
clear, and that will just give the public more of an 
opportunity to sue. Whether we win or lose, it does take a lot 
of time and money.
    This bill does cost us over $2 million to do the peer 
review in the process that is set up. It is over $2 million 
because we do 90-some actions a year. Those are the concerns we 
have.
    But, overall, I think the bill goes a long ways to give the 
public, hopefully, a better feeling and clarifies the things we 
need to do under the ESA because it is a tough bill and one 
that I think causes a lot of sort of controversy, and we need 
to make it clearer, and we support the bill because we feel 
like there are some things in here that really do go a long 
ways toward, hopefully, making the science better and perceived 
as being better, also.
    Ms. Solis. In your earlier testimony, though, you mentioned 
that these authorities are already there within your agency, 
and they are already being exercised. So isn't this redundant?
    Mr. Hogarth. I think some of them are, but some of them I 
think, again, a real clarification goes maybe a step further 
than we go. For example, in the use of what is best science, to 
talk about the empirical data and the commercial data. They 
said that in the law now. How we utilize this data I think this 
does clarify that, and it does, I think, point out that or it 
makes it clear that we will have peer review. It sets out a 
process for that involvement, which is not set out now.
    Ms. Solis. So are you saying that Congress should be 
allowed to define what that science is?
    Mr. Hogarth. Well, I hope that the Congress would, as I 
interpret this, that Congress will say use all of the science, 
and I think that is, hopefully, what the bottom line says; that 
we should take into consideration when we make these listing, 
delisting and recovery decisions, we take into consideration 
all data that is brought forward and that we use it all--
empirical field data and peer-review data--we use it all. And 
if we use actual data, I think this bill says, if we use actual 
data, it should be a step above just using strictly models. As 
long as we can continue the modeling process, we are happy with 
that, but we want to make sure we can do that.
    Ms. Solis. If I might, I think one of the concerns that was 
raised earlier was who is at the table to make those decisions 
early on and if that, in fact, is representative of all 
interested parties or stakeholders, and I think that, you know, 
I find some difficulty in realizing how all of that is going to 
be implemented.
    Mr. Hogarth. Sometimes this has not been a--I think we are 
finding in our agency, and we are trying to do this now--it has 
not been as streamlined as we would like to see the process 
work.
    We are delegating a lot of our Section 7 to the field now, 
where it has been done in headquarters, to try to make sure 
that the people who are being affected have an input from the 
beginning. We also asked in our council process we have to 
start at the beginning with scoping, looking into various 
alternatives early in the game so that the public is involved.
    We have, in the past, not released a lot of our biological 
opinions in draft form. We have completed them, and then we 
have released them as a final biological opinion. We are now 
making those available in a draft form to the people that are 
affected so they can have a time to look at the draft 
biological opinion and give us input before we finalize it.
    So we are trying to make the process more transparent, an 
that is another thing I think this bill does is try to make 
sure that we have a transparent process and have the people 
affected involved in it.
    Ms. Solis. I would ask the Secretary the same question.
    Judge Manson. I would say, first of all, that the vast 
majority of the provisions of this bill are not either in 
existing policy, nor are they things that could be done 
administratively.
    I would say, second, to the extent that we might find 
things in here that could be done by way of something other 
than legislation, the legislation is important because it 
underscores the need for the agencies to follow processes, and 
it enhances public confidence.
    The third thing I would say is that these issues are 
sufficiently important enough that it is most appropriate for 
the Congress to examine them and to legislate--
    The Chairman. [Presiding.] Does the gentlelady have 
something more you wanted to ask?
    Ms. Solis. Not at this time.
    The Chairman. The gentleman from Tennessee, Mr. Duncan?
    Mr. Duncan. Thank you, Mr. Chairman.
    Judge Manson, yesterday I read a portion of a Washington 
Times editorial which said that the Endangered Species Act was 
simply out of control and one member said yesterday that the 
bill had done more to protect lawyers than it had endangered 
species. Member after member, yesterday, told all kinds of 
examples of horror stories that have occurred because of this 
act.
    I don't suppose you have had a chance to review some of 
those statements that were given yesterday in here, but have 
you read some of these horror stories, and do you agree that 
this act, that we need to take another look at it, because in 
the last almost 30 years since this Act first came into being 
that there have been some pretty unfair, even ridiculous 
actions taken because of this act?
    Judge Manson. I aware of the statements that the members 
made yesterday, and I have heard a number of those examples 
given before. I have said publicly, on a number of occasions, 
as recently as yesterday in Tucson, that the administration of 
the Endangered Species Act requires improvement, and there are 
a number of ways to improve the act, and we hope to undertake 
some of those as a matter of policy, and perhaps some as a 
matter of rulemaking, and certainly work with the Congress on 
bills such as this that go down the road to improve the 
administration of the act.
    Mr. Duncan. All right. Thank you.
    Mr. Hogarth, in the Klamath Falls controversy, you say in 
your statement that the National Marine Fisheries Service ``did 
not have a great deal of recent data regarding the Coho to 
analyze when forming the 2001 biological opinion, yet the 
Agency went ahead and issued a jeopardy opinion anyway.''
    Also, in your statement, you mentioned the fact that the 
National Academy of Sciences said there was ``no substantial 
scientific foundation for the actions that were taken.'' Don't 
you think that this bill would help improve that? There was an 
implication or several implications a while ago that this bill 
would preclude data, when actually one of the main goals of 
this bill is to get agencies to take into consideration even 
more data, and specifically field data, for instance, more 
emphasis on field data, but also input from landowners. Many 
landowners have felt like they have really had no voice or no 
input in some of these decisions.
    What do you say to all of that?
    Mr. Hogarth. I think, as I said earlier, we do have a 
scarcity of data. There is no doubt about that. I think if you 
look at the status, even based on what we have got--the Coho--
is that we have a real problem with the numbers of Coho 
returning, and that is one of the things I think we had to take 
into consideration.
    I think, based on experience that we have, I think there is 
a great deal of experience in the literature, and also we know 
that you have to have habitat and flow, and that is one of the 
concerns we had during the critical time that, you know, what 
the flow--we may have had a difference of opinion as to the 
amount of flow that is needed, but I think even the NRC talked 
about thermal effusion and things that we knew we had to 
examine, and that is what we are doing now.
    I think any data, yes, in response to the question about 
additional data in this bill and additional data, we want 
additional data. If the timber companies, which I know some of 
them do work out there, have brought it forward, that should be 
utilized. If the landowners have it, then we should utilize it, 
and I think that is what this bill says, and I think we should 
make sure that is done.
    Mr. Duncan. All right. And, finally, before my time runs 
out, let me just mention, Mr. Osborne, yesterday, said about 
the Klamath Falls controversy that farmland that had been worth 
$2,500 an acre almost overnight went down to $35 an acre.
    Around that time, Kimberly Strassel, who is a deputy 
assistant editor of the Wall Street Journal and a columnist for 
them, wrote a column called ``Rural Cleansing.'' And she had 
gone to the website of specifically the Sierra Club, and I 
think some of the other environmental organizations, and had 
language that they had, saying that their goal really was to 
get people off the land and get more land into public 
ownership, and so forth, and that we needed greater density of 
people in the cities and so forth, and their concern really 
wasn't for the environment, it was just it was sort of a power 
grab in a way. I would like to place that column, called 
``Rural Cleansing,'' in the record, at this point, and I would 
also like to request that each of you read that column. I will 
send it to you, and you consider that as you think about the 
ramifications of this act.
    Thank you very much, Mr. Chairman.
    Mr. Pombo. [Presiding.] Without objection, it will be 
included in the record.
    [The Wall Street Journal column ``Rural Cleansing'' has 
been retained in the Committee's official files.]
    Mr. Pombo. I would like to also ask unanimous consent that 
our colleague, Congressman Thune, be allowed to sit on the dais 
during this hearing.
    Without objection.
    Mr. Inslee?
    Mr. Inslee. I would agree to that only if Mr. Thune agrees 
not to play baseball tomorrow night.
    [Laughter.]
    Mr. Inslee. My 15-year-old son is visiting Washington, 
D.C., and he would like to know what your opinions are as to 
whether or not he should feel relatively confident that species 
in the United States of America will not go extinct during his 
lifetime.
    Could you each give me your view as to whether you believe 
you can give us a reasonable assurance that Federal policy will 
prevent the extinction of any species during his lifetime?
    Judge Manson. There inevitably will be species that will go 
extinct in your son's lifetime. As to some of those species, 
there is no amount of Federal policy or law that will prevent 
that, at least no amount of Federal policy or law that is 
acceptable in the democratic process that we have.
    Species extinction, with respect to some of those species, 
is completely unrelated to policy issues that we might face. 
Now, as to the other ones, where policy, that is, acceptable 
policy in the context of the democracy that we do have, I can 
assure him that the law and, if the implementation of the law 
and the administration of the law is improved, we will do a 
great deal to protect the biological diversity of the United 
States.
    I think that it has to be done in a context--one of the 
things that is important about this, it seems to me, that is 
relevant to your question is that we are talking ultimately 
about public policy decisions informed by good science, and as 
such, there are always competing priorities, and we have to 
make the public policy decisions with respect to species 
protection in the context of all of the other public policies 
that we have to weigh and implement. But having done that, we 
will, if the implementation of the law is improved and if it is 
done in a manner that is consistent with public policy 
priorities, we will do a lot to preserve biological diversity.
    Mr. Hogarth. I pretty much agree with what the Judge said. 
I think one of the concerns is the will of the people. Some of 
these decisions are going to have some great economic I think 
price tags attached to them to maintain some of the species, 
and so I think it is the will of the American public as to if 
they want to pay that price and does Congress want to keep a 
tough bill.
    The Endangered Species Act is a very tough bill, and if we 
can implement it properly, I think that is no problem, but I 
think it is a very tough bill. There are a lot of economics. 
When you start talking about the impact of recovering some of 
the salmon on the West Coast, for example. I am not sure they 
will ever be back in all of the streams that they were in 100 
years ago, but I think we will have coho, we will have sockeye, 
we will have the salmon available, but I think there are some 
tough decisions that the American public will have to make and 
Congress in the future.
    Mr. Inslee. I note in this proposal, at least the way it 
has been described, it would allow input in a certain context 
from the permit applicants, but from other interested people. 
So, in a context here, it would allow an applicant for a land 
use to put in additional information, but not the fishers or 
the people concerned, from an environmental perspective. Does 
that make any sense to you to do that, to just allow the one 
side, if you will, to make input on this and not everyone?
    Judge Manson. Well, from my point of view, the input of the 
applicant should take preference over the input of other people 
because the applicant is the one who will be granted or denied 
a license or a permit. The applicant is the one who will bear 
the greatest economic burden as a result of the potential 
denial of a permit.
    I would say, however, that the bill does not preclude the 
agencies from considering the input of other people who may 
have an interest or who may be affected, and I would suggest 
that a great deal of that is done presently. I think it is 
worthwhile and important to underscore the primacy of the 
applicant in this process, however.
    Mr. Inslee. I can't let that pass, just to note 
disagreement, at least from one Member of Congress, that any 
American has any greater interest in any of these decisions 
than any other great interest. I mean, that is like saying--I 
guess what you are saying is, is that in a Klamath Basin 
context, the water users for agriculture would have a leg up or 
a greater right in consideration, as one American citizen, than 
those of the tribal members, for instance, or those who are 
interested in fish preservation.
    Can you tell me, I guess you are saying because they have a 
greater economic interest, they have a greater interest worthy 
of consideration by the American democratic system?
    Judge Manson. Well, it is important to understand what we 
are talking about. We are talking about, in the bill, what is 
talked about is the ability of the applicant to sit down with 
the agencies and discuss the terms that the applicant 
ultimately will be responsible for implementing, that the 
applicant ultimately will be responsible for bearing the burden 
of.
    Now, at the same time, I indicated that the bill does not 
preclude the taking into account the interests of other 
individuals. It doesn't bar that at all and, indeed, the 
agencies frequently, for example, the Fish and Wildlife Service 
has long published draft biological opinions and has accepted 
comment from other individuals about those, but the key part 
about the bill is the ability of the applicant to be the person 
involved in determining what conditions the applicant 
ultimately must bear.
    Mr. Miller. Would the gentleman yield?
    Mr. Inslee. Certainly, if I have any time.
    Mr. Miller. I just can't disagree with you more. That is a 
very serious consideration, but to suggest that that is where 
the impact or the major impact will fall, I mean, one of the 
things we have learned about the environment, and we will go 
back to Klamath, is this watershed stretches all of the way 
from up in Oregon all of the way out to the Pacific Ocean, and 
its impacts, small changes can have huge impacts on 
populations, treatyholders and others downstream.
    And to suggest that one person, one group gets to go in and 
sit down, as it says in the bill, and discuss with the 
Secretary this information is kind of contrary to sort of 
fairness to all. We are not talking about everybody gets to 
talk to the Secretary, but people who are directly impacted by 
these actions. The purpose of the consultation is to determine 
the impacts on various constituencies within the expertise of 
the agencies or whatever, and now you run in one party who gets 
to sit down, and submit, and discuss with the Secretary and the 
Federal agencies information about their reasonable 
alternatives.
    Well, the tribes may have a reasonable alternative, the 
timber companies may have a reasonable alternative, the 
commercial fishermen may have a reasonable alternative or the 
tourism industry down on the coast may have a reasonable 
alternative, and they are all directly impacted, and some may 
be financially more impacted because they don't get Federal 
subsidies, they don't get direct payments that some of these 
other people get in different watersheds. They are treated as 
second-class citizens here?
    Mr. Miller. Mr. Chair, just to make one parting comment.
    Mr. Pombo. The gentleman's time has been expired.
    Mr. Miller. Would you allow me just one parting 10-second 
comment? Just to comment, you two gentlemen disagree, the 
witness and the Congressman. I just think both need to be 
heard. You both need to be heard on ESA issues, too.
    Thank you, Mr. Chair.
    Mr. Pombo. Mr. Otter?
    Mr. Otter. Thank you, Mr. Chairman, and thank you, 
gentlemen, for being here.
    Your Honor, how long have you been with the Agency?
    Judge Manson. About 4 months now.
    Mr. Otter. And yourself?
    Mr. Hogarth. Eight years, but I have only been the 
assistant administrator since last September.
    Mr. Otter. Mr. Chairman and members of the Committee, it 
strikes me that one of the problems that we are having here is 
many of the horror stories that we are reviewing here today 
were really the result of other people making those decisions, 
and we are trying to have these two gentlemen answer for all of 
those decisions that were made prior to their arriving at these 
agencies. So, unlike my colleagues, I am prepared to give you 
folks the benefit of the doubt.
    It also strikes me that of all of the science, and the true 
science, and the good science, and the bad science, and 
everything else, common sense is never mentioned anywhere in 
this.
    During this morning's hearing, we had a lot of discussion 
about whether or not the laws, and the Clean Water Act was one 
of those that came up, were being applied equally in the West 
as to the East, and one of the panelists said that, well, one 
of the problems that we have is that the East has been 
industrialized, as has the West Coast, for a long period of 
time, and so there was already a high level of contaminants 
available.
    And so when we asked you to clean up a water body in the 
East, it has been that way for 150 to 200 years or has been 
contributing that way for 150 to 200 years, and so when we ask 
you to remove 50 percent of the pollution, you are starting 
from a much higher level of pollution. Then, when we ask you to 
do it in the West, we say we want you to remove 50 percent of 
the pollution, we haven't had all of this buildup for 150 to 
200 years, and so it is much more difficult for us to remove 50 
percent of a very little bit, as opposed to 50 percent of a 
whole lot.
    I don't know if I am getting through to you here. It made 
sense when I thought of this question, maybe it doesn't on 
reflection now, but it seems to me that the agencies are trying 
to apply the laws equally, but we are maybe using the wrong 
models.
    And if we want to reach a certain level of acceptable 
contaminant in the water that is not going to endanger a fish 
or endanger a species, that that is what we ought to be 
speaking to, rather than percentages, but everything that we 
heard from the EPA this morning was expressed in percentages, 
and maybe that is what gives us the impression out West that it 
is a much--it is an unfair application of the law, because, you 
know, we are getting away with dumping 200,000 tons of sludge.
    And I heard the folks this morning, on the other side of 
this dais explaining away, well, what about all of the other 
pollution that is going on with cruise ships and things like 
that? But we were willing to overlook the 200,000 tons of 
sludge, and it was stated because of the economic hardship that 
would be put on the local folks if they had to remove that 
sludge or build another catch basin or build a tertiary, 
preliminary secondary and tertiary treatment to keep that out 
of the Potomac River.
    Well, I have to tell you, we have had some pretty good 
hardships on our watershed. We have shut down 32 lumber mills 
during the Clinton years, we idled 12,000 miners all because 
every activity that we have in Idaho is on the watershed.
    To Mr. Miller's point, there isn't anything that we can do 
that we don't have to account for some part of the Endangered 
Species Act or the Clean Water Act or some other rule or 
regulation, and so I guess that is the frustration that we, who 
come from the West, have with it because it seems so patently 
unfair.
    Let me ask you a question, now that my time is almost up, 
Your Honor. When you are looking at a species, do you look at 
it holistically in the United States or specifically to a 
geographic region? When the U.S. Fish and Wildlife decides to 
look at a species for threatened or endangered classification, 
how do you look at that?
    Judge Manson. Well, they actually look at both.
    Mr. Otter. Well, then, how is the determination made?
    Judge Manson. Well, the issue is whether--there are several 
layers to this--but the issue is whether it is facing 
extinction throughout all or a portion of its range.
    Mr. Otter. I see. Well, let me give you an example. When 
wolves were reintroduced in Idaho in 1994, there really hadn't 
been substantiated that there was a presence there, but we 
found out in other States there is actually not a bounty on 
them, but there is a taking for management purposes in one of 
our other 49 sister States, that they were actually taking 
wolves.
    But when those wolves were introduced into Idaho, let me 
tell you exactly what happened. We lost the activity on all of 
the watershed in the managed area as a result of that, which 
included a lot of grazing for the livestock, included logging, 
included mining. The logging and mining, especially the logging 
that we could no longer do, has now allowed for a lot of 
overgrowth. Now that has been going on for a long time because 
of the suppression of fires and stuff like that.
    Now we find out that we are getting perilously close to an 
endangered species, a potential threatened species listing on 
species like the Rocky Mountain elk and the Clearwater herd, 
which at one time was the world's gene pool for elk. We are 
down to 3 calves, 3 calves this year, per 100 cows of calf-
bearing age. In any other herd, you would expect a minimum of 
28 for sustained numbers, but because of the wolf introduction, 
and the elk, especially elk calves, happens to be the preferred 
meal of a wolf, and by the U.S. Fish and Wildlife's own 
numbers, each wolf pack will take 87 onglets a year, and 80 
percent of those will be--87 onglets--and 80 percent of those 
will be elk. So now we have another species that is being 
threatened because of the introduction of a species through the 
``may affect'' rule and ``could have been'' rule.
    So it just seems like the faster we go, the behinder we get 
in this thing. That is why it is so confusing to us. I would 
like to help my colleagues figure out how we can live with this 
and exist with it.
    My question, I guess, comes down to do you, when you are 
figuring out whether to displace or replace a species that may 
have been there, like the wolf, is there an effect taken in on 
the other wild species that are there?
    Judge Manson. Decisions are to be made an ecosystemwide 
basis, and that should include a consideration of all of the 
other species that depend upon the same ecosystem and what the 
effect on other species will be in that ecosystem by action 
that affects one particular species.
    I am not intimately familiar with the situation with the 
elk.
    Mr. Otter. The very nature of a wolf, and we knew this when 
it was introduced, the very nature of a wolf is, once there are 
sufficient numbers in a certain area, the alpha wolf is going 
to take over, and everybody else sort of has to leave. They 
have got to go someplace else.
    So, even though we may have directed that into the Lemhigh 
Range, and that is where the wolf is going to be and 
reestablished, they are now in, you know, they have grown by 13 
times the size that was originally intended, without a 
management plan, without a plan to protect the rest of the 
ecosystem, an ecosystem that they hadn't been planned to go 
into. How are we going to recover, how are we going to protect 
the other habitat and the other species that are now going to 
be endangered?
    Judge Manson. The only thing I would say is that wolf 
management is a complex issue. We are trying to work with the 
States affected to develop management plans for the wolf, and 
in doing so, we will look at it on an ecosystemwide basis.
    Mr. Otter. Thank you.
    Thank you, Mr. Chairman.
    Mr. Pombo. Mr. Flake?
    Mr. Flake. I appreciate the testimony, and I wish I could 
have been here for more of it.
    But just a follow-up question. Mr. Hogarth was talking 
about the sturgeon, and the aqueduct, the waterway, and the 
plans to protect here, and I am struck by the measurement used 
that, you know, what the threshold is, is it suitable habitat 
or was it here before, has it been displaced, whatever. And 
just looking at Arizona, we have a situation with the Mexican 
spotted owl, where nobody has claimed that it has ever lived in 
Arizona, simply that Arizona provides suitable habitat, and the 
logging industry has been completely decimated--completely--in 
Arizona, simply to protect what has been deemed suitable 
habitat, with no claim whatsoever that it ever lived there.
    It seems, I don't know how anybody could reach any other 
conclusion, but that there is a different standard West and 
East of the Mississippi, different thresholds as to how species 
are protected.
    Could I just get a brief answer from Mr. Manson on that?
    Judge Manson. There should not be a different standard 
between East and West, in terms of species protection. The 
Agency should be applying the same legal standards, the same 
biological standards, East and West, and--
    Mr. Flake. Do you concede that there is a problem or that 
someone could easily reach that conclusion?
    Judge Manson. Well, I certainly think that I have heard 
enough to be convinced that there is a perception of a problem, 
and the perception needs to be dealt with either by figuring 
out that it is true, and fixing that truth of it, or figuring 
out where we have gone wrong in the process to leave the 
impression.
    Mr. Flake. How long should that process take?
    Judge Manson. In terms of?
    Mr. Flake. How long will it take you to determine whether 
that is simply a perception or if that is reality?
    Judge Manson. Well, I am not sure I could give you a 30-day 
or a 90-day time line, but I will tell you this; that I will 
ensure that the Fish and Wildlife Service is sensitive to that 
perception and that they work diligently to ensure that that 
does not become fact in any specific case that comes before 
them and to understand where in the process things have gone 
wrong to leave that impression.
    Mr. Flake. Mr. Hogarth, you were nodding your head a minute 
ago. Do you see that as a perception or a--
    Mr. Hogarth. I think it is a perception. It has come to my 
attention quite a bit. Like I say, I have been in this job 
since September, and I think I was aware of it before then, but 
I have heard it quite a bit with the Washington Aqueduct.
    We are in the process now of reviewing all of the data we 
can find on the Potomac River. I worked on the Potomac River 
back in the--I am going to age myself now--but back in the 
1960's. It was so green then you could cut it with a knife, and 
you could see exactly where you had been. And I know, for a 
fact, I sampled it for 5 years, there were no sturgeon in the 
area.
    Mr. Flake. Is the Potomac, in your view, is it suitable 
habitat?
    Mr. Hogarth. And that is what we have got to determine. I 
think we can do that between now and next spring.
    Mr. Flake. Why is it that in Arizona they can determine 
that it is suitable habitat pretty quickly in order to shut 
down logging operations, but here it takes a lot longer?
    Mr. Hogarth. Well, I think we have to sample from the type 
of bottom habitat that is there, what type of bottom it is, and 
what the temperature ranges are, and we will look at that. 
There is some evidence that, without a doubt, there is some 
habitat in the vicinity that is suitable for shortnose 
sturgeon.
    Mr. Flake. Well, that should be, in the Arizona standard, 
that is enough evidence to shut down logging. Why isn't it 
here? I would submit that it is more than a perception. It has 
gone beyond perception. There is a problem, and it is one that 
I think, Mr. Manson, it would be well to deal with.
    One other quick question along these same lines and along 
the lines of where this bill could help, I believe, with sound 
science.
    In Arizona, we have a whale of a problem here with the 
Southwestern Willow Flycatcher. We have a situation--and you 
mentioned you were just in Arizona, and you know we are under a 
severe drought, as is most of the West--the Roosevelt Lake, 
which provides about 70 percent of the water used by about 80 
percent of the urban residents of the Phoenix area, over 3 
million people, is about 20-percent capacity at the moment. 
Over the past couple of years, as the lake has been drawn down, 
the Southwestern Willow Flycatcher has nested in the draw-down 
areas. Now we are under a problem of filling the lake. If we 
are blessed to receive enough rain, we can't fill the lake 
without burdening the rate payers with extreme cost to buy or 
to maintain or establish suitable habitat elsewhere. The 
Southwestern willow flycatcher is a migratory bird that spends 
most of its time in Central America. We don't know, haven't a 
clue, no science says whether or not the habitat has been 
destroyed down there or where we are, leading to declining 
populations. This is an area where sound science can really 
help us determine where the problem is. Do you agree?
    Judge Manson. I would agree that sound science would help 
us determine exactly where the issues are that caused the 
decline of that species. I would add that there is, as I 
understand it, fairly well in progress a habitat conservation 
plan for that species that is being developed, and that 
certainly will have the benefit of allowing water supply issues 
to be dealt with while preserving the species at the same time.
    Mr. Flake. I thank the Chairman.
    Mr. Pombo. Thank you.
    Mr. Manson and Mr. Hogarth, I don't expect you to admit 
that there is a different standard between the east and the 
west, but if there is a question in your mind, I am sure the 
Committee would be more than happy to share with you the 
hearing records from hearings that we have had over the last 7 
years, and I think we are probably up somewhere around 50 
hearings that we have had, and if you need any information, we 
would be more than happy to share that with you. And to hear 
Mr. Hogarth talk about the shortnose sturgeon and not knowing 
if there is any evidence that it had ever been there--and we 
just went through the listing of habitat on the red-legged 
frog, where about 5 percent of California was set aside as 
critical habitat. Much of that area is in Mr. Miller's 
district, is area that has houses built on it, and 
subdivisions, and malls, and it was considered critical habitat 
for the red-legged frog, and Fish and Wildlife admitted that in 
much of that area that they didn't know if the red-legged frog 
had ever been there, but that it was suitable habitat if one 
wanted to live there.
    The kit fox, the San Joachim Valley kit fox, a very similar 
situation, we are protecting tens of thousands of acres in my 
district as habitat for the kit fox with fully admitting, the 
Fish and Wildlife Service fully admitting that the kit fox does 
not exist on much of that land, but it is suitable habitat.
    In your area we have a suspected sighting of an endangered 
species of an endangered salmon in the Mokelumne River. Just 
the suspected sighting of a salmon in that river was enough to 
alter the pumping schedules and the use of that river, because 
someone thought they may have seen one.
    In terms of the shortnose sturgeon, there are a number of 
suspected sightings. There is no science to back that up, but 
there are a number of suspected sightings, fishermen that have 
said that they have seen sturgeon, that they have caught 
sturgeon within the Potomac. I would not want you to base your 
decision based upon that alone, but there is a definite 
difference in the way the law is being implemented in some 
parts of the country versus other parts of the country, and I 
don't think anyone can say that there is not a difference. And 
if any of you really do believe that, I think you really need 
to research it much more thoroughly. I am not going to ask you 
to further answer that because I think both of you have given 
your positions on that already.
    I would like to ask Mr. Manson. There were questions 
brought up earlier that much of what is in this bill can be 
done administratively or is already done. And your response to 
that was that there is very little here; there are a few things 
that you may be able to do administratively, but there is a lot 
of things that are not currently done.
    Just for the record I would like you to expand upon that 
somewhat. Peer review is part of the process you go through, 
but the peer review that we outline here is very different than 
what has been done in the past.
    Judge Manson. Yes, I would agree with that. Both agencies 
have a peer review process in policy that is published in the 
``Federal Register.'' The process in this bill, however, is 
significantly different than the process in the policies that 
currently exist, so this does not duplicate anything that is 
presently being done. There are other provisions here that 
clearly are different from anything that has been done before, 
and so this bill is not just surplusage. This bill makes some 
significant changes in the way the Act is implemented.
    Mr. Pombo. Let me ask you in terms of the information that 
is gathered that you base your decisions on, does the bill in 
its current form require you to gather as much information as 
you can and to base your decision on that?
    Judge Manson. I would say it does in the sense that it does 
not change the requirement that we use the best available 
science, and that means gathering the best available science. 
The bill doesn't preclude that. The bill encourages that by 
indicating that there will be a review process.
    Mr. Pombo. One issue that--and I would like to ask both of 
you gentlemen this question, but I will start with you, Mr. 
Manson. One issue that comes up repeatedly and it has come up 
in the past with similar legislation, was that if you are 
required to do peer review, to gather more information, to 
spend the time to give us the confidence that your decision is 
based upon the best available science, that that will in some 
way slow down the process? I would like yo to comment on that 
because I would much rather have you take a little longer to 
make a decision and have that decision be based on good 
science.
    Judge Manson. Well, I have to agree with that as a matter 
of policy, that it would be better to take a little longer and 
make a better decision than to make a hasty decision. The only 
issue I had was that the timelines don't fit together right 
now, and I regard that more as a technical issue than a real 
substantive issue.
    Mr. Pombo. And I will grant you that, that we do need to 
relook at the timelines.
    Judge Manson. Right. But I would agree that it is better to 
make a considered decision, even if it takes a little longer, 
than to make a hasty decision.
    Mr. Pombo. Mr. Hogarth?
    Mr. Hogarth. I agree with that unless--the problem I have 
is if you have a timeline and you don't meet it, you set 
yourself up for litigation and you set yourself up then for the 
court to take an action because we didn't meet the timeline. 
And that is the thing that bothers me. You could be out of time 
and then you could have a judge taking control of it. So we 
have to be very careful till we make sure the timing works 
together so that we don't add something that gets up to a 
timeframe that we can't meet.
    I have 105 lawsuits right now. I hate to have another law 
that adds more to it.
    Mr. Pombo. Well, none of us want, if at all possible, to do 
anything that is going to increase in any way the number of 
lawsuits. I know the people who drafted this bill had the 
intention of trying to eliminate a number of these lawsuits in 
the future.
    I would like to thank you both for testifying and for 
spending the time here with us this afternoon. This is an 
extremely important issue, an extremely important piece of 
legislation. I will pledge, along with Mr. Walden and myself, 
that we will, and the Chairman, continue to work with you guys 
and try to iron out some of those differences that exist, some 
of the concerns that you have. I believe that a number of the 
concerns that were raised are legitimate that we can fix before 
this bill comes up for a markup. So I appreciate your time and 
effort in being here. So thank you very much.
    Judge Manson. Thank you, Mr. Chairman.
    Mr. Hogarth. Thank you, Mr. Chairman.
    Mr. Pombo. The hearing is adjourned.
    [Whereupon, at 3:41 p.m., the Committee was adjourned.]

    [Additional statements submitted for the record follow:]
    [The prepared statement of Mr. Thune follows:]

  Statement of The Honorable John Thune, a Representative in Congress 
                     from the State of South Dakota

    Mr Chairman, I would like to start my statement today on a note of 
thanks. I appreciate the opportunity you and the Committee have given 
me to share the effects of the Endangered Species Act (ESA) on my 
constituents, in South Dakota.
    Earlier this year, I met with a number of South Dakotans who have 
had significant problems with the Fish and Wildlife Service (FWS) and 
how it interprets and implements the ESA. This is important in my state 
because the ESA is not some abstract or limited regulation that merely 
touches upon the lives of a few. It has the potential to devastate the 
economy in some parts of my state should the FWS decide to list the 
black tailed prairie dog.
    I certainly believe that the ESA was passed in good faith and with 
noble intentions. Unfortunately, its impact on South Dakota is not 
entirely noble.
    Mr. Chairman, there needs to be a point at which the ESA gets an 
injection of common sense. For example, right now there is no empirical 
or hard data on the population of prairie dogs in the State of South 
Dakota, and there has not been a statewide prairie dog inventory 
conducted to determine their population. Yet, the Fish and Wildlife 
Service has proposed that the prairie dog be listed as threatened. This 
is a concern to my constituents. When they can't even rely on the 
Federal Government to use real, empirical data to make a change that 
could have devastating impact on their livelihoods, who can they rely 
on? That's why I have introduced H.R. 3920, the Rancher Protection Act.
    My bill would require the Federal Government to use the best 
scientific and commercial data available to determine whether the 
black-tailed prairie dog is truly a threatened species. Importantly, 
the bill also requires the Fish and Wildlife Service use peer reviewed 
data to ensure greater accuracy and data that counts actual population 
of the prairie dog rather than estimates.
    In addition, the bill requires the FWS to accept and acknowledge 
data from local landowners, and include the data in the rule-making 
record compiled for any determination that the species is an endangered 
or threatened species. Local landowners have a wealth of knowledge 
concerning the population of local species and their input should be 
given greater weight.
    In summary, what this really comes down to is one simple fact: 
there is an absolute necessity to reform of the Endangered Species Act. 
South Dakota ranchers are suffering because of the excesses of this 
law. My legislation would address this problem with regard to the black 
tailed prairie dog, but more needs to be done. What we need is 
comprehensive reform of the Endangered Species Act. I hope that this 
hearing is another step in addressing this critical need.
    Again, Mr. Chairman, I thank you again for giving me this 
opportunity, and I look forward to the results of this hearing and hope 
that this Committee will be able to address the problems with the ESA 
this year.
                                 ______
                                 
    [A statement submitted for the record by the American 
Society of Civil Engineers follows:]

  Statement submitted for the record by the American Society of Civil 
                         Engineers on H.R. 4840

    Mr. Chairman and Members of the Committee:
    The American Society of Civil Engineers (ASCE) appreciates the 
opportunity to present this statement for the record to the Committee 
on H.R. 4840, the Sound Science for Endangered Species Act Planning Act 
of 2002, an original bill introduced by the Chairman and two Members on 
May 23, 2002.
    ASCE was founded in 1852 and is the country's oldest national civil 
engineering organization. It represents more than 125,000 civil 
engineers in private practice, government, industry and academia who 
are dedicated to the advancement of the science and profession of civil 
engineering. ASCE is a 501(c)(3) non-profit educational and 
professional society.
    Civil engineering, considered one of the oldest engineering 
disciplines, encompasses many specialties. ASCE members practice 
engineering in the professional areas of surface water and groundwater 
hydrology, agricultural irrigation systems, environmental and water 
resources systems, watersheds and wetlands management, highway and 
construction engineering and other fields subject to the jurisdiction 
of the Endangered Species Act (ESA).
    Engineers apply the theories and principles of science and 
mathematics to research and develop economical solutions to technical 
problems. Engineers design, plan, and supervise the construction of 
buildings, highways, and transit systems. They develop and implement 
improved ways to extract, process, and use raw materials, such as 
petroleum and natural gas. They develop new materials that both improve 
the performance of products and take advantage of advances in 
technology. They analyze the impact of the products they develop or the 
systems they design on the environment and people using them. 
Engineering knowledge is applied to improving many things, including 
the quality of health care, the preservation of endangered species, the 
safety of food products, and the efficient operation of financial 
systems.
    The Society sponsors numerous specialty conferences each year and 
publishes 29 rigorously peer-reviewed technical journals in such fields 
as ports and waterways, hazardous materials, cold regions engineering, 
structural engineering, energy engineering, environmental engineering 
and construction engineering.
I. Summary
    ASCE would be pleased to support enactment of H.R. 4840, with 
certain important modifications.
     Section 2 of the bill, Sound Science, should be retitled 
to drop the reference to ``sound science.'' Additionally, the section 
should be further modified to remove the terms ``commercial data'' and 
``commercial study'' in reference to the material to be used in making 
determinations under the ESA. Such a requirement already is in the Act.
     Section 3, Independent Scientific Review, should be 
stricken in its entirety. The ``independent review'' contemplated by 
the bill is unnecessary and would result in burdensome and duplicative 
peer reviews that would be carried under an impossibly short deadline.
II. ASCE Policy on the Endangered Species Act
    The Endangered Species Act (ESA) should integrate science and 
engineering in the process of identifying and listing species and their 
critical habitats. Species listing and critical habitat decisions 
should require peer review and improved collection and field testing of 
data. The law should allow concerned individuals to consult with the 
U.S. Department of the Interior to determine whether a proposed action 
will jeopardize a species.
    The Act should require that a scientific demonstration of a take of 
individuals of a species precede enforcement actions. If a species is 
determined to be in jeopardy, economically feasible and prudent 
alternatives for its preservation must be considered. ASCE encourages 
consideration of social and economic impacts of critical habitat 
designations and supports incentives for conservation of species, 
including ``no surprises'' assurances and provisions for multispecies 
conservation plans. Environmental mitigation alternatives should be 
reasonable and prudent and related to the nature and extent of the 
environmental impact.
    Government, business and industry must make significant investments 
to protect and enhance the habitat of endangered species. It is 
essential that these financial resources are allocated based on sound 
engineering and science as well as a balance between environmental and 
economic concerns. The law should focus on incentives and ``no 
surprises'' assurances for habitat preservation rather than penalties 
and single species listings.
Background
A. The Endangered Species Act
    The Endangered Species Act (ESA) of 1973is a comprehensive attempt 
to regulate the destruction of all species and to consider habitat 
protection as an integral part of that effort. Under the ESA, species 
of plants and animals (vertebrate and invertebrate) may be listed as 
either ``endangered'' or ``threatened'' according to assessments of the 
risk of their extinction. In addition, distinct population segments of 
vertebrate species may also be listed as threatened or endangered.
    The ESA, enacted in the early years of the contemporary 
environmental movement, sweeps broadly, requiring extensive and costly 
preservation efforts for thousands of plant and animal species. It does 
so one species at a time, however, and fails to consider ecosystemwide 
issues in species conservation. Nevertheless, the Act and its economic 
consequences were controversial almost from its inception. Some have 
argued that this was due largely to congressional innocence of its 
potential to affect a wide range of species--and economic interests.
    Once a species is listed, powerful legal tools, including citizen-
suit provisions, are available to aid the recovery of the species and 
the protection of its habitat. If a species is listed as threatened or 
endangered, the appropriate agency must use section 4 of the ESA to 
designate critical habitat (areas where the species is found, and any 
other areas where features essential to the species' conservation 
exist) at the time of listing. If the publication of this information 
is not ``prudent'' because it could harm the species (e.g., by 
encouraging vandals or collectors), the appropriate agency may decide 
not to designate critical habitat.
    Congress placed a heavy emphasis on designating critical habitat. 
It provided for exceptions where the economic benefits of these 
designations exceeded their costs, where the habitat simply could not 
be determined, or in those few cases where the designations would not 
be prudent.
    The ESA permits ``incidental take'' of species listed as threatened 
and endangered as long as a habitat conservation plan (HCP) is 
concurrently developed. But HCPs do not require recovery of listed 
species; they only must ensure that ``the taking will not appreciably 
reduce the likelihood of survival and recovery of the species in the 
wild.''
    Finally, the Act requires the Secretary to consider, in addition to 
scientific data, commercial data that might affect species or property 
owners in the listing of a species as endangered or threatened.
B. The Decline of Species
    The decline of plant and animal species has accelerated in recent 
years. Scientists disagree over the precise reasons for this 
diminution, but habitat destruction and fragmentation are seen as a 
major factor in the loss of species. Anthropogenic alterations in the 
environment, however, could become the more consequential element in 
the loss of speciation in future.
    Nevertheless, the current consensus among scientists is that 
habitat loss is the greatest threat to plant and animal species; the 
protection of critical habitat has been a focus of Federal efforts 
under the ESA. Indeed, the preservation of habitats is seen by many 
observers as the best method of protecting ecosystems from destruction.
    The Fish and Wildlife Service (FWS) clearly agrees. ``Virtually 
every major study of the conservation of imperiled species considers 
habitat as a major component in a species' conservation and eventual 
recovery.''
    Other experts, however, believe the use of habitat conservation 
plans (HCPs) may not do enough to address the problems of habitat loss. 
``HCPs are not 'plans provid[ing] protection for currently endangered 
species' because there is no promise of recovery of these species. The 
cumulative effect of this planning process across the landscape on 
survival of endangered species has not been adequately addressed by the 
Department of the Interior, which implements the ESA.''
    The agency may postpone designation for up to one year if the 
information cannot be determined. While any area, whether or not 
Federally owned, may be designated as critical habitat, private land is 
affected by designation primarily if some Federal action (e.g., 
license, loan, permit, and the like) is also involved. In either case, 
Federal agencies must avoid ``adverse modification'' of critical 
habitat, either through their own actions or activities that are 
Federally approved or funded.
C. The ESA Process
    Federal progress in species preservation under the ESA has been the 
subject of a great deal of commentary, much of it highly critical. As 
of November 30, 2001, the FWS and the National Marine Fisheries Service 
(NMFS), which is responsible for marine species under the ESA, had 
listed a total of 1,252 U.S. species (512 animals, 740 plants) as 
endangered or threatened.
    As of late 2001, the FWS and the NMFS had designated critical 
habitats for only 150 of these 1,252 endangered or threatened domestic 
plant and animal species, according to the agencies. This represents 
approximately 12 percent of all listed species. Of the 150 completed 
critical-habitat designations, 140 have been promulgated by the FWS.
    The effect of this failure to designate critical habitat is to 
identify certain species as needing special help, and then allow the 
overwhelming majority of them to remain either homeless or on the brink 
of homelessness. The dearth of ESA success stories must be considered 
at least in part the predictable consequence of this fundamental 
disconnect.
IV. Policy Considerations
A. Section 2, H.R. 4840
    As introduced, section 2 of H.R. 4840 would amend section 4 of the 
ESA to require the Department of the Interior to rely on ``sound 
science'' and any ``commercial study'' that, taken together, have been 
``field-tested and peer-reviewed.''
    1.) Science is a systematic body of knowledge that aims to produce 
reliable explanations of physical and material phenomena. Scientists 
use experimentation, observation and deduction to achieve this aim. The 
laws of science are taken to be universally applicable; they form the 
theoretical structure of the physical sciences.
    The phrase ``sound science'' is a political term, not a scientific 
one. There is science, and there is everything else. The term ``sound 
science'' is meaningless to the scientist or engineer, to whom all data 
that are (1) empirically determined, (2) testable and (3) incapable of 
being falsified are by definition science. In this sense, all science 
is sound.
    With rare exceptions, the science of any subject is incomplete at a 
given moment. It frequently is speculative, hinting at half-seen 
solutions. It may not lead in the direction that the political 
communities in Congress or at the regulatory agencies wish to go (or 
provide a perfectly illustrated path for those inclined to follow it). 
Science certainly cannot foresee every unfortunate consequence of a 
policy decision or provide perfect certainty for policymakers. To 
suppose that there is another, greater level of ``sound science'' 
somewhere in the universe just waiting to grant such clarity is a myth.
    The phrase ``sound science'' is meaningless to scientists and 
engineers and should not be included in the statute.
    2.) The bill's requirement for the Secretary to consider a 
``commercial study'' when taking any action under the ESA duplicates 
the current requirement in section 4 of the Act. Moreover, the 
modifiers ``field-tested'' and ``peer-reviewed'' before the phrase 
``commercial study'' add no weight to the present statutory directive. 
A commercial study is in no sense a form of scientific evidence; it is 
not susceptible to peer review in the standard sense.
    If the Committee considers that the Act needs greater clarity on 
this point, it may wish to extend the economic-impact test for 
critical-habitat designations found at Sec. 1533(b)(2) to the listing 
of a species as endangered or threatened. Economic literature, like 
studies from the physical sciences, is universally subject to rigorous 
peer review.
B. Section 3, H.R. 4840
    Section 3 of the bill would require the Interior Department to 
carry out a 90-day ``independent scientific review'' of all actions 
taken under the Act, including listing decisions and the development of 
recovery plans. The provision would require the Secretary to appoint 
five-member independent review boards to ``review and report'' on ``the 
scientific information and analyses'' relied upon by the government for 
any major ESA action. The reviews would have to be completed within 90 
days of the creation of the review board.
    Such a requirement would be burdensome on the Act's implementation, 
which already lags badly. More importantly, this short-term review 
could add nothing to the months-long (even years-long) peer reviews 
already accorded to the thousands of scientific articles published in 
dozens of journals on biology, evolution, conservation ecology and the 
like.
    The objective of thorough peer review is to evaluate and rate the 
scientific and technical merit of the research in a given field. These 
reviews focus on the quality of the science and the impact it might 
have on our understanding of the phenomena, rather than on details of 
technique and methodology. A proper review can take weeks, months, or, 
in some cases, years.
    The requirement for a peer-review board in H.R. 4840 seems to be an 
effort to bring into focus the character of the agency's regulatory 
effort rather than the quality of the science itself. As such, it can 
do nothing to resolve whatever remaining scientific disagreements exist 
with respect to species extinctions and other subjects relevant to the 
ESA.
    Mr. Chairman, that concludes our statement on H.R. 4840. If you or 
Members of the Committee have any questions, please do not hesitate to 
contact Michael Charles of our Washington Office at (202) 789-2200 or 
by e-mail at [email protected].

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