[Senate Hearing 107-322]
[From the U.S. Government Publishing Office]


                                                         S. Hrg. 107-322
 
    LISTING AND DELISTING PROCESSES UNDER THE ENDANGERED SPECIES ACT
=======================================================================

                                HEARING

                               BEFORE THE

                 SUBCOMMITTEE ON FISHERIES, WILDLIFE, 
                               AND WATER

                                 OF THE

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                      ONE HUNDRED SEVENTH CONGRESS

                             FIRST SESSION

                                   ON

 THE REGULATIONS AND PROCEDURES OF THE U.S. FISH AND WILDLIFE SERVICE 
 CONCERNING THE LISTING AND DELISTING OF SPECIES UNDER THE ENDANGERED 
                              SPECIES ACT

                               ----------                              

                              MAY 9, 2001


                               ----------                              

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







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              COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                      one hundred seventh congress
                             first session
                   BOB SMITH, New Hampshire, Chairman
             HARRY REID, Nevada, Ranking Democratic Member
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
JAMES M. INHOFE, Oklahoma            BOB GRAHAM, Florida
CHRISTOPHER S. BOND, Missouri        JOSEPH I. LIEBERMAN, Connecticut
GEORGE V. VOINOVICH, Ohio            BARBARA BOXER, California
MICHAEL D. CRAPO, Idaho              RON WYDEN, Oregon
LINCOLN CHAFEE, Rhode Island         THOMAS R. CARPER, Delaware
ARLEN SPECTER, Pennsylvania          HILLARY RODHAM CLINTON, New York
BEN NIGHTHORSE CAMPBELL, Colorado    JON S. CORZINE, New Jersey
                Dave Conover, Republican Staff Director
                Eric Washburn, Democratic Staff Director
                                 ------                                

             Subcommittee on Fisheries, Wildlife, and Water

                   MICHAEL D. CRAPO, Idaho, Chairman

CHRISTOPHER S. BOND, Missouri        BOB GRAHAM, Florida
JOHN W. WARNER, Virginia             MAX BAUCUS, Montana
LINCOLN CHAFEE, Rhode Island         RON WYDEN, Oregon
BEN NIGHTHOUSE CAMPBELL, Colorado    HILLARY RODHAM CLINTON, New York
                                     JON S. CORZINE, New Jersey

                                  (ii)





                            C O N T E N T S

                              ----------                              
                                                                   Page

                              MAY 9, 2001
                           OPENING STATEMENTS

Baucus, Hon. Max, U.S. Senator from the State of Montana.........    52
Clinton, Hon. Hillery Rodham, U.S. Senator from the State of New 
  York...........................................................     7
Corzine, Hon. Jon S., U.S. Senator from the State of New Jersey..     6
Crapo, Hon. Michael D., U.S. Senator from the State of Idaho.....     1
Graham, Hon. Bob, U.S. Senator from the State of Florida.........    10
Reid, Hon. Harry, U.S. Senator from the State of Nevada..........    51
Smith, Hon. Bob, U.S. Senator from the State of New Hampshire....    50

                               WITNESSES

Brosnan, Deborah M., president and founder, Sustainable 
  Ecosystems Institute...........................................    23
    Prepared statement...........................................    64
    Article, Can Peer Review Help Resolve Natural Resource 
      Conflicts?.................................................    68
Echeverria, John D., director, Environmental Policy Project, 
  Georgetown University Law School, Washington, DC...............    32
    Prepared statement...........................................    79
Frazer, Gary, Assistant Director for Endangered Species, U.S. 
  Fish and Wildlife Service, Department of the Interior..........    11
    Prepared statement...........................................    53
Ginzburg, Lev, professor, Department of Ecology and Evolution, 
  State University of New York at Stony Brook and president, 
  Applied Biomathematics, Setauket, NY...........................    27
    Prepared statement...........................................    78
Grader, Zeke, executive director, Pacific Coast Federation of 
  Fishermen's Associations, San Francisco, CA....................    39
    Prepared statement...........................................   122
    Articles:
        Why Fishermen Need the Endangered Species Act............   134
        A Fishermen's Agenda for the Endangered Species Act......   135
Knowles, Don, Director, Office of Protected Resources, National 
  Marine Fisheries Service, National Oceanic and Atmospheric 
  Administration, Department of Commerce.........................    13
    Prepared statement...........................................    61
    Responses to additional questions from Senator Baucus........    62
Moss, Ralph, L., director, Government Affairs, Seaboard 
  Corporation, Washington, DC, on behalf of Atlantic Salmon of 
  Maine..........................................................    38
    Prepared statement...........................................    93
Moyer, Steven N., vice president of Conservation Programs, Trout 
  Unlimited, Arlington, VA.......................................    35
    Prepared statement...........................................    89
Quarles, Steven P., counsel, QuadState County of Government 
  Coalition and American Forest and Paper Association, 
  Washington, DC.................................................    34
    Prepared statement...........................................    83
Thomas, Hon. Craig, U.S. Senator from the State of Wyoming.......     3
    Prepared statement...........................................     4
Wilcove, David S., scientist, Wildlife Program, Environmental 
  Defense, Washington, DC........................................    25
    Prepared statement...........................................    76

                          ADDITIONAL MATERIAL

Articles:
    Can Peer Review Help Resolve Natural Resource Conflicts?, 
      Science and Technology.....................................    68
    Fisherman's Agenda for the Endangered Species Act, 
      Fisherman's News...........................................   135
    The Petition Process, U.S. Fish and Wildlife Service.........    74
    Why Fishermen Need the Endangered Species Act, Fisherman's 
      News.......................................................   134
Comments of the State of Maine In Opposition to Proposed 
  Endangered Status for a Distinct Population Segment (DPS) of 
  Atlantic Salmon in the Gulf of Maine..........................154-641
Letters:
    Atlantic Salmon of Maine.....................................    96
    Governor of Maine Angus S. King, Jr...................107, 143, 151
Report, Activities and Achievements Under the Atlantic Salmon 
  Conservation Plan..............................................   113
Statements:
    American Farm Bureau Federation..............................   139
    Atlantic Salmon, Senator Susan Collins.......................   118
Table, Delisted Species Report as of May 7, 2001.................    72


    LISTING AND DELISTING PROCESSES UNDER THE ENDANGERED SPECIES ACT

                              ----------                              


                         WEDNESDAY, MAY 9, 2001


                                       U.S. Senate,
               Committee on Environment and Public Works,  
            Subcommittee on Fisheries, Wildlife, and Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:32 a.m. in 
room 628, Senate Dirksen Building, Hon. Michael D. Crapo 
(chairman of the subcommittee) presiding.
    Present: Senators Crapo, Corzine, Clinton, and Graham.

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

    The hearing will come to order.
    Good morning, everybody. The Subcommittee on Fisheries, 
Wildlife, and Water will focus today's hearing on the listing 
and delisting processes under the Endangered Species Act.
    Let me begin by apologizing. It is our understanding that 
in about 5 minutes or so there is going to be a vote called on 
the floor. Rather than not start the hearing and go handle that 
vote, we thought that we would at least start the hearing and 
have opening statements by the Senators, so that we get that 
much done. We will probably, then, be interrupted by a vote, 
but I will assure you that we will run to the vote and return 
as quickly as we can, so that the break there will be as short 
as possible. It is my understanding that there is only vote, so 
it should not be much of an interruption.
    Since the authorization for the Endangered Species Act 
expired in 1992, there have been many--and I would hate to 
hazard a guess how many--but a lot of hearings and a lot of 
legislation 
introduced aimed at both reauthorizing and reforming the 
Endangered Species Act. In the course of those hearings, dozens 
of witnesses from the various interests have offered 
impassioned explanations about the importance of strong 
Endangered Species Act reforms and the need for 
reauthorization. From my perspective, both are true. I am 
extremely concerned about the plight of the Columbia River 
Basin salmon and steelhead stocks. So I have proposed a $688 
million funding package to recover these fish last week.
    Extinction of a species is not an acceptable outcome, but 
neither are policies that cause economic hardship or burden 
private landowners unfairly. The fact, frankly, that we have 
recovered just 9 or 10 species since the ESA was passed is not 
a testament to its success. From the records I have seen, just 
nine species have been recovered, and three of those species 
were from one Pacific Island, Palau. Three of the nine species 
have been recovered on just one island. If you look at the 
continental United States, that means only six species during 
the history of the Act have been recovered. When you take into 
account the hundreds of millions of dollars that the United 
States spends each year in threatened and endangered species 
protection, something is clearly wrong with this picture.
    While I have said that a significant amount of oversight 
has been conducted on the Endangered Species Act, there are a 
few areas that have not received adequate attention and are in 
need of more thorough examination. Listing and delisting are 
two issues that need to be addressed if we are to resolve some 
of the shortcomings of the Act. It is my hope that by 
conducting oversight that examines some of the problematic 
components of the Act, we can craft solutions to each of these 
which will increase our chances of success in reforming and 
reauthorizing the Endangered Species Act.
    The quantity and quality of science is an issue that comes 
up again and again. I have been chairman of this subcommittee 
now for a little more than 2 years, and in that short time I 
can't think of an issue or a hearing in which the science was 
not called into question. There has to be a better way of 
getting better science and more consensus about the science to 
inform us in the policymaking process.
    In addition to the Administration witnesses, there are a 
number of scientists testifying before the subcommittee today, 
and I look forward to having a productive discussion with all 
the witnesses on how to improve the science and, in turn, 
policy decisions with respect to conserving species.
    I have other serious concerns about the listing and 
delisting process, but I am more interested in listening and 
learning from our witnesses who are here with us today. I hope 
that the witnesses have come to offer fresh ideas about how to 
specifically resolve issues in the context of listing and 
delisting. More rhetoric on the Endangered Species Act is not 
going to help bring resolution to what is potentially our 
Nation's most contentious environmental law.
    Before moving along, I would like to note that we elected 
not to address the issue of critical habitat in this hearing, 
even though it is a part of the listing process. It is a 
significant issue and one that, frankly, could use up the 
entire hearing. We have focused significant attention on 
critical habitat in the past, most notably in the 106th 
Congress, when this committee reported out Senate bill 1100, 
which would modify the timing of critical habitat designations. 
The subcommittee will evaluate the need for critical habitat a 
bit further down the road.
    Once again, I would like to thank everybody for coming. I 
think we are going to have a very interesting and productive 
hearing today.
    [The prepared statement of Senator Crapo follows:]

  Statement of Hon. Michael D. Crapo, U.S. Senator from the State of 
                                 Idaho

    Good morning. The Subcommittee on Fisheries, Wildlife, and 
Water will come to order. In today's hearing we will be 
examining the listing and delisting processes under the 
Endangered Species Act.
    Since the authorization for the Endangered Species Act 
expired in 1992, there have been many--I would hate to hazard a 
guess with respect to how many--but a lot of hearings held and 
a lot of legislation introduced aimed at both reauthorizing and 
reforming the ESA. In the course of those hearings, dozens of 
witnesses from the various interests offered impassioned 
explanations about the importance of a strong Endangered 
Species Act and the need to reform it. From my perspective, 
both are true. I am extremely concerned about the plight of 
Columbia River Basin salmon and steelhead stocks--so concerned 
that I proposed a $688 million funding package to recover these 
fish last week.
    Extinction of species is not an acceptable outcome, but 
neither are policies that cause economic hardship or burden 
private landowners unfairly. The fact that we have recovered 
and delisted just nine U.S. species since the ESA was passed is 
not a testament to its success. Just nine species have been 
recovered--and three of those species were recovered on the 
Pacific Island of Palaualone. When you take into account the 
hundreds of millions of dollars the United States spends each 
year in threatened and endangered species protections, 
something is clearly wrong with this picture.
    While I have said that a significant amount of oversight 
has been conducted on the Endangered Species Act, there are a 
few areas that have not received adequate attention and are in 
need of more thorough examination. Listing and delisting are 
two issues that need to be addressed if we are to resolve some 
of the shortcomings in the Act. It is my hope that by 
conducting oversight that examines some of the problematic 
components of the Act, we can craft solutions to each of these, 
which will increase our chances of success in reforming and 
reauthorizing the Endangered Species Act.
    The quantity and quality of science is an issue that comes 
up again and again. I've been chairman of this subcommittee for 
a little more than 2 years, and, in that short time, I can not 
think of an issue or a hearing in which the science was not 
called into question. There must be a better way of getting 
better science to inform the policymaking process. In addition 
to the Administration witnesses, there are a number of 
scientists testifying before the subcommittee today, and I look 
forward to having a productive discussion on how to improve 
science, and in turn, policy decisions with respect to 
conserving species.
    I have other serious concerns about the listing and 
delisting process, but I am more interested in listening and 
learning from our witnesses who are with us today. I hope that 
the witness have come to offer fresh ideas about how 
specifically to resolve issues in the context of listing and 
delisting. More rhetoric on the Endangered Species Act is not 
going to help bring resolution to what is potentially our 
Nation's most contentious environmental law.
    Before moving along, I would like to note that we elected 
not to address the issue of critical habitat in this hearing 
even though it is part of the listing process. It is a 
significant issue and one that could have consumed the entire 
hearing. We have focused significant attention on critical 
habitat in the past, most notably in the 106th Congress when 
this committee reported out S. 1100, which would modify the 
timing of critical habitat designations. The subcommittee will 
evaluate the need for critical habitat oversight a bit further 
down the road.

    Senator Crapo. At this point I would like to turn the time 
over to Senator Thomas from Wyoming for an opening statement.
    Senator.

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

    Senator Thomas. Thank you very much, Mr. Chairman. I am no 
longer on this committee, but I appreciate the opportunity. I 
have some fairly strong feelings about endangered species, have 
my prejudices reasonably well arranged, and so I wanted to 
share some of that with you.
    I think it is an example of good intentions gone astray, 
basically. We need to have more effective public input, more 
effective landowners' input, and more effective input from the 
States that are affected. Obviously, when you have 1,245, or 
whatever it is, species listed and less than 20 really have 
been recovered, maybe you've got a problem of some kind. I 
think we need to take a look at it.
    We have had firsthand experience in Wyoming a number of 
times that talks about the background. Preble's jumping mouse, 
for example, listed in Wyoming, and it turns out that there was 
no historical data there or current knowledge that it did not 
support the short-grass semi-arid plains. It basically turned 
out to be someone had done the windshield checking to do that 
thing and really had to back away from it because it wasn't 
done properly; couldn't even really identify the species that 
was there.
    The State was not notified. I had a visit with Secretary 
Babbitt shortly before he left, and he had some ideas about how 
people are including more in the endangered species and many 
times could do something other than list them. I don't know 
that that plan was ever put into place.
    We have petitions now for prairie dogs. I have lived there 
all my life. There are prairie dogs everywhere practically. It 
is really interesting that that would even be considered.
    I think the problem is we have a kind of a ``postage 
stamp'' petition for nominating, and most anyone may nominate 
with very little background. We also don't have any priorities 
that have been set in terms of what is more important than 
another. Therefore, we just deal with whatever comes up.
    I think there needs to be some peer review. Certainly, I 
don't question the idea of requiring protection of endangered 
species. I am for that, but I think we have to do it in a 
different way that makes it more important. The recovery goals 
really need to be what we talk about.
    I have a bill, as a matter of fact, that says we ought to 
have the recovery plan along with the listing, along with the 
nomination, so that we know what we are going to do. Probably 
the most obvious one of those is the grizzly bear. Grizzly 
bears have been on the list forever. I can remember being in 
Yellowstone Park with the Superintendent 6 or 8 years ago when 
they said, yes, we have clearly exceeded the numbers. But we 
are still talking about habitat, and you can talk about habitat 
forever, and, apparently, we're going to. So there does need to 
be something that we do there. Of course, the bottom line is 
the game and fish in the State ends up spending the money to 
manage the bears, given rules by the U.S. Fish and Wildlife 
Service, because they are not delisted to go back into the 
State authority.
    There's just an awful lot of things that need to be talked 
about and need to be changed. As I said, there are 1,200-and-
some listed, and just very, very few--we are not really 
emphasizing, in my judgment, enough the recovery plan. That is 
really where we ought to at least be as interested in the 
recovery as we are in listing. Apparently, that is not the 
case.
    So, Mr. Chairman, I think it is very important that we have 
some changes, and I am delighted that you are holding hearings. 
I hope we can make some progress this year. Thank you for the 
opportunity.
    [The prepared statement of Senator Thomas follows:]

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

    Thank you, Mr. Chairman, for holding today's hearing on 
this important topic. In Wyoming, we have seen firsthand the 
need to revise the listing and delisting processes of the 
Endangered Species Act.
    Listing should be a purely scientific decision. Listing 
should be based on credible data that has been peer-reviewed. 
Unfortunately, none of this is true regarding the current 
administration of the ESA. To date, 1,243 species have been 
listed in the United States under the Endangered Species Act. 
Twenty to twenty-five have been delisted. Clearly, the system 
is broken.
    Not long ago, the Prebles Meadow Jumping Mouse was listed 
in the State of Wyoming, yet the listing process for this mouse 
demonstrates how the system has gone haywire devoid of good 
science.
    One of the more significant shortcomings of the Preble's 
Rule relates to confusion about claims regarding the ``known 
range'' as opposed to the alleged ``historical range'' of the 
mouse. Historical data and current knowledge do not support the 
high, short-grass, semi-arid plains of southeastern Wyoming as 
part of the mouse's historical habitat range. The U.S. Fish and 
Wildlife Service has even admitted to uncertainties regarding 
taxonomic distinctions and ranges. Further, the State was not 
properly notified causing counties, commissioners, and 
landowners all to be caught off guard. Such poor practices do 
not foster the types of partnerships that are required if 
meaningful species conservation is to occur. Clearly, changes 
are desperately needed to the Endangered Species Act.
    Not far behind the mouse in Wyoming, was the black-tailed 
prairie dog. Petitions to list the prairie dog were filed with 
the U.S. Fish and Wildlife Service. I've lived in Wyoming most 
of my life, and I've logged a lot of miles on the roads and 
highways in my State over the years. I can tell you from 
experience, there is no shortage of prairie dogs in Wyoming. 
Any farmer or rancher will concur with that opinion.
    This petition, and countless other actions throughout the 
country, make it painfully clear that some folks are intent on 
completely eliminating activity on public lands, no matter what 
the cost to individuals or local communities that rely on the 
land for economic survival.
    I believe we should take action to require the Secretary of 
the Interior to use scientific or commercial data that is 
empirical, field tested and peer-reviewed. Right now, it's a 
``postage stamp'' petition: any person who wants to start a 
listing process may petition a species with little or no 
scientific support. I have introduced legislation, S. 347 to 
prevent this absurd practice by establishing minimum 
requirements for a listing petition that includes an analyses 
of the status of the species, its range, population trends and 
threats. The petition must also be peer reviewed. In order to 
list a species, the Secretary needs to determine if sufficient 
biological information exists in the petition to support a 
recovery plan. Under my proposal, States are made active 
participants in the process and the general public is provided 
a more substantial role.
    Unfortunately, I have found that with several listings in 
the State of Wyoming, the Department of the Interior was unable 
to tell me what measures were required to achieve species 
recovery. The Agency could not tell me what acts or omissions 
we could expect to face as a consequence of listing. This is 
troubling since the Agency is supposed to be fully apprised of 
the status of the species. Conversely, if the Agency cannot 
clearly describe how to reverse threatening acts to a species 
so that we can achieve recovery, how can we be sure that the 
species is, in fact, threatened?
    This ambiguity has caused much undue frustration to the 
people of Wyoming. If the Secretary believes that certain 
farming or ranching practices, or the diversion of a certain 
amount of water, or a private citizen's development of one's 
own property, is the cause for a listing, then the Secretary 
should identify those activities that have to be curtailed or 
changed. If the Secretary does not have enough information to 
indicate what activities should be restricted, then why list a 
species? Why open producers and others to the burden of over-
zealous enforcement and even litigation without being able to 
achieve the goal of recovering the species?
    Mr. Chairman, we must ultimately seek to design a system to 
support and improve the quality of information used to support 
a listing. If the Secretary knows enough to list a species, we 
should also know enough about what will be required for 
recovery. That should be the case under current law, 
unfortunately it is not the case today.
    Just as the beginning of the process needs changes, we need 
to revise the end of the process--the delisting procedure. 
Recovery and delisting are quite simply, the goals of the 
Endangered Species Act.
    Yet, currently, it is virtually impossible to delist a 
species. There is no certainty in the process and the States--
the folks who have all the responsibility for managing the 
species once it is off the list--are not true partners in that 
process. Once the recovery plan is met, the species should be 
delisted.
    Wyoming's experience with the grizzly bear pinpoints some 
of the problems with the current delisting process. The 
Interagency Grizzly Bear Committee set criteria for recovery 
and in the Yellowstone ecosystem, those targets have been met, 
but the bear has still not been removed from the list. We've 
been battling the U.S. Fish and Wildlife Service for years over 
this one to no avail, despite tremendous effort and financial 
resources to meet recovery objectives. Even with rebounded 
populations, we keep funneling money down a black hole.
    Mr. Chairman, it is clear that something needs to be done. 
My constituents are angry and upset about the current situation 
and the trickling effects of countless listings. Real lives are 
being impacted.
    It is time for some real changes. The changes I've 
suggested will have a significant affect on the quality of 
science, public participation, State involvement, speed in 
recovery, and finally the delisting of a species.
    Species that truly need protection will be protected, but 
let's not lose sight of the real goal--recovery and delisting.
    Thank you.

    Senator Crapo. Thank you, Senator. That was the vote that 
was just called, but I think, Senator Corzine, that we have 
time for you to make an opening statement before we break and 
run to the vote.

OPENING STATEMENT OF HON. JON S. CORZINE, U.S. SENATOR FROM THE 
                      STATE OF NEW JERSEY

    Senator Corzine. Thank you, Mr. Chairman. I have a complete 
statement that I would ask for unanimous to put in the record.
    Senator Crapo. Without objection.
    Senator Corzine. Thank you. This is obviously a very, very 
important environmental law issue for us all to consider, the 
Endangered Species Act. It is complicated for a newcomer, and I 
am working my way through trying to be fully informed.
    I am concerned, the people of New Jersey are concerned, 
about extinction rates. There are issues here that truly need 
to be addressed, and I appreciate the hearing or background 
note. But, maybe as important as anything, I am concerned, as I 
am on a whole series of issues, to make sure that we have the 
right kind of funding so that we address this issue properly, 
not in simplistic and underfunded formulas. I am very, very 
concerned that we are taking a step back in protecting our 
environment and endangered species. It is a very key issue, 
particularly on our coastline in our fisheries. So it is one of 
those things that I look forward to being an active participant 
in. Thank you very much for having the hearing.
    [The prepared statement of Senator Corzine follows:]

   Statement of Hon. Jon S. Corzine, U.S. Senator from the State of 
                               New Jersey

    Thank you, Mr. Chairman. I want to thank you for holding 
this hearing on one of our most important environmental laws, 
the Endangered Species Act.
    Mr. Chairman, extinction is occurring at alarming rates 
worldwide. The World Conservation Union estimates that current 
global extinction rates are between 1,000 and 10,000 times 
higher than the normal background extinction rate. And 
extinction rates are increasing rather than decreasing.
    Here in the United States, we are doing better than many 
places, but we still have a pressing problem. More than 1,200 
species are listed as threatened or endangered under the ESA, 
more than 200 species are awaiting listing decisions, and some 
scientific experts believe that as many as 3,000 U.S. species 
may require protection under the ESA.
    These are daunting statistics. For me, they put into focus 
the reasons why we need to continue to work to protect our 
natural heritage. From an ecological standpoint, there is still 
much we do not know about how our planet works and what is 
important to keeping it healthy. Aldo Leopold, in his seminal 
environmental work, A Sand County Almanac, observed that ``the 
first rule of an intelligent tinkerer is to keep all of the 
pieces.'' Mr. Chairman, we are losing pieces here and abroad, 
and we do not understand the consequences.
    From an economic standpoint, I observe that less than 
scientists have studied less than 1 percent of the world's 
species extensively. The potential of these unstudied species 
to provide medicines, food, and other benefits to humankind is 
vast, unknown and untapped.
    Finally, I believe we owe it to our grandchildren and their 
grandchildren to hand them down a world rich in the biological 
diversity that we have inherited. A planet poorer in wildlife 
is a planet diminished, and we owe it to our heirs to preserve 
what we can.
    So, for all these reasons, Mr. Chairman, I strongly support 
the goals of the Endangered Species Act and want to look for 
ways to strengthen it and make it more effective.
    Today's hearing will focus on the listing and delisting 
processes under the Act, and I want to make several comments 
about these processes. First, some will suggest that the 
listing process is not based on sound science. I disagree. If 
you look at the history of the listing process, less than 1 
percent of species that have been listed or proposed for 
listing have been withdrawn because they their listing was 
backed by incomplete data. That is an extremely low error rate, 
and does not suggest a systematic problem with the role of 
science in the listing process. I think that one reason for 
this is that peer-review is built into the listing process, 
which ensures that independent scientists review the 
information that the Government relies on.
    Second, I have heard the suggestion that the listing 
process is secretive. That the data behind the listings are not 
available. This is simply not the case. The administrative 
record for a listing includes all relevant data, how the data 
supports listing, and the comments of the peer reviewers. All 
of this information is available to anyone who wants to see it.
    Finally, I want to address ESA funding. Simply put, ESA has 
suffered from chronic underfunding. The listing program is no 
exception. Unfortunately, the President's budget does not 
remedy this problem.
    Rather than limiting the ability of citizens to participate 
in the ESA process, as the budget proposes, we should provide 
the U.S. Fish and Wildlife Service and National Marine 
Fisheries Service with the resources they need to do the job 
right.
    With that, I conclude my remarks, and look forward to the 
testimony of our witnesses.

    Senator Crapo. Thank you very much, Senator. Senator 
Clinton, they have just called a vote, but we figured we would 
try to finish the opening statements before we recess and run 
to the vote.

OPENING STATEMENT OF HON. HILLARY RODHAM CLINTON, U.S. SENATOR 
                   FROM THE STATE OF NEW YORK

    Senator Clinton. Well, I thank you very much, and I thank 
you for holding this hearing on such a critical issue. This is 
one of the many critical and pressing issues that this 
committee is discussing, everything from global warming to how 
we deal with our energy needs while protecting our environment. 
The issue of protecting threatened and endangered species is 
one that I put right up there with all of these other very 
important matters.
    If there is nothing else that people on opposing sides of 
the ESA debate agree upon, the one thing that we do seem to 
agree upon is that all decisions under the Endangered Species 
Act should be based on sound science, the very best available 
science that we have. I think every one of us understands that 
many environmental decisions are complicated. Whether it's 
setting standards for drinking water or deciding what to do 
about PCB contamination in waterways, like the Hudson River, 
all of these decisions should be insofar as possible taken out 
of politics and put into the realm of science.
    I guess, Mr. Chairman, what concerns me is that the Bush 
Administration budget cuts ESA science funding along with 
funding for recovery plans and habitat conservation plans and 
candidate conservation plans--all things that we know are 
critical to achieving success under the Act. In the budget, the 
Administration also asks for a rider. I think it's a little 
unusual to have a rider in the initial budget that is proposed 
by the Administration, but, nonetheless, there is one, to 
prohibit citizens from petitioning the U.S. Fish and Wildlife 
Service to list species as threatened or endangered or from 
designating critical habitat.
    It is always preferable--I think, again, every one of us 
would agree that it is preferable that we do not have to resort 
to the courts to implement our environmental statutes. But our 
environmental statutes contain citizens' rights provisions for 
a reason, and I think these provisions need to be respected and 
not skirted.
    It is my understanding, further, that in responding to 
these citizen petitions, the U.S. Fish and Wildlife Service can 
decide to list a species or not to list it, or it can put it on 
a candidate list and assign a low priority for listing, based 
upon listing guidance that has been in place since 1983. So, in 
this regard, I think we need to make very clear that citizens 
are not determining the listing priority of species. These 
decisions are still being based on the best available science, 
and they are ultimately the responsibility of the U.S. Fish and 
Wildlife Service.
    I think rather than attaching riders to the budget, we 
should be addressing these issues as the chairman is having us 
do today, in the authorizing committee. Rather than saying we 
cannot deal with the backlog, which I understand is a serious 
issue and I have absolute sympathy for the positions that both 
Secretary Babbitt and Secretary Norton have found themselves 
in. I mean, it is a huge undertaking and it uses up a lot of 
resources, and it is a very challenging task that they face.
    I would instead propose that we try to come up with the 
necessary resources to address the listing backlog to remove 
the uncertainty. We have landowners and developers who are 
really in a very disadvantageous position because they can't 
get an answer. Putting a rider in the budget and saying, well, 
we're going to postpone this, when they know there are 
citizens' groups out there that are going to say that, as soon 
as we are able to, we're going to come in and ask for listing, 
doesn't help us clear up the uncertainty.
    It is my understanding that the Service estimates it would 
take roughly $80 to $120 million to clear up the backlog. I 
think we could develop a 5-year plan that would be certainly 
doable within our budget to get this work done, which would be 
keeping faith with the Act, keeping faith with the citizens who 
are concerned about these issues, keeping faith with good, 
sound science, and keeping faith with the needs of our 
landowners, our developers, and others who have very serious 
concerns about this.
    So, while we might disagree about some of the topics that 
are to be discussed today, the context of ESA, I think we could 
all reach agreement that the ESA needs to be administered 
effectively and funded appropriately, so that we can deal with 
the backlog, deal with the uncertainty, put to rest some of the 
issues that are legitimate concerns of people throughout our 
country, but, particularly, in the region where the chairman 
comes from.
    So, again, Mr. Chairman, I have found in my short term on 
this committee that, despite very great geographic differences 
and perspectives, acting in a collegial, open-minded manner can 
possibly lead to some solutions. I very much appreciate your 
holding this hearing and look forward to the results of it. 
Thank you very much.
    [The prepared statement of Senator Clinton follows:]
 Statement of Hon. Hillary Rodham Clinton, U.S. Senator from the State 
                              of New York
    I would like to thank the chairman for holding this hearing on such 
a critical issue.
    As with other topics we have been discussing in this committee, 
such as global warming, the issue of protecting threatened and 
endangered species is one that is absolutely critical to our planet's 
future. One that, if allowed to go without adequate attention and 
resources, could have irreparable consequences.
    If there is nothing else that people on opposing sides of the ESA 
debate agree upon, the one thing that they do agree upon is that 
listing decisions--as all decisions under the Endangered Species Act--
should be based on sound science, the best available science that we 
have.
    Many environmental decisions are complicated ones. And I have 
always said, whether it is setting standards for drinking water, or 
deciding what to do about PCB contamination in the Hudson River, that 
these decisions should be based on the best available science.
    Yet the Bush Administration's budget cuts ESA science funding, 
along with funding for recovery plans, habitat conservation plans and 
candidate conservation plans--all the things we know are critical to 
achieving success under the Act.
    And in its budget, the Administration also asks for a rider to 
prohibit citizens from petitioning the U.S. Fish and Wildlife Service 
to list species as threatened or endangered, or from designating 
critical habitat.
    It is always preferable that we not have to resort to the courts to 
implement our environmental statutes. But our environmental statutes 
contain citizens rights provisions for a reason, and I think those 
provisions need to be respected, not skirted.
    It is my understanding that in responding to these citizen 
petitions, the U.S. Fish and Wildlife Service can decide to list a 
species, not to list it, or can put it on a candidate list and assign 
it a low priority for listing based upon listing guidance that has been 
in place since 1983. In this regard, citizens are not determining the 
listing priority of species. Those decisions are still based on the 
best available science, and ultimately made by the Service.
    Rather than attaching riders to the budget, we should be addressing 
these issues in the authorizing committee, as we are doing today.
    And rather than saying we can't deal with the backlog, we should 
focus on providing the necessary resources to address the listing 
backlog. It is my understanding that the Service estimates that it 
would take roughly $80-120 million to clear up the backlog. We could 
develop a 5-year plan to get this work done.
    While we all might disagree about some of the topics to be 
discussed here today, we should all be able to reach agreement that the 
Endangered Species Act cannot achieve its goal of restoring threatened 
and endangered species if we starve it of funding.
    I would like to thank the chairman and ranking member again for 
holding this hearing today, and I look forward to hearing the testimony 
from today's witnesses.

    Senator Crapo. Thank you very much, Senator. I think that 
your comments highlight one of the critical problems we face. 
The backlog in the listing process is significant. We do need 
to find the resources to deal with it. In fact, the backlog is 
not only there. There's a backlog in the recovery plan arena. 
There's a backlog in implementation.
    You may or may not be aware, because of the issues in the 
Pacific Northwest on salmon, I just proposed last week that we 
double the amount of resources we are putting into the salmon 
recovery in the region up to--I think I proposed something in 
the neighborhood of $688 million just for that one species in 
terms of our efforts to try to recover it. So there's no 
disagreement on my part about the fact that we need to find a 
way to get resources to these issues.
    Just to kind of highlight for the attendants here, before 
we recess and run to the vote, I have some interesting 
statistics on just the litigation that is involved with the 
listing process. Just consider this information for a minute.
    As of March 1 of this year, 79 cases have been resolved 
through the entry of court orders or settlement agreements--and 
this is on listing litigation. As of the same date, the Service 
is still involved in 75 active section 4 lawsuits covering 400 
species, including 17 lawsuits on petition findings for 41 
species, 9 lawsuits covering 11 species regarding final 
determination, 36 lawsuits covering over 354 species regarding 
critical habitat, and 13 lawsuits covering 11 species regarding 
merit challenges. In addition, the Service has had 86 notices 
of intent to sue over 640 species relating to listing 
activities, including 34 NLI's regarding critical habitat 
determinations for 303 species.
    Those statistics indicate the enormous task that we face 
just in the litigation that is surrounding the listing process. 
If this committee can find ways to build consensus toward 
helping us get a path forward, both in terms of getting the 
resources and the reforms necessary to help us move forward in 
protecting species, I think we can do a tremendous service for 
the environment and for the people of the Nation. I think that 
there is an opportunity for us to find that common ground.
    If there are no further comments at this point, we will 
recess at this point. As I have advised everybody, there has 
been a vote called and we're getting toward the end of the 
timing for us to get to the vote. We'll rush down there and try 
to return as quickly as possible. Hopefully, it won't take 
long.
    At this point the committee is recessed.
    [Recess.]
    Senator Crapo. The hearing will come to order.
    We've been joined by our ranking member, Senator Graham. 
Senator, if you would like to make any opening statement, 
you're welcome to do so at this point.

  OPENING STATEMENT OF HON. BOB GRAHAM, U.S. SENATOR FROM THE 
                        STATE OF FLORIDA

    Senator Graham. Thank you, Mr. Chairman. I have an opening 
statement which I would like to submit for the record.
    I want to commend you for holding this hearing. One of the 
centerpieces of the Endangered Species Act has been the ability 
of citizens to nominate species for consideration. I recognize 
that that has resulted in a significant backlog of court-
administered cases. This hearing today I hope will give us some 
sense of what the range of options is to deal with that issue, 
and I appreciate your affording us that opportunity to do so.
    [The prepared statement of Senator Graham follows:]

  Statement of Hon. Bob Graham, U.S. Senator from the State of Florida

    Mr. Chairman, the Endangered Species Act was historic when 
it was passed by a nearly unanimous Congress over 25 years ago. 
The Act remains important in our efforts to balance human 
activities with the needs of imperiled wildlife. While this law 
is certainly not without its share of controversy, I have 
witnessed success stories such as the recovery of the American 
alligator, a keystone species in the Everglades and vital to 
the overall health of that ecosystem.
    The State of Florida is home to some 111 threatened or 
endangered species. We can boast, rather unfortunately, that 
this number is third only to the States of Hawaii and 
California. Included in this list is the Florida Manatee, which 
I consider a poster child for the importance of the Endangered 
Species Act.
    One of the strengths of the Endangered Species Act is that 
it allows citizens the opportunity to petition the U.S. Fish 
and Wildlife Service to list species that they have reason to 
believe are critically important. Citizens may also pursue 
legal recourse if they think that the U.S. Fish and Wildlife 
Service has not acted to protect these species.
    I appreciate the fact that the U.S. Fish and Wildlife 
Service faces a severe listing and delisting backlog. An 
estimated $80-$120 million is needed to eliminate this backlog. 
However, I do not think that effectively cutting citizens out 
the process by limiting the ability of the U.S. Fish and 
Wildlife Service to respond to court orders is the most 
appropriate way to address this problem.
    Most of our environmental laws include a process for 
citizen enforcement and oversight. Such opportunities for 
citizen involvement are necessary to compensate for times when 
administrative agencies are unable to fully implement the law.
    I hope that today's hearing will present us with some ideas 
for solutions to eliminate the current backlog and address 
citizen and scientific concerns in a prudent manner.
    I will submit my questions for the record.
    Thank you, Mr. Chairman.

    Senator Crapo. Thank you very much, Senator.
    Without anything further then, let's invite our first panel 
to come forward. Our first panel consists of Mr. Gary Frazer, 
who is the Assistant Director for Endangered Species at the 
U.S. Fish and Wildlife Service of the U.S. Department of the 
Interior. Please come forward, Mr. Frazer, and also, Mr. Don 
Knowles, the Director of the Office of Protected Resources for 
the National Marine Fisheries Service.
    I would like to advise our witnesses, as well as all the 
witnesses on the future panels, that we would like to ask you 
to do your best to keep your testimony to 5 minutes, as you 
have been requested to do, so that we have time for questions 
and answers from the Members of the Senate.
    You probably know how the lights work, but I'll re-explain 
it for everybody. The green light goes on during the beginning 
of your testimony. When you have 1 minute left, the yellow 
light comes on, and then when the time has expired, the red 
light comes on. When the time's expired, we ask you to try to 
summarize where you are. What we have found is that nobody--at 
least very few people--are ever able to get said in 5 minutes 
what they have to say, but please be assured that you'll have 
an opportunity to expand on your thoughts and to complete your 
statement during responses to questions and answers.
    Without anything further then, Mr. Frazer.

  STATEMENT OF GARY FRAZER, ASSISTANT DIRECTOR FOR ENDANGERED 
  SPECIES, U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE 
                            INTERIOR

    Mr. Frazer. Mr. Chairman, thank you for this opportunity to 
discuss how the U.S. Fish and Wildlife Service carries out its 
duties relating to listing and delisting species under the 
Endangered Species Act.
    Our procedures, some prescribed by statute and others by 
agency regulations or policies, are all focused upon ensuring 
that our decisions are objective, based on good science, and 
made in the open with peer review and public participation 
throughout. The U.S. Fish and Wildlife Service is committed to 
making the Endangered Species Act work in the eyes of the 
public, the Congress, and the courts, so that we can accomplish 
its purpose of conserving threatened and endangered species and 
protecting the ecosystems upon which they depend. This is a 
challenging task involving precious and irreplaceable natural 
resources, a complex statute, and many stakeholders with deeply 
held and often conflicting interests.
    To meet this challenge, we work hard to base our decisions 
on the best available science, seek independent peer review of 
our decisions, to provide for public participation throughout 
our decision process, and to ensure that our decision process 
is understandable and open to scrutiny.
    The Endangered Species Act requires listing determinations 
to be made solely on the basis of the best available scientific 
and commercial data. This careful evaluation of scientific 
evidence, including the involvement of independent peer 
reviewers and our colleagues in State fish and wildlife 
agencies, is fundamental to assessing species for listing and 
delisting under the Act.
    To this end, the Service has issued a number of joint 
policies with the National Marine Fisheries Service which guide 
our listing and delisting efforts. Our policy on information 
standards provides direction to our biologists and managers on 
the use of scientific information in our decision process. Our 
policy for peer review ensures that independent peer review is 
built into our listing recovery and delisting activities. Our 
policy on the role of State agencies recognizes the unique 
capability of State fish and wildlife agencies to assist in 
implementing all aspects of the Act.
    Listing under the Endangered Species Act becomes necessary 
when a species declines to the point where it is at danger of 
extinction throughout all or a significant portion of its 
range, or is likely to become endangered in the foreseeable 
future. The Secretary is required to list the species if, after 
reviewing the species' status using the best scientific and 
commercial data available, it is found that the species is 
endangered or threatened because of any one or a combination of 
the five listing factors laid out in the Act.
    We have two ways to identify species in need of listing. 
The first is a candidate assessment process which is initiated 
by the Service. The second is a petition process which is 
available to the public. Through the candidate assessment 
process, the Service works with species experts, State natural 
heritage programs, and others to identify species that may be 
at risk and potentially in need of protection under the Act. 
The petition process allows any interested person to petition 
the Service to add or remove a species from the Federal list. 
If the petition is found to provide substantial information, we 
initiate a status review and issue an additional finding within 
12 months as to whether listing may be warranted.
    The Service issues proposed rules to list species when we 
have sufficient information to show that listing is warranted. 
If the issuance of a proposed listing rule is precluded by work 
on other higher priority listing actions, we add the species to 
our candidate list to be prioritized for a future listing 
proposal. We publish this list of candidate species annually 
and solicit information from species experts and the public to 
stay current on the status of the species that are on the 
candidate list.
    At the other end of the process is delisting which marks 
the successful end point of the recovery process. The goal of 
the recovery process is to restore listed species to a point 
where they are secure, self-sustaining components of their 
ecosystems and do not require the protections of the Endangered 
Species Act, and thus, could be delisted.
    Throughout the process the Service uses the best available 
science and input from the affected public to guide our actions 
toward successful recovery of listed species. Our listing and 
delisting actions are informal rulemakings published and 
proposed in final form in the Federal Register. Once a proposal 
is published, the Service must allow for a public comment 
period on the proposal; provide actual notice of the proposed 
regulation to appropriate State, tribal, and local government 
agencies; publish a summary of the proposal in a newspaper of 
general circulation in areas where the species occurs, and hold 
a public hearing, if requested. Since public participation is 
so important to effective conservation efforts, the Service 
will often hold multiple public hearings and extend the comment 
period beyond the minimum required by law and regulation.
    Species are usually listed as a result of factors that 
cause their decline over many years, often decades or even 
centuries. As a result, recovery of listed species requires 
time and effort, but we have had real success. Recently, the 
Service removed peregrine falcon and the Aleutian Canada goose 
from the list of species protected under the Endangered Species 
Act, and the bald eagle, our Nation's symbol, is on the verge 
of complete recovery. We expect to downlist or delist at least 
six species next fiscal year, and many of the species that are 
on the list have had their declines arrested and the population 
stabilized or improving since the time they were added to the 
endangered species list, which is a real measure of the 
effectiveness of our recovery efforts.
    In closing, I would like to emphasize the importance the 
Service places upon having a science-based, open-decision 
process in which the affected public can participate fully. Our 
listing and delisting decisions are sometimes difficult and 
contentious, and not all parties will agree with our final 
decisions. But it is critical that the public and the Congress 
view our work as an honest and objective effort to reach a 
decision required of us by the Act. Our success in implementing 
the Endangered Species Act is tied to that trust.
    Mr. Chairman, this concludes my prepared statement. Thank 
you for your strong interest in the Endangered Species Act and 
how it is implemented, and for the opportunity to present 
testimony. I would be happy to respond to any questions you or 
the other members of the committee may have.
    Senator Crapo. Thank you, Mr. Frazer.
    Mr. Knowles.

    STATEMENT OF DON KNOWLES, DIRECTOR, OFFICE OF PROTECTED 
RESOURCES, NATIONAL MARINE FISHERIES SERVICE, NATIONAL OCEANIC 
     AND ATMOSPHERIC ADMINISTRATION, DEPARTMENT OF COMMERCE

    Mr. Knowles. Thank you, Mr. Chairman. I appreciate the 
opportunity today to testify on the process we at the National 
Marine Fisheries Service use to list and delist species under 
the Endangered Species Act. My name is Don Knowles. I am the 
Director of the Office of Protected Resources at National 
Marine Fisheries Service, an agency of the National Oceanic and 
Atmospheric Administration.
    NOAA Fisheries is committed to making the implementation of 
the Endangered Species Act effective and to increase public 
support for its goals. We are also committed to working closely 
with the U.S. Fish and Wildlife Service to make sure our 
approach is consistent and to working with States, tribes, 
local governments, and others as partners. We are committed to 
basing our procedures and decisions on good science and making 
our decisions, any of them, with peer review and public 
participation throughout the process. We recognize it's a 
difficult challenge. We thank the committee for its support 
over the years.
    Our listing and delisting regulations are jointly published 
with the U.S. Fish and Wildlife Service, so I won't duplicate a 
description of that process at this point. Let me just briefly 
summarize for you an overview of NMFS's Protected Species 
Program.
    We currently have 55 species listed under the Endangered 
Species Act, much smaller than the U.S. Fish and Wildlife 
Service. Of our species, 26 are salmon and steelhead in 
California in the Pacific Northwest; Alaska contains no listed 
salmon species. Of those 26 ESUs that are listed, 21 of them 
have been listed since 1997. So, in effect, we have created an 
entirely new regulatory structure and process just in the last 
6 years in the Pacific Northwest.
    We have a little over 550 people working on endangered 
species and marine mammal issues. Over half of those, well over 
half of those, are full-time scientist. We have a very strong 
world-class science program in support of our listing program.
    To be sure, NMFS's implementation of the ESA has been 
contentious and the subject of a significant amount of 
litigation. We have six cases pending now on listing issues. We 
have lost some cases and, hopefully, learned some valuable 
lessons in the Northwest to address the issue of whether NMFS's 
decisions are based on the best science. We spent a significant 
amount of effort in the mid-1990's collecting information from 
the Pacific Salmon Biological Technical Committee and 
interested parties, and established a Biological Review Team. 
While these efforts haven't eliminated the lawsuits, they have 
helped NMFS gather the best available science.
    For all of the species under our jurisdiction, NMFS 
continues to look for new ways to ensure that it uses the best 
available science in the decisionmaking process.
    I think I will stop there, Mr. Chairman. I've got a 
statement that, if you would be interested in including it in 
the record, I will thank you for the opportunity to testify and 
look forward to answering any questions you might have.
    Senator Crapo. Thank you very much, Mr. Knowles.
    Mr. Frazer, I will begin my questions with you. I noted in 
your testimony that you referenced the U.S. Fish and Wildlife 
Service's language in the President's fiscal year 2002 budget 
request that is intended to comply with the current orders and 
settlement agreements with respect to critical habitat 
designations, as well as, to address the backlog of listing 
actions. Since I know that this question will come up--in fact, 
Senator Clinton has already raised the issue in her opening 
statement--in the context of the listing program, would you 
explain in a little more detail why the Administration has 
requested this language and how they are approaching the budget 
this year?
    Mr. Frazer. I would be happy to. For a number of years, the 
Service's workload in our listing program, all aspects of our 
listing program--processing petitions, adding species to the 
list, critical habitat--for a number of years, that workload 
has exceeded the resources we have available to carry out our 
program. As a result, we had a backlog accumulate. Many of 
these actions have mandatory deadlines laid out in the statute, 
and there is opportunity for us to be sued to comply with those 
deadlines, and we have been sued.
    The result is that in this fiscal year, virtually our 
entire listing budget is dedicated toward complying with court-
ordered actions, most of which are for designation of critical 
habitat for species that are already listed. Our goal in 
proposing this language in the President's budget is to be able 
to have the assistance of Congress to return to a more balanced 
listing program that addresses biological priorities.
    The language would essentially do two things. It would say 
that, of the money that Congress appropriates for us to 
administer our listing program, that we are to use that to 
comply first with existing court orders, but then any that's 
left over would be spent on those listing actions--processing 
petitions, adding species to the list--that are driven by 
biological priorities. We would use a biological priority 
process for determining how to spend the remainder.
    With this as our marching orders from Congress, we hope to 
be able to return to the kind of balanced listing program which 
I think the public expects, and that would have the greatest 
benefit for the species that are at risk and need protection 
under the Act.
    Senator Crapo. Now if I understand what you just said, what 
you're saying is that court orders are basically dragging the 
utilization of the budget rather than biological or science-
based decisionmaking?
    Mr. Frazer. This year, in fiscal year 2001, the number of 
actions that are required by court order or court-sanctioned 
settlement agreement are such that we are using virtually every 
dollar that we have available in our appropriation to comply 
with those court orders and settlement agreements. So we have 
no money left over for discretionary actions--to be able to 
respond to a citizen petition or to be able to deal with any 
other sort of listing action.
    Senator Crapo. As has been indicated in some of the 
statements by the Senators already today, it would be helpful 
to have additional financial resources to meet all these needs, 
but given the budget situation that you deal with--well, first 
of all, let me ask you: Is the proposed budget for this year an 
increase or a decrease from previous years?
    Mr. Frazer. It's an increase of $2 million, about a 31 
percent increase from the previous fiscal year.
    Senator Crapo. A 31 percent increase? So there is an 
increase in the dollars available but, even with that increase, 
you are still seeing the court orders essentially consume the 
flexibility with which you can use those dollars?
    Mr. Frazer. We have court orders and settlement agreements 
that are going to require us to do a substantial amount of work 
next year. With an increase, we hope to have some funds 
available that we will be able to apply to other parts of our 
listing program--to be able to respond to citizen petitions, to 
add species to the list. But the litigation is there. We have a 
large backlog. The potential remains for us to have additional 
lawsuits filed and court orders issued that will eat into that 
discretion as well. So this language was structured such that 
it would reflect the intent of Congress that we would certainly 
be complying with existing court orders, but for the remainder, 
biological priorities as opposed to lawsuits would drive the 
use of those dollars.
    Senator Crapo. Isn't this approach to how to manage the 
budget something that was started under the previous 
Administration?
    Mr. Frazer. We have had for a number of years a cap, a 
listing cap, that essentially is just language in the 
appropriations bill that says that the money that Congress 
appropriates to us for carrying out our listing program is the 
sum total that we can use to carry out those duties under 
section 4 of the Act. That's to prevent court orders from 
imposing obligations on us that are in excess of the dollars, 
the amount, that Congress appropriates for us to run our 
program. The cap language is to ensure that court orders for 
listing actions don't eat into other parts of the Endangered 
Species Act Program or other parts of the U.S. Fish and 
Wildlife Service's resource management account.
    Senator Crapo. It seems to me--and tell me if I'm right 
about this--but it seems to me that, to the extent that your 
utilization of these funds is driven by court orders and not by 
the biological, scientific evaluation that the Agency would 
like to apply to it, that creates an increased risk of further 
litigation because the Agency is not able to utilize the best 
science, but is instead being driven by judicial 
decisionmaking.
    Mr. Frazer. The deadlines that are imposed, understandably, 
courts would like us to undertake and complete these actions 
soon. In many cases we are well past the deadline. So there's 
an interest in having us complete these actions as soon as 
possible. But the deadlines do create real tension between 
making the best decision, using the best available information, 
and having a careful process that has everyone affected 
involved in the decision process, and facing a potential 
contempt hearing if we don't meet the deadline. So a number of 
our actions have been very difficult and we have had to do less 
outreach and had less time to consider the decisions before we 
went to final. As a result, we have a number of people that 
have criticized the outcome, and we have a number of merits 
lawsuits on some of our most recent critical habitat 
determinations.
    Senator Crapo. All right. Mr. Knowles, do you have any 
disagreement--or I wouldn't say ``disagreement.'' Would you 
like to add any comment on this issue before I----
    Mr. Knowles. No, I don't think we have--we're not in the 
same situation as the U.S. Fish and Wildlife Service.
    Senator Crapo. All right. With regard to the question of 
litigation, I would like to toss this question out to both of 
you. Before I do, I want to go over the statistics that I read 
earlier just to set the stage again.
    According to the information I have--and this is from the 
U.S. Fish and Wildlife Service, so I hope that you will agree 
with the numbers here, Mr. Frazer--as of March 2001, 79 cases 
have been resolved through the entry of court orders or 
settlement agreement but, as of the same date, the Service is 
involved in 75 active section 4 lawsuits covering 400 species, 
including 17 lawsuits on petition findings for 41 species, 9 
lawsuits covering 11 species regarding final determinations, 36 
lawsuits covering over 354 species regarding critical habitat, 
and 13 lawsuits covering 11 species regarding merit challenges. 
In addition, the Service has 86 notices of intent to sue which 
involve another 640 species relating to listing activities, 34 
of which are critical habitat determination issues for 303 
species.
    To me, that incredibly large amount of litigation says that 
something is broken. In other words, we are not getting to put 
the resources to the issue of species recovery the way we would 
like to because we are spending a tremendous amount of time in 
court. I assume that a large part of the budget goes for legal 
actions rather than environmental recovery actions.
    The question I have is: What is it that is causing all of 
this litigation? What is the reason that we have this 
voluminous amount of litigation surrounding the listing 
process? I know that's a tough question, but really it's a 
question that has to be asked.
    Mr. Frazer. I'll give you my views. I think that it 
reflects the strong interest, and in many cases the impassioned 
interest, in the Endangered Species Act, in conserving fish and 
wildlife and plants that are at risk of extinction. We have a 
very vibrant economy, a lot of growth, and there are tensions 
between that kind of economic development and conservation of 
our plants and fish and wildlife. We have tools that address 
that, but they're not 100 percent effective and there's clearly 
a need for extending the protection of the ESA to species that 
we have not been able to satisfy because of the limited 
resources we have had to carry out our program.
    The deadlines that are under the Act and the interest in 
ensuring that the Act is carried out where it's needed I think, 
has been the primary driver in the volume of litigation that is 
associated with our listing program. It does require a good bit 
of work of the people employed in our listing arena. Litigation 
support takes up an unfortunately large part of our time.
    Senator Crapo. How many lawyers have you got on staff?
    Mr. Frazer. Actually, our legal counsel is through our 
Solicitor's Office, and then the Department of Justice provides 
us with very capable legal support as well.
    Senator Crapo. Is that legal support included in your 
budget numbers or would that be in their budget numbers?
    Mr. Frazer. No, it's in their budget numbers. The only part 
in our budget, our listing budget, is the litigation support 
that we do: drafting declarations, doing document searches, and 
preparing records, those sorts of things.
    Senator Crapo. All right, let's move on to the peer review 
issue. Mr. Frazer, in your testimony you provided some reasons 
why peer review is not easy to obtain. As you know, sound 
science I think is critical to this listing process. Actually, 
if we could resolve some of the science issues, maybe we would 
reduce the litigation. I think that paying for peer review 
would resolve at least one obstacle. Am I correct in that?
    Mr. Frazer. It may. It's a function of whether covering the 
cost is a primary impediment or whether it is a matter of 
priorities and what other kind of rewards there might be for 
independent peer reviewers to get engaged.
    Senator Crapo. What would you recommend for us to remove 
some of the obstacles or disincentives for the peer reviewers 
to make this their high priorities?
    Mr. Frazer. Well, I don't think improving our capability to 
get peer review requires statutory change. There certainly are 
things that we can do. We can work with organizations that 
represent the scientific community. We can work with academic 
institutions, State agencies, Federal agencies to emphasize the 
importance of their involvement in our listing program 
activities and to understand what sorts of reward systems they 
need in order for them to be able to step up, and then work to 
address those.
    We've got a pilot program underway already. One of the 
other witnesses this morning is going to, I think, discuss that 
in some fashion.
    The other thing, though, is to have the volume of 
litigation associated with our listing program removed, so that 
when a peer reviewer does get engaged, they don't have to have 
the level of concern about whether this is going to be a long-
term commitment involving them be drug in for depositions or 
called to be an expert witness, or whatever.
    Senator Crapo. So the litigation is actually impacting the 
peer review process, it sounds like?
    Mr. Frazer. It is. In some cases, we know that it is.
    Senator Crapo. Mr. Knowles, Mr. Frazer has indicated he 
doesn't think that there are legislative necessarily needed to 
improve the peer review process. Do you have any opinion on 
whether there are legislative changes that are needed? I guess 
I would also ask you to suggest what changes, if any, you think 
might be helpful in that context.
    Mr. Knowles. I don't think legislative changes are needed. 
I do think that some of the testimony you are going to hear 
later today talks about the differences between peer review in 
a pure academic sense, the way it works, and peer review in a 
management sense like this, and I think there are some 
suggestions there that you could consider.
    We have sort of taken a slightly different tack, I think, 
not necessarily for peer review for our listing packages, but 
peer review for other decisions. We have actually funded a 
group through the University of Miami called the Center for 
Independent Experts. We are essentially funding the University 
of Miami to select for us a series of peer reviewers to cover a 
number of actions throughout the year. We can schedule them in 
advance. We can get peer reviewers to agree to review, I think, 
and going through a university is easier than directly at this 
time.
    So I think when we solicit the peer reviewers in the 
Pacific Northwest, I'm told that typically we get responses, 
positive responses, from a half to two-thirds of the people 
that we approach. So I do think it's hurting us. I don't think 
it's hurting us in the same way that it is hurting U.S. Fish 
and Wildlife Service.
    Senator Crapo. Thank you. Mr. Knowles, let me ask another 
question to you. One of the criticisms of the listing process 
is the lack of scientific transparency. Without established 
criteria and thresholds, it seems to me that it is very 
difficult to arrive at objective decisions so we end up using 
the best data available, which often has significant gaps in it 
and is not considered to be reliable, which I think probably 
then leads to litigation.
    Would you support some type of objective criteria for 
listing and delisting?
    Mr. Knowles. By objective, you mean quantitative? I think 
in the National Marine Fisheries Service, because we have such 
a large number of people working in pure sciences, I think we 
have more quantitative data for our species than I expected. I 
have been at NMFS for a little over 18 months now. I think for 
Northwest salmon in the Columbia Basin, because of its long 
interaction with the hydropower system, we have quite a lot of 
data. For most of our listed species, I think we have a lot of 
quantitative data. I don't think it is the same level of 
problem.
    Senator Crapo. Well, thank you. I know because of our delay 
we are running late. So I will cut my questions short. I did 
want to say to you, Mr. Knowles, that, as you know, I am very 
interested in the salmon issue in the Pacific Northwest and 
look forward to working with you to solve our problems, not 
only at the listing levels, but with the recovery levels, and 
hope that we will be able to make some significant success 
there.
    Mr. Knowles. I appreciate that, Mr. Chairman.
    Senator Crapo. Senator Graham, do you have any questions?
    Senator Graham. Yes, and if you have already asked this 
question, if you would just shut me up----
    Senator Crapo. Well, we'll see if they answer it the same 
way.
    [Laughter.]
    Senator Graham. One of the things that I suspect led to 
this hearing was the issue of the large volume of court-managed 
endangered species cases and a proposal that there be a hiatus 
in citizens' nomination of endangered species until that 
backlog has been reduced. Could you comment as to what would be 
the effect of that and your opinion as to what would be--and 
your suggestion as to what would be--other ways to deal with 
the same issue of the backlog of cases?
    Mr. Frazer. I did address this a little bit ago, but I 
would be happy to reiterate. We do have a significant backlog 
in listing actions that has accumulated over a number of years. 
The workload has been greater than the resources we have to 
carry out all our duties under the Act.
    Senator Graham. Could you give us a sense of what would 
have been the cost to have fully and expeditiously maintained 
your responsibility and what was your actual budget against 
that?
    Mr. Frazer. I would be happy to try to make that kind of 
estimate and get that to you.
    The landscape has changed rapidly. We had a listing 
moratorium several years ago that affected our workflow. So it 
hasn't been a steady playing field.
    In addition, the focus, whether it was to add species to 
the list or to deal with critical habitat designations, has 
changed as well. But I can try to give you some sense.
    Senator Graham. Mr. Knowles, could I ask the same question, 
and maybe you could provide us with something in writing on 
that issue, too?
    Mr. Knowles. I would be glad to.
    [The information referred to follows:]

    NMFS is not in the same situation as FWS for several reasons. We 
have been able to list species and designate critical habitat (most of 
the time) within or close to the time limits proscribed by the Act. See 
species list below which includes critical habitat designations. Also, 
our budget requests target the needs of specific groups of species 
(e.g., Pacific salmon, sea turtles, marine mammals) and not specific 
ESA programs such as listing, critical habitat and section 7 
consultations. This gives NMFS the flexibility to use our allocated 
funds for a variety of ESA programs, and wherever the need is greatest 
at the time.

                                        NMFS ESA Species List.--June 2001
                                                 Listed/Proposed
----------------------------------------------------------------------------------------------------------------
                                                                     Cites                           Critical
         Common Name          Population Name     ESA Status    Classification  Scientific Name      Habitat
----------------------------------------------------------------------------------------------------------------
Fish
 
Salmon, Atlantic............  Gulf of Maine    Endangered.....  ..............  Salmo salar....  ...............
                               DPS.
Salmon, chinook.............  Upper            Threatened.....  ..............  Oncorhynchus     Designated
                               Willamette                                        tshawytscha.
                               River.
                              Snake River      Threatened.....  ..............  Oncorhynchus     Designated
                               Fall-run.                                         tshawytscha.
                              California       Threatened.....  ..............  Oncorhynchus     Designated
                               Coastal.                                          tshawytscha.
                              Central Vally    Threatened.....  ..............  Oncorhynchus     Designated
                               Spring-run.                                       tshawytscha.
                              Lower Columbia   Threatened.....  ..............  Oncorhynchus     Designated
                               River.                                            tshawytscha.
                              Upper Columbia   Endangered.....  ..............  Oncorhynchus     Designated
                               River Spring-                                     tshawytscha.
                               run.
                              Snake River      Threatened.....  ..............  Oncorhynchus     Designated
                               Spring/Summer-                                    tshawytscha.
                               run.
                              Sacramento       Endangered.....  ..............  Oncorhynchus     Designated
                               River Winter-                                     tshawytscha.
                               run.
                              Puget Sound....  Threatened.....  ..............  Oncorhynchus     Designated
                                                                                 tshawytscha.
Salmon, chum................  Hood Canal       Threatened.....  ..............  Oncorhynchus     Designated
                               Summer-run.                                       keta.
                              Columbia River.  Threatened.....  ..............  Oncorhynchus     Designated
                                                                                 keta.
Salmon, coho................  Central          Threatened.....  ..............  Oncorhynchus     Designated
                               California                                        kisutch.
                               Coast.
                              Southern Oregon/ Threatened.....  ..............  Oncorhynchus     Designated
                               Northern                                          kisutch.
                               California
                               Coast.
                              Oregon Coast...  Threatened.....  ..............  Oncorhynchus     Designated
                                                                                 kisutch.
Salmon, sockeye.............  Snake River....  Endangered.....  ..............  Oncorhynchus     Designated
                                                                                 nerka.
                              Ozette Lake....  Threatened.....  ..............  Oncorhynchus     Designated
                                                                                 nerka.
Sawfish, smalltooth.........  US-DPS.........  Proposed         ..............  Pristis          ...............
                                                Endangered.                      pectinata.
Sturgeon, Gulf..............  Range-wide.....  Threatened.....          II      Acipenser        ...............
                                                                                 oxyrinchus
                                                                                 desotoi.
Sturgeon, shortnose.........  Range-wide.....  Endangered.....           I      Acipenser        ...............
                                                                                 brevirostrum.
Totoaba.....................  Gulf of          Endangered.....           I      Cynoscion        ...............
                               California.                                       macdonaldi.
Trout, steelhead............  Upper            Threatened.....  ..............  Oncorhynchus     Designated
                               Willamette                                        mykiss.
                               River.
                              Snake River      Threatened.....  ..............  Oncorhynchus     Designated
                               Basin.                                            mykiss.
Trout, steelhead............  Southern         Endangered.....  ..............  Oncorhynchus     Designated
                               California.                                       mykiss.
                              Middle Columbia  Threatened.....  ..............  Oncorhynchus     Designated
                               River.                                            mykiss.
                              Upper Columbia   Endangered.....  ..............  Oncorhynchus     Designated
                               River.                                            mykiss.
                              California       Threatened.....  ..............  Oncorhynchus     Designated
                               Central Valley.                                   mykiss.
                              Northern         Threatened.....  ..............  Oncorhynchus     ...............
                               California.                                       mykiss.
                              Lower Columbia   Threatened.....  ..............  Oncorhynchus     Designated
                               River.                                            mykiss.
                              South-Central    Threatened.....  ..............  Oncorhynchus     Designated
                               California                                        mykiss.
                               Coast.
                              Central          Threatened.....  ..............  Oncorhynchus     Designated
                               California                                        mykiss.
                               Coast.
 
Mammal
 
Dolphin, Chinese River......  Yangtze River-   Endangered.....           I      Lipotes          ...............
                               China.                                            vexillifer.
Dolphin, Indus River........  Indus River-     Endangered.....           I      Platanista       ...............
                               Pakistan.                                         minor.
Porpoise, harbor, Gulf of     Gulf of          Endangered.....           I      Phocoena sinus.  ...............
 California.                   California.
Sea Lion, Steller...........  East of 144      Threatened.....  ..............  Eumetopias       Designated
                               Long (Eastern                                     jubatus.
                               U.S.).
                              West of 144      Endangered.....  ..............  Eumetopias       Designated
                               Long (Western                                     jubatus.
                               U.S.).
Seal, Caribbean monk........  Range-wide.....  Endangered.....           I      Monachus         ...............
                                                                                 tropicalis.
Seal, Guadalupe fur.........  Mexico-Southern  Threatened.....           I      Arctocephalus    ...............
                               California.                                       townsendi.
Seal, Hawaiian monk.........  Hawaiian         Endangered.....           I      Monachus         Designated
                               Islands.                                          schauinslandi.
Seal Mediterranean monk.....  Mediterranean    Endangered.....           I      Monachus         ...............
                               Sea.                                              monachus.
Seal, ringed................  Lake Saimaa-     Endangered.....  ..............  Phoca hispida    ...............
                               Finland.                                          saimensis.
Whale, blue.................  Range-wide.....  Endangered.....           I      Balaenoptera     ...............
                                                                                 musculus.
Whale, bowhead..............  Range-wide.....  Endangered.....           I      Balaena          ...............
                                                                                 mysticetus.
Whale, finback..............  Range-wide.....  Endangered.....           I      Balaenoptera     ...............
                                                                                 physalus.
Whale, gray.................  Western North    Endangered.....           I      Eschrichtius     ...............
                               Pacific                                           robustus.
                               (Korean).
Whale, humpback.............  Range-wide.....  Endangered.....           I      Megaptera        ...............
                                                                                 novaeangliae.
Whale, right, northern......  Range-wide.....  Endangered.....           I      Eubalaena        Designated
                                                                                 glacialis.
Whale, right, southern......  Range-wide.....  Endangered.....           I      Eubalaena        ...............
                                                                                 australis.
Whale, sei..................  Range-wide.....  Endangered.....           I      Balaenoptera     ...............
                                                                                 borealis.
Whale, sperm................  Range-wide.....  Endangered.....           I      Physeter         ...............
                                                                                 macrocephalus
                                                                                 (catodon).
 
Mollusk
 
Abalone, white..............  California.....  Endangered.....  ..............  Haliotis         ...............
                                                                                 sorenseni.
 
Reptile
 
Turtle, green sea...........  Florida          Endangered.....           I      Chelonia mydas.  ...............
                               Breeding
                               Populations.
                              Mexican          Endangered.....           I      Chelonia mydas.  ...............
                               Breeding
                               Population.
                              Range-wide.....  Threatened.....           I      Chelonia mydas.  Designated
Turtle, hawksbill sea.......  Range-wide.....  Endangered.....           I      Eretmochelys     Designated
                                                                                 imbricata.
Turtle, Kemp's ridley sea...  Range-wide.....  Endangered.....           I      Lepidochelys     ...............
                                                                                 kempii.
Turtle, leatherback sea.....  Range-wide.....  Endangered.....           I      Dermochelys      Designated
                                                                                 coriacea.
Turtle, loggerhead sea......  Range-wide.....  Threatened.....           I      Caretta caretta  ...............
Turtle, olive ridley sea....  Range-wide.....  Threatened.....           I      Lepidochelys     ...............
                                                                                 olivacea.
                              Mexican          Endangered.....           I      Lepidochelys     ...............
                               Breeding                                          olivacea.
                               Population.
 
Seagrass
 
Seagrass, Johnson's.........  Southeast        Threatened.....  ..............  Halophila        Designated
                               Florida.                                          johnsonii.
----------------------------------------------------------------------------------------------------------------


    Mr. Frazer. We did, though, ask for a significant increase 
in our listing program for this fiscal year, about a 31 percent 
increase. It's not going to be sufficient to be able to remove 
the entire backlog, not close, but it is a significant increase 
to our listing program capability. Hopefully, it will give us 
the ability for next fiscal year to be able to have some amount 
of funding that we would have discretion to apply to those 
listing actions of the highest biological priority, whether it 
is processing a petition from citizens to list or to actually 
prepare a proposed listing rule.
    This fiscal year, we find ourselves in the uncomfortable 
position of having essentially every dollar that has been 
appropriated committed to a listing action, most of which are 
for designation of critical habitat for a species already 
listed. These are actions that are required by court order or 
under a settlement agreement. So we have no dollars available 
to process a citizen petition or add a species to the list, or 
to otherwise be able to carry out the other parts of our 
listing program.
    The listing cap language that we requested was to have 
Congress recognize the backlog, the fact that the appropriation 
was not going to be enough to remove the backlog entirely, and 
to give us direction on how to spend the money that Congress 
provides: first, to comply with existing court orders and then 
to apply the remainder to listing actions that are biologically 
prioritized as opposed to having our priorities set by 
whichever court renders a decision on an order first.
    Senator Graham. Thank you. I do have just one other quick 
question I wanted to throw out to both of you, and that is: I 
noted that last week the U.S. Fish and Wildlife Service made a 
finding that there was a listing of a distinct population 
segment, or a DPS, of the western sage grouse that was 
warranted. I appreciate, Mr. Frazer, your explanation of use of 
distinct population segments in listing, but, as you probably 
know, a lot of debate circles around the use of distinct 
population segments in endangered species listing actions. 
Listing of distinct population segments certainly comes across 
as something that is highly subjective--to the point that, in 
fact, in 1979 this committee directed the Services to use this 
technique sparingly, which I think is the exact word that was 
used.
    I would like each of you to respond to whether you believe 
that your respective agencies are following that guidance from 
the committee, that they are using distinct population segments 
sparingly.
    Mr. Frazer. I think that we are, in that we interpreted the 
intent of Congress to the best of our ability and issued a 
joint policy with NMFS that was designed specifically to 
provide direction to our field people and managers about how 
you make a determination of whether an entity is a distinct 
population segment and appropriate for listing under the Act.
    Since the DPS policy was issued, the U.S. Fish and Wildlife 
Service has listed about 14 DPS's, which is about 3 percent of 
the species that were listed during that period. Of these 14, 
at least 4 of them were listed as a DPS so that we could 
exclude populations that had been established through 
artificial means or outside of their historic range, or they 
involved intergrades with other more abundant populations, so 
that they didn't require the protection of the Act. So our use 
there of DPS's was to actually ensure that the protections 
provided under the Act were focused upon those parts of the 
species' range that were at risk.
    I think that the application the Service has made of the 
DPS policy has been with full knowledge of the direction of 
Congress to use it sparingly.
    Senator Graham. Mr. Knowles.
    Mr. Knowles. I would also agree that we have used this 
discretion sparingly. We have long been aware of the need for a 
careful interpretation. In 1990, we received a petition to list 
five stocks of Pacific salmon and had to come up with a 
rigorous way of how to apply the DPS policy to Pacific salmon. 
We published an interim policy, and over the 2 years between 
1990 and 1992, we did a fair amount of public interaction, 
convened workshops, published scientific papers, etc., and put 
out a final policy on the use of evolutionarily significant 
units in November 1991 applying the definition.
    Then, in collaboration with the U.S. Fish and Wildlife 
Service, in 1994, we started and worked for 2 years on a final 
DPS policy. We do have 26 of our 55 or so listed species listed 
as distinct population units, or ESUs, because of the Pacific 
salmon. Except for Atlantic salmon, we don't have any other 
species listed as a DPS, although I think we have one in the 
pipeline.
    Frankly, as the science evolves, and we are increasingly 
aware of the biological basis for distinguishing populations, 
we find ourselves confronted with the issue more significantly 
now than in the past. For example, recent advances in our 
understanding of the genetic structure of sea turtles indicate 
that there are genetically unique populations that may require 
different recovery strategies.
    Senator Crapo. Well, thank you. Because of time, we are 
going to have to move on, but I would like to thank this panel 
for coming before us today and excuse you. We appreciate your 
testimony and appearance.
    Our second panel--and please come forward--is Dr. Deborah 
Brosnan, who is the president of Sustainable Ecosystems 
Institute in Portland, OR; Dr. David Wilcove, who is a 
scientist with the Wildlife Program for the Environmental 
Defense in Washington, DC, and Dr. Lev Ginzburg, a professor at 
the Department of Ecology and Evolution at the State University 
of New York at Stony Brook.
    We appreciate your being here. I would like to remind you 
of the need to watch the lights here on the clock, so that we 
can have an opportunity to discuss matters in our dialog with 
you.
    With that, why don't we proceed with you, Dr. Brosnan.

STATEMENT OF DEBORAH BROSNAN, PRESIDENT, SUSTAINABLE ECOSYSTEMS 
                    INSTITUTE, PORTLAND, OR

    Dr. Brosnan. Thank you. Good morning. I am Deborah Brosnan, 
president and founder of Sustainable Ecosystems Institute. The 
Institute is a public-benefit, nonprofit organization that 
provides impartial, scientific support for conservation. We're 
nonpartisan and we seek science-based, cooperative solutions 
that benefit both the environment and the human communities 
that depend on it. Currently, over 300 scientists work with the 
Institute to provide support to the Government, to the private 
sector, and to citizen groups.
    Now in recent years, there's been extensive comment and 
critique of management under the Endangered Species Act. There 
are calls for wider and more effective use of independent and 
certainly impartial scientific analysis. Of course, U.S. Fish 
and Wildlife Service and National Marine Fisheries Service have 
committed to the use of scientific excellence and, indeed, they 
employ many fine scientists.
    However, they would probably be the first to acknowledge 
the need for more resources and for better integration of their 
efforts with the Nation's other scientific resources. This is a 
point of view shared across the political spectrum.
    Central to the idea of improving ESA science is the concept 
of peer review. Peer review is a scientific equivalent of 
quality control. It's our profession's established method of 
ensuring that analyses are carried out properly, so the best 
data are used, and that the conclusions drawn are appropriate.
    It's already the policy of NMFS and U.S. Fish and Wildlife 
Service that important decisions such as listing actions are 
subject to external peer review. However, the widespread calls 
for increased peer review, as outlined in my accompanying 
table, testify to the general feeling that a more systematic 
and open process is desirable.
    At least 63 diverse groups are all calling for peer review, 
and the detailed information in the table is revealing. 
Essentially, each group wants impartial review of actions 
affecting their primary concerns. So, for instance, resource 
users tend to call for review of listing actions while 
environmental groups favor review of habitat conservation plans 
and recovery plans.
    The groups are, however, united in their common belief that 
an independent review would lead to better decisions and more 
effective management and conservation. Scientific peer review 
can, indeed, be of great use, and there's nothing to fear from 
the process. However, it is important to have a well-thought-
out and a systematic process. Bad peer review is worse than no 
peer review.
    In the past few months SEI has begun a pilot process to 
assess the U.S. Fish and Wildlife Service with peer review. 
This is a pro bono effort by our scientists, and it supports 
the Service's existing policies and processes. It's early days 
in this experiment, but we can provide some information on 
success rates.
    Now in the accompanying graphic that is up here, I want to 
show you first that the Service has diligently been seeking 
independent peer review--this is the blue columns on the left--
often without recourse to SEI's help. Their success rate has 
varied. Sometimes they have been successful, but other times 
they failed to get the cooperation of independent scientists.
    For instance, on critical habitat are the Arkansas Shriner, 
the desert bighorn, and the California gnatcatcher, all 
affecting huge areas of habitat, not one single scientific 
review was received from any of the 17 scientists approached by 
the Service. Yet, the Service had to, and did, make a decision.
    The Institute usually has higher success rates for our 
program with the Service and for other reviewers. Typically, we 
have obtained a 96 percent success rate, response rate. I 
believe our success can be explained by several factors.
    As practicing scientists, we speak the same language as 
scientists and can explain the needs and the uses of science. 
We have an infrastructure that insulates scientists from 
political issues and pressures, and we also reward scientists 
both professionally and financially.
    Peer review, however, is not a panacea. As I have 
previously outlined in an article in the National Academy 
Journal, simple extension of the academic model of peer review 
to applied management decisions won't work. Peer review itself 
needs to be re-examined and carefully designed in order for it 
to be effective.
    For instance, peer review in public decisionmaking cannot 
be anonymous as it is in academia. Decisions have to be made 
even when the science is incomplete or we are going to face 
paralysis or analysis, and clear roads must be defined for the 
scientists as well as for the decisionmakers.
    The lessons we have learned so far have been useful. 
Working within existing policies of the regulatory agencies, 
peer review can, indeed, contribute to effective management. 
Academic models of review and existing infrastructures, 
however, are insufficient for the task. With U.S. Fish and 
Wildlife Service and our other partners in academia, we have 
begun to build process that includes the necessary structures, 
and improvements are definitely possible.
    Resources will be needed. We have, for instance, estimated 
that a national peer review program would cost $3 to $5 
million. Of course, we're estimating as a nonprofit, which 
means we cost less than a Federal agency.
    Peer review is a serious and professional undertaking. An 
ad hoc or poorly thought-out approach will lead to frustration. 
However, if properly implemented, peer review can contribute 
much to ESA and to other natural resource decisions.
    Thank you for your time and the opportunity to address the 
committee.
    Senator Crapo. Thank you very much, Dr. Brosnan.
    Dr. Wilcove.

STATEMENT OF DAVID WILCOVE, SENIOR ECOLOGIST, WILDLIFE PROGRAM, 
             ENVIRONMENTAL DEFENSE, WASHINGTON, DC

    Dr. Wilcove. Thank you very much. I'm David Wilcove with 
Environmental Defense.
    I think there are really two essential questions that we 
have to face pertaining to the listing process. The regulated 
community understandably wonders, are all of these species on 
the endangered list really in trouble? Do they really belong 
there? And conservationists wonder, well, how many really rare 
species are there that haven't made it onto the endangered 
list? Fortunately, we have empirical data with which to examine 
both questions, and the answers are, yes, the species on the 
endangered list really do belong there, based on the best 
available information and, yes, there are lots and lots of rare 
species that deserve to be on the list but haven't made it 
there yet.
    Because the statutory guidance as to what constitutes an 
endangered or a threatened species is pretty vague, I think it 
is worth examining the Service's track record. In 1993, we 
published a study in the journal Conservation Biology in which 
we looked at the population sizes of plants and animals that 
were added to the endangered species list between the years 
1985 and 1991. What we found was that the median population 
size for an animal going onto the list was less than a thousand 
individuals, which means that half of the animals that we add 
to the list are rarer than giant pandas are today. The median 
population size for plants going onto the list was fewer than 
120 individuals. In short, we found that in essentially all of 
the cases we examined the empirical evidence in support of an 
endangered or threatened status was strong.
    More recently, scientists at the National Center for 
Ecological Analysis and Synthesis have repeated our work using 
more recent data from 1996 to 2000, and they find that the 
situation hasn't changed. What we're adding to the list are 
species whose numbers have reached a critically low point.
    Of course, sometimes after you list a species, you go out 
and you discover additional populations, but we could only find 
5 out of 1,200 cases where enough new populations have been 
discovered to warrant taking the animal or plant off the list 
because it was clearly an erroneous decision. We're dealing 
with a low error rate here.
    On that second question, as to whether there are lots of 
species that haven't made it on the endangered list but deserve 
to be there, we are actually fortunate that there is a new 
source of information out. I call your attention to the book, 
Precious Heritage: the Status of Biodiversity in the United 
States, which was produced by the Nature Conservancy and the 
Association for Biodiversity Information. It really represents, 
I think, the most complete and up-to-date assessment of the 
status of American wildlife.
    The Nature Conservancy and the Association for Biodiversity 
Information classified the plants and animals of the United 
States with respect to their rarity based on the numbers of 
known individuals and the numbers of populations of these 
species. It brings together data from all 50 States and the 
natural heritage programs.
    The Nature Conservancy and the Association for Biodiversity 
Information have identified well over 3,000 plants and animals 
in the United States that by any reasonable scientific standard 
should be on the endangered species list, and, in fact, that is 
more than double the current total for the list. So I don't 
think there is any doubt that we have a large number of 
imperiled species that are out there that haven't made it onto 
the list. The question is: What can Congress do about this?
    I would suggest that, although the number of erroneous 
listings is quite small, Congress could reduce that even 
further by providing additional funds for biological 
inventories and for monitoring, because, after all, better 
information will produce more accurate listings.
    On the matter of the backlog of deserving but unlisted 
species, let me make this suggestion. I think we can 
conservatively assume a backlog of about 2,000 species. At the 
current rate at which we're adding them to the endangered 
species list, it is going to take over 30 years to clear up 
that backlog. But we might set a goal of erasing the backlog 
within about a decade, and to do that I suggest Congress would 
want to approximately triple the amount of money that it 
provides for listing activities to about $20 million in the 
next fiscal year. I would suggest that the penalty for not 
doing that might well be the extinction of some of these plants 
and animals.
    Thank you.
    Senator Crapo. Thank you very much, Dr. Wilcove.
    Dr. Ginzburg.

STATEMENT OF LEV GINZBURG, PROFESSOR, DEPARTMENT OF ECOLOGY AND 
  EVOLUTION, STATE UNIVERSITY OF NEW YORK AT STONY BROOK, AND 
        PRESIDENT, APPLIED BIOMATHEMATICS, SETAUKET, NY

    Dr. Ginzburg. Thank you, Senator Crapo. My testimony 
relates to consistency and transparency of the listing rules. I 
am sort of representing the science of ecological risk analysis 
here and the ideas of quantitative thresholds and clarity in 
the rules.
    Certainly, the determination of endangerment status is the 
critical for the objectives of the Endangered Species Act. Yet, 
the protocol that used currently by U.S. Fish and Wildlife 
Service has been commonly criticized for being arbitrary 
because of lack of clarity in the law.
    Risk-based criteria have been used in other environmental 
areas. There is a famous 10 to the -6 in human health, one in a 
million, if you're not familiar with that, and there is a 
famous 10 to the -5, I think, in the chances for meltdown for 
nuclear reactors per reactor per year. Those 10 to -6 and 10 to 
-5 didn't come easy, but they come through guidelines. This was 
not legislation. This was guidelines issued by the Nuclear 
Regulatory Commission and corresponding executive parts of the 
Government.
    I think similar action can be attempted here. I'm not sure 
that it is necessary to change the whole Endangered Species 
Act. It may be sufficient to clarify it by appealing to 
scientifically based quantitative thresholds.
    The example that I want to bring is a positive example of 
the so-called IUCN criteria. IUCN used to stand for 
International Union for Conservation of Nature. Now it is 
called World Conservation Union. It is based in Switzerland. It 
is an international organization of conservation biologists. 
The rules that they develop are in practice in about 20 
countries, some as laws, some as guidelines, throughout Europe, 
Asia, Australia, New Zealand. It's widely used rules.
    The World Conservation Union is an independent 
organization, but what they say is respected around the world. 
They have been publishing some Red Data Books from the 1960's, 
close to 40 years. The criteria that are in place right now, 
well, they are slightly different from what we have--we have 
two categories; they have three--are based on 12 quantitative 
estimates. I don't have time to explain all of them, but the 
most important one is be a risk factor. For instance, a 10 
percent risk of extinction in 100 years is the threshold of the 
minimal listing. So below 10 percent risk in 100 years is a 
safe level. Ten percent and above, indicates a vulnerable, 
threatened, endangered species.
    The numbers didn't just come from nowhere. There were 
tremendous negotiations by biologists around the world. The 
logic of the rule is pretty involved. Two out of three things 
should be correct, and if this is right or that is right, then 
you move to the next line.
    But the important thing about these rules: They are very 
transparent; they are clear; they are consistent; they're 
accepted by the world. Of course, we are still measuring in 
inches and pounds. We don't necessarily do what the world does 
in the United States, but it might be good to look at what has 
been done.
    These rules are doing quite well. They are extremely 
efficient from the point of view of the efficiency of listing 
process, I think about 10 times more efficient, I would say. 
They have analyzed and reviewed, not necessarily listed, 
analyzed 18,000 species in 5 years, and they continue to do 
that and regularly publish updates like this. A crude estimate 
of wildlife efficiency of what we do per year for the last 
year, 10 times would be a good estimate. The reason, of course, 
is the clarity of the rules that allows it to be used 
efficiently.
    So I would suggest that we take a good look at these rules 
and try to evolve our system so it is more clear along this 
line, not necessarily adopting them literally, but generally 
moving along that line. If we do that, we would improve the 
listing system, make it more efficient, clear, transparent, 
and, hopefully, cut down those lawsuits that you mentioned, 
because I think the rules should be such that any individual or 
organization which wants to know whether this species has to be 
listed or not one way or the other has to come out with the 
same answer, using the same information.
    Senator Crapo. Well, thank you, Dr. Ginzburg.
    Let me begin the questioning with you, Dr. Brosnan. As you 
indicated in your testimony, there are some disincentives for 
effective peer review in the system that we now use. You have 
covered this in some of your written and your oral testimony 
already, but I would like to ask you to just kind of summarize 
for me, how do we remove some of these disincentives, so that 
scientists are more willing to engage in peer review? How do we 
motivate scientists to provide those reviews?
    Dr. Brosnan. I think the first thing is to understand the 
scientific or the academic culture. There are few rewards for 
scientists who engage in public service. In fact, there are 
major disincentives. It doesn't count toward tenure or 
promotion. It is viewed as time taken away from publishing or 
doing basic research.
    What we have found is that you need to provide rewards that 
are appropriate to the profession. In our case we found that, 
for instance, a letter from the member of the National Academy 
of Sciences or a senior scientist in that scientist field that 
goes in the file can be very effective and can be an incentive.
    Second, a financial reward is an incentive for two reasons. 
First, it speaks to the seriousness of the effort and, second, 
it recognizes the professionalism of the scientist and the 
professional duty that they are performing.
    A third issue that we found important is to provide an 
insulation or a buffer. Many scientists don't want to be 
dragged into a process that goes on for years where they are 
taken into court, set up against dueling scientists, and where 
their credibility as a scientist becomes questioned by one side 
or another. If you can provide a buffer that insulates a 
scientist from that process, that is very effective.
    From the point of view of peer review, it is also important 
to in one sense dissuade the scientist and find they become a 
manager. As scientists, we're used to making decisions and 
making statements that we expect the world to follow. It is 
important to keep a clear distinction between scientific input 
and a management decision.
    Senator Crapo. Thank you very much. Who should provide and 
administer the peer review system?
    Dr. Brosnan. I think you have to recognize what you want 
from the peer review system. From what I can see, you need 
three main things. You want scientific excellence. You want 
scientific credibility and impartiality, and you want practical 
use from peer review. Peer review is not going to be used just 
for an academic publication. It is going to be used to make a 
natural resource decision that has huge impacts on society.
    Finally, you want buy-in from the stakeholders into the 
peer review process. Some of the models that have been 
proposed, S. bill 1180, I think, suggests that the National 
Academy of Sciences should run peer review. I don't think that 
is a very good idea for two reasons. One, the Academy tends to 
deal in broader issues and have a much longer timeframe in 
producing its reports. Second, many of them are not familiar 
with the practicality side of natural resources. The academic 
model, again, lacks the practicality and also the reward 
structure, and it is a very different system.
    I think what we need is a new infrastructure. We need a 
National Center for Peer Review that allows a scientist both to 
be independent, credible, and buffered.
    Senator Crapo. Thank you very much.
    Dr. Wilcove, first of all, I have a note here that says 
that you are an affiliate professor with the University of 
Idaho; is that right?
    Dr. Wilcove. That is correct, Senator.
    Senator Crapo. Your stature has just increased. I'm glad to 
know that.
    [Laughter.]
    As we have been discussing with Dr. Brosnan the question of 
peer review, would you comment on the issues she has raised? Do 
you agree with those? Or do you feel that we can address it in 
a different way?
    Dr. Wilcove. I am certainly not opposed to peer review. I 
think it is a good idea. Unfortunately, a lot of people in my 
field of ecology steer clear of doing anything that's terribly 
useful or practical like peer review. I think Dr. Brosnan has 
outlined some of the reasons why that is the case.
    My suggestion would be to keep the administration of a peer 
review system within the Services because I think they can do 
it better and more efficiently than some outside entity which 
is not tied into the movement of the various listing proposals 
and the like.
    Having said that, I have to emphasize again that the track 
record of the Services from a scientific perspective isn't bad. 
We're not dealing with agencies that are making a lot of errors 
in terms of putting undeserving plants and animals on the list. 
So I have to say that it would not be my top priority to 
address. Frankly, I'm more concerned about the lag time or the 
delay in getting species that are in trouble onto the list.
    Senator Crapo. Let me ask you a question in that context. 
You heard me earlier, I assume, discuss the volume of 
litigation that the Service is now dealing with. I assume from 
you're testifying that your position would be that that 
litigation is a result primarily of the fact that the Agency or 
the Service is not getting to the issues quickly enough, but 
let me ask you in your own words to tell me, why do you think 
we have so much litigation over the listing?
    Dr. Wilcove. Well, I think it fundamentally stems from the 
fact that this is a big country with an awful lot of wildlife 
resources that has had a booming economy for a long, long time. 
That means we have a large number of plants and animals that 
are at some risk of disappearing. These are problems that have 
built up literally over the course of a couple of centuries, 
and we have been running the Endangered Species Act since 1973 
and listing species at what we think is a rapid rate, but, in 
reality, it is not relative to the need out there. So there 
isn't going to be an easy way to get out of that.
    I am certainly sympathetic to the Service's dilemma now and 
I would very much like to see more of these rare and often 
ignored species get on the list. My thought would be, let's try 
to address this by giving them significantly more resources to 
do that sort of work than we have previously given them. Even 
the increase that the Services received in the current fiscal 
year is still small relative to the need that is out there.
    Senator Crapo. Thank you. Let me ask you just one other 
quick question. I don't know if you have read it, but you heard 
Dr. Ginzburg's testimony about the potential to objectify the 
process and make it more scientifically evaluatable. Would you 
support objective criteria for listing and delisting?
    Dr. Wilcove. Two thoughts on that: First, I actually 
compared the track record of the Service against the criteria 
that Dr. Ginzburg talked about. Indeed, the species that they 
are putting on, by and large, fall within the categories of 
endangerment that the World Conservation Union outlines. So if 
we had objective criteria in place, we probably would not be 
throwing out very many, if any, of the species that are 
currently on the list.
    Having said that, I think those criteria are thoughtful and 
very useful, and I would not be opposed to raising with the 
Services the possibility of incorporating them in their listing 
decisions.
    Senator Crapo. Thank you.
    Dr. Ginzburg, I found your testimony to be very 
interesting. I am wondering, would you support that the same 
criteria be used for delisting as would be used for listing?
    Dr. Ginzburg. Certainly. I think that they are clear and 
quantitative, unless something comes off.
    Senator Crapo. I think that the method that you suggest for 
determining a level of risk would be useful, although I remain 
concerned about the question of whether we have sufficient data 
or adequate science. It is a question that is often thrown up 
to us. How can the objective method that you talked about 
actually work when, as so often happens, we have major gaps in 
the data?
    Mr. Ginzburg. Well, it is better to have clear uncertainty 
in quantitative data than an unclear, poetic statement of the 
Act. I guess in the recent Presidential election, we all heard 
about the fuzzy math--remember--that both candidates used? It 
actually is an area of mathematics for about 30 years called 
fuzzy arithmetic.
    Senator Crapo. Oh, is that right?
    [Laughter.]
    Dr. Ginzburg. Yes, it exists for 30 years. While we have 
been working on this, an application of this, through the 
listing, I am applying this algebra sort of of uncertain 
numbers. What it is concerned with is how to do judgments and 
mathematical operations with unclear values. They are still 
values. They are more than words----
    Senator Crapo. Trying to objectify something that isn't 
really subject----
    Mr. Ginzburg [continuing]. But the values have 
uncertainties associated with that. So fuzzy math is not just a 
joke in the election. It is also a serious branch of 
mathematics.
    Senator Crapo. It's actually called fuzzy math, huh?
    Dr. Ginzburg. Yes, it is called fuzzy mathematics and it 
was invented in the United States about 30 years ago.
    Senator Crapo. Well, that is very interesting. It is a good 
thing you didn't bring that up during the elections.
    [Laughter.]
    Dr. Ginzburg. Yes, I mean, I don't have time to explain 
what it is, but it is pretty easy. In about 10 minutes I could 
explain, but I don't have that.
    Senator Crapo. Well, it just still seems to me that any 
method that we use is going to be difficult to fill confident 
in if we have major gaps in the data. But you're telling me 
that----
    Dr. Ginzburg. There is a way, and, also, the IUCN ruled 
specifically under their five categories of questions: How many 
individuals are left? How many populations are left? Whether 
the decline is more than so much percent over the next 30 
years, and so on. There are various questions, but they 
recognize the data may not be sufficient to answer all of them. 
So they allow the decision to be made on part of them. So if 
you only know about the abundance or only about the decline or 
only about the geographic spread, the listing still takes 
place.
    In fact, as you have more information, you could sort of 
read it back and see which of the five criteria pushed you into 
that category because the others may say classified is OK and 
that one may be vulnerable, things like that. But the absence 
of information does not prevent listing or delisting. That is 
how IUCN rules have been applied consistently for many years.
    Senator Crapo. OK, well, that makes sense although it still 
seems to me--and maybe it is just a problem that we will have--
as long as we don't have the absolute data, whether we try to 
objectify the decision or subjectify the decision, we still 
live with it.
    All right. Well, again, we're running short on time. I wish 
we go further, but I would like to thank this panel for both 
your written and your oral testimony and for your input into 
our decisionmaking. Thank you very much.
    I would like to call up our third and final panel: Mr. John 
Echeverria, who is the director of the Environmental Policy 
Project at Georgetown University Law Center; Mr. Steven 
Quarles, counsel for the QuadState County Government Coalition 
and American Forest and Paper Association; Mr. Steve Moyer, the 
vice president of Conservation Programs at Trout Unlimited; Mr. 
Ralph Moss, director of Government Affairs at Seaboard 
Corporation, and Mr. Zeke Grader, executive director of the 
Pacific Coast Federation of Fishermen's Associations.
    Gentleman, we appreciate your being with us and we will 
proceed in the order that I read your names, which will be from 
your right across the table. Again, I would like to remind you 
as well to try to remember to watch the lights here, so that we 
can have an opportunity for discussion.
    Mr. Echeverria.

 STATEMENT OF JOHN ECHEVERRIA, DIRECTOR, ENVIRONMENTAL POLICY 
   PROJECT, GEORGETOWN UNIVERSITY LAW CENTER, WASHINGTON, DC

    Mr. Echeverria. Thank you, Mr. Chairman. My name is John 
Echeverria, and I'm the director of the Environmental Policy 
Project at Georgetown University Law Center in Washington, DC, 
where I am also an adjunct professor. I appreciate the 
opportunity to be here.
    My written testimony addresses a number of issues, and I 
would be happy to discuss those. But I thought in my brief oral 
testimony I would focus on the issue of citizen suits.
    The Administration's recent budget submission to Congress 
includes a proposal that would prevent citizens from continuing 
to go to Federal court to enforce deadlines in section 4 of the 
ESA for the listing of threatened and endangered species and 
for the designation of critical habitat. In my view this 
proposal is unwise for two reasons. First, it would destroy one 
of Congress' most valuable tools for ensuring that Federal 
agencies comply with the ESA as Congress intended. Second, it 
fails to address the most obvious solution to the growing 
volume of ESA lawsuits being filed against the agencies.
    As an attorney, I acknowledge that lawyers and lawsuits are 
at best a necessary evil. In an ideal world there would be 
little or none of either one of them. Unfortunately, this is 
not an ideal world, and I think we all recognize that lawyers 
and lawsuits are necessary for a variety of purposes, including 
the vindication of public and private rights. And I'm sure, 
whatever else Mr. Quarles has to say, that he will agree with 
me on that.
    The legislative history of the ESA makes clear that 
Congress included a specific provision authorizing citizen 
suits for a very sensible reason. As the committee is aware, 
Congress has the opportunity to act on major legislation such 
as the ESA on a relatively infrequent basis. Therefore, an 
obvious concern for Congress has been what steps the agencies 
will take or will not take to implement the law during the long 
periods when Congress is focusing on other issues. 
Unfortunately, experience has shown that coalitions of 
regulated businesses tend to exert enormous influence by 
lobbying the agencies to delay implementation of the law or to 
adopt strained interpretations of the law that will lessen 
their regulatory burdens. These efforts are countered to a 
limited degree at least by environmental advocates who attempt 
to speak on behalf of the broad public interest protected by 
the law. Unfortunately, concentrated wealth and power 
frequently prevail over the broad public interest in this 
process. Academics talk about this phenomenon using fancy terms 
like the collective action problem and agency capture. Most 
citizens simply understand that money talks.
    Citizen suits provide Congress a solution to this problem. 
By empowering individual groups and citizens to directly 
enforce the law as Congress has written it, Congress creates an 
important check on the agencies' ability to subvert Congress' 
will. The goal is not, as some have suggested, to set up the 
courts as the arbiters of environmental disputes or to assign 
citizen groups around the country some special policymaking 
responsibility. Instead, the goal is simply to use our 
established judicial procedures to see that Congress' will is 
carried out. In many cases the mere threat of successful 
litigation can prevent an agency from flouting the will of 
Congress and avoid the need for actual litigation.
    Mr. Chairman, you asked the question, why is there so much 
litigation? The obvious answer is the enormous backlog of 
species listings and habitat designations that need to be 
carried out according to the standards and schedules that 
Congress included in the Endangered Species Act.
    There has been a lot of criticism of litigation as a 
serious problem. But it seems to me that describing ESA 
litigation as a problem is a little bit like blaming the canary 
in the coal mine for chirping a little two loudly. The volume 
of litigation in this country over the ESA is, in my judgment, 
less a problem than a symptom of a problem.
    I also want to observe that with respect to the 
Administration's proposal it is fair to observe that we have 
already been there and done that, so to speak. Prior to 1982, 
the Endangered Species Act did not have the kinds of specific 
enforceable deadlines that it has today. Under the earlier 
regime the agencies got very little done. As the legislative 
history of the 1982 amendments to the ESA reflects, Congress 
included enforceable deadlines in order to move the agencies 
along.
    Finally, I would simply observe that, if the 
Administration's objective is to avoid unnecessary litigation 
rather than to gut the ESA, a ready solution is at hand: 
increased appropriations to address the backlog of ESA listings 
and habitat designations.
    I understand that the U.S. Fish and Wildlife Service has 
estimated that a relatively modest $120 million over a period 
of years would eliminate the backlog and thereby eliminate the 
basis for many of the suits being filed. As compared to 
eviscerating the citizens' suit provision, increased funding 
levels will allow Congress to reduce the volume of litigation 
against the agencies while simultaneously preserving an 
important tool to prevent agencies from ignoring congressional 
mandates.
    Thank you, and I will be happy to respond to any questions.
    Senator Crapo. Thank you very much. And it is 
``Echeverria''?
    Mr. Echeverria. Echeverria.
    Senator Crapo. I'll get it right. I'm sorry.
    Mr. Quarles.

 STATEMENT OF STEVEN P. QUARLES, COUNSEL, QUADSTATE COUNTY OF 
GOVERNMENT COALITION AND AMERICAN FOREST AND PAPER ASSOCIATION, 
                         WASHINGTON, DC

    Mr. Quarles. Thank you. It's a pleasure to be here. I am 
representing the American Forest and Paper Association and the 
QuadState County Government Coalition, a coalition of six 
counties in four States that share portions of the Mojave and 
the Colorado Deserts.
    Certainly the issue on which this subcommittee has chosen 
to hold a hearing is absolutely timely. Over the 3 decades 
since enactment of the Endangered Species Act, we have had many 
disputes over individual determinations of species' listings, 
but now for the first time, I think, we are beginning to see 
real contention over the basic process of listing, including 
the underlying science and law. That certainly has been 
heightened first by the announced moratorium of the Clinton 
Administration on consideration of new listings other than 
those required by court order, and then by the legislative 
language that is contained in the Bush budget proposal.
    What I would like to talk about in my short time is the 
overbroad definition of species eligible for listing. I am 
going to emphasize the authority to list distinct population 
segments of vertebrates; efforts by Congress and this committee 
to restrict the use of that authority; how the authority has 
been expanded by the U.S. Fish and Wildlife Service and 
National Marine Fisheries Service well beyond the expectations 
of Congress, and, in particular, this committee; and the 
infiltration of that concept into other Endangered Species Act 
decisionmaking and listing. I also probably will not have time, 
but do have suggestions for at least a couple of ways of 
addressing these problems.
    The Endangered Species Act, as has been noted, has really 
an unusual definition of species. It's not only true biological 
species, but recognized subspecies and distinct population 
segments of vertebrates. This is not the first definition of 
species in the ESA. In 1973, when the ESA was first enacted, 
the definition was very liberal. It included populations in 
common spatial arrangement. By 1978, Congress had had second 
thoughts about that very loose and liberal definition of 
populations of sub-subspecies category and passed what is now 
the definition of species that includes distinct population 
segment.
    But that whole definition of sub-subspecies still met with 
criticism, including withering criticism from the General 
Accounting Office in their well-known ``squirrels in the park'' 
analogy in which they said in testimony before this committee, 
``The squirrels in a specific city park could be listed as 
endangered even though an abundance of squirrels lived in other 
parks in the same city and elsewhere.''
    This committee in 1979, in considering the 1979 amendments, 
decided to retain that definition even though the GAO had asked 
that the sub-subspecies category be deleted, but did issue a 
stern admonition to the Services, one you mentioned earlier, 
``The committee is aware of the great potential for abuse of 
this authority and expects Fish and Wildlife Service to use the 
ability to list populations sparingly and only when the 
biological evidence indicates such action is warranted.''
    I would argue the Services have used the authority 
unsparingly. The two policies that they put out in 1991 and 
1996 have been criticized by environmental lawyers, including 
Dan Rohlf, as rife with discretion. The policies do nothing to 
limit and arguably substantially expand the authority to list 
distinct population segments--and, indeed, are expanding such 
listings rapidly.
    In the last 5 years the Services have listed 38 distinct 
population segments, five times the number they listed in the 
previous 5 years. There are 35 distinct population segments in 
the rulemaking pipeline.
    How have the Services been able to expand this authority? 
Well, first, there is no scientific agreement on the distinct 
population segment. The Services stated in the preamble to 
their policies: ``Available scientific information provides 
little specific enlightenment in interpreting the phrase 
`distinct population segment.' The term is not commonly used in 
scientific discourse.'' The National Research Council admitted, 
even as it proposed a distinct population segment concept of 
its own, that such a concept was more a matter ``of judgment'' 
as much science. And Congress is complicit. Congress has chosen 
not to define distinct population segment, and the legislative 
history provides no real guidance.
    Examples of abuse are many. We have seen the designation of 
distinct population segments in the lower 48 States without any 
discussion of reproductive isolation, biological distinctness, 
or problems of abundance outside of the United States.
    We have also seen one other misuse--significant misuse--of 
the distinct population segment concept, and that is 
designating distinct population segments, or all but 
designating distinct population segments, after the listing is 
completed. The Services list a species, subspecies, or a large 
population, but then engaged in decisionmaking under provisions 
throughout the rest of the Endangered Species Act on smaller 
populations that never more considered in rulemaking, never 
were the subject of notice and comment and public 
participation. They divide what was a species or a subspecies 
or a large population segment into smaller recovery units in 
the recovery plan each of which is subject to a separate 
recovery goal, thereby extending the time in which the species 
remains on the books as a threatened species or an endangered 
species, and they also divide them into smaller populations 
when undertaking section 7 consultations thereby making it 
easier to find jeopardy--both clearly problems for landowners 
and private property interests.
    I do have some suggestions for change which I would be 
happy to share with the committee at the appropriate time.
    Senator Crapo. Thank you, Mr. Quarles.
    Mr. Moyer.

 STATEMENT OF STEVEN N. MOYER, VICE PRESIDENT OF CONSERVATION 
            PROGRAMS, TROUT UNLIMITED, ARLINGTON, VA

    Mr. Moyer. Thank you, Mr. Chairman, Mr. Crapo. I really 
appreciate the opportunity to be here today to represent Trout 
Unlimited. Trout Unlimited is a national fisheries conservation 
group dedicated to protection and restoration of the Nation's 
trout and salmon species and the watersheds on which they 
depend. We have 130,000 members in about 500 chapters across 
the country, and our members generally are trout and salmon 
anglers who contribute a lot of their time and money back into 
protecting and restoring a resource that they love.
    Because of declining populations of native trout and salmon 
across the country, especially in the West, our members 
increasingly rely on the provisions of the Endangered Species 
Act to protect trout and salmon. So TU supports the Endangered 
Species Act and considers it to be one of the most important 
laws that we have for protecting and restoring trout and salmon 
populations.
    I just wanted to begin by expressing my thanks to you, Mr. 
Crapo, for supporting the Snake River salmon appropriations 
package that you did. I think that is a bold step and very 
constructive, and fitting with your longstanding interest in 
that issue.
    Senator Crapo. Thank you.
    Mr. Moyer. Now let me get straight to summarizing my 
summary by making the following statements.
    TU believes that the listing and delisting processes as 
written in law are fundamentally sound. Implementation of the 
processes by the agencies is slowed unacceptably because of the 
huge listing backlogs and insufficient funding, most 
importantly. Implementation of the listing process clearly 
needs to be improved, but in our view the solution to the 
problem is not to weaken the process legislatively or 
administratively, but rather it is for the Bush Administration 
to propose and Congress to appropriate additional funding for 
listing decisions.
    On the question of science, in our experience, applying 
sound science to listing and delisting decisions is not a 
substantial problem. We think the Services generally work very 
hard at getting the science right and giving people adequate 
chance to comment upon it.
    Just on the current proposal that is before us that has 
been discussed, we don't support the current Bush 
Administration proposal to, among other things, restrict 
citizen lawsuit enforcement of the listing deadlines. And, 
again, what we think is the right thing to do is to, instead, 
appropriate a significant increase for listing.
    Finally, one thing that I really wanted to raise, because I 
don't think it has been raised before, is that there are a 
number of good opportunities for the subcommittee and the 
committee that the committees can avail themselves of to really 
get at the root problem that we are talking about today, which 
is the substantial declines in species populations across the 
country. That is to support conservation initiatives other than 
in the Endangered Species Act which could actually reduce the 
need to list species in the first place.
    Three examples that I talked about in my testimony were the 
CRA, the Conservation Reinvestment Act, the Fishable Waters 
Act, and front and center are the conservation programs under 
the farm bill. These are three pending issues that the 
committee will be looking at that could really get at the root 
problem.
    A couple of other points I would like to elaborate and 
emphasize, and first is declining populations, especially of 
fish and wildlife. Populations of species that are vital to 
sport and commercial fisheries are reaching threatened and 
endangered status, and there are now 33 species of trout and 
salmon that are listed. These range all the way from the rivers 
of Maine, where Atlantic salmon are listed, to bulltrout of the 
intermountain West, to the Pacific salmon of the Northwest and 
California.
    The ESA listing and delisting processes are fundamentally 
sound, we think, as I mentioned before. Congress wisely stated 
that the decisions to list or delist species should be based 
solely on the best available science. In our experience, the 
Services generally have used this authority appropriately. We 
have had disagreements with the agencies over their 
interpretation of the science, but in the main they have done a 
respectable job.
    Similarly, ESA's mandate to protect distinct population 
segments is a wise, essential conservation tool, especially for 
species such as trout and salmon, which consist of an array of 
populations like fibers in a tapestry that give resilience and 
strength to species. These populations provide the genetic 
fitness that species need to survive the vagaries of weather, 
environment, and human-contrived obstacles that threaten them.
    Conservationists would generally like to see National 
Marine Fisheries Service, for example, segment out the distinct 
populations even further, because biologically it probably 
would be a helpful thing to do in some cases. But, while we 
don't always agree, again, we will continue to debate these 
issues. We respect that the agencies have a difficult job to do 
in making these decisions and they are trying hard to do them 
well.
    I just wanted to end by making two more points. One is that 
listing of trout and salmon has benefited all the species that 
have been listed. There's some thought that, because there have 
been so few delistings, that the species perhaps haven't 
benefited by listing. In fact, in our experience, all the 
species that have been listed have gained some benefit.
    Two I will mention in particular are the greenback 
cutthroat trout in Colorado, the State fish of Colorado, and 
the Apache trout in Arizona. Both species, once on death's 
doorstep, have now been restored to the point where very 
limited, very restrictive catch-and-release fisheries can occur 
which provide great economic benefit to communities and 
individuals in those States. So there's two examples where the 
Endangered Species Act lifting has really helped, but we think 
it has helped across the board.
    Finally, I just wanted to mention again the opportunity 
that the subcommittee and the committee have before them in 
other areas besides the Endangered Species Act. The bills that 
I mentioned before I think are three good examples where the 
committee could take very helpful action that would get at the 
root cause of the listing problem, which is that there's a 
whole lot of species that need to be listed.
    So thanks very much for the opportunity to testify today.
    Senator Crapo. Thank you very much, Mr. Moyer.
    Mr. Moss.

   STATEMENT OF RALPH L. MOSS, DIRECTOR, GOVERNMENT AFFAIRS, 
  SEABOARD CORPORATION, WASHINGTON, DC, ON BEHALF OF ATLANTIC 
                        SALMON OF MAINE

    Mr. Moss. Mr. Chairman, my name is Ralph L. Moss, and I'm 
testifying on behalf of Atlantic Salmon of Maine, which is the 
largest salmon aquaculture company in North America. Seaboard 
Corporation is a major stockholder in Atlantic Salmon of Maine, 
and I have been involved with this issue for the last 7 years. 
I appreciate the opportunity to testify before you this morning 
concerning our firsthand experience with the recent joint 
decision of the U.S. Fish and Wildlife Service and the National 
Marine Fisheries Service to list the Maine Atlantic salmon as 
endangered under the ESA.
    In our particular case, we believe that this Act is being 
implemented in an arbitrary and heavy-handed manner that is 
both inconsistent with congressional intent and 
counterproductive for the restoration of the species. We would 
like to be clear that our company is a strong partner in the 
State of Maine Atlantic Salmon Conservation Plan and supports 
salmon restoration in Maine rivers. But, like Maine's Governor, 
Angus King, and the members of our congressional delegation, 
our company opposes the Services' decision to list these fish 
as an endangered species. The listing is fundamentally wrong 
for scientific, legal, and policy reasons.
    Maine salmon runs are restoration fish, the product of more 
than 120 years of hatchery stocking of non-indigenous salmon 
into these rivers and do not qualify as a distinct population 
segment for ESA listing. The Maine listing represents a 
dangerous backslide by the Services into an inflexible 
interpretation of the ESA that fails to honor the State 
conservation plans and creates an unsustainable burden on 
Federal wildlife programs.
    It is widely recognized that the Federal Government alone 
cannot recover endangered or threatened species. The States, 
with their traditional authority over wildlife management and 
land use planning, are ideally positioned to fashion 
conservation plans that are custom-tailored to the resource, 
its habitat, and local conditions. This is especially true in 
Maine. Virtually all salmon habitat is in private 
landownership, and only the voluntary cooperation of landowners 
will enable salmon habitat upgrades.
    In Maine's case, the Services initially recognized the 
value of the State's conservation plan. This plan was developed 
by a task force which included Federal fishery scientists. The 
Maine plan provides 5-year action plan to recover the species 
with specific priority actions for each of the rivers. The plan 
gives top priorities to the projects that directly benefit the 
resource and provides creative solutions for the agricultural, 
forestry, and aquaculture areas to minimize stock impacts and 
disruption of the Downeast businesses.
    In December 1997, the Services celebrated the Maine plan as 
a national model that would open a new chapter in conservation 
history. The Services determined that a threatened ESA listing 
of the runs was not warranted because the State plan offered 
sufficient protections, but less than 2 years later, apparently 
in response to pressure from a lawsuit filed by environmental 
groups, the Services abruptly reversed course and decided to 
list Maine Atlantic salmon as endangered. The Services failed 
to provide a credible rationale for the listing or to 
demonstrate any truly changed circumstances in the status of 
the Maine run.
    The State of Maine put $2 million into their plan. Our 
company alone put $200,000, at the State's request, into this 
plan. This was for an innovative adult restoration stocking 
program, raising wild fish from the river for later release, 
and natural spawning. Although highly successful to date, the 
adult stocking program's future is uncertain now with the 
listing.
    By rushing into the listing, the Services effectively 
derailed the State plan. There is no appetite now for dealing 
with the Services on the part of the industry. Given their 
failure to be guided by the best available science and the poor 
track record on pragmatic solutions, the Services turned a deaf 
ear to the ESA mandate that the best scientific evidence be 
used to make listing determinations and failed to heed 
congressional cautions to use their power to list distinct 
population segments sparingly.
    We heard the Services' representatives repeat many times in 
the Maine listing hearings that, although the genetic evidence 
was incomplete and that the genetic heritage of the Maine 
salmon was not clear, the precautionary principle required that 
the salmon be listed, given the low population levels. The 
agencies' growing reliance upon the precautionary principle in 
ESA represents a fundamental conflict with statutory authority 
and congressional intent on ESA listings.
    I could go on, and I will be allowed during the questions. 
I hope to be able to make some suggestions, but I would like to 
conclude by saying that we, as an industry, have vowed to work 
with the State. We hope that this decision can be reversed, and 
we are prepared to work with you and your committee on this 
issue.
    Senator Crapo. Thank you very much, Mr. Moss.
    Mr. Grader.

  STATEMENT OF ZEKE GRADER, EXECUTIVE DIRECTOR, PACIFIC COAST 
   FEDERATION OF FISHERMEN'S ASSOCIATIONS, SAN FRANCISCO, CA

    Mr. Grader. Thank you, Mr. Chairman. I appreciate this 
opportunity to discuss with you today the issues of listing and 
delisting of species under the Endangered Species Act. Our 
organization has had considerable experience working with the 
Endangered Species Act since at least 1986. My organization, as 
the name might imply, represents working men and women in the 
West Coast commercial fishing fleet. These people depend on 
fish, the productivity of the oceans and our rivers, for their 
livelihoods and they're food producers.
    You have copies of our written comments, which are fairly 
extensive. Rather than summarize or repeat those, what I would 
like to do, rather, Mr. Chairman, is talk about one specific 
instance, one particular species, and give an example of what I 
think works and doesn't work with the listing and delisting 
process. That species I would like to talk about is the 
Sacramento winter run chinook salmon.
    This, as you may know, was the first Pacific salmon listed 
under the Endangered Species Act, and it actually goes back to 
the efforts in 1986. This species, I should add, numbered about 
120,000 spawners in 1969. This was a unique species along the 
Pacific Coast that spawned in the summertime, even during hot 
weather. It was a run that Livingston Stone wrote admiringly 
about when he first came to the West Coast on behalf of the 
Fish Commissioner in 1870. He was looking at problems with 
Pacific salmon.
    Like I said, in 1969 there were 120,000 winter-run chinook 
spawners. By 1986 that number had declined to some 2,000 fish. 
The warning was sounded by the American Fisheries Society, 
which is the professional organization of fishery scientists in 
this Nation. That year AFS petitioned for listing of winter-run 
salmon under the ESA. They cited the various reasons for the 
causes of the declines--everything from warm water releases 
from a major Bureau of Reclamation reservoir at Shasta Lake, 
diversions from an irrigation diversion dam or irrigation 
projects on the Upper River that were entraining and putting 
fish into the fields, juvenile fish; a diversion dam downstream 
that was causing problems--creating habitat for predators, as 
well as problems further downstream in the Delta--the 
Sacramento-San Joaquin Delta, from two major pumping 
operations, State and Federal, as well as pollution from a 
Superfund site originating at an old mining operation.
    Shortly after the petition was filed and a lawsuit was 
threatened, the agencies took upon themselves, the State and 
Federal agencies, to come together with a 10-point plan for the 
recovery of these fish. They looked at some of the issues that 
the American Fisheries Society had laid out.
    But what they came up with was basically what we call the 
10-point handshake. None of it was enforceable except for the 
restrictions on fishing in the river by the recreational 
fishermen. Ironically enough, that--the fishing--was not listed 
by the American Fisheries Society as one of the problems that 
had led to the decline of the fish.
    By 1989 the run had declined to 400 fish. The fishery 
agencies still had not acted. Finally, the California Fish and 
Game Commission decided to act and did list the run under the 
State's endangered species act, more or less embarrassing the 
Federal agency the National Marine Fisheries Service to finally 
take action.
    By 1991 the run was down to 191 fish and was quickly on the 
way to extinction. At that point my organization called 
together the State and Federal agencies that were responsible. 
It is ironic that a group of fishermen has to pull the agencies 
together, but that's, indeed, what happened, and said, we've 
got to do something. We embarked on a captive brood stock 
program, among other things, and started demanding enforcement 
of actions designed to address the declines.
    Shortly after that, and under some threats from lawsuits 
from private groups such as our own, the American Fisheries 
Society and some of the recreational fishing groups, the Agency 
did take some action against some upstream water diverters. A 
$100 million plan was put in place to finally correct a 
temperature control at the Shasta Dam, and fish passage at the 
Red Bluff diversion dam was taken care of by lifting the gates 
during critical passage periods. Moreover, the State and 
Federal pumps in the Delta were curtailed during the critical 
migration periods.
    What happened, then, is that the Agency did finally act 
hesitantly when the run was almost near extinction, and we have 
seen progress over the last few years. The Act, the ESA, does, 
in fact, work to restore fish. I think the winter run are a 
classic example. We are up to between an estimated 3,000 to 
10,000 fish now. We are on our way to recovery.
    But the concern with all of this is that we have to do 
something about getting the agencies to act in a timely 
fashion, not waiting until we're on the brink of extinction 
before we go to list these fish. Obviously, more funding is 
needed in the listing process. But, probably more important, we 
need funding in the delisting area to make sure that we can put 
in place those type of corrections for addressing habitat and 
other problems that caused the decline in the first place, so 
that we can then promptly and quickly get the runs back and 
recovered and then have them delisted. So funds are needed, 
yes, for listing, but we also need to be looking, too, as well 
as appropriations, to get on with delisting these species. That 
is going to take money, Mr. Chairman. Thank you.
    Senator Crapo. Thank you very much, Mr. Grader.
    Let me go with my questions. First to you, Mr. Quarles, I 
wanted to follow up with the comment that you made when you 
were talking about distinct population segments. Either in your 
written testimony or your oral testimony--I can't remember 
which--there was something that caught my attention about the 
fact that the Services are apparently listing recovery units 
that are even smaller than distinct population segments; is 
that right?
    Mr. Quarles. What they're doing, which we find very 
disturbing, is they will list a species, a subspecies, or a 
distinct population segment, and then in implementing the rest 
of the Act, they will adhere to the category or the level that 
was listed.
    Senator Crapo. Right.
    Mr. Quarles. For instance, with red-cockaded woodpeckers, 
they listed a very large--now I can't remember whether it was a 
species or subspecies--but a bird that is found throughout the 
Southeast. Instead, when they do jeopardy determinations under 
the consultation process, they basically, without rulemaking, 
simply establish a small population of the wookpecker and 
determine whether the Agency action--timber harvesting or 
whatever--is jeopardizing that population, rather than 
jeopardizing the species which was actually listed.
    The same thing happens in recovery plans. We're seeing more 
and more often that the Services will list a population like 
the grizzly bear or the Mojave population of the desert 
tortoise, and then in recovery plans, without any rulemaking, 
basically, relist as recovery units or distinct population 
segments a whole number of smaller populations. We believe that 
is clearly contrary to the Act.
    Senator Crapo. In your testimony you said you had some 
recommendations for how to solve the problem. What would those 
be?
    Mr. Quarles. Well, basically, it would be to enact into law 
what this committee said in its committee report in 1979. My 
view is that the way the Endangered Species Act now reads there 
is suggestion that all three categories, if found, must be 
listed--species, subspecies, and distinct population segments--
if they're at risk in a portion of their range. My view would 
be to make listings of species and subspecies mandatory, but to 
make listings of sub-subspecies or distinct population segments 
discretionary, and to put into statutory form your command that 
that be done sparingly, perhaps putting a burden of proof on 
the Agency that it must have legally reviewable biological 
reasons for designating a distinct population segment.
    Second, the law should be amended to make it clear that, 
once a species is listed as a species, subspecies, or distinct 
population segment, it must be treated in that form in 
decisions made under the rest of the Act--where the term 
``species'' is used in consultation, in recovery, and in 
delisting.
    Finally, I would, since no one else has, support the 
proposed legislative provision in the Bush budget. I believe it 
is far more sophisticated than the seldom mentioned November 
policy of Secretary Babbitt, which was to put a moratorium on 
all listings that were not ordered by a court. I believe that 
the Bush proposal provides an opportunity for as many listings 
as would have occurred under the Babbitt moratorium, but with 
the sophisticated, scientific expertise of the Agency 
prioritizing those that ought to be listed in a timely manner.
    Finally, I would disagree that the Bush proposal removes 
citizen suit rights. All it does is eliminate the statutory 
listing and deadline under which many citizen suits are 
brought, but it does not stop a citizen to bring a suit, saying 
the failure to list is arbitrary--that the species is so 
endangered that the Agency just is acting in an arbitrary 
manner under the APA. There clearly is still an opportunity for 
citizens' suits. So I disagree that it denies citizens' suit 
ability.
    Senator Crapo. Well, let me talk with the panel in whole 
about that issue of litigation. Mr. Echeverria, you indicated 
that--and I think Mr. Moyer and Mr. Grader all have indicated 
concern with the Administration's proposal for the moratorium, 
which actually was begun in the previous Administration, and I 
think in both situations was a response to the type of 
circumstance that we heard in the testimony from the first 
panel in terms of the concern about the resources that are 
being diverted into litigation.
    It seems to me that we have a mounting issue here. I 
understand the point that is made with regard to the fact that 
we can increase resources, so that we can deal with the 
increased need for listing, but let me ask a question, and 
maybe, Mr. Echeverria, you can answer this. The litigation that 
I have described here in this hearing relates only to the 
listing and delisting process. Do we have similar amounts of 
litigation in other parts of the statute that the agencies face 
as they seek to administer the Endangered Species Act?
    Mr. Echeverria. I want to respond as well to some of the 
points Mr. Quarles has made but let me first respond directly 
to your question. I think the majority of the litigation now 
being pursued under the Endangered Species Act is relatively 
straightforward litigation dealing with the failure of the 
agencies to comply with nondiscretionary duties to list or to 
designate critical habitat. In my prepared testimony I compare 
a lot of the litigation that is being filed, in terms of its 
complexity, to determining whether or not somebody has violated 
a 2-hour parking limitation. These are not adventurous, novel 
pieces of litigation being filed. They are essentially 
enforcement actions directing the Agency to comply with the 
deadlines that Congress has very carefully and very 
specifically set forth in the statute.
    I want to take issue with Mr. Quarles' point that the 
proposed rider does not undermine citizen suits. What the 
proposed rider does do is it makes a current obligation of the 
agencies nonexistent, and, therefore, there's no legal duty. 
Obviously, no one can sue to enforce a nonexistent duty. So 
although it may in theory leave the citizen suit provision in 
effect, the proposal rider eliminates the legal duty that the 
agencies now have that provides the basis for citizen suits.
    On the question of resource diversion, I would question the 
extent to which resources are being diverted. I wonder, for 
example, if either the U.S. Fish and Wildlife Service or the 
NMFS contends that any of the species that have been listed in 
response to citizen suits are not deserving of listings based 
on the underlying science. And, similarly, with respect to 
critical habitat designations, whether they feel that any of 
the critical habitat designations they've made in response to 
litigation aren't fully warranted by the science.
    I think the fact of the matter is that there is an enormous 
backlog of work, a lot of scientifically justified work to be 
done in terms of listing species and designating critical 
habitat. The litigation that has gone forward has only gone a 
small way in forcing the agencies to do the work that needs to 
be done and that is scientifically justified.
    Senator Crapo. Do you think that litigation is the most 
efficient way to make this happen? I guess the question I am 
asking is, we have this same debate in the health care arena 
right now as to whether we should try to find some way to 
reduce the amount of litigation over health care. We have the 
same debate in the Superfund debate, the same issues here in 
the Endangered Species Act. In each of those areas we see 
tremendous amounts of dollars, of Federal appropriations as 
well dollars from other areas, whether it be State and local 
government or the private sector, being, I'm going to use the 
word, diverted but being put into litigation efforts which at 
first blush at least seem to be an incredible amount of 
resources being put into courtroom actions when they could be 
put into recovery actions or into some type of environmental 
restoration.
    So my question is, without challenging the notion that we 
should have the right as citizens to enforce the Act, isn't 
there a way that we could somehow improve it so that we have a 
reduction in the amount of resources that we are committing to 
litigation? I don't limit that just to Mr. Echeverria, but 
anybody.
    Mr. Echeverria. Well, I will just comment briefly. I think 
the agencies are being put in a very narrow box. On the one 
hand, they are being told to list endangered species and to 
designate critical habitat, and those obligations are 
enforceable through citizens' suits. On the other hand, they're 
not being given the resources to do the work. It seems to me 
that those two factors together are producing this boomlet in 
litigation.
    If the agencies had the resources to do the job, even if 
they didn't have $100 million over the next several years, if 
they had a significant increase in resources, that would allow 
them to work down the backlog and it would eliminate a lot of 
these lawsuits.
    Also, if the agencies had enough resources, simply the 
threat of litigation, the possibility of litigation, would be 
enough to make the agencies aware of their legal obligations, 
encourage them to comply with their legal obligations, and 
avoid the need for the filing of lawsuits in the first place.
    Senator Crapo. Anyone else want to respond on that?
    Mr. Grader?
    Mr. Grader. Yes, Mr. Chairman. I think there are ways of 
dealing with the litigation, but I don't think they're 
necessarily very popular. That would be, first of all, some 
appropriations so that we can deal with these species before 
they get to the critical point where they qualify for listing, 
and that is doing a better job of protecting some of these 
habitats.
    The Pacific salmon crisis didn't happen overnight. We had 
warnings back in 1971, when the California Citizens' Advisory 
Committee on Salmon and Steelhead Trout came out with a 
document called ``An Environmental Tragedy,'' outlining clearly 
what was going to happen, and people blew it off. If we would 
have acted then, many of these stocks would not have been 
listed.
    We know back in the 1980's, when we put together the 
programs for restoring Columbia River salmon stocks, what was 
going to happen and we chose to ignore the warning signs.
    Second, when we get to a situation where species clearly 
are threatened or in danger of being extinct, the agencies 
simply have not acted quick enough. I mean, there's been 
criticism here today of the Bush Administration. Well, I can 
tell you under the Clinton Administration we were highly 
disturbed when it appeared that, particularly in the Pacific 
Northwest, they seemed to want to protect the Endangered 
Species Act by protecting it from itself; that is, not 
enforcing it until it was nearly too late for the species. The 
listing actions by the Agency were often only after it was 
brought by litigation. None of us want to be in court. We want 
to get these species recovered. For my members, we want to 
bring them back to productivity so we can sustain our 
livelihoods.
    Senator Crapo. Mr. Moss?
    Mr. Moss. Yes, and I would, again, go back to the State of 
Maine plan. The State of Maine has known for a long time of the 
problem with the Atlantic salmon. The State very sensibly came 
up with a plan that again had the input of the Federal 
Government, the U.S. Fish and Wildlife Service, the National 
Marine Fisheries, and the industry. We have worked spending 
hundreds of thousands of dollars trying to avoid a listing, 
trying to create restoration programs. In fact, Governor King 
was in consultation with the Federal agencies at the same time 
that Secretary Babbitt was issuing the listing. There was 
duplicity and the Federal Government was not straightforward 
with us in their dealings.
    We had committed ourselves as an industry, with the State 
of Maine, to restore the Atlantic salmon, to preserve the 
Atlantic salmon. Then our feet were kicked out from under us by 
the Department of the Interior in the listing. It makes no 
sense. If you're trying to exert a good-faith effort and you 
have your feet kicked out from under you by the same agency 
that you're supposedly working with, there's a duplicity that 
should not be allowed to stand.
    Senator Crapo. Mr. Moyer and then Mr. Quarles.
    Mr. Moyer. Chairman Crapo, just one observation that I 
would have on your question is that I think there is an 
opportunity for the Administration and probably this committee 
to deal with conservationists who are bringing these suits and 
with others in the regulated industry and make a proposal which 
would be: If specified amounts of increased funding were to 
occur over a time period, 5 or 10 years, to get at the backlog, 
then perhaps there would be more understanding among the 
conservationists about going to court to getting issues 
resolved.
    I think the time is right, and perhaps this situation is 
tailormade for such a long-term plan that would have increased 
funding that would conservationists bringing the suit some 
assurance that the backlog would be cleared over a reasonable 
amount of time. So that's just one idea that I had that I think 
might have some merit.
    Senator Crapo. Mr. Quarles?
    Mr. Quarles. Yes, two points I wish to make: First of all, 
I think this is one place where, with a huge caveat, the 
regulated community is probably in agreement with the 
environmental community, and that is the lack of resources for 
the agencies. They are being starved.
    The one thing that we would say, however, is that if more 
funding is to be given to listing, there must be a comparable 
amount of funding given to those actions that are important to 
landowners and the regulated community. Just as deadlines for 
listing are being missed consistently by the Services, so are 
deadlines for consultation on agency permits needed by 
landowners to develop their land and on Fish and Wildlife 
Service manual deadlines for processing habitat conservation 
plans and issuing incidental take permits.
    So the simple matter is it only compounds the problem for 
landowners if, in fact, the money is placed on listing more 
species, and at the same time the Services continue to be 
starved in those programs or procedures that provide landowner 
relief. I think that's important.
    Then one other comment I might make. This is my clients; 
I've never checked it with them. I think there is possibility 
of compromise even on the issue of the Bush proposal long term. 
I think it's needed short term to get the Agency back on its 
feet.
    But one possibility is we now have arbitrary deadlines for 
listing in the Endangered Species Act, and they're the same 
arbitrary deadlines for both threatened and endangered species. 
It seems to me that the Act could be written so that at the 
time a petition is determined as prudent or at the time the 
Agency begins the listing process on its own behalf, that the 
scientists themselves set a deadline for that process based 
upon the degree of risk and the data gaps that may exist. Once 
that deadline is set by the scientists in the Agency with the 
best science, then that deadline becomes enforceable by citizen 
suit if the Agency fail to meet it. But it will allow the 
Services to set deadlines based upon the true degree of risk to 
the particular species involved.
    Senator Crapo. Well, thank you. In the remaining time that 
we have, I would like to kind of get into a broad question. 
Really this question is raised in my mind by all of your 
testimony, probably most significantly Mr. Moyer's point that 
there are conservation initiatives in other areas than the 
Endangered Species Act in which we can make a lot of progress. 
Mr. Grader has talked about the difficulty in the California 
situation of getting the action necessary from the Federal 
agencies under the statute. Mr. Moss has talked about the fact 
that the action under the statute derailed very positive 
efforts that were being undertaken in Maine. Mr. Moyer talked 
about the need to reinfuse resources into CRA or to the 
Fishable Waters Act or the conservation title of the farm bill.
    By the way, I am very glad that you referenced that, Mr. 
Moyer, because I believe that a lot of the things that we are 
doing in those areas are at least hopefully going to make a big 
difference. In fact, as things would have it, I end up being 
the chairman of the Subcommittee on the Agriculture Committee 
that is working on the conservation title. So maybe we can find 
some ways to make progress.
    But here's my question, and it's kind of a broad one which 
I would just like to get some discussion on: It seems to me 
that from the testimony that we have heard from the second 
panel, there are literally thousands of species out there that, 
at least according to some on that panel, should be listed. I 
don't know what the ultimate number is that should be listed, 
but if we assume that the problem here is that we don't have 
enough resources to list all the species that are waiting to be 
listed, we have to assume that there will be a significant 
number of listed species if we were to proceed along the lines 
that have been suggested by some.
    Each time a species is listed, then under the Act we need 
to proceed and recover the species and take the steps necessary 
under the Act. As I indicated earlier, in just the set of 
species that we're dealing with salmon and steelhead in the 
Pacific Northwest, it appears that we are looking at the need 
for--well, the recent proposal I made was somewhere just under 
$700 million a year for some undetermined amount of years, but 
a large number of years, just in that group of species. I don't 
know whether that group is unique in terms of the amount of 
money that it will take to recover, but I hope that it is and 
that we aren't looking at those kinds of numbers across the 
board for all of these various numbers of species.
    But my point is we're talking today only about the listing 
process and the fact that we need to put more money into the 
process of getting species listed. Then we're going to have to 
take the next steps and put more money into getting the species 
that are listed recovered and delisted. It seems to me that we 
are talking about a need, a financial need, there that I don't 
think anybody could put a handle on right now, but it is 
probably going to exceed what any Administration, Republican or 
Democrat, can meet in terms of the budget numbers that we are 
looking at, which raises the question to me:
    What do we do with scarce resources? Do we continue--is the 
Endangered Species Act the beginning or the end or the middle, 
or whatever, of species protection? Do we look at CRA, the 
Fishable Waters Act, and the conservation title in the farm 
bill, the Clean Water Act, or any number of other environmental 
statutes and put our dollars into those acts or to those 
efforts, so that we can try to avoid or at least improve the 
opportunity for action under the Endangered Species Act? Is the 
Endangered Species Act the Act that is supposed to kick in when 
these other efforts have failed and the species is threatened 
or endangered? Or is the Endangered Species Act to be sort of 
the mothership of all environmental actions, which is where all 
of our resources go in the first instance, and we then fund 
these other areas after we have funded the Endangered Species 
Act requirements?
    It is a difficult question that I am asking, I think, but I 
would like to have your input on just, what is the purpose of 
the Endangered Species Act and where should we put our 
resources? Anybody want to take a shot at that?
    Mr. Moyer. I'll do that because I think your health care 
analogy was a good one. The Endangered Species Act has largely 
been the emergency room triage. I think the point behind the 
thrust of my testimony was that much more needs to be done on 
the preventative care side. That's clearly got to be the 
cheapest and best way to conserve species, to keep them healthy 
when they're healthy and keep them out of the emergency room.
    So that's why I think there is a real need for Congress and 
for the committee to look at ways that they can do that. I 
don't have a grand vision of how that would be in 10 or 20 
years, but I just see the next year or two and I think there's 
some really good opportunities that I mentioned that you could 
grasp to really focus on preventative care rather than 
emergency room care.
    Senator Crapo. I would like to work with you on some of 
those opportunities.
    Mr. Moss.
    Mr. Moss. I would like to join that statement and again 
refer to what the State of Maine was attempting to do, which 
was derailed. We now have a situation in which our industry is 
no longer trustful of the Federal Government.
    I would like to make a statement. We as business people are 
not anti-environmental; we say this in Maine all the time. 
People approach us, ``How can you do this? You're destroying 
the species. You're destroying the habitat.'' Well, we are not, 
and we try to explain to them that it is not in our best 
interest in any way to destroy. We are conservationists. We are 
employing people, producing a sound product. That is why we 
joined with the State of Maine, with the scientists they 
brought in, the independent scientists, with the State 
agencies, and with the Federal agencies to create a State 
conservation plan for the Atlantic salmon.
    I would say that the Endangered Species Act has to be 
reviewed so that there aren't these kinds of abuses; so that 
they can't come in and derail a plan that was making progress. 
Now they've derailed it, and that progress is effectively 
stopped. There is not enough Federal money appropriated to take 
up from the point that the State's plan was derailed. There 
must be a review of this act and the abuses of the Act.
    Mr. Grader. Let me just add, Senator, however, we had just 
the opposite occurrence in California where it took the ESA to 
put recovery back on track, because, frankly--and this is a 
problem we're seeing--it is not just money. I once had a 
colleague, Molly Thomas, and I think she stated the problem 
very well. She said, ``Fish don't swim in money.'' Fixing the 
salmon problem and some of these other species problems is 
going to take more than money. It's going to take a change of 
will. It's going to take some changes on the parts of agencies.
    Right now part of our problem, I think, frankly, in 
California and the Pacific Northwest is not necessarily a 
dearth of money for salmon restoration; it is just the 
intransigence of some agencies not wanting to act. We have a 
joke in California that our biggest river is denial, and 
denial, in fact, is what often is happening. Because agencies 
just simply won't change until they are forced them to act. 
It's very expensive getting them to that point where they 
finally relent, if they ever do.
    We have talked about the need for science. Well, part of 
the problem is we're not adhering to science. We have 
biological opinions, for example, in the Columbia River where 
the agencies have chosen to ignore their own scientists. 
Everybody is screaming for peer review. I would just like to 
see the first step is that the agencies begin listening to 
their science before we hear from others screaming that we need 
to have peer review and better science. We can start by having 
better science with the agencies listening to their scientists. 
I think that would certainly speed things up and could bring 
about recovery in a much less expensive way.
    Senator Crapo. Thank you.
    Mr. Echeverria.
    Mr. Echeverria. I have a couple of brief thoughts. First of 
all, I want to say that is a very thoughtful question and 
you've nominated yourself for a trip down the hill to 
Georgetown University Law Center to explain to our students the 
complexities of the Endangered Species Act.
    [Laughter.]
    I think you identify an important question about costs 
because we have been focusing today on administrative costs and 
the simple agency expenditures required to identify critical 
habitat and list endangered species. Those costs are not 
insignificant, but they are insignificant in comparison with 
the full public and private costs of carrying out species 
conservation, once we have identified the habitat that needs to 
be protected and the species that are endangered.
    The the rubber hits the road, so to speak, when it comes to 
private land and the costs entailed in achieving species 
conservation on private land. This inevitably raises the whole 
property rights question, the takings question, and whether or 
not the burdens of carrying out species conservation can fairly 
and reasonably be imposed on private landowners or whether, 
instead, those are legitimately public costs and the Federal 
taxpayer has to pay for those costs through CARA, the Fish and 
Wildlife Foundation, or what some people have described as a 
New Marshall Plan for Species Conservation, something that 
could be very expensive.
    Just a couple of thoughts on this: One key point to 
emphasize is that wildlife is a public property resource. Under 
the laws of each of the 50 States, wild animals, whether they 
are threatened or not, are public property that the State owns 
on behalf of all the citizens of the State. The courts have 
broadly held in a variety of different contexts that 
restricting private actions on private lands in order to 
protect a public property resource doesn't result in a 
constitutional taking under the Fifth Amendment. Thus, keeping 
in mind the fact that private real property rights are at 
stake, there's also a public property right involved here which 
is also important.
    The second observation I want to make is that public 
payment programs, while useful in some circumstances, have a 
potential for abuse. I want to cite one example. There's a 
piece of proposed legislation moving through Congress dealing 
with a 1,500-acre property in Utah which is proposed to be 
included in a tortoise conservation area. This is a property 
that the owner bought apparently with full knowledge of the 
endangered species problems for, according to a recent press 
account, $1.1 million. The Fish and Wildlife Service has been 
trying to acquire this property. The owner acquired the 
property 11 years ago, and undoubtedly has spent some 
additional money since then. But he recently rejected a 
proposal from the Department of the Interior to purchase the 
property for some $28 million, claiming that he should be 
entitled to more than that. It seems to me that this case is 
symptomatic of a potential problem, which is that those 
confronting endangered species problems may demand too much of 
the Federal taxpayer. Federal financial assistance programs for 
wildlife conservation could lead to some of the kinds of abuses 
we've seen in other major Federal funding programs.
    My ultimate conclusion is that the Federal taxpayer can't 
buy our way out of this problem. There is a place for financial 
incentives and financial assistance, but over the long term 
what we need is a change in values and a change in investment 
expectations. We need to put in place a flexible regulatory 
process that over the long term directs investors to invest in 
activities that don't present endangered species problems and 
discourages investment in projects that create more endangered 
species problems. Clearly, we need over the long term to 
reorient the economy in a way that reduces ESA conflicts and to 
avoid public policies that exacerbate those kinds of conflicts.
    Those are somewhat general comments in response to a 
general question, but I appreciate the opportunity to comment 
on your very thoughtful question.
    Senator Crapo. Thank you.
    Mr. Quarles?
    Mr. Quarles. Yes. Unfortunately, I don't have an answer, 
but I do have a concern. First of all, I heard it said that 
fish don't swim in money. Many landowners who have salmon 
habitat think that fish swim in their money. That's one of the 
problems.
    Agencies like the Services that are desperate to husband 
the resources that they have have a real temptation--and one 
that I fully understand--having served in the Department of the 
Interior--to try to transfer as much of the responsibility as 
possible to the regulated party; let the regulated party spend 
the money rather than the Government. That is one thing that 
concerns me deeply.
    I will give you only one minor example, which, 
unfortunately, if Gary Frazer is still sitting behind me, he's 
heard me talk about too many times before, which is my concern 
about designating critical habitat--and I know we're not 
talking about that in general--but the regulation requires the 
agencies to designate critical habitat by map boundaries. 
That's a very expensive process.
    What we are seeing more and more is that the Service will 
draw very large map boundaries, name constituent elements that 
are important to the critical habitat, and then require the 
individual landowners to hire the biologists to determine 
whether or not their land has the constituent elements that 
would be critical habitat. So even though the Services are 
still mapping, they're leaving the real responsibility of 
determining what is and is not critical habitat to the 
landowner in some of their more recent listings rather than to 
the Agency itself.
    I fear there is the danger of transferring significant 
responsibility, monetary responsibility, to the landowner as a 
way of husbanding taxpayer dollars. I think that would be 
inappropriate.
    Senator Crapo. Well, thank you. Obviously, this is an 
extremely complex issue, and we're just talking about sort of 
the initiation part of it now with regard to the listing 
process.
    We have run out of time for the hearing. So I won't be able 
to ask any more questions. I should remind you that the record 
will remain open for 2 weeks. And all of the witnesses may 
receive questions from some of the Senators who were not here. 
You are also welcome to supplement what you have provided to us 
during that 2 weeks, if you feel that there is additional 
information that you would like to provide or things that you 
didn't get a chance to say or further thoughts that you have 
had. I can assure you that the material you provide is going to 
be carefully reviewed.
    Senator Crapo. I think all of the witnesses today have 
provided helpful information. This is obviously an issue on 
which it is going to be difficult to find consensus, but it is 
one on which I believe we have identified a number of areas in 
which we can make improvements and a number of areas in which 
our effort will potentially yield some significant results.
    So, again, I thank you for your participation in this 
hearing and encourage you to continue to work with this 
committee as we seek ways to reform the Act and reform the 
administration of the Act, and to ultimately achieve our 
objective of recovering and strengthening species and improving 
our environment in this country.
    With that, the hearing is adjourned. Thank you very much.
    [Whereupon, at 12:14 p.m., the subcommittee was adjourned, 
to reconvene at the call of the Chair.]
    [Additional statements submitted for the record follow:]
      Statement of Hon. Bob Smith, U.S. Senator from the State of 
                             New Hampshire
    Good morning and thank you Mr. Chairman. I am delighted to be here 
and discuss this very import issue.
    The Endangered Species Act (ESA) was enacted in 1973 as an attempt 
to protect species with diminishing populations. The ESA makes it 
illegal to take or harm any listed species. It also prohibits any 
Federal action that will jeopardize the future of any listed species or 
critical habitat, and requires the development of recovery plans for 
listed species. The main idea behind ESA was to list a species and then 
recover that species so it could be delisted.
    Unfortunately, it hasn't worked out that way. To date, 1243 species 
have been listed, yet only 9 have been delisted via recovery. Nineteen 
species have been delisted for other reasons, including extinction. 
While there are a few success stories, clearly the ESA has not worked 
as it was intended. The fact that only 9 listed species have been 
sufficiently recovered to be delisted should be cause for concern.
    There have been attempts to address the flaws in the Act--the most 
recent serious attempt was by Senator Kempthorne in the 105th 
Congress--legislation that I cosponsored. That bill placed a strong 
emphasis on science--and I believe that to be critical.
    ESA can be an emotional issue--and it is precisely for that reason 
that we must ensure that decisions are made based on science. Science 
that is peer-reviewed, defensible and non-partisan.
    There have also been numerous concerns about the role of the 
private property owners and how ESA impacts them. Senator Kempthorne's 
bill would have expanded the participation of the public and provide 
new incentives for private property owners to preserve species. In 
short--it set out a more cooperative approach for dealing with species 
preservation--getting away from a top-down regulatory regime.
    Needless to say, I strongly support this type of approach. My goal 
is an approach that will preserve species in the most effective manner 
possible and I believe that means working with, not against land 
owners. Make no mistake--I am a staunch defender of private property 
owners. I am also a firm believer that our true conservationists are 
those who live off of the land--who take being stewards of the land 
very seriously. In fact, the great majority of species are on private 
lands. We should recognize and embrace this fact by providing them 
incentives to help ensure that these species, both listed and delisted, 
are protected and private property rights preserved.
    It is worth noting that, along with Senator Crapo, Senator Reid and 
others, I will soon be introducing a Comprehensive Conservation funding 
bill--this is not an ESA fix, but a separate bill that will, among 
other things, establish a new competitive matching grant fund that will 
allow private landowners and family farms to receive assistance to 
protect endangered and threatened species on their land. It is my hope 
my Conservation bill will help private landowners do what they really 
want to do--but it is not a fix for ESA.
    I look forward to working with the subcommittee chairman, Senator 
Crapo, as well as Senator Graham and Senator Reid to address the ESA--
possibly moving rifle shot reforms.
    Mr. Chairman--thank you again for your efforts on this issue.
                               __________
  Statement of Hon. Harry Reid, U.S. Senator from the State of Nevada
    The timing of this subcommittee hearing on the listing and 
delisting of species under the ESA couldn't be better. Why? Because the 
Administration's budget recently made two very strong statements about 
these ESA programs. Two completely wrongheaded statements. First, take 
science. I've read the testimony that will be presented here today. No 
one disputes that listing decisions--indeed all decisions under the ESA 
should be based upon the best science possible.
    The Administration itself repeats the ``sound science'' mantra in 
its testimony, and throughout its budget request for ESA programs 
generally.
    Sound science, to me, means good science, and we know that good 
science isn't cheap. But this Administration's budget cuts ESA science 
funding, along with funding for recovery plans, habitat conservation 
plans and candidate conservation plans--all the things we know are 
critical to achieving success under the Act.
    Instead, the budget is a sop--it cuts these programs and tells our 
threatened and endangered species to look to the Land and Water 
Conservation Fund stateside grants for the funding to stay alive.
    In my State of Nevada that will mean that desert tortoises, 
Lahontan cutthroat trout and Armagosa toads will compete with pools, 
ballparks and recreation centers for funding.
    One example of this sop hits close to home. This budget cuts a 
program I helped start called the Nevada Biodiversity Initiative. We 
started it in 1993, but as a result of its tremendous success, it 
became part of the President's budget 5 years ago.
    The Initiative has helped provide the scientific understanding of 
imperiled species throughout the West, and has helped direct 
conservation and recovery efforts in a scientifically effective way. 
The Administration zeroes out the Initiative in its budget. It cuts the 
science that is the foundation for every ESA-related activity in 
Nevada.
    The second wrongheaded statement the Administration makes in its 
budget is to ask for a rider to prohibit citizens from petitioning the 
FWS to list species as threatened or endangered, or from designating 
critical habitat.
    The Administration argues that the rider is necessary because 
compliance with citizen generated court orders will consume the entire 
budget for listings and critical habitat.
    The Service argues that this litigation forces it to protect 
species under the Act based upon citizen and court priorities rather 
than according to its own priorities.
    That argument simply doesn't hold up. The overwhelming majority of 
litigation over listings arises when the FWS fails to meet a statutory 
deadline to respond to a citizen petition to list. In responding to 
that petition, the FWS can decide to list a species, not to list it, or 
can put it on a candidate list and assign it a low priority for listing 
based upon listing guidance that's been in place since 1983. Is there a 
lot of litigation over the priority the FWS assigns to citizen-
petitioned listings? Are citizens going in and reordering the 
priorities the FWS sets?
    No. The suits force the Service to meet deadlines. Citizens, at 
least in this context, are not determining the listing priority of 
species. Do citizen suits often prompt important listings that might 
not happen because of political opposition?
    Yes. Salmon, spotted owls, and--in Nevada--the desert tortoise, 
were all listed as a result of citizen suits. What's the answer to the 
backlog?
    What about increasing the funding for the listing program? The 
Service estimates that it would take roughly $80-120 million to clear 
up the backlog. We could develop a 5-year plan to get this work done, 
rather than shutting the courthouse door to our citizens.
    While we all might disagree about some of the topics to be 
discussed here today, we should all be able to reach agreement that the 
ESA can't achieve its goal of restoring threatened and endangered 
species if we starve it of funding.
                               __________
  Statement of Hon. Max Baucus, U.S. Senator from the State of Montana
    Thank you Mr. Chairman for holding this important and timely 
hearing on the listing and delisting procedures of the Endangered 
Species Act. I would like to thank our distinguished panel of guests 
for appearing today to testify.
    I believe strongly in preserving this country's unique biodiversity 
and I believe strongly in the mission of the ESA.
    However, I have always been willing to explore ways to make the Act 
more effective in protecting and recovering endangered and threatened 
species, and more sensitive to the legitimate concerns of States and 
private landowners. I've worked hard on ESA reform in past Congresses, 
working with my colleagues on this committee to craft a bipartisan ESA 
re-authorization bill in the 105th Congress.
    Our bill made significant improvements to the Act, improvements 
that we felt made the Act a more effective tool in the identification 
and recovery of endangered or threatened species. It's a shame that the 
bill did not pass. It wasn't perfect, but I believe it would have made 
a real difference, not only to overall species recovery efforts, but to 
the States and local communities that often find themselves at odds 
with the mandates of the ESA. The bill contained provisions that 
addressed some of the concerns that will be raised today about the 
listing process, such as independent peer review of listing and 
delisting decisions and more transparency in the listing process.
    And yet, after all that time and effort, here we stand today, 
trying to figure out what's gone wrong with the listing process, a 
process that I've heard called both ``broke and broken.'' Some say that 
the Fish and Wildlife Service is paralyzed, that it has too much work, 
not enough money, and is buried under citizen lawsuits. Only the most 
desperate cases get any protection. This in turn makes it more time 
consuming and expensive to help species recover, which in turn makes 
the Act seem that much more of a burden on private citizens.
    I find this incredibly frustrating. We've had opportunities to make 
the ESA more efficient, effective, and more sensitive to private 
landowners and States, and we haven't capitalized on them. We continue 
to chronically underfund the entire Endangered Species Program, leading 
to the current crisis in the listing program that we're discussing 
today--species that warrant protection that aren't getting it, and 
their conditions are deteriorating, and listed species aren't being 
recovered to the point where they may be delisted.
    I believe the current outcry over excessive court involvement in 
the listing process is a symptom of a far larger problem--an agency 
that is underfunded and overworked and that just can't get the job 
done. But, let me be clear, I don't think the answer is to yank the 
people's ability of to petition the Service to list a species, or to 
designate critical habitat. The last thing we want is less public 
participation in the Federal decisionmaking process. Federal Agencies 
face substantial political pressures, from all sides, especially in an 
area as controversial as the implementation of the ESA. Although some 
may view the process as having been abused by certain groups, and in 
some instances that may be true, the petition process is an important 
vehicle for local government and citizens to be heard in the larger 
national debate over endangered species. And, the shoe could easily 
land on the other foot--what if a citizen's group wants to oppose a 
proposed listing?
    After all, this is not a new issue for any of us. As you should 
recall, we worked to improve State involvement in the process, to 
improve incentives for landowners to conserve species on private lands, 
to encourage better science at all stages of species recovery, from 
listing to delisting. For a variety of reasons, we just didn't deliver.
    Clearly we've learned that gutting the Act is not the answer, nor 
is it something I support, or that I believe a majority of my 
colleagues support. But we should also have learned that continuing to 
underfund the Agency is not an appropriate or useful response, either. 
To simply padlock the Agency's toolbox, does little to address the 
daily list of chores we call upon the Agency to accomplish. A lot of 
Federal and State agencies depend upon the U.S. Fish and Wildlife 
Service, and the National Marine Fisheries Service, to do its job, to 
do it well, and to do it in a timely fashion.
    So, let me paint you a picture. Highway projects fund nearly 14,000 
good-paying jobs for Montanans. In Montana the Fish and Wildlife 
Service is stretched thin. When a city, county or the State wants to 
widen a road, install a culvert, rebuild a bridge, before you can show 
up with the flagger or the concrete mixer or the heavy equipment, the 
project is often effectively tabled before it's begun for lack of 
enough agency support to complete routine biological opinions and 
assessments. Every Congress, I work hard to get money for Montana 
highway projects, which does Montanans little good when they have to 
wait months or even years for an ESA consultation process to be 
completed. The same can be said of time-sensitive salvage timber sales 
in Montana's National Forests, and other projects that support the 
livelihoods of people in my State.
    The ESA was never, never supposed to trump good and necessary 
projects that can and should move forward. I know that this hearing is 
not about ESA consultations or other functions of the Fish and Wildlife 
Service under the ESA, but they are a good analogy to the problems the 
Service is facing under its listing program. The U.S. Fish and Wildlife 
Service's budget has not increased significantly since a 1990 
Department of the Interior Inspector General's Report stated: It is 
obvious that the Service's mission cannot be fully accomplished at 
present funding levels.
    I believe a lack funding has severely compromised the effectiveness 
of the Service in carrying out its duties under the ESA, resulting in 
project delays and frustration at the local, State and Federal level. 
No one's interests are served in this situation, not the local, county, 
State, or Federal Government's, not the private citizen's, not the 
public's, and not endangered species. It's easy to accuse a Federal 
agency of dragging its feet. But, it's far more challenging to fund the 
Agency at an appropriate level, to give it the resources it needs to do 
properly the job we ask of it.
    I realize that the preservation of endangered and threatened 
species entails considerable financial burdens that should not fall 
solely on the U.S. taxpayer, and that we need to search constantly for 
new and innovative ways to preserve species and their habitats as our 
population continues to expand and our economy to grow. We owe it to 
our children and grandchildren, and all those who come after them. But 
again, increased funding would give the Fish and Wildlife Service more 
flexibility to be creative, to work with landowners, local communities 
and States to set priorities and to protect species and their habitats 
before they sit on the brink of extinction. Before the Federal 
Government has step in and contemplate a listing.
    We owe it to the citizens of this country to follow-through on the 
duties we in Congress have imposed on the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service.
    Again, I look forward to the testimony of the witnesses on this 
important issue and I thank them for their time.
                               __________
 Statement of Gary Frazer, Assistant Director for Endangered Species, 
       U.S. Fish and Wildlife Service, Department of the Interior
    Mr. Chairman, I appreciate this opportunity to discuss how the U.S. 
Fish and Wildlife Service carries out its duties related to listing and 
delisting species under the Endangered Species Act (ESA or Act). Our 
procedures, some prescribed by statute and others by agency regulations 
or policies, are all focused upon ensuring that our decisions are 
objective, based on good science, and made in the open with peer review 
and public participation throughout.
    The Fish and Wildlife Service (Service or FWS) is committed to 
making the Endangered Species Act work in the eyes of the public, the 
Congress, and the courts so as to accomplish its purpose of conserving 
threatened and endangered species and protecting the ecosystems upon 
which they depend. This is a challenging task, involving precious and 
irreplaceable natural resources, a complex statute, and many 
stakeholders with deeply held and often conflicting interests.
    In this environment, the following principles provide the 
foundation for the Administration of our listing and delisting 
activities--ensure that our decisions are based on the best available 
science, seek independent peer review of our decisions, provide for 
public participation throughout our decision process, and ensure that 
our decision process is understandable and transparent.
   science, peer review, and public participation in the listing and
                           delisting process
    The Endangered Species Act requires listing determinations to be 
made solely on the basis of the best scientific and commercial data 
available. The careful evaluation of scientific evidence is fundamental 
to the assessment of species for listing or delisting under the ESA. 
The Service strives to make the most of scientific advances that 
improve our ability to understand nature and its processes. Our joint 
Fish and Wildlife Service/National Marine Fisheries Service (NMFS) 
``Policy on Information Standards Under the Endangered Species Act'', 
published in the Federal Register on July 1, 1994 (59 FR 34271), 
provides criteria, establishes procedures, and provides guidance to our 
field biologists and managers regarding the use of scientific 
information in our decision process.
    This ``Policy on Information Standards'' requires our biologists 
and managers to ensure that the information we use is reliable, 
credible, and represents the best data available; to impartially 
evaluate information that disputes existing positions or decisions of 
the Service; to document their evaluation of the available scientific 
and commercial data; to use primary and original sources of information 
as the basis for recommendations, where consistent with the Act and our 
obligation to use the best information available; and to conduct 
management-level reviews of the documents developed by staff biologists 
to verify and assure the quality of the science used in the decision 
process.
    The ESA, the Administrative Procedures Act, and the regulations 
governing our listing and delisting activities ensure that States, 
tribes, other agencies, and the public have ample opportunity to 
participate in our listing and delisting actions. These established 
processes ensure that the public can participate fully in listing and 
delisting decisions. In addition, the requirement that the Service 
maintain and make available the administrative record in support of its 
decisionmaking assists in making the decision process open and 
transparent.
    To further ensure that sound science underlies our decisions, the 
Service and NMFS established a joint ``Policy for Peer Review in 
Endangered Species Act Activities'', published in the Federal Register 
on July 1, 1994 (59 FR 34270). This policy works to ensure that 
independent peer review is incorporated throughout our listing and 
recovery programs in a manner that complements, but does not circumvent 
or supercede, other established public participation processes.
    In recognition of the unique capability of State fish and wildlife 
agencies to assist in implementing all aspects of the ESA, the Service 
and NMFS developed a joint ``Policy Regarding the Role of State 
Agencies in Endangered Species Act Activities'', published in the 
Federal Register on July 1, 1994 (59 FR 34275). This policy recognizes 
that States possess broad trustee authorities over fish, wildlife, and 
plants and their habitats within their borders, as well as scientific 
data and valuable expertise on the status and distribution of such 
wildlife. The policy requires the Services to solicit State agency 
expertise and participation in the following activities, among others: 
determining which species should be included on the list of candidate 
species, conducting population status inventories and geographical 
distribution surveys, responding to listing petitions, preparing 
proposed and final listing and delisting rules, and designing and 
implementing recovery efforts.
    The Executive Order 13175 of November 6, 2000, on government-to-
government relations with Native American tribal governments also 
requires us to consult with the tribes on matters that affect them. 
Consistent with this and our Federal trust responsibility, we consult 
to the extent possible with Indian Tribes having tribal trust 
resources, tribally-owned fee lands, or tribal rights that might be 
affected by ESA activities.
                          the listing process
    Listing under the Endangered Species Act becomes necessary when a 
species declines to the point where it is in danger of extinction 
throughout all or a significant portion of its range (an ``endangered 
species'') or it is likely to become endangered in the foreseeable 
future (a ``threatened species''). The Secretary is required to list or 
reclassify a species if, after reviewing the species' status using the 
best scientific and commercial data available, it is found that the 
species is endangered or threatened because of any one or a combination 
of the following factors:
     the present or threatened destruction, modification, or 
curtailment of its habitat or range;
     overutilization for commercial, recreational, scientific, 
or educational purposes;
     disease or predation;
     the inadequacy of existing regulatory mechanisms; and
     other natural or manmade factors affecting its continued 
existence.
    There are two processes to identify species in need of listing. The 
first is the candidate assessment process, which is initiated by the 
Service. The second is a petition process, which is available to the 
public.
    Part of the Service's Candidate Conservation program is the 
candidate assessment process, through which the Service searches for 
species of fish, wildlife and plants that may be at risk and in need of 
protection under the Act. In identifying candidate species, we rely on 
our own biological surveys, including status surveys conducted for the 
purpose of candidate assessment, information from State Natural 
Heritage Programs, other Federal and State agencies, knowledgeable 
scientists, and public and private natural resources organizations.
    Each year, the Service publishes in the Federal Register the 
Candidate Notice of Review (CNOR). The CNOR identifies the species that 
we believe are candidates for listing under the Endangered Species Act. 
The CNOR lists those species previously identified as candidates, 
species for which petitions have resulted in ``warranted but 
precluded'' findings, as discussed below, during the prior year, and 
other species that appear to warrant listing under the ESA. When we 
identify a species as a candidate for listing, we have sufficient 
scientific information available to support a proposed rule to evaluate 
whether the species should be added to the list of threatened and 
endangered species. However, preparation of the proposed rule is 
precluded by higher-priority listing actions. We publish the CNOR, make 
individual candidate assessment forms available to the public, and 
solicit additional information about the status of candidate species, 
the threats they face, and conservation actions that are being 
implemented that may benefit the species. We accept information from 
the public about candidate species at any time. We use the public's 
comments in the preparation of listing rules for the highest priority 
candidates, and in revisions to subsequent CNORs. In addition, 
publication of the list of candidate species provides important 
information about potential listings that can be used by planners and 
developers.
    The CNOR also serves to explain to the public our long-standing 
science-based priority system for adding species to the list, which was 
published in the Federal Register on September 1, 1983 (48 FR 43098-
43105). Each candidate species is assigned a listing priority number 
(LPN), based on the immediacy and magnitude of the threats faced by the 
species and on its taxonomic distinctiveness. The candidate assessment 
forms, which are available to the public upon request, document our 
reasons for assigning a particular LPN to each candidate species. We 
use the LPN to prioritize listing actions. Species with lower LPNs are 
given a higher priority for action.
    The second process for identifying species that may warrant listing 
is the petition process. Section 4 of the Act allows any interested 
person to petition the Secretary of the Interior either to add a 
species to, or remove a species from, the lists of threatened and 
endangered species. The Services ensure consistent and rigorous 
analysis of petitions by following the interagency ``Petition 
Management Guidance'' issued in July 1996.
    Upon receipt of a petition, the Service must respond, within 90 
days when practicable, with a finding as to whether the petition 
provides substantial scientific or commercial information indicating 
that the petitioned action may be warranted. If the Service determines 
that the petition did not provide such substantial information, the 90-
day finding concludes the petition review process. However, if the 
Service determines that the petition does provide substantial 
information, the Service initiates a status review and issues an 
additional finding within 12 months of the receipt of the petition.
    There are three possible outcomes of the ``12-month finding'' (1) 
listing is not warranted, and no further action is taken; (2) listing 
is warranted, and a listing proposal is promptly prepared; or (3) 
listing is warranted, but immediate action is precluded by higher 
priority actions. A ``warranted but precluded'' finding is made on the 
basis of the species' listing priority number and the listing workload. 
In such cases, preparation of a listing proposal is delayed until 
higher priority actions are completed.
    We issue a proposed rule to list species when we have sufficient 
information to show that listing is warranted (as result of either 
process). If the issuance of the proposed rule is precluded by work on 
other higher priority listing actions, we add the species to our 
candidate list to be prioritized for a future listing proposal.
    Our listing and delisting actions are informal rulemakings, 
published in proposed and final rule form in the Federal Register, and 
leading to revisions to Title 50, Part 17 of the Code of Federal 
Regulations. Once a proposal is published, the Service must allow for a 
public comment period on the proposal; provide actual notice of the 
proposed regulation to appropriate State, tribal, and local government 
agencies; publish a summary of the proposal in a newspaper of general 
circulation in areas where the species occurs; and hold a public 
hearing, if requested. See 16 U.S.C. Sec. 1533(b)(5). The Service's 
implementing regulations require that the public comment period on a 
listing proposal be at least 60 days long. See 50 C.F.R. 
Sec. 424.16(c)(2). Since public participation is so important to 
effective conservation efforts, the Service will often hold multiple 
public hearings and extend the comment period beyond the minimum 
required by the law and regulation.
    We always solicit independent peer review of our listing proposals, 
and incorporate comments and recommendations that we receive. We have 
found such peer review to be a valuable element of the decision 
process. However, it is sometimes difficult to obtain the participation 
of experts in this process. Experts in academia and other agencies have 
other demands for their time and attention, and incentives to 
contribute their expertise to our listing efforts are not always 
apparent. We have also found that species experts may be reluctant to 
become involved when they view the listing action as likely to lead to 
subsequent litigation. The potential demands upon their time and 
reputations associated with depositions, cross examination, and other 
legal proceedings create a genuine disincentive for some experts. We 
are continuing, however, to explore ways to increase participation in 
and improve the effectiveness of the independent peer review process.
    The Service reviews petitions, adds species to the list, 
reclassifies species from threatened to endangered, and designates 
critical habitat using funds appropriated specifically to our Listing 
program for these purposes. (Delisting and reclassification from 
endangered to threatened are part of the recovery process and are 
funded through the Recovery program.) The workload associated with 
these listing activities has for several years exceeded the resources 
available to the Service for listing, and a substantial backlog of 
listing actions has accumulated. To manage this backlog within 
appropriated resources, the Service, since fiscal year 1996, has 
employed a Listing Priority Guidance system to assign relative 
priorities to the listing actions to be carried out under section 4 of 
the Act. The objective of the Listing Priority Guidance is to focus 
available resources on those listing actions that have the greatest 
biological benefit to species in need of protection under the Act.
    Unfortunately, most courts have not afforded deference to this 
priority system, and have instead concluded that they have no 
discretion but to order us to act as soon as possible on whatever 
backlogged action comes before them. As a result, court ordered actions 
have consumed essentially all of the listing budget this fiscal year. 
The Service does not have any remaining resources or staff to place new 
species on the list of threatened and endangered species or to respond 
to citizen petitions to list new species. In short, the Service does 
not currently have a balanced and effective listing program.
    The President is continuing efforts begun by the last 
Administration to break this gridlock and get back to the important 
business of protecting imperiled species. We are asking Congress, 
through the fiscal year 2002 budget request, to help us address our 
backlog in two ways. We are seeking increased funding for our listing 
program so that we can begin to reduce the backlog of listing actions, 
and we are asking Congress to concur that these funds should be spent 
pursuant to current court orders or settlement agreements and on those 
listing actions that provide the greatest benefit for species at risk 
of extinction. This proposal would not change any of the underlying 
substantive requirements of the Act, but would allow the Service to use 
its resources to protect the species that are in greatest need of 
listing. The Service hopes to engage the public and interested groups 
in the development of a revised listing priority system and to put the 
resulting priority system out for public review and comment.
    We recognize that this proposal has resulted in considerable 
controversy. While the problem is real and needs to be addressed, we 
would welcome the opportunity to work with this committee and other 
interested members to craft a solution that meets with wide approval.
                      distinct population segments
    In carrying out our listing duties under the ESA, the Service has 
proposed and finalized rules to list a number of ``distinct population 
segments'' (DPS's) of species. Mr. Chairman, I would like to take this 
opportunity to explain how the Service decides whether to list a 
species as a ``distinct population segment''.
    The ESA's definition of ``species'' includes ``any subspecies of 
fish or wildlife or plants, and any distinct population segment of any 
species of vertebrate fish or wildlife which interbreeds when mature.'' 
16 U.S.C. Sec. 1532(16); 50 C.F.R. Sec. 424.10(k). This definition 
allows for listing at levels below taxonomically recognized species or 
subspecies. Accordingly, a DPS of vertebrate fish or wildlife may be 
listed as a ``species'' under the ESA.
    The Service and the National Marine Fisheries Service (NMFS) have 
long recognized the importance of interpreting the term ``distinct 
population segment'' in a clear and consistent fashion. We 
collaboratively developed a policy to clarify our interpretation of 
DPS's for the purposes of listing, delisting, and reclassifying species 
under the ESA, and published that draft policy in December 1994 (59 FR 
65885). The intent of the policy was to provide a well conceived 
analytical framework for considering whether to list, delist, or 
reclassify distinct populations segments of vertebrate species. The 
policy was also developed to ensure that DPS listing activities are 
carried out consistently throughout both agencies.
    As is the case with the rulemaking process for listing species, we 
strive to develop our policies in a transparent process that solicits 
and incorporates public input and responds to public concerns. We 
solicited public review and comment on the draft DPS policy. After 
receiving, analyzing, and responding to public comments, the Service 
and NMFS published the final joint DPS policy on February 7, 1996 (61 
FR 4722).
    In the policy, we noted that listing a DPS would serve to protect 
and conserve species and the ecosystems upon which they depend before 
large-scale decline occurs that would necessitate listing a species or 
subspecies throughout its entire range. This may allow protection and 
recovery of declining organisms in a more timely and less costly 
manner, and on a smaller scale than the more costly and extensive 
efforts that might be needed to recover an entire species or 
subspecies. The Services' ability to address local issues (without the 
need to list, recover, and consult range-wide) will result in a more 
effective program.
    Under the DPS Policy, the listing of a DPS involves a three-stage, 
sequential process. First, the Service decides whether the population 
is ``discrete.'' Second, it determines whether it is ``significant.'' 
If a population is both ``discrete'' and ``significant,'' it 
constitutes a DPS. Third, the Service applies the listing criteria, 16 
U.S.C. Sec. 1533(a)(1), outlined earlier in this statement, to 
determine whether to list the DPS as endangered or threatened.
    A population segment may be considered discrete if it is either (1) 
markedly separated from other populations of the same taxon as a 
consequence of physical, physiological, ecological, or behavioral 
factors, and/or (2) delimited by international governmental boundaries 
across which differences in control of exploitation, management of 
habitat, conservation status, or regulatory mechanisms exist that are 
significant in light of section 4(a)(1)(D) of the ESA.
    If a population segment is determined to be discrete under one, or 
both, of these conditions, its biological and ecological significance 
will then be considered in light of Congressional guidance (see Senate 
Report 151, 96th Congress, 1st Session) that the authority to list 
DPS's be used ``sparingly'' while encouraging the conservation of 
genetic diversity. In making this ``significance'' determination, the 
Services consider the available scientific evidence of the DPS's 
importance to the taxon to which it belongs. This consideration may 
include, but is not limited to, the following: (1) persistence of the 
discrete population segment in an ecological setting unusual or unique 
for the taxon; (2) evidence that loss of the discrete population 
segment would result in a significant gap in the range of a taxon; (3) 
evidence that the discrete population segment represents the only 
surviving natural occurrence of a taxon that may be more abundant 
elsewhere as an introduced population outside its historic range; or 
(4) evidence that the discrete population segment differs markedly from 
other populations of the species in its genetic characteristics.
    The Policy's guidelines permit the use of agency discretion in 
evaluating discreteness and significance. Indeed, the Policy provides 
that:

          ``[b]ecause precise circumstances are likely to vary 
        considerably from case to case, it is not possible to describe 
        prospectively all the class of information that might bear on 
        the biological and ecological importance of a discrete 
        population segment.'' Id.

    In responding to public comment on the draft version of the Policy 
published in the Federal Register, we stated ``that the use of 
international boundaries as a measure of discreteness may introduce an 
artificial and nonbiological element to the recognition of DPS's,'' and 
that such determination ``is sometimes undertaken as a matter of policy 
rather than science.'' The policy further noted that ``it appears to be 
reasonable for national legislation, which has its principal effects on 
a national scale, to recognize units delimited by international 
boundaries when these coincide with differences in the management, 
status, or exploitation of a species.''
    Moreover, the policy recognizes that the ``[r]ecognition of 
international boundaries in this way is also consistent with practice 
under the Convention on International Trade in Endangered Species of 
Wild Fauna and Flora [CITES], which is implemented in the United States 
by the Act.'' Under CITES, species protection may vary from country to 
country (e.g., prohibiting commercial trade for a species from one 
country, but not from another) depending on their management of the 
species. When appropriate, the ESA listings for species included in 
CITES can be specific to a country in order to reflect those management 
differences and support effective implementation of CITES (e.g., for 
the salt water crocodile).
                          the recovery process
    Recovery of threatened and endangered species is the process by 
which the decline of an endangered or threatened species is arrested or 
reversed, and the threats to its survival are neutralized, so that 
long-term survival in nature can be ensured. The goal of the recovery 
process is to restore listed species to a point where they are secure, 
self-sustaining components of their ecosystems which do not require the 
protections of the ESA, and can be delisted.
    For almost all species, a recovery plan is essential as a road map 
for the recovery process. A recovery outline, the first step in 
recovery planning, guides the development of a recovery plan that 
identifies Federal, State, tribal, and private actions needed to 
achieve recovery. The Service's policy is to complete a recovery 
outline within 60 days of listing a species. A recovery outline 
identifies the major and most imminent threats to a species, and the 
actions and partners needed to immediately begin reducing these threats 
while a recovery plan is being developed.
    The ESA states that recovery plans shall be developed for the 
conservation and survival of threatened and endangered species unless 
such a plan will not promote the conservation of the species. There are 
very few exceptions to the need for a recovery plan, and most of these 
exceptions are for species that occur under very localized 
circumstances where other plans, such as a forest management plan, 
already contain the actions needed to recover the listed species.
    Therefore, it is the case for most species that immediately upon 
listing the Service also begins the recovery planning process. A first 
step in the process is to identify the participants of a recovery team 
that will work to craft the recovery plan for a listed species. To 
guide our actions during the recovery process, the Service uses our May 
1990 ``Policy and Guidelines for Planning and Coordinating Recovery of 
Endangered and Threatened Species'' and the following 1994 joint FWS/
NMFS policies:
     Policy for Peer Review of ESA Activities--incorporates 
independent peer review into recovery actions, including the writing of 
recovery plans;
     Policy on Information Standards--directs that the best 
available scientific and commercial information be used when 
determining what actions are needed to recover species; and
     Policy on Recovery Plan Participation and Implementation 
(published in the Federal Register on July 1, 1994 (59 FR 34272)--
directs the Service to solicit the participation of State, tribal, and 
Federal agencies, academic institutions, private individuals, and 
economic interests when determining the recovery actions needed to 
recover species.
    The latter policy directed the Service to diversify the areas of 
expertise represented on a recovery team, develop multiple species 
plans when possible, minimize the social and economic impacts of 
implementing recovery actions, and involve representatives of affected 
groups and provide stakeholders the opportunity to participate in 
recovery plan development.
    Because the Service bases our recovery decisions on sound science, 
we seek to involve experts in these decisions and include them on 
recovery teams. Therefore, when we initiate the recovery planning 
process for a listed species, we endeavor to identify experts on the 
species and its habitat, as well as the most knowledgeable individuals 
on land use and land management within the range of the species.
    The Service must balance the need to have as many participants as 
possible on a recovery team, with the need to ensure that the size of 
the team does not compromise its efficiency. We often work primarily as 
the facilitator on recovery teams, providing guidance for experts on 
the team from other Federal agencies, State agencies, tribes, or the 
private sector.
    In addition, the Service often uses one or more ``recovery 
implementation teams'' during the recovery planning process to allow 
for broader public participation. Participation on these teams is 
usually possible for any concerned individual that wishes to volunteer. 
As a recovery plan is drafted, the proposed, necessary recovery actions 
identified by the recovery team are presented to the implementation 
teams for their review. The implementation teams, which are often 
composed of members of the public and agencies whose interests may be 
affected by the recovery needs, provide valuable reviews of the 
feasibility of the proposed actions. The proposed actions may be 
modified based on the reviews and comments of the implementation teams.
    It is the Service's intent to complete draft recovery plans for 
species within 1\1/2\ years from the time of listing. Once complete, 
draft recovery plans are available for public review and comment. A 
notice of availability is published and comments are solicited. Today, 
it is not unusual for the Service to receive hundreds, sometimes 
thousands, of comments on a single plan. These comments come from a 
wide range of interests: from advocates for the environment to private 
citizens who are worried about what effects the recovery of the species 
may have on their livelihoods.
    The Service uses the recovery team to consider each comment on a 
recovery plan, and, where needed, incorporate the comments into the 
final recovery plan. A record of how comments on a recovery plan are 
considered is kept and made available for public review. When a final 
recovery plan has been completed and approved by the Service's 
appropriate Regional Director, it is made available to all interested 
parties. A Notice of Availability is published in the Federal Register 
and the Service ensures that all of the recognized concerned public is 
aware of the completion of the plan. In addition, notices are often 
placed in newspapers throughout the range of the species.
    A recovery plan must address the threats to the species, describe 
the actions needed to recover the species, provide an implementation 
schedule of when the actions will be completed, identify the parties 
who will have primary responsibility for undertaking the actions, and 
assess the estimated costs of implementing the recovery plan. In 
addition, a recovery plan identifies the criteria that will be used to 
determine when a species may be sufficiently recovered to be downlisted 
from endangered to threatened, or delisted and removed from the list of 
species protected by the ESA.
    The Service is increasing its use of multi-species recovery plans. 
At least 20 multi-species plans have been finalized since 1998. 
Addressing the recovery of multiple listed species in a single, multi-
species, ecosystem-based approach is efficient in addressing common 
habitat needs and shared threats. This approach is often more cost 
effective and efficient than addressing species through single-species 
recovery plans.
    Recovery plans must be dynamic documents. New information is 
constantly becoming available. As new information is recognized that 
may affect a species' recovery, the recovery team for the species may 
be reconvened to assess the information and determine if the plan needs 
to be revised. At the very minimum, the Service reviews plans every 5 
years to determine if changes are needed. If significant changes to a 
plan are needed, then, following the process already outlined, a new 
draft plan is prepared, participation and comment is invited from all 
interested parties, and a new final recovery plan may result.
    The Service is proud that, as of the beginning of this year, 88 
percent of the species for which a recovery plan is required and due 
have approved recovery plans. Recovery plans are not prepared for some 
listed species, particularly international species not found in North 
America.
    Recovery implementation is the undertaking of the actions needed to 
accomplish recovery plan tasks in a systematic manner. Implementation 
involves strategic planning and requires the tracking of results to 
determine if recovery actions are working and whether a recovery plan's 
objectives are being met. Recovery actions are prioritized. Priority 1 
actions are those that must be taken to prevent extinction or to 
prevent the species from irreversible decline. Priority 2 actions are 
the actions that are needed to prevent a significant decline in a 
species' population or habitat, or would prevent some other significant 
negative impact. Finally, priority 3 actions are those actions that 
must be take to provide for a full recovery of a species.
    In most cases, successful species recovery is too large a task for 
any one agency or interest group. Implementation must involve all 
affected parties, consider social and economic impacts, and must be 
scientifically sound. The Service must engage the multiple stakeholders 
throughout the recovery implementation process, and encourage them to 
effectively sustain, conserve and ultimately recover endangered and 
threatened species so that they may be delisted.
    An example of stakeholder involvement in the recovery process is 
the multi-species recovery effort in the Southwestern United States 
involving the cactus ferruginous pygmy-owl and the threatened and 
endangered big river fish in the Lower Colorado River. The threats 
faced by these species include an increasing loss of both arid and 
aquatic natural habitat due to rapid population growth in southern 
Arizona, Nevada and California. The loss of habitat necessitates 
working with diverse and broad groups of stakeholders during recovery 
implementation to balance species conservation, economic viability, and 
``people protection''. In the Southwest, the efforts of recovery 
implementation teams include participation by water, power, and 
wildlife agencies and municipalities, ranchers, and cultural and 
historical entities, all acting for the common good. Such interaction 
leads to enlightened understanding about how improved land and water 
quality and habitat cohesiveness assists species recovery while 
providing healthy habitats for everyone.
    It usually takes many years, often decades, for a species to 
decline to the point where it needs the protection of the ESA. 
Likewise, recovery of a species is also a process that usually requires 
significant time to accomplish. Instances where habitat loss and 
degradation constitute the main threats to a species usually makes it 
more difficult to recover the species. Often the participants in the 
recovery planning and implementation for a species will change as time 
passes. The constant is the Service's direction of the recovery 
implementation process, ensuring that the best scientific and 
commercial information is used, that all willing participants are 
provided the opportunity to comment and participate, and that the 
progress toward recovery is monitored and, when necessary, changed 
through adaptive management.
                         the delisting process
    The same scientific rigor and full public participation is used in 
delisting species as was used in the listing of species. The Service 
regularly assesses the criteria listed in the recovery plan that are 
used to define when a species has sufficiently recovered to be 
reclassified as either a threatened species (recovered from being 
endangered) or as a fully recovered species and removed from the list 
of species protected by the ESA.
    Likewise, the most recent scientific and commercial data, after 
being subjected to peer review, are used to assess the current status 
of the species. Often, the factors used to determine whether a species 
has recovered include the species' population size, recruitment, 
stability of habitat in terms of habitat quality and quantity, the 
degree to which habitat areas are connected to one another, and the 
control or elimination of the threats that led to the need to list the 
species.
    The ability to list distinct population segments may also play an 
important role in the recovery of listed vertebrate species. Many 
species were listed before the ESA was amended in 1978 to allow the 
listing of distinct population segments. Therefore, the Service may 
consider that a portion of a listed species has recovered sufficiently 
to warrant downlisting or delisting. Of course, this population, and 
the populations of the species that may not have reached the recovery 
goals, must conform to the same criteria of substantiality and 
distinction that are used to list distinct population segments. If this 
is the case, then the Service may be able to use a distinct population 
segment to delist or downlist a portion of the species. This will 
provide regulatory relief for the public within the range of the 
recovered distinct population segment. As always, the Service uses the 
best scientific and commercial data, along with the opinions of experts 
and the public, when making these decisions.
    As already mentioned during the previous review of the listing 
process, the public has the opportunity to petition the Service to 
delist a species at any time. Likewise, as already discussed, the 
petition will trigger a process where the petition is first reviewed 
for presenting substantial information, and, if it passes that test, 
within 12 months the action requested in the petition will be assessed, 
using the best peer reviewed scientific and commercial data and the 
opinions of experts. If it is judged that the petitioned action is 
warranted, the Service will move to propose delisting the species.
    Outside of the petition process, as recovery of a species becomes 
more imminent, the recovery team is requested to assess the evidence 
that the species may have reached the goals identified for its 
recovery. Again, only the best peer reviewed scientific and commercial 
data are used, along with the opinions of experts on the species, its 
habitat, and land management practices. If the status of the species 
has improved sufficiently, then a proposal to downlist or delist the 
species will be prepared.
    As is the case for the process of listing a species, a proposal to 
reclassify a species is published in the Federal Register and announced 
in selected newspapers throughout the range of the species. The Service 
schedules public meetings during the comment period for a 
reclassification so that all of the concerned public will have the 
opportunity to provide comments on the proposed action. All comments 
are carefully considered and a record, available to the public, is kept 
on the decisions made with respect to the comments.
    If, after this process, it is determined that a species has 
recovered sufficiently to merit reclassification, then a final decision 
is made and published. A decision to reclassify a species from 
threatened to endangered likely requires a new recovery plan be 
developed, and the process already described will once again be 
initiated. A determination that a species has fully recovered will 
result in the species being removed from the list of species protected 
by the ESA.
    As acknowledged earlier, species are usually listed as a result of 
factors that caused their decline over many years, often decades or 
even centuries. As a result, recovery of listed species requires time 
and resources. It is the goal of the Service to recover species as 
quickly as possible. Since 1998, the Service has specifically targeted 
$1 million each year to listed species that are nearing recovery. This 
funding provides the extra resources needed to either downlist or 
delist the species and ensures that they get this focused attention.
    We have had success. Recently the Service was successful in taking 
the peregrine falcon off of the list of species protected by the ESA. 
The falcon was primarily threatened by pesticides and habitat loss, and 
the efforts of many agencies and individuals, over more than 30 years, 
were needed to recover the falcon. Likewise, just this year the 
Aleutian Canada goose was delisted. The goose was one of the first 
species to be protected under the ESA. Through cooperation with State 
governments and partnerships with private landowners, the threats posed 
by introduced foxes and habitat losses were reduced and recovery of the 
goose was accomplished.
    Likewise, the bald eagle, our Nation's symbol, is on the verge of 
complete recovery. Once the Service has resolved how the delisting of 
the bald eagle will be addressed in our implementation of other 
wildlife laws, such as the Bald and Golden Eagle Protection Act, the 
Service will be able to proceed with this historic event. In all, as a 
result of recovery activities, the Service plans to delist or downlist 
four more species in fiscal year 2001 and at least six species in 
fiscal year 2002.
                               conclusion
    In closing, I would like to emphasize the importance the Service 
places upon having a science based, open decision process in which the 
affected public can participate fully. Our listing and delisting 
decisions are sometimes difficult and contentious, and not all parties 
will agree with our final decision. But it is critical that the public 
and the Congress view our work as honest and objective efforts to reach 
a decision required of us by the Act. Our success in implementing the 
Endangered Species Act is tied to that trust.
    Mr. Chairman, this concludes my prepared testimony. Thank you for 
your interest in the Endangered Species Act and the way it is 
implemented, and for the opportunity to testify. I would be pleased to 
respond to any questions you and other members of the committee might 
have.
                               __________
  Statement of Don Knowles, Director, Office of Protected Resources, 
  National Marine Fisheries Service, National Oceanic and Atmospheric 
                 Administration, Department of Commerce
    Mr. Chairman, my name is Don Knowles and I am Director of the 
Office of Protected Resources in the National Marine Fisheries Service 
(NMFS), an agency of the National Oceanic and Atmospheric 
Administration. Thank you for the opportunity to testify on the process 
we use to list and delist species under the Endangered Species Act 
(ESA).
    The ESA provides for the recovery of threatened and endangered 
species and the conservation of their ecosystems. Terms such as 
conservation, species, threatened, endangered, and critical habitat are 
defined in the Act. Section 4 elaborates on listing, delisting, 
critical habitat and recovery. This section states that listing 
determinations are to be made solely on the basis of the best 
scientific and commercial data available after conducting a review of 
the status of the species and after taking into account those 
conservation efforts, if any, being made by any locality, State, 
foreign Nation or tribal government. In the 1988 amendments to the Act, 
the word ``solely'' was added to the above criteria to expedite the 
listing process and to prevent non-biological considerations, such as 
economic impacts, from affecting listing determinations. The Act also 
requires recovery plans that include specific management actions that 
will achieve the plan's goal. Plans must include measurable criteria, 
which, when met, will result in removing the species from the list.
    Implementing regulations for listing, delisting, or designation of 
critical habitat were developed jointly with the U.S. Fish and Wildlife 
Service (FWS). The process for listing usually begins when we receive a 
petition to list a species. In some cases, when we have information 
indicating that a species may warrant listing, NMFS will begin the 
process without a petition. The next step is to evaluate the status of 
the species, that is, to conduct a status review. Based on the status 
of the species and after taking into account efforts made by others, 
NMFS will determine whether it is warranted to propose to list a 
species. Within 1 year of the proposal, NMFS will make a final 
determination on whether listing is warranted. In addition to 
implementing regulations, we have issued joint policies that elaborate 
on the listing and delisting process. For example, in 1994 NMFS and FWS 
issued a policy to clarify the role of peer review in ESA activities 
and a policy to provide criteria, establish procedures, and provide 
guidance to ensure that decisions made by the Services under the ESA 
meet the law's requirements. NMFS has also issued guidance on listing 
and recovery priorities as well as guidance on developing recovery 
plans. We plan to update the recovery plan guidance this year.
              overview of nmfs' protected species program
    NMFS is currently responsible for 55 species listed under the ESA, 
including marine mammals, sea turtles, plants, salmon and other fish. 
Of these, 26 are salmon and steelhead in California and the Pacific 
Northwest (Alaska currently contains no listed salmon species). Only 
one NMFS species, the California gray whale, has recovered to the point 
where it could be delisted. However, several other species have 
stabilized and we consider this a successful result of the ESA.
    To be sure, NMFS' listing decisions have been the subject of 
litigation, especially with regard to West Coast salmon and steelhead. 
NMFS has lost some cases and learned valuable lessons. To address the 
issue of whether NMFS' decisions were based on the best available 
science, NMFS collected information from the Pacific Salmon Biological 
Technical Committees and interested parties in Washington, Oregon, 
Idaho and California. NMFS also established a Biological Review Team 
(BRT) to review available information. While these efforts have not 
eliminated lawsuits, they have helped NMFS gather the best available 
science. For all the species under NMFS' jurisdiction, NMFS continues 
to look for new ways to ensure that it uses the best available science 
in its decisionmaking.
    Mr. Chairman, thank you for this opportunity to testify. I look 
forward to answering any questions.
                                 ______
                                 
  Responses by Don Knowles to Additional Questions from Senator Baucus
    Question 1. Mr. Knowles, you are involved with these issues every 
day; please be honest, what do you see as the main problems with the 
ESA listing and delisting process? And please, be specific.
    Response. The National Marine Fisheries Service (NMFS) is not in 
the same situation as the U.S. Fish and Wildlife Service concerning 
listing and delisting species. We are responsible for fewer species. 
Therefore, we have been able to list species and designate critical 
habitat close to the time limits proscribed by the Endangered Species 
Act. However, we do see a number of issues that affect the listing/
delisting process. For example, by the time most species are listed, 
they have reached a point where their recovery is extremely difficult. 
If we strengthen our partnerships with States, tribes and private 
landowners so that we are working together to conserve species, we will 
lessen our dependence on the ESA as the primary source, and often the 
last resort, for species protection. Also, the timing is off for 
designating critical habitat at the time of listing. It would be more 
appropriate to designate critical habitat in conjunction with 
developing a recovery plan. We need to add more credibility to our 
listing, delisting and critical habitat decisions by making them more 
transparent. This would involve expanding opportunities for public 
participation and diversifying the make-up of recovery teams.

    Question 2. What do you need to be able to do your job under the 
Endangered Species Act? A pot of money? Do you think you have adequate 
resources? I know that this hearing is confined to the listing and 
delisting process, but please answer my question in the context of your 
larger duties under the ESA. Why is it, for instance, that salvage 
timber sales in Montana just can't go forward? Because there aren't 
enough biologists on the ground to do consultations under section 7?
    Response. We are able to do the highest priority items with current 
funding. Our budget requests target the needs of specific groups of 
species (e.g. Pacific salmon, sea turtles, marine mammals) and not 
specific ESA programs such as listing, critical habitats and section 7 
consultations. This gives NMFS the flexibility to use our allocated 
funds for a variety of ESA programs, and wherever the need is greatest 
at the time. As for section 7 consultations on salvage timber sales in 
Montana, NMFS is not involved in habitat-related issues in Montana.

    Question 3. Do you think that a lot of complaints and concerns 
about your agency's implementation of the ESA, such as in the listing 
process, is a symptom of a much larger problem--a lack of adequate 
funding? What else is contributing to your problems here?
    Response. The larger issue is not the implementation of the ESA 
itself, but how it brings to light the ever-increasing demand for 
resources, especially habitat. Preventing the extinction of wildlife 
and plants becomes more and more difficult as their habitat is lost due 
to population growth and development. Yes, we need adequate resources 
to recover species, but we also need time to make the changes necessary 
to conserve the species as well as time for the changes to be 
effective. Often, the Federal agencies cannot say with authority 
exactly what measures need to be carried out to recover a species. 
Landowners and State and local governments are left with uncertainty 
about how their future may be affected by efforts to recover species. 
Therefore, the agencies responsible for implementing the ESA must be 
able to develop quickly the scientific information necessary to know 
what actions are needed to conserve species and there should be 
incentives that will increase public support to carry out these 
activities.

    Question 4. Do you honestly believe that the citizen petition 
process is the real problem here? Do you honestly believe that getting 
rid of the provision will improve the ability of the Service to list or 
delist species. That it will improve the ability of the Service to do 
its job?
    Response. As we responded in question 1, NMFS has been able to list 
species and designate critical habitat within or close to the time 
limits proscribed by the Endangered Species Act. So, we do not consider 
the provision in the ESA that allows citizens to petition NMFS to list, 
delist, or designate critical habitat a problem.

    Question 5. Should a listing decision be left solely to the 
Services?
    Response. The listing decision, which in the end should be made 
solely by the Services, is reviewed by many sources prior to that 
decision. For example, in response to a petition for NMFS to list 
several populations of West Coast steelhead, NMFS assessed the best 
available data by including information from the Pacific Biological 
Technical Committees and interested parties in Washington, Oregon, 
Idaho and California. The committees included scientists from Federal, 
State and local resource agencies, Indian tribes, industries, 
universities, professional societies and public interest groups with 
technical expertise. NMFS then established a Biological Review Team 
(BRT) composed of NMFS scientists and managers as well as scientists 
from other Federal agencies to conduct a coastwide status review for 
west coast steelhead. Based on the result of the BRT report and after 
considering other information and existing conservation measures, NMFS 
identified which of the steelhead populations should be proposed for 
listing and those that did not warrant listing.

    Question 6. What do you think that expanded peer review would add 
to the listing and delisting process?
    Response. It is a published policy of the Services to incorporate 
independent peer review in listing and recovery activities, during the 
public comment period. For listing, we solicit the expert opinions of 
those appropriate and independent specialists regarding pertinent 
scientific or commercial data and assumptions relating to the taxonomy, 
population models and supportive biological and ecological information 
for species under consideration for listing. We summarize in the final 
document the opinions of all independent peer reviewers and include all 
reports, opinions and other data in the administrative record of the 
final decision. We also solicit peer review to obtain all available 
information from appropriate local, State and Federal agencies, tribal 
governments, academic and scientific groups and any other party who may 
possess information during the development of draft recovery plans. 
Where appropriate, we have scientific data related to implementation of 
recovery peer reviewed, and we include these opinions in the final 
recovery plan. However, I believe the real issue concerning the use of 
peer review is to increase the credibility of ESA decisionmaking. 
Therefore, we continue our commitment to obtaining and using the best 
scientific information available for our ESA decisions, having this 
information peer reviewed, and ensuring that the public has access to 
the results of the peer review.
  Statement of Deborah M. Brosnan, President and Founder, Sustainable 
                          Ecosystems Institute
    Good morning. I am Deborah Brosnan, president and founder of the 
Sustainable Ecosystems Institute (SEI). The institute is a public-
benefit non-profit organization, that provides impartial scientific 
support for conservation. We are rigorously non-partisan, and seek 
science-based, cooperative solutions that benefit both the environment 
and the human communities that depend on it. Currently over 300 
scientists work with the institute to provide support to government, 
the private sector and citizen groups. Our work ranges from fundamental 
research to mediation, and the integration of science with policy.
    Since our inception in 1992, the institute has worked to strengthen 
scientific principles and methods integral to the application of the 
Endangered Species Act. The ESA remains a key piece of the Nation's 
environmental laws. In common with many other scientists, we support 
legislation that protects the biodiversity that, ultimately, supports 
us.
    In recent years, there has been extensive comment and critique of 
management under ESA. These critiques come from every side of the 
debate, but contain some themes that are common to all points of view. 
All parties, for instance, agree that the role of science needs to be 
enhanced. There are many calls for a wider and more effective use of 
independent and impartial scientific analysis. Of course, the Fish and 
Wildlife and National Marine Fishery Services (USFWS and NMFS) have 
committed to the use of scientific excellence, and indeed employ many 
fine scientists. However they would probably be the first to 
acknowledge the need for more resources, and better integration of 
their efforts with the Nation's other scientific resources. This is a 
point of view shared across the political spectrum.
    Central to the idea of improving ESA science is the concept of peer 
review. Peer review is the scientific equivalent of quality control--it 
is our profession's method of ensuring that analyses are carried out 
appropriately, that the best data are used, and that the conclusions 
drawn are appropriate. Peer review is a normal scientific process, for 
which there are long-established protocols, and which is widely applied 
to decisions about scientific publication and funding. However more 
practical applications, for instance to management of resources, are 
less frequent. The Magnusson Act is an example of an explicit 
application of peer review to an important conservation issue.
    It is already the policy of NMFS and UWFWS that important 
decisions, such as listing actions, are subject to external peer 
review. However the widespread calls for increased use of peer review, 
as outlined in my accompanying table, testify to the general feeling 
that a more systematic and open process is desirable. At least 63 
organizations, groups or individuals have separately called for 
inclusion of peer review into ESA revisions. The information in the 
table is revealing: resource user groups call for review of listing 
actions, while environmental organizations call for review of Habitat 
Conservation Plans and Recovery Plans. Essentially, each group wants to 
have impartial review of actions affecting their particular concerns. 
They are united in their common belief that an independent review would 
lead to better decisions and more effective management.
    Perhaps these different groups all believe that their views on 
resource management would prevail following peer review. If so, they 
are mistaken. Science is value neutral. It can sometimes appear to 
favor one political point of view, sometimes another, though in fact it 
favors none. Scientific peer review can however be of great use in 
ensuring that good science is appropriately incorporated into 
management actions, in making decisions transparent, in ensuring that a 
fair and reasonable process is followed, and in making better decisions 
for natural resources. If the different groups want to see that 
conservation decisions are based on the best science, then peer review 
can indeed help. There is nothing to fear about the idea of peer 
review; however I will also argue that it is important to have a well 
thought-out, and systematic process.
    In the past few months, SEI has begun a pilot process to assist the 
Fish and Wildlife Service with peer review. This is a pro-bono effort 
by our scientists, and supports the Service's existing policies and 
processes. Regional offices have been encouraged by the Service's 
Director to use SEI's assistance in finding and enlisting outside 
reviews. We have organized the National Network for Conservation 
Science, consisting of 300 volunteers, who provide help to the Service. 
Network participants are faculty at major universities and other 
experts, including 6 members of the National Academy of Sciences.
    It is early days in this experiment, but we can provide some 
information on success rates. In the accompanying graphic I show that 
the Service has diligently sought out peer reviewers on their recent 
regulatory actions--often without recourse to SEI help. Sometimes they 
have been successful in obtaining reviews, as in the case of listing of 
the Alabama Sturgeon and other issues. Sometimes, however, the Service 
has sought reviews, but has not been successful in getting cooperation 
from the independent scientists. For instance, on Critical Habitat of 
the Arkansas Shiner, the Desert Bighorn and the California Gnatcatcher, 
all affecting large areas of habitat, no review was received from any 
of the 17 scientists approached by the Service. SEI usually has higher 
success rates in our program for the Service and other reviews. 
Typically we obtain 96 percent response rates.
    I believe the elevated response rates are explained by several 
factors. First, we have provided an infrastructure that allows the 
effective engagement of interested scientists, and ensures that such 
scientists are willing and able to respond, within the limited 
timeframes of agency actions. Second, as practicing scientists, we 
``speak the same language'' as the reviewers, and can explain our needs 
effectively. There is a substantial difference between the cultures of 
academia and regulatory agencies, so that the needs of one are not 
apparent to the other. Third, we provide rewards to reviewers, either 
financial or professional, that encourages their response. Fourth, we 
act as a buffer to protect the integrity of the scientist and science. 
We look forward to further development of this review program with the 
Service, and believe that innovative, cooperative programs could meet 
many of the goals of all interested parties.
    Peer review is not however a panacea. As I have previously outlined 
in an article for the National Academy (attached) simple extension of 
the academic model of peer review to applied management decisions can 
lead to significant problems. Peer review itself needs to be reexamined 
and carefully designed in order for it to be effective. Some examples: 
peer review in public decisionmaking cannot be anonymous as in 
academia; the standard of proof criterion is different in the different 
contexts; decisions have to be made even when science is incomplete, or 
we will face `paralysis by analysis'. Because the science is used in a 
non-academic and management arena, it is important to maintain the 
integrity of the science and scientists. Scientists should not be asked 
to become managers or to defend a manager's preferred option.
    The lessons we have learned so far have been useful. Working within 
existing policies of the regulatory agencies, peer review can indeed 
contribute to effective management. Academic models of review, and 
existing infrastructures are however insufficient to the task. With the 
USFWS and our other partners we have begun a process to build the 
necessary structures--improvements are definitely possible, and 
resources will be needed. We estimate that a national program to 
provide peer review would cost between $3 to $5 million annually (of 
course as a non-profit we cost a lot less than a Federal agency would.) 
Peer review is a serious and professional undertaking. An ad hoc or 
poorly thought-out approach will lead to frustration. However, if 
properly implemented, peer review can contribute much to the ESA and 
other natural resources decisions.
                                 ______
                                 

                                        Sustainable Ecosystems Institute
                       Examples of Calls for Peer Review Under the Endangered Species Act
----------------------------------------------------------------------------------------------------------------
                                        Where is Peer Review Desired?
                              ------------------------------------------------
         Organization          General                                         How to Implement    Who Pays For
                                 Peer     Listing     HCP          Other         Peer Review?          It?
                                Review
----------------------------------------------------------------------------------------------------------------
Ecological Society of               X          No        X   ................  ................  ...............
 American Ad Hoc Committee on
 Endangered Species.
9 Current and Past Presidents  .......  ..........  .......  Recovery Plans..  ................  ...............
 of Ecological Societies.
Society of American..........  .......          X   .......  ................  ................  ...............
Society for Integrative and         X   ..........       X   ................  Independent       Federal
 Comparative Biology.                                                           Scientist Panel.  Government
Wildlife Society.............  .......          X   .......  Recovery Plans..  ................  ...............
Senator Ashcroft.............  .......          X   .......  ................  ................  ...............
Senator Lieberman............  .......          X   .......  Recovery Plans..  ................  ...............
Congressman Steve Largent....       X           X   .......  ................  ................  ...............
National Governor's                 X   ..........  .......  ................  ................  ...............
 Association.
Western Governor's                  X   ..........  .......  ................  Independent       Task force to
 Association.                                                                   experts chosen    funding
                                                                                by USFWS and
                                                                                the States.
Southern Governor's                 X           X   .......  ................  ................  ...............
 Association.
Governor Marc Racicot (MT)...  .......          X   .......  ................  Scientific        Government task
                                                                                review and cost/  force finds a
                                                                                benefit           way to fund
                                                                                analysis.         the process
State of Washington..........       X   ..........       X   ................  Independent       ...............
                                                                                Scientific
                                                                                Review Board
                                                                                appointed by
                                                                                the Governor.
Association of California      .......          X   .......  ................  Scientific        Federal
 Water Agencies.                                                                review and cost/  Government
                                                                                benefit
                                                                                analysis.
NW Power Planning Council....       X   ..........  .......  ................  Independent       Council
                                                                                Scientific
                                                                                Review Team
                                                                                appointed by
                                                                                NWPPC (Chair)
                                                                                and NMFS
                                                                                (Regional
                                                                                Director).
National Association of        .......          X        X   ................  Independent       National Land
 Conservation Districts.                                                        review from       and
                                                                                industry and      Conservation
                                                                                university        Fund. Listing
                                                                                scientists on     petitioners if
                                                                                critical          frivolous
                                                                                habitat.          petition
American Public Power               X   ..........  .......  ................  ................  ...............
 Association.
Audubon, Greenpeace, National       X   ..........       X   ................  ndependent        Imply Federal
 Wildlife Federation,                                                           Scientific        Government
 Environmental Information                                                      Review.
 Center (in joint
 communication).
California Native Plant        .......          X        X   ................  Science Advisory  Imply
 Society.                                                                       Panel.            Government
Defenders of Wildlife........       X   ..........       X   ................  Call for          ...............
                                                                                scientific and
                                                                                community
                                                                                review.
Environmental Protection       .......  ..........       X   ................  ................  ...............
 Information Center.
Forests Forever..............  .......    Opposed   .......  ................  ................  ...............
National Wildlife Federation.  .......  ..........       X   ................  ................  ...............
New Jersey Audubon...........  .......  ..........       X   ................  ................  Applicant
NW Ecosystem Alliance........  .......  ..........       X   ................  Critical Habitat  ...............
Natural Resource Defense       .......  ..........       X   ................  Independent       Imply
 Council.                                                                       Oversight         Government
                                                                                Committee.
SW Center for Biological            X   ..........  .......  ................  National Academy  Federal taxes,
 Diversity.                                                                     of Science        permit fees,
                                                                                Nominations.      damages from
                                                                                                  E.S.A.
                                                                                                  lawsuits
Pacific Coast Federation of         X   ..........  .......  ................  Opposed to stake- ...............
 Fishermen's Associations.                                                      holder
                                                                                representation.
American Farm Bureau                X           X        X   ................  ................  ...............
 Federation.
Farm Bureau..................       X   ..........  .......  ................  ................  ...............
Fairy Shrimp Study Group       .......          X   .......  ................  ................  ...............
 (California businesses and
 farmers).
American Angus Association...  .......          X   .......  ................  National Academy  ...............
                                                                                of Sciences.
Cattlemen's Association......  .......          X   .......  ................  ................  ...............
Cattlemen on the Hill........  .......          X   .......  Critical Habitat  Blind panel,      ...............
                                                                                including
                                                                                natural
                                                                                resource user
                                                                                groups, states,
                                                                                and land grant
                                                                                colleges.
American Sheep Industry        .......          X   .......  ................  ................  Local
 Association.                                                                                     Government
National Association of Wheat  .......          X   .......  ................  ................  ...............
 Growers.
California Women for           .......          X   .......  ................  Independent       ...............
 Agriculture.                                                                   review.
American Water Works                X   ..........  .......  ................  ................  ...............
 Association.
American Society of Civil           X   ..........  .......  ................  ................  ...............
 Engineers.
American Road and                   X   ..........  .......  ................  ................  ...............
 Transportation Builders
 Association.
Inland Rivers, Ports,          .......          X   .......  ................  Panel of          ...............
 Terminals, Inc. BOD.                                                           scientific
                                                                                review.
King County Navigation Bar...  .......  ..........       X   ................  Independent       ...............
                                                                                Recovery.
Building Owners and Managers   .......          X        X   ................  Scientists and    ...............
 Association.                                                                   affected
                                                                                community.
International Council of            X   ..........  .......  ................  ................  ...............
 Shopping Centers.
Utah Association of Realtors.       X   ..........  .......  ................  ................  ...............
American Forest and Paper           X   ..........  .......  ................  Independent       ...............
 Association.                                                                   review cost
                                                                                benefit
                                                                                analysis.
Pulp and Paperworkers          .......          X   .......  Recovery........  ................  ...............
 Resource Council.
Boise Cascade Corporation....  .......          X   .......  ................  Scientific,       Federal
                                                                                economic and      Government
                                                                                social review.
NW Forest Resource Council...       X   ..........       X   ................  Double-blind      Federal
                                                                                peer review.      Government
                                                                                Want affected
                                                                                party
                                                                                representation.
Club 20......................       X   ..........  .......  ................  Independent cost/ Imply Federal
                                                                                benefit           Government
                                                                                analysis.
Family Business First........  .......          X   .......  ................  ................  ...............
Family Business Fund.........  .......          X   .......  ................  ................  ...............
National Grange of the Order        X           X   .......  ................  ................  ...............
 of Patrons of Husbandry.
Multiple Grange, Forestry,          X   ..........  .......  ................  Public Input....  ...............
 Industry Associations.
National Endangered Species         X           X        X   ................  National Academy  Federal and
 Act Coalition.                                                                 of Sciences       State
                                                                                nominates         Government
                                                                                scientists.
James McClure to NESARC......       X           X        X   Habitat           Peer scientists   Federal
                                                              Designations.     and affected      Government
                                                                                parties.
National Wilderness Institute  .......          X   .......  ................  ................  Imply Federal
                                                                                                  Government
Cattle ranchers and                 X   ..........  .......  ................  Scientific and    ...............
 environmental coalition in                                                     public input.
 New Mexico.
People for the USA!..........  .......  ..........  .......  Data............  ................  ...............
L.A. Times...................       X   ..........  .......  ................  ................  ...............
National Jewish Community           X           X   .......  ................  Scientific        Federal
 Relations Advisory Council.                                                    review.           Government
Church of the Brethren.......  .......    Opposed   .......  ................  ................  ...............
California Environmental            X   ..........  .......  ................  Permanent         Government
 Dialogue.                                                                      program with
                                                                                standing
                                                                                committees.
Meridian Institute Workshop..       X           X        X   ................  Societies and     Services HCP
                                                                                services with     applicants
                                                                                data base of
                                                                                experts.
----------------------------------------------------------------------------------------------------------------

                                 ______
                                 
  [From Issues in Science and Technology, Volume XVI, Number 3, 2000]
                              Perspectives
        Can Peer Review Help Resolve Natural Resource Conflicts?
                        (By Deborah M. Brosnan)
    Congress, businesses, environmental organizations, and religious 
groups are all calling for peer review systems to resolve conflicts 
over the protection of this Nation's natural resources. A recent 
opinion poll found that 88 percent of Americans support the use of peer 
review in the application of the Endangered Species Act (ESA). The 
rising interest in peer review is the result of widespread unhappiness 
with natural resource policies, including ESA listing decisions and the 
establishment of ESA-sanctioned Habitat Conservation Plans (HCPs). The 
many interest groups believe that scientific peer review will support 
their particular viewpoints. The obvious problem is that they can't all 
be right.
    A more important problem is that peer review as traditionally 
applied to examine scientific research is inadequate for supporting 
decisions about managing species, lands, and other natural resources. 
It does not take into account the complex political, social, and 
economic factors that must be factored into natural resource decisions.
    Peer review can provide a basis for improving natural resource 
decisions, for reconsidering past decisions, and for settling 
disagreements. But to function effectively, the review system needs to 
be much different from the one used widely in academia today. In the 
meantime, traditional peer review is being applied on an ad hoc basis 
to important endangered species and habitat conservation issues, 
leading to contentious outcomes. In the rush to implement a popular 
policy, we are setting a precedent that is only institutionalizing our 
confusion.
                           everyone wants it
    It is heartening that all sides want independent peer review; it 
seems that everyone acknowledges that better decisionmaking is needed. 
A survey by the Sustainable Ecosystems Institute found that at least 60 
farming, ranching, logging, industrial, ecological, wildlife, 
religious, and Governors organizations are calling for scientific 
review in the application of the ESA. This includes reviews of HCPs, 
which are agreements between government agencies and private landowners 
that govern the degree to which those owners can develop, log, or farm 
land where endangered species live.
    Why are so many diverse groups eager to embrace peer review? There 
is widespread distrust of the regulatory agencies involved in ESA and 
dissatisfaction with their administration of the Act. Many groups 
believe that agencies are making the wrong decisions. Disagreements 
among interested parties often end up in litigation, where judges, not 
scientists, make rulings on scientific merit. Most decisions to list 
species in the West, including those involving the northern spotted 
owl, marbled murrelet, and bull trout, have been made after lawsuits. 
Similarly, one approved HCP--the Fort Morgan Paradise Joint Venture 
project in Alabama, which would have affected the endangered Alabama 
beach mouse--was successfully challenged in court on the basis of 
inadequate science.
    Many organizations see science as a way of reducing litigation. 
After all, judges are not scientists or land managers and are apt to 
make the wrong technical decision. Court actions are costly. Any means 
of reducing vulnerability to lawsuits is roundly favored.
    There are striking differences in opinion as to where peer review 
is needed. Simply put, each group favors review of actions that it 
finds unpalatable. Development groups want fewer species listings and 
therefore demand review of listing decisions. Some professional and 
environmental societies oppose peer review of listings because they 
will unnecessarily delay much-needed conservation measures. 
Environmental groups are concerned about habitat loss under HCPs and 
want them independently reviewed.
    Regardless of their perspective, most groups want less litigation, 
less agency control, and greater objectivity. Many also see peer review 
as a tool for overturning wrong decisions. Regulatory agencies want to 
reduce vulnerability to litigation and develop greater public support. 
Agency staff, frequently doing a difficult task with inadequate 
resources, would prefer to have a strong system to rely on. It is 
always better to have a chance to do it right than to do it over.
                    the lure of hasty implementation
    The move to implement some form of peer review is already under 
way. For example, the Magnuson Stevens Fisheries Conservation and 
Management Act calls for peer review in arbitrating disagreements over 
fisheries harvest levels. The U.S. Forest Service now calls for science 
consistency checks to review decisions about forest management. 
Unfortunately, the rush to implement random forms of peer review has 
created many ad hoc and ill-conceived methodologies.
    Enthusiasm for peer review is so high that it is now central to 
efforts to reform ESA. In 1997, the Senate introduced the Endangered 
Species Recovery Act, which would have required peer review and 
designated the National Academy of Sciences (NAS) to oversee the review 
process. But few academy members or the scientists who serve on NAS 
committees have made their careers in applied science or have worked in 
an area in which legal and regulatory decisions are paramount. The bill 
was shot down, but the Governors of the western States have asked the 
Senate to reintroduce similar legislation in 2000. Whether or not 
legislation is taken up, it is clear that Congress wants better science 
behind natural resource decisions and sees peer review as the way to 
achieve it.
    Most legislative and agency measures calling for peer review, 
however, do not describe how it should be structured, other than to say 
that it should be carried out by independent scientists. Yet an ill-
conceived review process will just compound the problems. Furthermore, 
there is a tacit assumption that the pure academic model will be used. 
Although it is appealing to think that this system would work as well 
for management and policy decisions as it does for pure research 
findings, it won't. Traditional peer review cannot be applied as some 
kind of quality control in a political arena. Indeed, some attempts to 
use peer review in this way have backfired.
                           what can go wrong
    Development of the management plan for the Tongass National Forest, 
covering 17 million acres in Alaska, illustrates several problems in 
applying academic peer review to natural resource management. To make a 
more science-based decision regarding the management and protection of 
old-growth forests and associated wildlife species, the Forest Service 
set up an internal scientific review team that worked with forest 
managers on the plans. Because of Federal laws governing the use of 
nonagency biologists, the Service sent drafts to external reviewers, 
most of whom were academics. In reviewing the plan and the methodology, 
the Service concluded that science had been effectively incorporated 
and that managers and scientists had worked well together. Indeed, 
Service officials have portrayed the plan as a watershed event, 
bringing the Service's research and management arms together.
    The conclusion of the external review committee was different. It 
independently issued a statement that was critical of the management 
proposed in the plan, concluding that, in certain aspects, none of the 
proposed actions in the plan reflected the reviewers' comments. The 
committee insisted that ``the Service must consider other alternatives 
that respond more directly to the consistent advice it has received 
from the scientific community before adopting a plan for the Tongass.'' 
The reviewers noted that there were specific management actions that 
should be carried out immediately to protect critical habitat but that 
were not part of the plan. These included eliminating road building in 
certain types of forest and adjusting the ratio of high-quality and 
low-quality trees that would be cut in order to protect old-growth 
forests.
    The Tongass experience holds several lessons. First, internal and 
independent reviewers reached opposite conclusions; decisionmakers were 
left to determine which set of opinions to follow. Whatever the choice, 
a record of dissent has been established that increases vulnerability 
to legal challenge and political interference. Second, the independent 
scientists felt ignored, which again increases the vulnerability of the 
decisions. Third, the independent scientists made clear management 
recommendations, believing that science alone should drive management 
decisions; most managers will disagree with this point of view. Thus, 
peer review in the Tongass case raised new problems. Confusion of roles 
and objectives was a major cause of these difficulties.
    A different set of issues has arisen with the use of peer review in 
establishing two HCPs--one involving grasslands and butterflies in the 
San Bruno Mountains south of San Francisco, the other involving Pacific 
Lumber and old-growth forests near Redwood National Park. In both 
cases, scientific review panels were used from an early stage to guide 
interpretation of the science. The panels were advisory and 
scrupulously avoided management recommendations, sometimes to the 
frustration of decisionmakers. The panels avoided setting levels of 
acceptable risk and tended to use conservative scientific standards.
    Another example comes from the State of Oregon Northwest Forest 
HCP, now being negotiated to cover 200,000 acres of second-growth 
forest that is home to spotted owls, murrelets, and salmon. The Oregon 
Department of Forestry sought reviews of their already-developed plan 
from 23 independent scientists representing a range of interest groups 
and expertise. Not surprisingly, diametrically opposed opinions were 
expressed on several issues. It will now be difficult to apply these 
reviews without further arbitration.
    Hints of more endemic problems come from the Fish and Wildlife 
Service's use of peer review for listing decisions. Typically, a few 
reviewers are selected from a group of scientists who are ``involved'' 
in the issue. But the Service now reports that at best only one in six 
scientists contacted even replies to the request that they be a 
reviewer. If they do volunteer, they are often late with their 
responses or don't respond at all. Two problems are becoming clear: 
There is no professional or monetary benefit from being a reviewer, and 
many scientists are wary of becoming caught up in politicized review 
processes, which can become drawn out and expose them to attacks by 
interest groups.
    Certain actions can determine the effectiveness of a peer review 
process: how it is structured, who runs it, who the reviewers are, and 
how they are instructed and rewarded. Lack of attention to details and 
blanket application of an academic model has already led to problems 
and will continue to do so.
                         clearing the minefield
    Peer review has always been a closed system, confined to the 
scientific community, in which the recommendations of usually anonymous 
reviewers determine the fate of research proposals or manuscripts. When 
scientific review is used outside this arena, problems arise because 
scientists, policymakers, managers, advocacy groups, and the public 
lack a common culture and language. Few scientists are trained or 
experienced in how policymakers or managers understand or use science. 
Scientists may be tempted to comment on management decisions and indeed 
are often encouraged to do so. However, they are rarely qualified to 
make such pronouncements. Natural resource managers must make decisions 
based on many factors, of which science is just one. Inserting academic 
peer review into a management context creates a minefield that leads to 
everything from misunderstanding to disaster.
    More appropriate applications of peer review can be designed once 
the major differences between academic and management science are 
understood. They involve:
Final decisions.--Scientists are trained to be critical and cautious 
        and to make only statements that are well supported. Managers 
        must make decisions with whatever information is available. 
        Scientists usually send incomplete work back for further study; 
        managers typically cannot. Managers must also weigh legal 
        concerns, public interest, economics, and other factors that 
        may have little basis in hard data.
Best available science.--Managers are instructed to use the best 
        available science. Scientists may regard such data as 
        incomplete or inadequate. Reviewers' statements that the 
        evidence in hand does not meet normal scientific standards will 
        be irrelevant to a decisionmaker who lacks alternatives and 
        must by law make a decision.
Competing ideas.--In pure science, two competing theories may be 
        equally supported by data, and both may produce publishable 
        work. Management needs to know which is best to apply to the 
        issue in question.
Reviewers as advocates.--In academia, it is assumed that a reviewer is 
        impartial and sets aside any personal biases. In management 
        situations, it is assumed that reviews solicited from 
        environmental advocates or development interests will reflect 
        those points of view.
Speed.--Academic reviews are completed at a leisurely pace. This is not 
        acceptable in management situations.
Anonymity and retaliation.--Academic reviews are typically anonymous to 
        encourage frankness and discourage professional retaliation. 
        Reviews in management situations usually must be open to 
        promote dialog. Some scientists will be reluctant to make 
        strong statements if they are subject to public scrutiny.
Qualified versus independent.--Often the scientists best qualified to 
        be reviewers of a natural resource issue are already involved 
        in it. Many HCP applicants, for example, do not want 
        ``inexperienced'' reviewers from the professional societies. 
        They prefer ``experienced'' scientists who understand the 
        rationale and techniques of an HCP. This sets up a tension 
        between demonstrable independence and depth of understanding.
Language.--Managers and decisionmakers may not be familiar with the 
        language of science. Statistical issues are particularly likely 
        to cause confusion.
Reward structure.--In academic science, reviews are performed free of 
        charge for the common good and to add to scientific discourse. 
        Hence they are typically given a low priority. In management 
        situations, this will not work. Rewards--financial and 
        otherwise--are necessary for timeliness and simply to encourage 
        reviewers' interest in the first place.
                              a new model
    The troublesome experiences in recent cases such as the Tongass and 
appreciation of the different roles of academic and management science 
reviewers point the way to more effective integration of peer review 
into resource management decisions. The following principles provide a 
starting point:
     The goals of peer review in each case must be clearly 
stated.
     Clear roles for reviewers must be spelled out.
     Impartiality must be maintained to establish credibility.
      A balance must be sought between independence and 
expertise of reviewers.
     Training of reviewers may be necessary.
     A reward structure must be specified.
     Early involvement of scientists will give better results 
than will post-hoc evaluations.
    Three other lessons are evident. First, because academic scientists 
are rarely familiar with management, the individual or organization 
coordinating the review needs to be experienced in both fields. The 
traditional sources of these ``science managers''--academic 
institutions, professional societies, or regulatory agencies--either 
lack the necessary experience or are not seen as independent. We need a 
new system for administering peer review.
    Second, a mediator or interpreter who clarifies roles and 
eliminates misunderstandings can be highly effective. Scientists may 
need pressing on some points and at other times may need to be 
dissuaded from trying to be managers. Conversely, managers who lack 
advanced training in disciplines such as statistics may need help in 
interpreting scientific statements on issues such as risk. The 
interpreter can also be a gatekeeper for scientific integrity, ensuring 
that reviewers do not become advocates, either voluntarily or under 
pressure.
    Third, a panel structure gives more consistently useful results. 
This is probably the result of panelists discussing issues among 
themselves. Although panels can produce conflicting opinions, they 
appear more likely to give unequivocal results than would a set of 
individual reviews.
    There is enthusiasm for science and peer review among most parties 
involved with ESA and general natural resource management. But there is 
little consensus on how to make the process succeed.
    Nationally, we lack the necessary infrastructure for implementing 
peer review as a useful tool. In each case, environmentalists, 
developers, and any other regulated parties should be asked to design 
the appropriate system, because they will then accept its results. This 
means that advice on forming such groups and oversight of their 
progress would be needed. Peer review cannot be guided by managers 
alone nor by scientists alone. We need independent technical groups 
that have the necessary diverse skills but are seen as impartial.
    Whichever route is taken, a better approach to peer review must be 
created. The rush to impose the old academic model must stop before it 
creates even more problems. By taking the time to properly devise 
review systems, we can ensure that the scientific voice is effective, 
understood, and utilized.
                                 ______
                                 

                                 Threatened and Endangered Species System (TESS)
                                      Delisted Species Report as of 5/7/01
----------------------------------------------------------------------------------------------------------------
                                               Date
        Date Species First  Listed           Delisted           Species Name               Reason Delisted
----------------------------------------------------------------------------------------------------------------
03/11/67.................................     06/04/87  Alligator, American          Recovered
                                                         (Alligator
                                                         mississippiensis.
02/17/84.................................     02/06/96  Bidens, cuneate (Bidens      Taxonomic revision
                                                         cuneata).
04/28/76.................................     08/31/84  Butterfly, Bahama            Act amendment
                                                         swallowtail (Heraclides
                                                         andraemon bonhotei).
10/26/79.................................     06/24/99  Cactus, Lloyd's hedgehog     Taxonomic revision
                                                         (Echinocereus lloydii).
11/07/79.................................     09/22/93  Cactus, spineless hedgehod   Not a listable entity
                                                         (Echinocereus
                                                         triglochidiatus inermis).
03/11/67.................................     09/02/83  Cisco, longjaw (Coregonus    Extinct
                                                         alpenae).
06/02/70.................................     09/12/85  Dove, Palau ground           Recovered
                                                         (Gallicolumba canifrons).
03/11/67.................................     07/25/78  Duck, Mexican (U.S.A. only)  Taxonomic revision
                                                         (Anas ``diazi'').
06/02/70.................................     08/25/99  Falcon, American peregrine   Recovered
                                                         (Falco peregrinus anatum).
06/02/70.................................     10/05/94  Falcon, Arctic peregrine     Recovered
                                                         (Falco peregrinus
                                                         tundrius).
06/02/70.................................     09/12/85  Flycatcher, Palau fantail    Recovered
                                                         (Rhipidura lepida).
04/30/80.................................     12/04/87  Gambusia, Amistad (Gambusia  Extinct
                                                         amistadensis).
04/29/86.................................     06/18/93  Globeberry, Tumamoc          New information discovered
                                                         (Tumamoca macdougalii).
03/11/67.................................     03/20/01  Goose, Aleutian Canada       Recovered
                                                         (Branta canadensis
                                                         leucopareia).
10/11/79.................................     11/27/89  Hedgehog cactus, purple-     Taxonomic revision
                                                         spined (Echinocereus
                                                         engelmannii purpureus).
12/30/74.................................     03/09/95  Kangaroo, eastern gray       Recovered
                                                         (Macropus giganteus).
12/30/74.................................     03/09/95  Kangaroo, red (Macropus      Recovered
                                                         rufus).
12/30/74.................................     03/09/95  Kangaroo, western gray       Recovered
                                                         (Macropus fuliginosus).
04/26/78.................................     09/14/89  Milk-vetch, Rydberg          New information discovered
                                                         (Astragalus perianus).
06/02/70.................................     09/12/85  Owl, Palau (Pyroglaux        Recovered
                                                         podargina).
06/14/76.................................     01/09/84  Pearlymussel, Sampson's      Extinct
                                                         (Epioblasma sampsoni).
06/02/70.................................     02/04/85  Pelican, brown (U.S.         Recovered
                                                         Atlantic Coast, FL, AL)
                                                         (Pelecanus occidentalis).
07/13/82.................................     09/22/93  Pennyroyal, Mckittrick       New information discovered
                                                         (Hedeoma apiculatum).
03/11/67.................................     09/02/83  Pike, blue (Stizostedion     Extinct
                                                         vitreum glaucum).
10/13/70.................................     01/15/82  Pupfish, Tecopa (Cypinodon   Extinct
                                                         nevadenis calidae).
09/26/86.................................    02/28/009  Shrew, Dismal Swamp          New information discovered
                                                         southeastern (Sorex
                                                         longirostris fisheri).
03/11/67.................................     12/12/90  Sparrow, dusky seaside       Extinct
                                                         (Ammodramus maritimus
                                                         nigrescens).
06/04/73.................................     10/12/83  Sparrow, Santa Barbara song  Extinct
                                                         (Melospiza melodia
                                                         graminea).
11/11/77.................................     11/22/83  Treefrog, pine barrens (FL   New information discovered
                                                         pop.) (Hyla andersonii).
09/13/96.................................     04/26/00  Trout, coastal cutthroat     Taxonomic revision
                                                         (Umpqua R.) (Oncorhynchus
                                                         clarki clarki).
06/14/76.................................     02/29/84  Turtle, Indian flap-shelled  Erroneous data
                                                         (Lissemys punctata
                                                         punctata).
06/02/70.................................     06/16/94  Whale, gray (except where    Recovered
                                                         listed) (Eschrichtius
                                                         robustus).
----------------------------------------------------------------------------------------------------------------

      
    [GRAPHIC] [TIFF OMITTED] 78073.001
    
    [GRAPHIC] [TIFF OMITTED] 78073.002
    
 Statement of David S. Wilcove, Senior Ecologist, Environmental Defense
    Two simple questions underlie much of the controversy pertaining to 
the listing of plants and animals as threatened or endangered under the 
Endangered Species Act. Developers, loggers, miners, business leaders, 
and other members of the regulated community wonder whether all of the 
species currently on the endangered species list are truly in danger of 
disappearing. Because the Endangered Species Act can pose significant 
economic costs to these people, they are understandably concerned that 
only species truly at risk of extinction be afforded such protection. 
Conservationists, on the other hand, worry that many rare plants and 
animals are not making it onto the endangered species list and are 
therefore being denied the protection they desperately need. Neglect 
becomes a prelude to extinction.
    The best available scientific information indicates that the answer 
to the first question--are lots of undeserving species somehow finding 
their way onto the endangered species list?--is a resounding ``no.'' 
And new data demonstrate that the answer to the second question--are 
lots of gravely imperiled species somehow failing to receive protection 
under the Endangered Species Act?--is an equally resounding ``yes.'' 
Below, I review these studies and their implications for administration 
of the Endangered Species Act.
    In 1993, Margaret McMillan, Keith Winston, and I published a paper 
in the peer-reviewed journal Conservation Biology in which we examined 
the population sizes of U.S. species proposed for listing or added to 
the endangered species list from 1985-1991 (inclusive).\1\ Nearly 500 
plants and animals were either proposed for listing or added to the 
list during that 7-year period. We discovered that the median 
population size of a vertebrate animal (mammal, bird, reptile, 
amphibian, or fish) at time of listing was 1,075 individuals. The 
median population size of an invertebrate animal at time of listing was 
fewer than 1,000 individuals, while for plants, it was fewer than 120 
individuals. (In fact, 39 plant species were listed when 10 or fewer 
individuals were known to exist.) These low numbers of individuals were 
clustered in a small number of populations: For animals, the median 
number of populations at time of listing was fewer than 3; for plants, 
it was 4. By any scientific standard, such low numbers make these 
species highly vulnerable to extinction.\2\ One way to highlight this 
point is to note that half the animals added to our endangered species 
list are rarer even than the giant panda.
---------------------------------------------------------------------------
    \1\ Wilcove, D.S., M. McMillan, and K.C. Winston. 1993. What 
exactly is an endangered species? An analysis of the U.S. endangered 
species list: 1985-1991. Conservation Biology 7: 87-93.
    \2\ IUCN/World Conservation Union. 1994. IUCN red list categories. 
Prepared by the IUCN Species Survival Commission, 30 November.
---------------------------------------------------------------------------
    More recently, Dr. Sandy Andelman of the National Center for 
Ecological Analysis and Synthesis at the University of California--
Santa Barbara has updated our study, using listing data from 1996-2000. 
She, too, found that the population sizes of plants and animals added 
to the endangered species list during this period were extremely low, 
meaning these species were highly vulnerable to extinction and worthy 
of Federal protection.\3\ For vertebrate animals, in fact, the 
population sizes of those species added from 1996-2000 were even lower 
than the population sizes of species added from 1985-1991.
---------------------------------------------------------------------------
    \3\ S. Andelman, pers. comm., May 4, 2001.
---------------------------------------------------------------------------
    Thus, the scientific studies done to date--as opposed to the 
rhetoric often heard from opponents of the Endangered Species Act--
strongly support the idea that the species finding their way onto the 
endangered species list fully fit the statutory definitions of 
``endangered'' and ``threatened'' species.
    Of course, it can be argued that the numbers I have cited are only 
as good as the data upon which they are based. If the U.S. Fish and 
Wildlife Service relies upon incomplete or inaccurate data when it 
decides to list a species, then it could end up listing a species that, 
upon further investigation, turns out to be fairly common. Supporters 
of this hypothesis are quick to point out that previously unknown 
populations of rare plants and animals are sometimes discovered after a 
species has been listed. The reason is simple: By putting a regulatory 
spotlight on a particular rare species, the Endangered Species Act 
forces developers, Federal agencies, and others to search more 
diligently for it.
    The fact that additional populations are discovered is not, by 
itself, evidence of a problem with the listing process. Most ecologists 
would predict that, with more searching, more populations would be 
found. A problem arises only when the number of new populations is so 
great as to make one question whether the species ever belonged on the 
endangered species list. Thus, it is worth noting that of the more than 
1,200 plants and animals that have been placed on the endangered 
species list since 1973, only 5 have been removed from the list because 
they turned out to be far commoner than originally believed.\4\ This 
amounts to less than one-half of 1 percent of the total list. 
Approximately 7 additional species have been removed from the list 
because additional studies revealed that they were not valid taxonomic 
entities (i.e., they turned out not to be distinct species, subspecies, 
or populations as required by the law).
---------------------------------------------------------------------------
    \4\ These are Tumamoc globeberry, Rydberg milk-vetch, McKittrick 
pennyroyal, pine barrens tree frog (Florida population), and Dismal 
Swamp southeastern shrew. See: D. Wilcove and M. McMillan. 1994. An 
analysis of erroneous listing proposals and decisions under the 
Endangered Species Act. Environmental Defense, Washington, DC; http://
ecos.fws.gov/webpage/webpage--delisted.html. These numbers are current 
as of May 4, 2001.
---------------------------------------------------------------------------
    In summary, the available evidence clearly indicates that virtually 
all of the U.S. plants and animals added to the endangered species list 
represent valid taxonomic entities at genuine risk of extinction.
    To answer the second key question--Are there significant numbers of 
imperiled species in the United States that have not been added to the 
Federal endangered species list? We are fortunate to have available a 
new book produced by The Nature Conservancy (TNC) and the Association 
for Biodiversity Information (ABI).\5\ Precious Heritage: The Status of 
Biodiversity in the United States is a compilation and analysis of data 
gathered by the natural heritage programs now established in all 50 
States, plus TNC and ABI. It provides what is unquestionably the most 
up-to-date and complete picture of the status of American wildlife.
---------------------------------------------------------------------------
    \5\ Stein, B.A., L.S. Kutner, and J.S. Adams. 2000. Precious 
heritage: The status of biodiversity in the United States. Oxford 
University Press, Oxford, UK.
---------------------------------------------------------------------------
    TNC and ABI rank plant and animal species on a scale from 1-5. 
Species classified as G1 (the ``G'' indicating that the rank in 
question pertains to the entire or ``global'' range of the species) are 
considered ``critically imperiled.'' Such species typically occur in 5 
or fewer places or have a total population of 1,000 or fewer 
individuals. A G2 species occurs in 6 to 20 places or has 1,000 to 
3,000 individuals left. It is considered ``imperiled.'' A G3 species is 
classified as ``vulnerable.'' It typically occurs in 21 to 100 places 
or has 3,000 to 10,000 individuals remaining. Species ranked G4 or G5 
are in no immediate danger.\6\ Note that all of these ranks are based 
on numbers of individuals and populations; they do not take into 
consideration the degree or immediacy of the threats facing these 
species.
---------------------------------------------------------------------------
    \6\ Stein et al. (2000), Table 4.2, p. 97.
---------------------------------------------------------------------------
    The authors of Precious Heritage have identified no fewer than 
1,385 U.S. plants and animals with a rank of G1 (critically imperiled). 
An additional 1,737 species are classified as G2 (imperiled), while 
3,338 are classified as G3 (vulnerable).\7\ By any reasonable measure, 
all of the species ranked G1 or G2 would qualify for listing as 
endangered or threatened under the Endangered Species Act; these two 
categories alone contain well over 3,000 species--more than double the 
current endangered species list. And in all likelihood, a significant 
fraction of the species classified as G3 (vulnerable) would pass muster 
for listing, too. Thus, there are a great many rare plants and animals 
that are at risk of extinction but are not yet protected under the 
Endangered Species Act. Given what we now know about the endangered 
species list, what steps can be taken to reduce the risk of erroneous 
listings and to increase the proportion of deserving species covered by 
the Endangered Species Act? Although the risk of an erroneous listing 
is small, Congress can reduce it even further by providing additional 
funds for biological inventories and taxonomic research.
---------------------------------------------------------------------------
    \7\ Stein et al. (2000), Table 4.4, p. 104.
---------------------------------------------------------------------------
    To reduce the backlog of deserving species awaiting protection, 
Congress must greatly increase funds to the U.S. Fish and Wildlife 
Service and National Marine Fisheries Service for listing activities. 
From 1991-2000, the U.S. Fish and Wildlife Service added an average of 
63 U.S. species per year to the list. At that rate, assuming a backlog 
of about 2,000 imperiled, unlisted species, it would take the Service 
nearly 32 years to catch up. By that time, many of these rare plants 
and animals may be gone. A reasonable goal would be to erase this 
backlog within a decade. Doing so would require a tripling of the 
annual appropriation to the Service for listing and related activities, 
to approximately $20 million in fiscal year 2002.
    Finally, we must not forget that simply placing a rare plant or 
animal on the endangered species list does not guarantee its survival, 
much less its recovery. If, as the data indicate, most species are 
added to the list only when their populations have reached critically 
low levels, then we must find ways to increase those populations. Doing 
so usually entails restoring or enhancing their habitats. For species 
that depend upon private lands, the key to restoring their habitats is 
to enlist the cooperation of the landowners. Incentive-based 
approaches, such as the U.S. Fish and Wildlife Service's safe harbor 
program or its Endangered Species Landowner Incentive Program, have 
proved to be very successful in making landowners active participants 
in recovery efforts. More support for programs such as these will go a 
long way toward saving our imperiled wildlife while removing much of 
the controversy associated with the Endangered Species Act.
                               __________
Statement of Lev Ginzburg, State University of New York at Stony Brook 
                       and Applied Biomathematics
    Determination of endangerment status is one of the most critical 
steps for reaching the objectives of the Endangered Species Act; it is 
crucial for implementing effective conservation strategies and for 
apportioning limited financial and human resources for species 
conservation. Yet, the protocol used by the U.S. Fish and Wildlife 
Service for listing species under the Endangered Species Act has been 
criticized as being arbitrary, because the system lacks explicit 
guidelines by which these decisions are made.
    A risk classification system utilizing explicit guidelines and 
quantitative data would promote consistency in listing decisions and 
expedite the listing process. One such system has received wide 
acceptance from the international community and has been hailed by the 
National Research Council as the ``most important scientific effort to 
date to reach consensus on standard criteria for assigning taxa to 
threat categories in a uniform, objective manner.'' This system was 
developed by the World Conservation Union (IUCN, formerly known as the 
International Union for the Conservation of Nature). IUCN is the 
principal international organization involved with categorizing species 
by extinction risk. Since the 1960's, it has been producing Red Data 
Books and Red Lists, which are among the most important tools for 
monitoring biodiversity at a global level.
    Under the system used by the U.S. Fish and Wildlife Service, a 
species qualifies for listing if its populations meet one of five 
qualitative criteria, such as present or expected future loss of 
habitat, overharvesting, disease or predation. Species that qualify for 
listing are then ranked based on magnitude of threat, immediacy of 
threat, and taxonomic distinctiveness. There are no threshold values 
for deciding the magnitude or immediacy of threat. The final decision 
to list a species as either endangered or threatened is based on the 
level of perceived extinction risk. An endangered species is defined as 
being ``in danger of extinction throughout all or in a significant part 
of its range'' and a threatened species is ``likely to become 
endangered throughout all or a significant part of its range''.
    The IUCN listing process is carried out by its specialist groups, 
each concerned with a particular taxonomic group. Species satisfying 
one of five criteria, based on thresholds of ecological variables such 
as population size, population growth trend, geographic distribution, 
and extinction probability, are classified into one of IUCN's three 
threatened categories of Critically endangered, Endangered, and 
Vulnerable. Species not meeting these criteria are given the status 
Least Concern. Threshold ranges of quantitative variables within each 
of five criteria separate each category of endangerment. In all, 12 
quantitative variables are examined for each species under this system. 
If not all relevant data are available, as is often the case; a species 
may still be evaluated under this system because of the many variables 
examined.
    The IUCN listing process was developed under wide consultation and 
is now recognized internationally by the public and scientific 
community. The lists of threatened species developed by IUCN are among 
the most widely used by conservationists around the world. The IUCN 
criteria were designed to detect risk factors for organisms of widely 
different taxonomic groups. While not all criteria may be relevant for 
a particular taxon, there are criteria relevant for assessing 
extinction threat of all groups (except microorganisms).
    One difference between the IUCN and FWS systems is the efficiency 
and speed of the listing process. The most recent IUCN Red List 
includes over 18,000 species that have been assessed in the 5 years 
since the new IUCN system took effect. By contrast, the number of 
species listed by the FWS in the last 20 years is about one-tenth of 
this number.
    Resources for conservation of species are limited. It is, 
therefore, imperative that decisions are made carefully to focus on 
species that will benefit most from conservation actions. In addition, 
many species at risk of extinction cannot afford an inefficient listing 
protocol. These considerations are mentioned in the endangered Species 
Act of 1973, yet the present process is both slow and subjective.
    The most important difference between the IUCN and FWS systems is 
their transparency. The FWS relies heavily on qualitative criteria and 
expert judgment, and therefore often seen as ambiguous and subjective. 
The IUCN system is based on objective criteria, and results in 
efficient and scientifically defensible decisions. It makes use of 
explicit guidelines for evaluating different variables that contribute 
to extinction risk and uses quantitative thresholds to determine degree 
of endangerment. As a result, decisions are consistent between people 
and specific reasons for each listing decision are clearly defined.
    For most species, data that are valuable for evaluating extinction 
risk are deficient in one or more areas. It may not be possible to 
gather all relevant data for some species. Data collection may be 
costly or delaying action to gather all relevant data may place that 
species in greater danger of extinction. The IUCN system uses multiple 
criteria to accommodate this problem. Because meeting any one criterion 
is sufficient for listing, it is possible to list a species in a high 
threat category if sufficient data is only available for one criterion.
    There is always some uncertainty involved in estimating extinction 
risk in the form of measurement error, probabilistic predictions, or 
semantic ambiguity. When this uncertainty is simplified for analysis, 
it is difficult to prevent human biases from entering the 
decisionmaking process. New methods have been developed that allow the 
evaluation of species according to the criteria of IUCN while 
objectively dealing with uncertainty in data. This allows efficient and 
non-biased classification of species of concern. However, such methods 
of dealing with uncertainty are applicable only to protocols that are 
based on objective, quantitative criteria, rather than subjective 
opinions.
    To improve the Federal system under which threatened and endangered 
species are listed, it is essential that more explicit criteria and 
clear thresholds be incorporated, as in the IUCN system. There is a 
large amount of similarity in the nature of the factors considered 
under the USFWS and IUCN listing systems. A system similar to that of 
IUCN can easily be implemented in the United States, without requiring 
a change in the Endangered Species Act itself. Such a change will make 
the Act more efficient, objective, and science-based in dealing with 
the listing and delisting of threatened and endangered species.
                               __________
    Statement of John D. Echeverria, Director, Environmental Policy 
               Project, Georgetown University Law School
    My name is John D. Echeverria. I am the director of the 
Environmental Policy Project and an Adjunct Professor at Georgetown 
University Law Center. The mission of the Environmental Policy Project 
is to conduct research and education on legal and policy issues 
relating to protection of the environment and conservation of natural 
resources. I appreciate the opportunity to testify today. In my 
testimony I will address three issues: (1) the proposal in the 
Administration's recent budget submission to Congress to effectively 
bar citizens from going to court to enforce certain provisions of the 
Endangered Species Act (ESA); (2) some of the likely difficulties and 
counter-productive consequences of seeking to advance species 
conservation goals through taxpayer-funded ``incentive'' programs; and 
(3) the value of critical habitat designations in furthering the 
objectives of the ESA.
      congress should reject the proposed esa ``extinction rider''
    The recent Administration budget submission to Congress includes a 
proposal to effectively bar citizens from continuing to go to Federal 
court to enforce deadlines in the ESA for the listing of threatened and 
endangered species and for the designation of critical habitat.\1\ In 
my view this proposal is unwise for two reasons: first, it would 
undermine one of Congress' most valuable tools for ensuring that 
Federal agencies comply with the ESA and other environmental laws; and, 
second, it fails to address the most obvious solution to the growing 
volume of lawsuits being filed against the agencies: additional funding 
for the agencies so that they can perform their statutory 
responsibilities in timely fashion.
---------------------------------------------------------------------------
    \1\ The pertinent language, which some environmental advocates have 
called an ``extinction rider,'' reads as follows: ``That 
notwithstanding the specific timeframes and deadlines of section 4(a) 
and (b) of the Endangered Species Act of 1973, as amended, not to 
exceed $8,476,000 shall be used for implementing subsections (a), (b), 
(c)(1), (c)(2)(B)(iii) and (e) of section 4 for species that are 
indigenous to the United States, to be expended solely for (1) 
complying with court orders or settlements in effect as of the date of 
the passage of this law, and (2) undertaking such other actions as 
determined by the Secretary to be consistent with the priorities 
established by a listing priority system to implement these subsections 
and subject to the requirements of this appropriation.''
---------------------------------------------------------------------------
    Environmental groups and others do not file lawsuits under the ESA 
simply because they believe it is in their self-interest to do so. 
Rather, they sue because Congress itself has specifically authorized 
and encouraged the filing these suits. Section 11(g) of the ESA 
provides in part ``any person may commence a civil suit . . . to enjoin 
any person, including the United States and any other governmental 
instrumentality or agency . . . who is alleged to be in violation of 
any provision of this chapter or regulation issued under the authority 
thereof.'' This so-called citizen-suit provision is similar to the 
citizen-suit provisions included in other major Federal environmental 
laws. See, e.g., 33 U.S.C. 1365 (Clean Water Act citizen suit 
provision); 42 U.S.C. 7604 (Clean Air Act citizen suit provision).
    It is important to emphasize that Congress has not authorized the 
filing of these suits on any of a variety of different, or potentially 
novel, legal theories. Rather, section 11 simply authorizes suit for 
``violations'' of the ESA and ESA implementing regulations. Most 
citizen suits brought under the ESA involve entirely straightforward 
application of clear law to undisputed facts. In many cases, the legal 
issue presented is no more complicated than the question of whether a 
motorist has committed a parking meter violation.
    The reason Congress has authorized these kinds of straight-forward 
lawsuits--in the Endangered Species Act and in many other laws--is 
because this type of litigation--or, equally important, the threat of 
such litigation--is an effective tool for ensuring that the agencies 
actually carry out the law as written. Congress has the opportunity to 
enact or thoroughly amend major statutes, such as the environmental 
laws, on a relatively infrequent basis. Over a decade has passed, for 
example, since Congress adopted major amendments to the ESA. On the 
infrequent occasions when Congress enacts major legislation, it is 
typically only after sustained public debate and focused congressional 
attention to the issues.
    The difficulty frequently starts, as Congress has discovered 
through repeated, painful experiences, when the agencies begin to 
implement the legislation Congress has enacted. After legislation 
passes, public attention to an issue typically wanes. Coalitions of 
regulated businesses affected by new legislation typically lobby the 
agencies to delay its implementation or to adopt strained 
interpretations of the law that will lessen their regulatory burdens. 
These efforts are countered, to a limited degree at least, by 
environmental advocates, who attempt to speak on behalf of the broad 
public interest protected by the new law. Unfortunately, concentrated 
wealth and power frequently prevails over the broad public interest in 
this process. As a result, agency implementation of environmental laws 
all too frequently threatens to subvert the will of Congress, almost 
always in the direction of less environmental protection than Congress 
intended.
    Citizens suits provide a solution to this problem. By empowering 
individual groups and citizens to directly enforce the law Congress has 
written, Congress creates an important check on the agencies' ability 
to subvert Congress' will. The goal is not to set up the courts as the 
arbiters of environmental disputes or to assign citizens groups around 
the country some special policymaking responsibility. Instead, the goal 
is simply to enlist our established judicial procedures and willing 
lawyers (motivated by a promise of attorneys fees if they bring a 
successful suit) in the effort to see that Congress' will is carried 
out. Ideally, the mere threat of successful litigation will prevent an 
agency from flouting the will of Congress and avoid the need for actual 
litigation.
    The late Judge J. Skelley Wright, of the U.S. Court of Appeals for 
the D.C. Circuit, spoke eloquently about the issue of enforcement of 
environmental laws 30 years ago in a landmark case, Calvert Cliffs 
Coordinating Committee, Inc. v. U.S. Atomic Energy Commission, 449 F.2d 
1109 (D.C. Cir 1971). Referring to the National Environmental Policy 
Act and other environmental legislation, he observed that ``recently 
enacted statutes attest to the commitment of the Government to control, 
at long last, the destructive engine of material `progress.' '' The 
next step, he said, was to see that ``important legislative purposes, 
heralded in the halls of Congress, are not lost or misdirected in the 
vast halls of the Federal bureaucracy.'' The citizen suit is Congress' 
most effective tool for ensuring that its objectives are not ``lost or 
misdirected.'' The Administration's budget proposal, on the other hand, 
would encourage legal mandates to become lost or misdirected, weakening 
both the ESA and the authority of Congress.
    In addition, the proposal in the Administration's budget submission 
fails to address one the most obvious and immediate causes of the 
growing volume of lawsuits being filed under the ESA. Environmental 
groups are in a position to sue over the failure of the government to 
list species and designate critical habitat because the agencies have a 
backlog of work that leads them to repeatedly violate their mandatory 
duties to carry out these steps under ESA. A major reason for these 
failures on the part of the agencies is a longstanding shortfall in 
funding to support the necessary scientific and other technical work. 
Congress could achieve significant progress in limiting the volume of 
lawsuits under the ESA by increasing appropriations to the agencies. As 
compared to the approach of eviscerating the citizen-suit provision, 
increased funding levels will allow Congress to reduce the volume of 
litigation against the agencies while simultaneously preserving an 
important tool to prevent agencies from ignoring congressional 
mandates.
        the potential unintended consequences of ``incentives''
    A great deal of attention has recently focused on the proposed use 
of financial payments to property owners--so-called ``incentives''--as 
a complement, or possibly even as an alternative, to enforcement of the 
ESA. Financial incentives may have a potentially valuable, limited role 
to play in species conservation. In my view, however, the extensive use 
of incentive payments would create many difficulties and would likely 
be counterproductive to the goal of protecting and restoring threatened 
and endangered species.
    First, according to some, expansive taxpayer-funded incentive 
programs can be justified on the ground that endangered species 
regulations routinely result in constitutional ``takings'' mandating 
the payment of compensation under the Takings Clause of the Fifth 
Amendment. Congress should agree up front to arrange payments to 
landowners subject to the ESA, according to this argument, to avoid the 
filing of takings claims by aggrieved property owners after the fact.
    In reality, however, ESA restrictions rarely if ever result in 
constitutional takings. Indeed, while a number of takings claims have 
been brought under the ESA, I am not aware of a single case in which it 
has been definitively determined that a Federal ESA regulation has 
resulted in a taking. There are several explanations. First, the ESA is 
a relatively flexible law which rarely if ever produces the kind of 
severe economic impact that rises to the level of a constitutional 
taking. Second, wildlife has long been understood to be a public 
property resource which the public has broad authority to protect from 
harm or destruction. Because restrictions on an owner's actions that 
threaten wildlife prevent a trespass on public property rights such 
restrictions cannot logically be said to result in a taking of private 
property rights.
    Second, the proposal to pay financial incentives to those subject 
to the ESA also raises significant questions of fairness, especially if 
the incentives would be funded out of general tax revenues. The value 
of land for development and for other forms of profitable exploitation 
reflects in large part the value-enhancing effect of public 
investments, from the public highway system to agricultural subsidies. 
Because a good deal of private property value is publicly created, an 
owner has no legitimate claim on the public fisc simply because he 
cannot exploit a property's full economic potential. A fairness problem 
also arises from the fact that a relatively small number of firms and 
individuals with large land holdings are likely to benefit the most 
from incentive programs. Approximately 125,000 timber or farm owners, 
less than two-tenths of 1 percent of all private landowners, own 38 
percent of all the private land in the United States.\2\ Timber and 
farm interests that amount to less than 3 percent of all landowners own 
more than 80 percent of all private land.\3\ Thus, land owner incentive 
programs have a significant potential to create a significant new 
subsidy program for the relatively well-to-do at the expense of the 
ordinary taxpayer.
---------------------------------------------------------------------------
    \2\ See Environmental Defense Fund, ``Why Takings Bills Threaten 
the Property Rights and Values of Most Landowners (1995).''
    \3\ Id.
---------------------------------------------------------------------------
    Finally, paying financial ``incentives'' to land owners has the 
potential to lead to over-investment in land the development of which 
could lead to endangered species problems. The ultimate goal of public 
policy should be to encourage investors to direct their attention to 
projects that avoid ESA (and other problems) rather in the direction of 
projects that can give rise to such problems. The ready availability of 
financial assistance to investors facing ESA problems would provide 
little incentive to investors to avoid investment opportunities that 
carry this type of risk. Ironically, therefore, financial assistance to 
landowners, while potentially useful in avoiding political conflicts in 
the short-term, could lead to more numerous and more serious clashes 
between development interests and ESA concerns over the long-term.
    The nature of the problem can be illustrated in a number of ways. 
It is widely recognized that the availability of low-cost Federal flood 
insurance in flood plain areas, rather than protecting property in 
areas subject to flooding, has actually increased development in flood 
plains and exposed more property to the risk of flooding. In the view 
of some, International Monetary Fund bailouts of debtor nations, while 
useful in the short-term, have encouraged some nations to engage in too 
much borrowing and fiscal irresponsibility in the long-run. So too in 
the case of ESA incentives, by lowering the likely cost of investing in 
areas that present serious ESA problems, the availability of incentive 
payments could actually encourage investors to invest more in these 
areas, tending to exacerbate rather than reduce development conflicts.
    As I suggested, this is not to indicate that financial incentives 
have no place in species conservation. In some cases, short of outright 
public acquisition of the property, the only way to achieve effective 
habitat management may to enlist the land owner as an active manager of 
land on behalf of the environment. The rather special case of managing 
woodpecker habitat in North Carolina, for example, provides an example 
of where public payments to enlist land owner cooperation may be useful 
and necessary. But in the general run of cases, where the basic issues 
are whether natural habitat can be destroyed for development, 
additional water withdrawn for irrigation or other purposes, or 
additional trees cut for commercial purposes, taxpayer-funded payments 
to landowners who face ESA problems are more problematic.
    At a minimum, these concerns about the potentially perverse effects 
of incentive payments warrant caution in the design of incentive 
program. For example, a stronger case can be made for incentive 
payments to the subset of owners who can demonstrate that the enactment 
and implementation of the ESA seriously disrupted settled development 
plans than to investors who now or in the future make investments in 
the face of foreseeable ESA problems. Limiting incentive payments to 
owners whose plans have been significantly disrupted by new legal 
enactments would have the twin advantages of focusing financial 
assistance on those owners likely to have the strongest equitable 
claims to public financial assistance while simultaneously sending a 
clear message that such assistance will not be made available to owners 
who voluntarily make an investment in the face of known environmental 
problems.
               the value of critical habitat designations
    Finally, I wish to offer a brief word in favor of critical habitat 
designations and of the current legal requirement that critical habitat 
be designated concurrently with the identification of a species as 
threatened or endangered.
    In the view of some, critical habitat designation is superfluous 
because it adds little to the legal mandates to avoid ``jeopardy'' to 
species under section 7 of the Act or to avoid a ``take'' of a species 
under section 9. In a sense this is a fair and accurate statement 
because a Federal agency likely can halt or control any activity based 
on section 7 or 9 which would adversely affect critical habitat. The 
critical role of habitat designation--and the reason Congress included 
separate proscriptions in section 7 against jeopardizing species and 
destroying critical habitat--is that it serves to constrain agency 
discretion. In practice, both the terms ``jeopardy and ``take'' are 
rather elastic. The agencies therefore have a fair amount of discretion 
in applying these terms in particular cases. Certainly the courts are 
compelled to accord substantial deference to an agency's determination 
that a particular action will not jeopardize a species or produce an 
illegal take. By contrast, once critical habitat is defined and drawn 
on a map, the ESA's relatively clear prohibitions against actions that 
would result in the ``destruction or adverse modification'' of critical 
habitat presents a fairly straightforward obligation for the agencies 
to follow and for the courts to apply. For the reasons discussed above, 
there are compelling reasons to believe that the agencies, subject to 
constant pressure from the regulated community, will fail over time to 
carry out their ESA obligations as Congress intended. An enforceable 
command to the agencies to promptly designate and protect critical 
habitat helps ensure that Congress' ESA goals will actually be 
achieved.
    The concern has been expressed that the requirement to designate 
critical habitat imposes an unreasonably heavy burden on the Agency at 
a point in time when it has only begun to identify the threats to the 
species and to devise a recovery strategy. However, the Act makes clear 
that the initial designation need not be definitive. The Act directs 
the Agency to rely on the ``best scientific and commercial data 
available'' and explicitly indicates that an agency may ``from time-to-
time . . . revise . . . [the] designation.''
    Furthermore, an agency is directed to take into consideration ``the 
economic impact, and any other relevant impact, of specifying any 
particular area as critical habitat.'' Thus, an agency has wide 
latitude in selecting the factors to apply in designating critical 
habitat. Given the significant flexibility built into the Act, it 
cannot reasonably be said that the habitat designation requirement 
imposes an unreasonable strait jacket.
    Thank you for the opportunity to testify. I would be happy to 
respond to any questions.
Statement of Steven P. Quarles on behalf of the American Forest & Paper 
       Association and the QuadState County Government Coalition
    My name is Steven P. Quarles. I am counsel to, and appearing on 
behalf of the American Forest & Paper Association (AF&PA) and the 
QuadState County Government Coalition. AF&PA is the national trade 
association representing the forest products industry. It has more than 
130 member companies that grow, harvest, and process wood and wood 
fiber and manufacture a wide variety of products including pulp, paper, 
paperboard and wood products. AF&PA has more than 60 association 
members that represent all facets of the forest products industry and 
represent more than 10,000 companies. AF&PA's member companies, as a 
condition of membership, must also commit to conduct their business in 
accordance with the principles and objectives of the Sustainable 
Forestry Initiative (SFI)SM program. QuadState County Government 
Coalition is a coalition of six counties in the four States that share 
portions of Mojave and Colorado Deserts--Mojave County in Arizona; 
Imperial, Kern and San Bernardino Counties in California; Lincoln 
County in Nevada; and Washington County in Utah. The Coalition's 
principal concern is the effect of the listing of the Mojave population 
of the desert tortoise on its member counties' economic and revenue 
bases, their public works, and the businesses and properties of their 
constituents.
    The topic to which the subcommittee has devoted this hearing is 
timely and significant. Individual determinations or ``listings'' of 
species to be endangered species or threatened species (``listed 
species'') under the Endangered Species Act (``ESA'') have frequently 
been contentious because the stakes are high; imposed with the listings 
is the full panoply of the ESA's controls over human behavior to 
benefit the listed species. However, for most of the ESA's life span of 
nearly three decades, the general process (and the underlying science 
and law) of listing species as endangered species or threatened species 
has not garnered the same degree of controversy, or at least attention, 
as many of the other processes and decisions under that Act.
    Controversy over and attention to the species' listing process are 
now at hand, however--triggered by recent actions of both the Clinton 
and Bush Administrations. On November 17, 2000, FWS Director Jamie 
Clark announced that the Agency lacks sufficient funds to conduct any 
species' listings, including responding to any listing petitions, in 
fiscal year 2001 beyond those mandated by court order. This Clinton 
listings moratorium was followed by a legislative proposal in President 
Bush's budget to waive for fiscal year 2002 the ESA's statutory 
deadline for species listings (and designations of critical habitat) 
and to limit use of the available funding to implementing already 
issued court orders and those listings (and designations) the Secretary 
of the Interior in her discretion determines to be important. Both the 
Clinton moratorium and the Bush budget language, if enacted, should 
spawn litigation and enlist the judiciary in the intensifying species' 
listing controversy.
    My topic will focus on one issue: the overbroad definition of 
``species'' eligible for listing under the ESA. In particular, I will 
emphasize the authority to list distinct population segments of 
vertebrates, efforts by Congress to determine the use of that 
authority, and how that authority has been abused by the ESA-
implementing agencies (the U.S. Fish and Wildlife Service (``FWS'') and 
the National Marine Fisheries Service (``NMFS'') (collectively, the 
``Services)). The Services' abuse of the distinct population segment 
concept has resulted in the expansion of their species' listing 
authority well beyond the expectations of Congress and, in particular, 
this committee, and the infiltration of the concept into other ESA 
decisionmaking processes for which it was not authorized or intended. I 
conclude with suggestions on ways Congress, in this time of funding 
scarcity, could limit the applicability of the distinct population 
segment concept for listing vertebrate species--a concept that provides 
the least amount of protection for genetic heritage, a principal 
purpose of the ESA.
                               background
    The ESA only permits the Services to list an endangered species or 
threatened species if it is a ``species'' unit as defined by ESA 
Sec. 3(16), and only if that ``species'' unit meets the definitions of 
``endangered species'' or ``threatened species'' in ESA Sec. 3(6) and 
3(20) which requires a degree of risk over a ``significant portion of 
[the] range'' occupied by the species unit. 16 U.S.C. Sec. Sec. 1532(6) 
and (20), 1533(a)(1) (FWS shall ``determine whether any species is an 
endangered species or threatened species''), (a)(2), (a)(3), (b)(1), 
(b)(3)(A), and (b)(6)(A) (final ``determination as to whether a species 
is an endangered species or a threatened species'').
    The ESA defines the crucial term ``species'' in an unusual way. An 
ESA-listable ``species'' unit includes not only a true biological 
species (those individuals that can interbreed and produce viable 
offspring), but also a recognized ``subspecies of fish or wildlife or 
plants,'' and--in the case of a vertebrate species--``any distinct 
population segment of any species of vertebrate fish or wildlife which 
interbreeds when mature'' (``DPS''). 16 U.S.C. Sec. 1532(16).
    The ESA listing of any ``species'' unit has adverse consequences 
for private and public land uses within the range of that species. ESA 
Sec. 9 and regulations prohibit the ``take'' of almost all listed 
wildlife species--the ``take'' prohibition bars any economic land use 
which would inadvertently harm even one member of that wildlife 
species. See 16 U.S.C. Sec. 1538(a)(1); 50 C.F.R. Sec. Sec. 17.3 and 
222.102; Babbitt v. Sweet Home Chapter of Communities for a Great 
Oregon, 515 U.S. 687 (1995). Further, federally-assisted actions cannot 
be approved until an ESA Sec. 7 consultation procedure has been 
completed, and must be disapproved if the action is likely to 
jeopardize the existence of the listed species unit. See 16 U.S.C. 
Sec. 1536.
    Each of the three branches of government has treated the authority 
to list distinct population segments of vertebrates in a strikingly 
different manner. If the analogy were to ships, two of the branches--
Congress and the Executive--have passed in the night sailing in 
opposite directions; the third--the Judiciary--has never left port. 
Since the ESA's enactment, Congress has made several efforts to reduce, 
met by countervailing efforts of the Services to expand, the scope of 
listings below the subspecies level. The Federal courts have rarely 
been asked to pass judgment on these opposing efforts.
  congressional efforts to constrain listings of distinct populations
    Distinct population segments did not enjoy protection under the 
ESA's predecessors. The Endangered Species Preservation Act of 1966 
referred only to ``species''; ``subspecies'' were added in the 
Endangered Species Conservation Act of 1969. The ESA's first attempt to 
provide protection to species units below subspecies was quite liberal. 
As enacted in 1973, the ESA defined ``species'' to ``include[] any 
subspecies of fish or wildlife or plants and any other group of fish or 
wildlife of the same species or smaller taxa in common spatial 
arrangement that interbreed when mature.''
    Contrary to popular belief, many of the populations of charismatic 
megafauna that have been designated as endangered or threatened species 
were listed under this early, quite generous ``common spatial 
arrangement'' standard-less standard. These include species, such as 
the grizzly bear and bald eagle, that may have been rare in the lower 
48 States but are common in Canada and Alaska. The listing documents 
made no attempt to demonstrate any degree of distinctness between the 
lower 48 species unit and the northern species unit; instead, they 
readily admitted that the two species units were not reproductively 
segregated and had no genetic or other biological differences. 
Moreover, the FWS made no effort to determine whether these ``species'' 
were suffering declines in Canada (or, for that matter, in the rest of 
the United States, i.e., Alaska). Indeed, as one author noted, the FWS 
engaged in the ludicrous fiction of ``defin[ing] the grizzlies' entire 
range as the lower 48 States even though it was obviously well aware 
that grizzlies existed in Canada and Alaska.'' (Daniel Rohlf, ``There's 
Something Fishy Going On Here: A Critique of the National Marine 
Fisheries Service's Definition of Species Under the Endangered Species 
Act'', 24, Envtl. L. 617, 653 (1994).)
    By 1978, Congress had had second thoughts about this loose ``common 
spatial arrangement'' authority for species' listings. To restrict sub-
subspecies listings, Congress amended the ESA by replacing the original 
definition of species with the present definition and its DPS language. 
Criticism continued, however; none more withering than that of the 
General Accounting Office (``GAO''). In 1979 testimony before this 
committee and a report, the GAO raised concern over any loose 
definition of a ``distinct population'' in what has become the well-
known squirrels-in-the-park analogy. The Agency stated that the 
definition:

         permitted FWS to list populations of species, regardless of 
        their size, location, or total numbers. Thus, squirrels in a 
        specific city park could be listed as endangered, even though 
        an abundance of squirrels lived in other parks in the same city 
        and elsewhere. . . . Such listings could increase the number of 
        potential conflicts between endangered and threatened species 
        and Federal, State, and private projects and programs. . . . 
        However, the purpose of the Endangered Species Act is to 
        conserve endangered and threatened species and their critical 
        habitats, not preserve every individual animal and plant.

    Endangered Species--A Controversial Issue Needing Resolution 52, 58 
(GAO Rep. CED-79-65, 1979). Although the particular quote referred to 
the 1973 ``species'' definition, two lawyers and a scientist from NMFS 
pointed out in a law review article that subsequent GAO statements 
indicated the same concern was relevant to the revised 1978 ``species'' 
definition. (Karl Gleaves, Michael Kuruc, Patricia Montanio, ``The 
Meaning of `Species' Under the Endangered Species Act,'' 13 Pub. Land 
L. Rev. 25, 31, n.30 (1992).)
    This committee took note of the GAO's criticism (even if it viewed 
the problem as FWS's interpretation of the statutory definition) and 
the GAO's suggestion that the authority to list DPSs be deleted from 
the ESA. However, after FWS and others emphasized the importance of the 
listing flexibility afforded by the DPS portion of the ``species'' 
definition, this committee decided to retain that definition in the 
1979 ESA amendments and issue a stern admonition to the Services to use 
the DPS listing authority ``sparingly'':

          [T]he General Accounting Office recommended that the 
        subcommittee consider an amendment to the definition of species 
        currently contained in the Act which would prevent the FWS from 
        listing geographically limited populations of vertebrates as 
        threatened or endangered. It is the GAO's contention . . . that 
        FWS has interpreted the term ``species'' to include any 
        population of the animal, regardless of its size, location, or 
        total numbers. According to the GAO, this could result in the 
        listing of squirrels in a specific city park, even if there is 
        an abundance of squirrels in other parks in the same city, or 
        elsewhere in the country. . . . [T]he committee is aware of the 
        great potential for abuse of this authority and expects FWS to 
        use the ability to list populations sparingly and only when the 
        biological evidence indicates that such action is warranted.

S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6-7 (emphasis added).
   the services' unrestrained use of the distinct population segment 
                           listing authority
    Contrary to the ``sparingly'' stricture of this committee, the 
Services have been more unsparing in their use of the DPS listing 
authority. They produced two documents purportedly defining and 
confining their DPS authority--NMFS's ``Policy on Applying the 
Definition of Species Under the Endangered Species Act to Pacific 
Salmon,'' 56 Fed. Reg. 58612 (Nov. 20, 1991), which established the DPS 
concept of ``evolutionarily significant unit'' (``ESU''), and the 
Services' joint ``Policy Regarding the Recognition of Distinct 
Vertebrate Population Segments Under the Endangered Species Act'', 61 
Fed. Reg. 4722 (Feb. 7, 1996). Both documents quoted, and paid lip 
service to, this committee's ``sparingly'' admonition. However, the 
Services' actual performance in listing DPSs is clear evidence that 
their DPS policies do nothing to limit and, arguably, substantially 
expand the authority to list DPSs.
    According to a draft manuscript prepared by the Pierce Atwood law 
firm for an upcoming edition of the American Bar Association's Natural 
Resources and Environment magazine, since the existing ``species'' 
definition was added to the ESA in 1978, 59 DPSs have been listed by 
the Services, with the precise number dependant upon interpretation of 
decisions that, initially, did not always clearly identify the listings 
as DPSs. I suspect that there could be vigorous debate over whether 59 
DPS listings in 22 years represents sparing use of the DPS listing 
authority. But once the trend--a rapid increase in DPS listings in the 
last several years--is examined, the nays should have it. The pace of 
DPS listings was relatively constant for the first 17 years (7 in 1978-
1985; 6 in 1986-1990 (including NMFS' first listing of a West Coast 
salmonid DPS); and 8 in 1991-1995). From 1996 through 2000, the 
Services have listed 38 DPSs, more than quadrupling the number of 
listings of the previous 5 years. This trend can be expected to 
continue; about 35 DPSs are currently involved in rulemaking processes.
    By contrast, despite the existence of the Services' two policies 
which ostensibly were to bring rigor to the DPS listing process, the 
Pierce Atwood authors could find only 13 instances over the past 22 
years when either of the Services concluded that a particular 
population did not qualify as a DPS (excluding instances where DPS 
status was denied for delisting purposes and where a DPS existed but 
was not listed for conservation reasons). The Services have concluded 
that species units have qualified as DPSs more than 80 percent of the 
time. These statistics suggest that the Services rarely determine that 
a species unit--identified by petitioners or by themselves--does not 
qualify as a DPS, notwithstanding Congress' admonition to use the DPS 
listing authority ``sparingly.''
    reasons for the liberal use of the distinct population segment 
                           listing authority
    How did this frequent use of the DPS listing authority happen in 
the face of the Congressional caution? I can think of at least three 
reasons.
    1. No scientific agreement on the DPS concept. In general, common 
and consistent scientific understanding and usage of any units below 
the species level is absent. As one scientist put it: ``The discussion 
of what makes a subunit within a species, be it a subspecies, race, 
ecotype, variety, or stock is such a durable source of dispute among 
systematic biologists that scientific consensus may never be 
achieved.'' (Robert Taylor, ``Biological Uncertainty in the Endangered 
Species Act,'' 7 Natural Resources and the Environment 6 (1993).)
    This scientific uncertainty becomes more severe at the DPS level. 
In the preamble to their 1996 joint DPS policy, the Services stated: 
``Available scientific information provides little specific 
enlightenment in interpreting the phrase `distinct population segment.' 
This term is not commonly used in scientific discourse, although 
`population' is an important term in a variety of contexts.'' 61 Fed. 
Reg. 4722. With so little common scientific understanding of, or 
agreement on, the term DPS, it is too easy for the Services to use 
``the best scientific and commercial data available'', as required by 
ESA Sec. 4(b) for listing decisions, to reach whatever conclusion they 
may wish. 16 U.S.C. Sec. 1533(b)(1)(A). A committee of the National 
Research Council, in a 1995 report commissioned by Members of Congress, 
while supporting a population listing concept of its own devising 
(``evolutionary unit''), admitted that even the one criterion 
everyone--Congress, the 1991 NMFS policy, and the (later) 1996 joint 
Services' policy--could agree on for a listable population--
``distinctness''--is as much a matter of judgment as science:

          The most difficult questions generally arise at taxonomic 
        levels below the subspecies level. Because evolutionary units 
        at such levels are not discrete but exist along a continuum, it 
        is a policy judgment as well as a scientific judgment to 
        determine the significance of an evolutionary unit. . . . 
        [S]cience alone does not lead to a conclusion that any 
        objectively definable degree of distinction is more significant 
        than another.

National Research Council, Science and the Endangered Species Act, 56 
(1995) (emphasis added).
In other words, DPS is in the eye of the beholder.

    2. The DPS policies of the Services are riddled with discretion. 
Certainly, an important purpose of the Services' two DPS policies was 
to provide a measure of scientific rigor to the DPS decisionmaking in 
the listing process. The fact is they only pretend to do so. As one 
critic wrote about the more thoroughly analyzed and justified 1991 NMFS 
policy:

          Much like the Wizard of Oz employed smoke and mirrors to lend 
        him an air of might and wisdom, NMFS invokes science in an 
        effort to portray its definitions of distinct populations 
        eligible for listing as beyond question. When one looks behind 
        the curtain, however, it becomes apparent that NMF's ESU policy 
        merely trades the discretion inherent in historic approaches to 
        listing populations for a more technically complex but equally 
        discretionary scheme. The tremendous discretion inherent in 
        NMFS' ESU policy stems from two related sources: scientific 
        uncertainty and extremely imprecise definitions of the two ESU 
        criteria: reproductive isolation and whether a population 
        represents an important component in the ``evolutionary 
        legacy'' of a species. (Rohlf at 644.)

    When the Pierce Atwood authors reviewed the broader, less fully 
explained 1996 joint DPS policy, they found so much discretion that 
they concluded: ``We are, in other words, back to the listing of 
squirrels in the city park.''
    With this amount of discretion, the eyesight of the beholder can be 
quite poor, and yet suffice.
    3. Neither Congress nor the courts have provided helpful guidance. 
The Service's discretion in designating DPSs is unconstrained by any 
useful legislative or judicial direction. Congress has chosen not to 
define DPS, and the ``legislative history provides some discussion of 
the concept but provides no specific guidance. It is probably safe to 
conclude not only that the meaning of `distinct population' is 
ambiguous, but also that Congress has not directly addressed or 
resolved this precise question.'' (Gleaves at 37-38.) The preamble to 
the 1991 NMFS policy concurs that ``NMFS does not believe that the 
intent of Congress is clear as to the meaning of `distinct population.' 
The ESA allows vertebrate populations that are `distinct' to be 
considered `species,' but does not explain how distinctness should be 
measured.'' 56 Fed. Reg. 58613. Few courts have addressed, and none has 
provided a significant decision on, the meaning and application of the 
DPS concept.
examples of misuse or abuse of the distinct population segment concept 
                          in listing decisions
    The list of methods by which the Services expand their DPS listing 
authority by misuse or abuse of that authority could be lengthy. I will 
mention only three:
    1. Designation of DPSs by political boundaries. In the early days, 
the Services listed species populations by international borders (e.g., 
grizzly), by State borders (e.g., bald eagles), and even by parishes 
(American alligator). Today, the Services typically eschew State and 
local boundaries for DPS listing purposes, but still adhere in their 
joint 1996 policy to the notion that national boundaries are perfectly 
permissible means of delineating DPSs. As I have noted, when the 
national border of the lower 48 States is used, the Services typically 
make no attempt to determine any reproductive isolation of, or other 
distinctness for, the U.S. portion of the multinational population, nor 
do they make any effort to learn the status of the portion of the 
population across the border (which is often abundant) or the other 
country's management regime for that population portion. All too often, 
this is little more than species jingoism--a fervor to claim 
citizenship for as many species as we can. Moreover, since the Services 
ignore whether the species with the lower 48 DPSs are abundant in 
Alaska, they appear to side with the Seward's Folly crowd that 
preferred the State to remain in foreign ownership or, at a minimum, 
they wish to restore a biological form of territorial status to our 
49th State.
    Unfortunately, Congress is complicit here. In 1973 and again in 
1979, House and Senate reports expressed their intent to allow the 
Services to list domestic populations of species whose principal ranges 
are in another country, asserting (in the Senate report) that ``the 
U.S. population of an animal should not necessarily be permitted to 
become extinct simply because the animal is more abundant elsewhere in 
the world.'' H.R. Rep. No. 412, 93d Cong., 1st Sess. 10 (1973); S. Rep. 
No. 151, 96th Cong., 1st Sess. 7 (1979); quoted in Rohlf at 628-629.
    Many scientists emphatically disagree. Unless the U.S. population 
is both reproductively isolated and biologically significant, both the 
National Research Council in its 1995 report and NMFS in its 1991 DPS 
policy found that there were no ``sound scientific reasons'' to 
delineate populations by political boundaries. NRC Report at 58; 56 
Fed. Reg. 58613.
    2. Designation of DPSs that are not reproductively isolated. One 
would have thought that an easy call for a criterion (but admittedly 
not always an easy matter of scientific proof) to determine a 
``distinct population segment'' would be that the population must be 
reproductively isolated. After all, the plain ESA language connotes 
reproductive isolation. A population is ``distinct'' if it is separate 
from other members of the same biological species. A population 
develops ``distinct'' characteristics if it has a separate gene pool. 
The ESA phrase ``population . . . which interbreeds when mature'' 
suggests a population which interbreeds among itself but not with other 
populations. The NMFS lawyers and scientist in their law review article 
concur that this is the plain meaning of ``distinct population'':

          A common dictionary definition of ``distinct'' is 
        ``separate'' or ``apart from.'' In addition, as a biological 
        term, ``population'' includes the idea of reproductive 
        isolation or separation. (Gleaves at 46.)

    However, in their continual search for discretion, the Services 
have all but discarded the necessity to find reproductive isolation. 
For example, the 1991 NMFS policy states that the first criterion for 
delineating a DPS is that the Pacific salmon stock ``must be 
substantially reproductively isolated from other conspecific population 
units'' and declares that the ``first criterion, reproductive 
isolation, does not have to be absolute, but it must be strong enough 
to permit evolutionarily important differences to accrue in different 
population units.'' 56 Fed. Reg. 58618 (emphasis added). The Services' 
joint 1996 policy weakens the reproductive isolation factor further. 
The policy does demand that the DPS be ``markedly separated'' but this 
can be as a result of ``physical, physiological, ecological, or 
behavioral factors.'' And, once again, ``the standard adopted does not 
require absolute separation of a DPS from other members of its species. 
. . . The standard adopted is believed to allow entities recognized 
under the Act to be identified without requiring an unreasonably rigid 
test for distinctness.'' 61 Fed. Reg. 4725, 4724 (emphasis added).
    As one observer put it: ``FWS has likewise waffled on the 
importance of genetic make-up in distinguishing between population 
segments. Predictably, the Agency cited the presence or absence of 
genetic distinctiveness in instances in which it found reproductive 
isolation to be important, and downplayed genetics in cases where it 
had made listing decisions despite a lack of such isolation.'' (Rohlf 
at 657.)
    3. Designation of DPSs by disregarding the ESA's definition of 
``species'' and relying instead on the ESA's definitions of 
``threatened species'' and ``endangered species.'' In at least one 
listing of a population, the FWS abandoned any attempt to find any 
``distinct'' quality to the population segment. It could not. It 
admitted the three-State population of Marbled Murrelets it wished to 
list was not reproductively isolated or particularly biologically 
distinct from the Canadian population. Therefore, it looked away from 
the statutory definition of species and DPSs, and, instead, discovered 
helpful language in the ESA's definitions of ``endangered species'' and 
``threatened species.'' 16 U.S.C. Sec. 1532(6) and (20). FWS adopted an 
entirely different and certainly clever approach to defining DPSs by 
suggesting that the ``significant portion of its range'' language in 
both the ``endangered species'' and ``threatened species'' definitions 
could be made to serve as a means to delineate distinct populations 
without the need to demonstrate reproductive isolation or genetic or 
other differences. If this approach is followed in future listings, any 
population segment of any relative size could qualify for listing and 
the statutory requirement that the population be ``distinct'' will be 
sapped of all meaning.
the services have inappropriately ``re-listed'' smaller species units, 
  often as the distinct population segments, in decisionmaking under 
                       other sections of the esa
    I would also like to bring to the committee's attention our view 
that the Services are inappropriately redefining species units after 
their listing into smaller species units in decisionmaking under 
sections of the ESA other than the ESA Sec. 4 listing section.
    The ESA is quite clear that ESA Sec. 7 compliance, ESA Sec. 4(f) 
recovery plans, and species delistings decisions are to be made with 
reference to the same ``species'' unit that has been listed. See 16 
U.S.C. Sec. Sec. 1533(f), 1536(a)(2) and (b). Yet, in the case of the 
red-cockaded woodpecker (``RCW'') and in several other instances where 
the Services have listed a biological species, they are assessing ESA 
Sec. 7 compliance not with reference to jeopardy to the listed 
biological species as a whole, but jeopardy to smaller subgroupings, 
such as an individual population of RCWs. This approach makes it far 
more likely that a localized action will be found to jeopardize a 
localized population and to violate ESA Sec. 7. We believe that this 
approach is unlawful under the ESA, is contentious, and should be 
discontinued.
    There has also been unwarranted ``population creep'' into ESA 
Sec. 4(f) recovery planning and species' delisting actions. In several 
instances, where the FWS or NMFS has listed a larger ``species'' unit 
(e.g., the Mojave population of desert tortoises or grizzly bears in 
the lower 48 States), the Agency has subdivided that ``species'' unit 
for delisting purposes into smaller populations. These new multiple 
populations were, of course, designated without the formal rulemaking 
required for the listing of the original all-encompassing population 
(grizzly) or DPS (desert tortoise). The affected public was deprived of 
all the procedural protections of Administrative Procedure Act 
rulemaking which the ESA promised in its Sec. 4 listing provisions. 16 
U.S.C. Sec. 1532(a)(1). Moreover, this division of the listed species, 
subspecies, or populations into smaller populations, often renamed with 
such titles as ``recovery units,'' likely extends the time for 
delisting. For example, if five recovery units/mini-populations are 
designated in the recovery plan and four out of the five meet recovery 
plan standards for recovery, the FWS or NMFS likely could conclude that 
the entire listed population should be delisted. But, under the 
Services' practice, the Agency would de-list only the four recovery 
units/mini-populations and leave ESA burdens in place for the remaining 
recovery unit/mini-population. And, that listing could last for a very 
long time because, in most instances where this practice has been 
followed, at least one of the recovery units/mini-populations has 
little chance of ever recovering.
    The desert tortoise rendition of this practice is particularly 
interesting for another reason. After listing the Mojave population of 
the desert tortoise in 1990, the FWS divided that DPS into 6 smaller 
DPSs termed ``evolutionarily significant units'' in the 1994 recovery 
plan. FWS, Desert Tortoise (Mojave Population) Recovery Plan, June 
1994, p. 19. NMFS formally adopted use of ESUs in its 1991 DPS policy 
for Pacific salmon. But, FWS has never adopted, or invited public 
comment on application of, such a policy for the terrestrial species 
within its jurisdiction. Instead, it applied another agency's standard 
for certain anadromous fish to the tortoise. This isn't ``population 
creep,'' its more of a ``population scramble.''
 congress should consider amending the esa so that it protects only an 
   imperiled biological species, or to create a presumption against 
listings below the true species level, and to limit the use of species 
      elsewhere in the esa to the form of species actually listed
    If the local government and land use interests regulated by the ESA 
had been fully engaged when the ESA's broad definition of ``species'' 
was adopted in 1973 and then narrowed somewhat in 1978, they likely 
would have preferred that the ESA simply define a ``species'' as a 
recognized biological species. That definition would eliminate the 
trivialization of the ESA that occurs when the Services list and create 
ESA compliance burdens for a subspecies or distinct population which is 
locally rare, even though the biological species as a whole is not 
imperiled. It also both would address the concerns raised by the 
Clinton listing moratorium and Bush budget's legislative proposal by 
conserving the Services' resources and would conform with the original 
legislative intent to: (1) protect the ``genetic heritage'' associated 
with a species' unique gene pool, while (2) realizing that ``it is 
beyond our capability to acquire all the habitat'' needed by locally 
rare populations ``without at the same time dismantling our own 
civilization.'' H.R. Rep. No. 93-412, at 4-5 (1973).
    Indeed, in 1978, the House of Representatives voted to limit the 
ESA to a biological species. The full House adopted Representative 
Duncan's amendment defining ``species'' consistent with its biological 
usage (a group of ``physically similar organisms capable of 
interbreeding but generally incapable of producing fertile offspring 
through breeding with organisms outside this group''). 124 Cong. Rec. 
38154-56 (Oct. 14, 1978). Rep. Duncan stated:

          The legislation before us today is entitled, and I think this 
        is important, ``the Endangered Species Act.'' It is not 
        entitled, and I think this is important, . . . ``An Endangered 
        Subspecies Act,'' or the ``Endangered Variation-of-a-Species 
        Act.'' The amendment preserves, again, the integrity of the 
        legislation while sufficiently tightening up the definitions so 
        that we do not afford protection of this legislation, to the 
        detriment of man, to every individual creature on the face of 
        the Earth that might differ in one degree or another from one 
        of its brothers.
124 Cong. Rec. 38154.\1\
---------------------------------------------------------------------------
    \1\ Though the House passed Rep. Duncan's amendment, he was not 
named to the Conference Committee. The conferees reinserted the 
``species'' definition that had been reported by the House Committee.

    However, given the history of ESA listings of subspecies and 
distinct population segments of vertebrate species, we suspect that 
removal entirely of the listing authority for either subspecies or DPSs 
would be a difficult undertaking. We also, as suggested by the focus of 
my testimony, find far more troublesome the sub-subspecies listing 
---------------------------------------------------------------------------
authority than the subspecies listing authority.

    I would therefore suggest, as a possible alternative, that the ESA 
could be amended to: (1) require the Services to list a species or 
subspecies if it is biologically threatened or endangered; but (2) 
grant the Services the discretion to list or not list a DPS. Indeed, it 
may be appropriate for Congress to state a presumption, or default 
position, that DPSs should not be listed under the ESA, and to require 
the Services to provide judicially reviewable reasoning if they decide 
to list such variations-of-a-species. This committee suggested such a 
presumption when its report on the 1979 ESA amendments stated that:

          the committee is aware of the great potential for abuse of 
        this authority and expects FWS to use the ability to list 
        populations sparingly and only when the biological evidence 
        indicates that such action is warranted.

S. Rep. No. 151, 96th Cong., 1st Sess. (1979) at 6-7.
    However, the ESA as written arguably requires the listing of any 
``species'' unit (be it a biological species, a subspecies, or a 
distinct population segment of a vertebrate species) if that species 
unit is biologically endangered or threatened over a significant 
portion of its range. See 16 U.S.C. Sec. Sec. 1532(6), (16) and (20), 
1533(a) and (b)(1). Congress could remove these nagging questions on 
the Services' discretion to not list a DPS by amending the ESA to 
clearly make listing at the population level discretionary and to 
provide in the form of a statutory command its previous committee 
report admonition that such listing authority be exercised only 
``sparingly.''
    Finally, I would urge the committee to put an end to the 
inappropriate ``population creep.'' The Services should be directed to 
determine ESA Sec. 7 compliance, prepare ESA Sec. 4(f) recovery plans, 
and conduct ESA Sec. 4 delistings on the basis of the same ``species'' 
units that have been listed under ESA Sec. 4.
                               __________
Statement of Steven N. Moyer, Vice President of Conservation Programs, 
                            Trout Unlimited
    Mr. Chairman, members of the subcommittee, I appreciate the chance 
to appear today to give you the views of Trout Unlimited (TU) on the 
listing and delisting processes of the Endangered Species Act (ESA).
    TU is a national fisheries conservation group dedicated to the 
protection and restoration of our Nation's trout and salmon resources, 
and the watersheds that sustain those resources. TU has over 130,000 
members in 500 chapters in 38 States. Our members generally are trout 
and salmon anglers who voluntarily contribute substantial amounts of 
their personal time and resources to aquatic habitat protection and 
restoration efforts. Because of the declining populations of native 
trout and salmon in many areas, our members increasingly rely on 
provisions of the ESA to protect trout and salmon and their habitats. 
TU supports the ESA and considers the ESA to be one of the Nation's 
most important laws for protecting and restoring trout and salmon 
populations.
    The subcommittee has asked our views on the listing and delisting 
processes of the ESA. To summarize, TU believes that the listing and 
delisting processes, as written in the law, are fundamentally sound. 
Implementation of the processes by the U.S. Fish and Wildlife Service 
(FWS) and the National Marine Fisheries Service (NMFS) is slowed 
unacceptably because of huge listing backlogs and insufficient funding. 
Implementation of the listing process clearly needs to be improved, but 
in our view, the solution to the problem is not to weaken the process 
legislatively or administratively, but rather it is for the Bush 
Administration to propose, and Congress to appropriate, additional 
funding for listing. In our experience, applying sound science to 
listing and delisting decisions is not a substantial problem. If 
anything, the Services bend over backwards to check the science and 
give interested parties a thorough chance to comment on it.
    We understand that there is considerable concern about the amount 
of litigation over species listing and designation of critical habitat. 
However, we don't support the current Bush Administration proposed 
solution to, among other things, restrict citizen lawsuit enforcement 
of listing deadlines. Simply restricting--or slowing down--the listing 
process could jeopardize a number of species that should be listed, 
such as the California golden trout, which is faced with extinction. 
Finally, we must take the opportunity to urge the subcommittee to get 
at the root problem of insufficient funding and support conservation 
initiatives which would actually reduce the need to list species, for 
example pass the Conservation and Reinvestment Act and Fishable Waters 
Act, and provide more funding for conservation programs under the Farm 
bill.
the esa list is getting long, and esa is getting more controversial, in 
 large part due to declining fish and other aquatic populations around 
                               the nation
    If the subcommittee is looking for root causes of listing problems, 
consider these facts. Fish and other aquatic species are in bad shape 
in many places in the United States. A recent American Fisheries 
Society study found that over one third of all aquatic species are 
endangered or imperiled. The Forest Service's Forest Ecosystem 
Management Assessment Team (FEMAT) Report explicitly highlighted the 
fact that more than 100 stocks of Pacific salmon have become extinct 
since European settlement of the West, and emphasized that 314 stocks 
just within the range of the spotted owl were at risk of extinction.
    Populations of species that are vital to sport and commercial 
fisheries are reaching threatened and endangered status. Thirty-three 
salmonid species have already been listed (see attached list), 
including Atlantic salmon from the rivers of Maine, the bull trout of 
the intermountain west, and numerous stocks of Pacific salmon. 
Increasingly, the success of the ESA will be linked to the fate of 
these once-abundant sportfish species, especially the salmonids of the 
western United States.
  the esa listing and delisting processes are fundamentally sound as 
             written in law and do not need major revision
    In the ESA, Congress wisely stated that the decisions to list or to 
de-list species are to be based solely on the best available science. 
In reality, there can be no other standard. The decision to list is, 
and should be, a question of biology, not politics or economics. Once a 
species is listed, there is flexibility in other parts of the Act, for 
example, in Section 10, which allows the taking of endangered species 
by private landowners pursuant to habitat conservation plans. Where 
conflicts between species and economic activity rise to regional or 
national significance, there is an exemption provision.
    In our experience, the Services generally have used this authority 
appropriately. We have had disagreements with the agencies over their 
interpretations of science pertaining to listing, but in the main they 
have done a respectable job. If anything, the thoroughness with which 
the Services have conducted their scientific reviews has sometimes made 
the listing process frustratingly slow. For example, it took the 
Services 5 years to complete the listing of Atlantic salmon in part 
because of the rigorous scrutiny they applied to salmon genetic data 
and studies. During this time salmon numbers have plummeted to an 
estimated 200 to 300 wild fish.
    Similarly, ESA's mandate to protect distinct population segments is 
a wise, essential conservation tool, especially for species such as 
trout and salmon, which consist of an array of populations, like fibers 
in a tapestry, that give resilience and strength to species. These 
populations provide the genetic fitness that species need to survive 
the vagaries of weather, environmental changes, and human-contrived 
obstacles that threaten them. The individual trout and salmon 
populations, which are the evolutionary legacy of species adaptation to 
site-specific habitat conditions, each contain the ingredients 
necessary for overall species survival. From a biodiversity and long-
term species persistence standpoint, native salmon, steelhead, and 
resident trout at the population and sub-population level are 
irreplaceable.
    Therefore, it is entirely appropriate to review the current 
endangered species list and to find 9 chinook Evolutionarily 
Significant Units (ESUs) and 10 steelhead ESUs. The ESU is NMFS' 
attempt to manage the ESA distinct population segment mandate in a 
practical way that is biologically defensible. Conservationists would 
generally like to see NMFS segment-out distinct populations within each 
ESU even more so than they have done. Conservationists were critical of 
NMFS' lumping of Snake River winter and spring runs into one ESU when 
that determination was made in 1992, for example. But while we don't 
always agree and we will continue to debate the biological and legal 
merits of these issues, we respect that the agencies have a difficult 
job in making these decisions and they are trying hard to do them well.
implementation of the listing process needs improvement, but the answer 
   is more funding and more aggressive tackling of the backlog, not 
              restricting citizen enforcement of deadlines
    In our view, the most relevant listing issue is not inadequate or 
flawed scientific basis for listing decisions, but rather inadequate 
funding to get species listed that need the help that only the ESA can 
provide. In its fiscal year 2002 budget justification proposal, the FWS 
provides helpful detail about the bind it is in regarding court ordered 
steps in the listing process, its failure to address the listing needs 
of some species not in the court-ordered pipeline, and the limited 
funding it has to address its needs. Unfortunately the solution offered 
by the Agency and the Bush Administration is a mere $2 million funding 
increase to a wholly inadequate $8 million base budget for listing, and 
a plan that would among other things limit the ability of 
conservationists to go to court and enforce mandated ESA deadlines to 
save species.
    The answer is not to limit access to courts but rather to fund the 
listing program. We recommend at least a doubling of the Agency's 
listing budget to not only address the court ordered backlog, but also 
to allow the FWS the flexibility it rightfully seeks to start the 
listing process for species that need ESA protection now.
   regarding listed trout and salmon, the delisting process is not a 
                                problem
    Unfortunately, there are no listed trout and salmon that have been 
restored sufficiently to trigger the ESA delisting process. This is not 
to say that the ESA has failed these species. In fact, listing has 
generally helped greatly, as I have detailed below. Greenback 
cutthroats and Apache trout are the closest to achieving their recovery 
targets, but in no way should their recovery be shortchanged. We want 
conservation programs in place that will last, not short-term fixes 
that may yield ephemeral results and a quick trip back on the list.
listing of trout and salmon has benefited all listed species, some much 
   more than others, but nonetheless all have received attention and 
             funding that they might not otherwise receive
    The ESA has been effective for protecting and at least partially 
restoring species where it has been faithfully implemented and where 
political decisions have not undercut implementation, such as Apache 
trout and greenback cutthroat trout. These two species have been 
brought back from the brink of extinction to the point where 
restrictive, well-managed sport fisheries are occurring, providing 
valuable income to local and tribal economies in Colorado and Arizona. 
These species are not recovered yet, but they are no longer at 
critically low levels.
    The State of Maine had failed to take steep declines in Atlantic 
salmon populations seriously enough until a petition started the 
listing process in 1994. Only after the Services proposed Atlantic 
salmon for listing did the State forge a conservation plan that, while 
it had some merits, did not provide what was needed for real salmon 
recovery. Following the listing of salmon in 2000, the State and the 
Services are working harder and better than ever before to keep wild 
salmon from going extinct, and hopefully some day, returning the fish 
to its rightful place as a the most sought after sportfish species in 
New England.
    Snake River salmon have continued to decline since their listings 
in 1992, but their path to oblivion is no longer taken in relative 
silence. Saving Snake salmon is now a national imperative, the stuff of 
Presidential campaigns and an integral part of Pacific Northwest's 
resource debates.
    Even for species for which petitions have been filed but are as yet 
unlisted--e.g., golden trout--the threat of listing helped get action. 
TU's petition to list the golden trout has prompted California's 
Department of Fish and Game to address the fact that their fish 
stocking program was causing hybridization of native golden trout. It 
has also encouraged the Forest Service to address the grazing program 
on allotments that were harming golden trout habitat.
    Finally, the 1999 emergency listing of Jarbidge River bull trout 
distinct population segment was an especially positive example of a 
listing that TU was directly involved in. In the Jarbidge case, Federal 
agencies responded aggressively to a very specific resource problem 
facing the southernmost remaining bull trout population in the 
continental United States. The emergency listing process, rarely used 
in the history of the ESA, was completed for this listing within a 
year. This shows how quickly decisions can be made when the FWS 
aggressively presses the listing process.
  the esa's burgeoning list of species tells us that other government 
laws and policies are failing. don't shoot the messenger! fix the other 
                               programs!
    ESA listing and protection is necessary to protect and restore many 
salmonid species because other Federal, State, and local conservation 
laws and policies have failed. Our assessment of the causes of the 
declines that justified the listing of 34 salmonid species showed that 
other Federal laws had failed to conserve the species, including the 
National Forest Management Act, the Northwest Power Planning Act, 
implementation of the United States/Canada Salmon Treaty, and the Clean 
Water Act. State conservation laws and policies have also contributed 
to declines, including stocking of nonindigenous species that has 
adversely affected greenback cutthroat as well as golden, Lahontan 
cutthroat, Gila, and Apache trout. If the impacts of declining fish 
stocks and ESA are a problem for the Nation--and clearly they are--then 
let us fix what needs to be fixed. The ESA is merely the messenger 
telling us that other policies are not working. Therefore, efforts to 
place blame upon the ESA are misplaced.
good proposals are before congress now that could help conserve species 
                       and keep them off the list
    TU does not believe that conservation begins and ends with the ESA. 
Our members are deeply involved in conservation efforts with 
communities, States and Federal agencies. There are at least three 
bills before the Senate that could help to greatly improve partnerships 
and funding for conserving species, namely the Conservation and 
Reinvestment Act (HR 701), the Fishable Waters Act (S. 678), and the 
Farm bill conservation programs which are set to be reauthorized by 
2002. I urge the subcommittee to look carefully at these measures and 
to support them. The swelling endangered species list tells us that 
much more needs to be done proactively to protect and restore species 
and their habitats. Passing legislation such as these items helps to 
get at the heart of the problem.
 remember aldo leopold's admonition to save all the pieces
    Aldo Leopold, the father of wildlife conservation, spoke eloquently 
in his landmark book, A Sand County Almanac, of the importance of 
species diversity and need to keep all the parts of an ecosystem to 
keep it healthy. TU has embraced Leopold's philosophy and has made 
conservation of native trout and salmon a high priority for our 
organization. Listing species under the ESA goes to the heart of saving 
all the parts and ensuring species diversity. We urge the subcommittee 
to support measures that strengthen the listing process, such as 
increased funding for it, and oppose measures that would legislatively 
or administratively weaken it.
Threatened and Endangered Trout and Salmon Species
    Atlantic salmon-Endangered-Gulf of Maine
    Apache trout-Threatened-entire range
    Bull trout-Threatened-lower 48 States
    Chinook salmon-Endangered-Sacramento River; winter run

          --LThreatened-Snake River, mainstem and subbasins; fall run, 
        natural pop.
          --LThreatened-Snake River, mainstem and subbasins; spring/
        summer run, natural pop.
          --LThreatened-WA, all naturally spawned populations in river 
        and streams flowing into Puget Sound.
          --LThreatened-Columbia River and its tributaries to 
        Willamette Falls, OR, natural pop.
          --LThreatened-Clackamas River and Willamette River above 
        Willamette Falls, natural pop.
          --LThreatened-various tributaries of Columbia River, natural 
        pop.; also some hatchery populations and their progeny.
          --LThreatened-Sacramento San Joaquin River, mainstem and 
        tributaries, spring run, natural pop.
          --LThreatened-CA, Redwood Creek south to Russian River, 
        mainstem and tributaries, natural pop.

    Chum salmon--Threatened-Columbia River, mainstem and tributaries, 
natural pop.

          --LThreatened-Hood Canal and tributaries, Olympic Peninsula 
        rivers between Hood Canal and Dungeness Bay; summer run, 
        natural pop.

    Coho salmon--Threatened-streams between Punta Gorda, CA and San 
Lorenzo River, CA, natural pop.
          --LRiver basins between Cape Blanco, OR and Punta Gorda CA, 
        natural pop.

    Gila trout--Endangered-entire range
    Greenback cutthroat trout--Threatened, entire range
    Lahontan cutthroat trout--Threatened, entire range
    Little Kern golden trout--Threatened, entire range
    Paiute cutthroat trout--Threatened, entire range
    Sockeye salmon--Endangered-Snake River

          --LThreatened-Ozette Lake, WA and tributary streams, natural 
        pop.

    Steelhead--Endangered-from Santa Maria River, CA to Malibu Creek, 
CA

          --LEndangered-Upper Columbia Basin, Yakima River to US/Canada 
        border
          --LThreatened-Sacramento and San Joaquin Rivers and 
        tributaries
          --LThreatened-Snake River Basin
          --LThreatened-Russian River to Aptos Creek, CA, drainages of 
        San Francisco and San Pablo Bays
          --LThreatened-streams and tributaries to Columbia River
          --LThreatened-Pajaro River to Santa Maria River, CA
          --LThreatened-Willamette River, winter run
          --LThreatened-above Wind River, WA, and above Hood River, OR 
        to Yakima River, excluding the Snake River
          --LThreatened-Redwood Creek to Gualala River, CA
                               __________
  Statement of Ralph L. Moss, Director, Government Affairs, Seaboard 
           Corporation, on Behalf of Atlantic Salmon of Maine
                            i. introduction
    Chairman Crapo and members of the committee, my name is Ralph Moss 
and I appear today on behalf of Atlantic Salmon of Maine, LLC, a Maine 
aquaculture company raising salmon and selling salmon food products to 
U.S. consumers.
    We appreciate the opportunity to testify before this committee 
concerning our first-hand experience with the recent joint decision of 
the U.S. Fish and Wildlife Service and the National Marine Fisheries 
Service to list Maine Atlantic salmon as endangered under the ESA. Our 
bitter experience reveals that this important act is subject to serious 
abuse and distortion, and in Maine's case, is being implemented in an 
arbitrary and heavy-handed manner that is both inconsistent with 
congressional intent and counterproductive for restoration of the 
species.
    We would like to be clear that our company is a strong partner in 
the State of Maine Atlantic Salmon Conservation Plan and supports 
Salmon restoration in Maine rivers. But like Maine's Governor King and 
members of our congressional delegation, our company opposes the 
Services' decision to list these fish as an endangered species.
    The listing is fundamentally wrong for scientific, legal and policy 
reasons. Maine salmon runs are restoration fish, the product of over 
more than 120 years of hatchery stocking of non-indigenous salmon into 
these rivers and do not qualify as a distinct population segment for 
ESA listing.
             ii. failure to honor state conservation plans
    The Maine listing represents a dangerous backslide by the Services 
into an inflexible interpretation of the ESA that fails to honor State 
conservation plans and creates an unsustainable burden on Federal 
wildlife programs.
    It is widely recognized that the Federal Government alone cannot 
recover endangered or threatened species. The States, with their 
traditional authority over wildlife management and land use planning 
are ideally positioned to fashion conservation plans that are custom 
tailored to the resource, its habitat, and local conditions. This is 
especially true in Maine, where virtually all salmon habitat is in 
private land ownership, and only the voluntary cooperation of 
landowners will enable salmon habitat upgrades.
    In Maine's case, the Services initially recognized the value of the 
State's conservation plan. Developed by a State--appointed task force 
with input from Federal fisheries scientists. The Maine plan provides a 
5-year action plan to recover the species, with specific priority 
actions for each of the rivers. The plan gives top priority to projects 
that directly benefit the resource and provides creative solutions for 
the agricultural, forestry and Aquaculture areas to minimize stock 
impacts and disruption to the businesses.
    In December 1997, the Services celebrated this Maine plan as a 
``National Model'' that would open ``A New Chapter in Conservation 
History.'' The Services determined that a threatened ESA listing of the 
runs was not warranted because the State plan offered sufficient 
protections. But less than 2 years later, apparently in response to 
pressure from a lawsuit filed by environmental groups, the Services 
abruptly reversed course, and decided to list Maine atlantic salmon as 
endangered. The Service failed to provide a credible rationale for the 
listing or to demonstrate any truly changed circumstances in the status 
of the Maine runs.
    The Services' failure to honor the State conservation plan 
represents the loss of the best opportunity to recover Maine salmon 
runs. The State had appropriated over $2 million in New money, had 
shifted existing staff and programs to support this plan, and had 
organized significant public-private partnership support. At the 
State's request, our company had contributed more than $200,000 in 
direct costs alone for an innovative adult restoration stocking 
program, raising wild fish from the river for later release and natural 
spawning. Although highly successful to date, the adult stocking 
program's future is uncertain after the listing.
    By rushing into the listing the Services effectively derailed a 
State plan that was well on its way to achieving the goals jointly 
endorsed by the State and the Services. Although support for the Maine 
plan remains strong to date, it is highly unlikely that the private 
business community will continue that support if the Federal listing is 
not reversed. There is no appetite for dealing with the Services, given 
their failure to be guided by the best available science, and their 
poor track record on pragmatic solutions.
                iii. failure to follow listing criteria
    The Services turned a deaf ear to the ESA mandate that the best 
scientific evidence be used to make listing determinations and failed 
to heed congressional cautions to use their power to list ``Distinct 
Population Segments'' sparingly. The Maine case illustrates a 
continuing problem in ESA Administration: Congress intended that 
conclusive evidence, representing the best available scientific data, 
be used in listing decisions for distinct population segments. but 
increasingly, the Services rely upon the ``Precautionary Principle'' to 
justify listing decisions in the absence of complete data. We heard 
services representatives repeat many times in the Maine listing 
hearings that although the genetic evidence was incomplete, and that 
the genetic heritage of the Maine salmon was not clear, the 
precautionary principle required that the salmon be listed given the 
low population levels. The Agency's growing reliance upon the 
precautionary principle in ESA represents a fundamental conflict with 
statutory authorization and congressional intent in ESA listing.
    Our written testimony offers a detailed explanation of the 
Services' multiple failures to follow listing criteria in the Maine 
salmon case.
     iv. failure to honor the needs of the resource and its habitat
    The sudden and illogical reversal of the Services' position on the 
need for ESA listing of Maine salmon clearly reveals that this was a 
political listing that had nothing to do with the needs of the resource 
or with the best science available. We believe that the Services 
decided to take the path of least resistance, and list the species 
rather than defend its decision in the lawsuit. Ironically one of the 
documents that the Services attempted to suppress from FOIA disclosure 
argued that it was better to sacrifice one State plan so that the 
concept of State plans could be preserved for future use. This 
abandonment of the State plan, after encouraging the State and its 
citizens to implement the plan, represents a serious breach of faith by 
the Services, and a complete disregard for the real needs of the salmon 
restoration.
    Having insisted on derailing the State plan, the Services have 
taken no effective action to address the priority needs of salmon 
restoration. The Services have actually cut funding for Maine River 
Restoration Programs, and ignored the agreed upon priority needs for 
salmon restoration reflected in the Maine plan. In the last budget 
proposal, the Services proposed to spend only $1.2M in Maine on the ESA 
stocks, an outright budget cut from pre-listing budgets. In contrast, 
the Services proposed to spend $6.2M on the restoration stocks to the 
south of Maine. The Services' own budget proposal is the most 
devastating possible critique of their disorganized and ineffective 
restoration programs.
    Instead, the Services have chosen to follow their default course, 
seeking to bulk up staff to carry out section 7 consultations. They 
have lost no time in demanding new permit conditions for aquaculture 
that are wholly unsupported by science, and would cause massive 
disruption and losses to the Maine aquaculture industry if implemented. 
Refusing to consult with the Department of Agriculture experts on 
aquaculture, marking, or genetics issues, the Services have demanded 
marking technology that does not exist for fish, as well as immediate 
slaughter of perfectly healthy broodstock and fish being raised by the 
companies on the theory that they are not genetically compatible with 
Maine runs. The Services have no knowledge or understanding of our 
industry, but continue to turn a deaf ear to the expert State of Maine 
agencies and Federal Department of Agriculture on aquaculture issues. 
In spite of the tremendous potential losses to our company, the 
Services have arbitrarily repudiated their prior commitments to the 
State of Maine that non-North American origin atlantic salmon could 
continue to be used with effective containment. It is just this type of 
arbitrary and unaccountable services action that turns ESA listings 
into a nightmare for private citizens and creates strong opposition to 
ESA listings.
    It should be noted that the Services' demands on aquaculture in 
this listing create very significant adverse precedents for agriculture 
in ESA listings generally, especially where the Services are proceeding 
upon the precautionary principle to justify their actions.
    It is clear that the Services are attempting to scapegoat 
aquaculture, which did not even exist when the Maine salmon runs 
declined, in order to distract attention from the Services' failure to 
address the critical needs of the resource. Ironically, the Services 
have failed to fulfill the one exclusive Federal role that would 
benefit salmon restoration--to work through international treaty 
organizations such as the North Atlantic salmon Conservation 
Organization (NASCO) to secure a moratorium on the on high seas salmon 
fisheries. The National Fish and Wildlife Foundation led a similar 
moratorium effort in 1993-94, resulting in a 1995 population rebound--
the only such rebound in recent history. Similarly the Services 
continue to shrink from effective independent peer review of their 
Maine salmon stocking programs, which are contributing to the decline 
of the species. Maine salmon cannot recover until these priorities are 
addressed.
                               conclusion
    After nearly 30 years, the ESA and its administration is in need of 
updating to reflect the advances in science and technology and to 
preserve traditional State roles in wildlife management. We request 
that Congress establish clear guidance to the Services that will 
protect and support State conservation plans in the listing process. 
Congress must take action to require strict adherence by the Services 
to ESA listing criteria and sparing use of the DPS concept. Finally, 
Congress must hold the Services accountable for post-listing decisions, 
requiring the Services to demonstrate that there is a quantifiable 
scientific basis for the permit condition or other Federal action, and 
that every effort has been made to minimize unnecessary disruption of 
private property rights and businesses.
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   Statement of Zeke Grader, Pacific Coast Federation of Fishermen's 
                              Association
    Good morning, Mr. Chairman and subcommittee members, my name is 
Zeke Grader. I am the executive director for the Pacific Coast 
Federation of Fishermen's Associations (PCFFA), representing working 
men and women in the west coast commercial fishing fleet. We are a 
federation of many different fishermen's marketing associations, vessel 
owners associations and fishermen's cooperatives with member 
organizations as well as individual members in ports from San Diego to 
Alaska.
    The fishing men and women and their organizations that make-up our 
federation are the economic mainstay of many coastal communities and 
cities. PCFFA members represent at least half a billion dollars in 
economic investments which generate tens of thousands of family wage 
jobs--not only in coastal communities, but far inland as well. In other 
words, hard working men and women who help put fresh, high-quality 
seafood on America's table, create a job base for coastal communities, 
and help support a multitude of Federal, State and local community 
services through our taxes, all from the bounty of the seas.
    The commercial fishing industry represents a significant economic 
sector in this Nation, accounting for well over $50 billion in economic 
impacts and more than 700,000 jobs. When combined with another $15 
billion per year generated by the marine recreational fishery, the 
whole offshore fishing industry now accounts for about $65 billion per 
year to the U.S. economy.\1\ In addition to commercial fishing, the 
recreational sportfishing industry also contributes a mighty share to 
the U.S. economy. Fishing--whether for sport or commercially--is big 
business, with a combined economic input to the national economy in 
excess of $152 billion and supporting almost 2 million family wage 
jobs.\2\
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    \1\ Economic figures from Our Living Oceans, Report on the Status 
of U.S. Living Marine Resources, 1992. NOAA Tech. Mem., NMFS-F/SPO-2. 
National Marine Fisheries Service, NOAA, U.S. Dept. of Commerce, 
Washington, DC. See also Analysis of the potential economic benefits 
from rebuilding U.S. fisheries (1992). National Marine Fisheries 
Service, NOAA.
    \2\ From Fisheries, Wetlands and Jobs: The Value of Wetlands to 
America's Fisheries, a report by William M. Kier Associates (March 
1998) for the Campaign to Save California Wetlands, available on the 
Internet at: http://www.cwn.org/docs/reports/kier/kiertitle.htm. See 
also Maharj and Carpenter (1997), The 1996 Economic Impact of Sport 
Fishing in the United States, by the American Sportfishing Institute, 
Washington, DC.
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    Most of these jobs are to one degree or another dependant upon 
strong protection of the biological resources upon which they are 
based. In other words, our industry would not exist--nor would $152 
billion dollars in annual income and 2 million jobs in this economy 
that we generate--without strong environmental protections. Our 
industry is a prime example of a basic economic principle:

          The fundamental source of all economic wealth is the natural 
        environment. In the long-run environmental protection does not 
        destroy jobs--it creates them and maintains them on a 
        sustainable basis for the future.

    In other words, the biological wealth of this country is its 
``natural capital.'' Like any economic capital, we can invest it wisely 
and reap its benefits indefinitely, or we can allow it to dissipate and 
waste it. Pushing species to the brink of extinction--and beyond--not 
only wastes future economic opportunities but helps destroy those 
industries we already have, such as the Pacific salmon fishing 
industry. The ESA is the law of final resort that prevents us as a 
society from negligently wasting our irreplaceable ``natural 
capital''--and the jobs that this ``natural capital'' represents, both 
in the present and in our economy's future. Ultimately all economic 
wealth comes from our natural environment. In the final analysis this 
is all humanity has, and all it has ever had, from which to obtain its 
livelihood, and indeed its very existence.
    The Endangered Species Act (ESA) dispute is not really a clash 
between species vs. jobs, nor even between public trust values vs. 
private property rights--fundamentally, the ESA dispute is a clash 
between short-term profiteering vs. long-term and sustainable economic 
development. The ESA merely establishes limits beyond which voracious 
human consumption should not go. That limit is the limit of 
``biological sustainability.'' This is also the basis of economic 
sustainability as well. As a society, we violate nature's biological 
limitations at both our biological and our economic peril.
    Each species pushed into extinction is first and foremost a loss to 
the very fabric of our human food chain. However it also represents a 
lost future economic opportunity effecting our entire economy. The 
biological diversity of our natural resources represents the foundation 
upon which many industries of the present are maintained, but also upon 
which industries of the future will be built and people of the future 
will be fed. Wasting our ``natural capital'' dramatically impoverishes 
our society by limiting our future industrial and economic growth.\3\
---------------------------------------------------------------------------
    \3\ The $152 billion/year fishing industry is but one example of 
this principle. Fully 40 percent of the known medically valuable 
pharmaceuticals, for instance, are derived from natural sources. This 
represents an industrial economy also in the hundreds of billions of 
dollars worldwide, as well as many millions of lives saved. Yet only 
about 1 percent of all the plant species now known have been adequately 
surveyed for their pharmaceutical value, and only a small fraction of 
all plant species have even been cataloged categorized. Many will 
likely become extinct before that can be accomplished. The booming 
biotechnology industry is also another example. Their stock in trade is 
genes. These genes, however, can only come from known natural sources--
even the simplest gene is millions of times too complex to synthesize 
in the laboratory by any known technology. Unknown plant species may 
contain genes for disease resistance worth billions to a failing crop 
industry, or worth billions more for any of a number of other unknown 
and as yet undiscovered industrial processes. Once extinct, however, 
the potential uses of the organism will never be known. Every species 
driven to extinction gives us fewer economic options.
---------------------------------------------------------------------------
    The commercial fishing industry has seen the Endangered Species Act 
up close and in operation for many years. Our industry is a highly 
regulated industry. We are, for instance, far more strictly regulated 
under the Endangered Species Act (ESA) than the Northwest timber 
industry, and for many more species. While the timber industry has 
recently suffered through curtailments caused by one or two ESA 
listings, the fishing industry has long been dealing with the impacts 
of listings for chinook salmon in both the Columbia and Sacramento 
Rivers, sockeye salmon in the Columbia, sea turtles in the Gulf, marine 
mammal species protected under both the ESA and the Marine Mammal 
Protection Act (MMPA), and various species of seabird protected under 
both the ESA and the Migratory Bird Treaty Act (MBTA). On the west 
coast, we have also learned to cope with ESA listings for coho and 
sockeye salmon and some runs of chinook as well. The cumulative effects 
of this multitude of listings is, frankly, far more restrictive than 
any past restrictions caused merely by spotted owls or marbled 
murrelets.
    There is, in fact no industry more regulated under the ESA 
presently, nor more likely to be regulated in the foreseeable future, 
than the commercial fishing industry. We can therefore speak with some 
authority, as a regulated industry, on how well the ESA works. Yet in 
spite of short-term dislocations created by listings, we view the 
protections offered by the ESA as vitally important in protecting and 
preserving our industry, our jobs and our way of life for the long 
term. It is species declines and the forces which cause those declines 
which are the real enemy, not the ESA. The ESA is only the messenger.
    It is, in fact, axiomatic that a species only qualifies for listing 
under the Endangered Species Act because it faces extinction. This 
point seems to have been missed by many who are calling for the 
elimination or curtailment of ESA protections. The best way to prevent 
listings, then, is to prevent the species' decline in the first place. 
Limiting or repealing the ESA itself only throws out the primary tool 
to achieve recovery, in other words shoots the messenger, but does 
nothing to reverse the underlying declines. In other words, the ESA is 
only the warning bell and not the problem itself. Disconnecting the 
warning bell is not a viable response to an emergency in the making.
 72,000 salmon jobs at risk--salmon as a case in point for how the esa 
                             protects jobs
    Salmon, once the economic mainstay of both the commercial and 
recreational fishing industry in the west have been reduced by decades 
of short-sighted human actions to a mere shadow of their former glory, 
largely as a result of a multitude of cumulative on-shore causes. The 
great salmon runs of the east coast are all but gone, more than 98 
percent of those runs now extinct.\4\ Salmon in east coast restaurants 
are almost always inferior Norwegian salmon raised artificially--which 
exports to Norway thousands of jobs that should have belonged to 
American fishermen. The virtual extinction of the east coast's once 
abundant salmon runs, which once extended well down into Georgia in 
colonial times, and the elimination of an entire segment of the fishing 
industry in the process, is one of our greatest American tragedies. The 
efforts now to bring those enormously valuable biological resources 
back from the brink through their listing under the ESA, and the 
modification of other industrial sectors to make that possible, is well 
worth the effort.
---------------------------------------------------------------------------
    \4\ The last remaining wild salmon runs in the eastern coast of the 
United States are in a handful of rivers New England. These have 
recently been listed for protection under the ESA. There are in fact 
more dams in New England than there are individual adult wild salmon 
returning to your rivers--about 2,500 wild salmon still return to New 
England, while there are about 3,000 medium and small dams in the same 
area, many of them obsolete. However, as we have recently seen by the 
example of the removal of Maine's Edwards Dam, once these dams are 
removed, the fish runs can be restored. PCFFA has recently spearheaded 
the removal of several dams in the California Central Valley with the 
same result--provide them decent habitat and the salmon will return.
---------------------------------------------------------------------------
    The destruction of salmon spawning and rearing habitat has also 
been ongoing and pervasive in the west for many decades--it is just a 
few decades behind the east coast but going along the same path leading 
to extinction. Every year fewer and fewer salmon survive the silting up 
of their spawning grounds by inappropriate or poorly planned logging, 
grazing and road building practices. Fewer still survive the nightmare 
ride through hydropower turbines and slack-water reservoirs in the more 
than 30 major Federal and State Columbia River Basin hydropower dams. 
In the eight federally operated Columbia and Snake River mainstem dams 
alone, each dam's turbines and hot water reservoirs combined kill up to 
15 percent of the outmigrant fish making their long journey to the 
sea.\5\ 3,000 miles of prime salmon spawning streams in the Sacramento 
Basin have now been reduced to less than 300, and much of what remains 
is biologically damaged or suffers from too little cold water during 
critical spawning times.
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    \5\ Both the impacts from upper watershed activities (improper 
logging, overgrazing, road washouts, etc.) and the impacts from the 
hydropower turbines are largely avoidable. Many of these practices are 
obsolete and unnecessary, and profits in these industries will not 
greatly suffer from curtailing or mitigating these problems. The 
externalized damage caused by these poor management practices is, in 
many cases, more of a harm to society (and to the very industry itself) 
than any conceivable short-term benefits. As an industry ourselves, we 
are very sympathetic to the current plight of timber works (many of 
whom are also fishermen)--however, it is clear that short-sighted 
logging, grazing and hydropower practices conducted without any regard 
to stream protection has been disastrous for our industry and for the 
economies of many coastal communities. Most of the Federal hydropower 
dams were built without downstream salmon passage, and some (such as 
the Grand Coulee Dam) without any upstream passage whatsoever. Salmon 
are now totally extinct above Grand Coulee Dam, and this extinction was 
designed into the system. The fishing industry is federally regulated 
on the basis of biological sustainability (Magnuson Act). It is time 
that these other industries were as well. The current dislocations in 
these industries are fundamentally caused by past unrestricted overuse 
of their resource which now has to be balanced out and made more 
sustainable. The historical rate of timber harvesting over the last few 
decades has been many times what is biologically sustainable without 
doing major environmental damage to other industries. The fundamental 
problem with the timber supply is that after decades of overcutting old 
growth timber, the timber industry is simply out of big trees.
---------------------------------------------------------------------------
    The relatively few wild salmon which remain alive after all these 
accumulated impacts are then subject to otherwise natural ocean 
fluctuations (El Ninos) which, combined with all the upstream human-
caused assaults, can be the final blow to an already highly stressed 
salmon ecosystem. Once the numbers of salmon in a stream drop below a 
certain threshold, the remaining fish cannot reliably find each other 
to mate. Even though many fish remain, the run has then dropped into 
what is called the Aextinction vortex and numbers drop precipitously 
from that point onward--only major intervention can then save them. 
This is precisely what seems to be happening over much of the west 
coast and has happened long since for salmon over most of the Atlantic 
seaboard.
    Salmon are the most sensitive to their environment in the egg stage 
and as juveniles when they are still in freshwater streams just after 
spawning. Some species (such as coho salmon) spend a fairly long time 
in freshwater streams since they must ``overwinter'' there for up to 18 
months before migrating out to sea. Even once they leave these 
freshwater streams, salmon must still spend additional time in coastal 
wetland estuaries and marshes in order to gradually adapt to life in 
salt water. They are ``anadromous'' fish, which means they are hatched 
in freshwater, then adapt to salt water, then return again to 
freshwater to spawn. In the ocean they are relatively large and 
relatively safe, but in inland streams they are subjected to every 
environmental problem created by mankind, in addition to natural 
predation and other natural impacts. Salmon evolved for drought, for El 
Ninos, to avoid predators--but have not evolved to prevent themselves 
from being sucked into irrigation pumps, nor from being destroyed by 
hydropower turbines, nor stranded without water in unscreened 
irrigation ditches. They also have not evolved to survive water 
pollution, oil spills and the many other unfortunate environmental 
problems created by modern civilization.
    Roughly speaking, we have lost about 80 percent of the productive 
capacity of salmon streams in the west coast as a direct result of 
various causes of watershed destruction. According to a 1991 
comprehensive scientific study by the prestigious American Fisheries 
Society (AFS), at least 106 major populations of salmon and steelhead 
on the West Coast are already extinct. Other studies place the number 
at over 200 separate stock extinctions in the Columbia River Basin 
alone. The AFS report also identified 214 additional native naturally 
spawning salmonid runs at risk of extinction in the Northwest and 
Northern California: 101 at high risk of extinction, 58 at moderate 
risk of extinction, and another 54 of special concern.\6\ In a recent 
extensive GIS mapping study of present salmon habitat occupied versus 
historical habitat, based on the AFS data and updates, the data 
indicated the following distributions across the landscape:
---------------------------------------------------------------------------
    \6\ Nehlsen, et. al., 1991. ``Pacific Salmon at the Crossroads: 
Stocks at Risk from California, Oregon, Idaho, and California,'' 
Fisheries 16:2(4-21).

                        Status of Salmon Species in the Pacific Northwest and California
                            Current Distribution as a Percentage of Historic Habitat
----------------------------------------------------------------------------------------------------------------
                                                                                                      Not Known
                                                               Endangered   Threatened    Special       to be
                    Species                      Extinct [In      [In          [In      Concern [In   Declining
                                                   Percent]     Percent]     Percent]     Percent]       [In
                                                                                                       Percent]
----------------------------------------------------------------------------------------------------------------
Coho...........................................           55           13           20            5            7
Spring/Summer Chinook..........................           63            8           16            7            6
Fall Chinook...................................           19           18            7           36           20
Chum salmon....................................           37           16           14           11           22
Sockeye........................................           59            7            3           16           15
Pink salmon....................................           21            5           <1           <1           73
Sea-run Cutthroat..............................            6            4           61           29            0
Winter Steelhead...............................           29           22            7           18           24
Summer Steelhead...............................           45            5            5           27           18
----------------------------------------------------------------------------------------------------------------

    According to GIS mapping, Pacific Northwest salmon are already 
extinct in 38 percent of their historic range, between 50-100 percent 
of these species are at risk or extinct in 56 percent of their historic 
range, and in only 6 percent of their historic habitat range are fewer 
than 50 percent of these salmon species at risk or extinct.\7\ The 
conclusions of this study (the best and most complete science to date) 
are chilling--9 out of 10 known species of Pacific salmon will be 
extinct in the lower 48 States in the near future unless land use 
patterns pressing those stocks toward extinction are reversed.\8\
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    \7\ From GIS survey maps prepared by scientists on contract to The 
Wilderness Society, and published in The Wilderness Society's report 
The Living Landscape: Pacific Salmon and Federal Lands (Volume 2). 
Published by the Bolle Center for Forest Ecosystem Management (October 
1993). The report and data were peer reviewed.
    \8\ The one exception was pink salmon, which now only occurs in the 
extreme upper portion of the Puget Sound area in limited populations. 
These are also (incidentally) the areas least affected by development 
since much of that area is in Olympic National Park--emphasizing the 
direct correlation between salmon production and intact watershed 
ecosystems.
---------------------------------------------------------------------------
    The productive capacity of the salmon resource has always been 
enormous. Even as recently as 1988, and in spite of already serious 
existing depletions in the Columbia and elsewhere, the Northwest salmon 
fishing industry (including both commercial and recreational 
components) still supported an estimated 62,750 family wage jobs in the 
Northwest and Northern California, and generated $1.25 billion in 
economic personal income impacts to the region.\9\ An additional 
estimated job loss from the Columbia River declines alone had already 
occurred by the 1988 baseline year, amounting to another $250-$505 
million in annual economic losses as well as the destruction of an 
additional 13,000 to 25,000 family wage jobs. These jobs had already 
been taken out of the economy as a direct result of dam-related salmon 
declines in the Columbia basin prior to 1988.\10\
---------------------------------------------------------------------------
    \9\ See the Endnote.
    \10\ From a report titled The Costs of Doing Nothing: The Economic 
Burden of Salmon Declines in the Columbia River Basin. Institute for 
Fisheries Resources (October, 1996), based on figures from peer 
reviewed reports by the Northwest Power Planning Council. Completion of 
the last main-stem Federal hydropower dams was in the late 1970's, and 
none were built with adequate fish passage. That study concluded that 
salmon losses in the Columbia Basin to date have amounted to the 
removal from the regional economy of between 13,000 and 25,000 jobs 
annually at a cost to the economy of between $250 to 505 million 
dollars annually, which translates to the loss of natural capital 
assets conservatively estimated as up to $13 billion.
---------------------------------------------------------------------------
    Hydropower and irrigation dams are probably the major leading 
factor in the collapse of the salmon fishery on this coast. 
Historically almost one-third of all west coast salmon were produced in 
the Columbia and Snake river systems, making that river the richest 
salmon production system in the world. Now, however, in the Columbia 
and Snake rivers the hydropower system accounts for about 90 percent of 
all human-induced salmon mortality, as opposed to only about 5 percent 
for all commercial, recreational and tribal fisheries combined. 
Official figures from the Northwest Power Planning Council indicate 
that the Columbia River dams kill the equivalent of between 5 million 
and 11 million adult salmon every year, with several million more 
killed by a variety of dam related habitat loss factors in the upper 
watersheds of the region.\11\ Many millions more fish are killed in the 
Central Valley Project and in the Klamath Basin by loss of in-stream 
flows.
---------------------------------------------------------------------------
    \11\ Northwest Power Planning Council publication Strategy for 
Salmon, Vol. 2, page 17 and Appendices D and E.
---------------------------------------------------------------------------
    Another problem is wetland losses throughout the west coast. 
California has already lost 91 percent of its original wetlands, Oregon 
has lost 38 percent and Washington has lost another 31 percent and the 
remaining percentages of original wetlands have been severely 
compromised in their biological functions.\12\ These wetlands are vital 
in protecting overwintering salmon, helping them survive droughts and 
(for saltwater wetlands) helping them adapt to ocean conditions. A main 
factor in the destruction of the coastal salmon stocks in the Northwest 
has been the rampant destruction of the area's wetlands. Loss figures 
for the most valuable coastal and estuarine wetlands are much greater 
than the overall State loss averages.
---------------------------------------------------------------------------
    \12\ Facts on wetland losses by State from a report by the U.S. 
Department of the Interior entitled Wetland Losses in the United States 
1780's to 1980's by Thomas Dahl. California has lost a higher 
percentage of its wetlands than any other State. If only coastal or 
estuarine wetlands is included in these figures, each State's wetlands 
losses would be much greater.
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    There has been a lot of press recently about court ordered 
irrigation cutbacks in the Upper Klamath Basin that have been imposed 
to protect salmon and other fish from extinction, with the farmers 
blaming the Endangered Species Act for problems that are clearly caused 
by a drought. In fact, the Courts under the ESA have only been saying 
that, especially in a drought year, natural public resources should 
have enough water to survive. In short, the court said that the 
irrigators cannot take all the water for themselves, drying up the rest 
of the river system at the expense of everybody else.
    In other words, the ESA requires the protection of the very 
ecosystem which supports all of these economies, and forbids wasting 
all of our natural resources (which are owned by the public in general) 
simply to benefit a few farmers for a few years. It just makes no sense 
to keep irrigating croplands as usual in the midst of what has become 
the Klamath Irrigation Project's worst drought in its entire 90 year 
history, particularly when the result will inevitably be a dried up 
river, dead lakes, the final extinction of several commercially 
valuable species and the total destruction of a whole downriver fishing 
economy that also supports thousands of coastal jobs--all this 
destruction just to keep feeding a bloated Federal irrigation project 
that produces federally subsidized surplus crops for which there is now 
little or no market.
    The relatively large salmon harvest projected this year in Central 
California is an instructive exception to these decline trends. The 
primary cause of those increases has probably been water reforms in the 
Central Valley, driven by the listing under the ESA several years ago 
of the devastated native runs of Sacramento winter-run chinook salmon 
and the delta smelt. Although some of those reforms are now embodied in 
the Central Valley Project Improvement Act, the ESA listing predates 
the CVPIA by several years and forced these reforms to be made. Greater 
in-stream smolt survival coupled with fortunate ocean conditions have 
thus given us a large harvestable run and put a lot of California 
fishermen back to work while other areas along the west coast where 
habitat loss and water diversions still continue are still in decline.
    In fact, the salmon rebounds in recent years from the California 
Central Valley is an ESA success story. ESA driven water reforms in 
California were long overdue, are starting to have their effect, and 
are now resulting in abundant and sustainable salmon harvests once 
again off the shores of California. The ESA has thus resulted in 
restoring jobs, communities and a tax base once again to schools and 
public services in many coastal fishing-dependent rural ports. There is 
a long way to go, but none of this could have been done had not the ESA 
forced society into a better balance in the protection of our 
fundamental Anatural capital, our priceless natural resources.
      estimates of salmon job losses due to lack of protection of 
                            salmon resources
    California's returning salmon harvests are certainly encouraging, 
and show us what better resource protection can accomplish. However, 
with the one major exception off California, and a few very minor 
mostly sportfishing exceptions in Washington and Oregon, most of the 
entire ocean going salmon fleet was closed down or severely restricted 
since 1994 because of these declines, particularly of coho salmon which 
is now ESA listed. Even with some harvests returning in central 
California, we estimate that coastwide we have still lost 90 percent of 
our industry income from the commercial fishery as compared to the 
1976-1993 averages--which translates to loss of 90 percent of the jobs 
created by the commercial salmon industry as a whole. The recreational 
salmon fishing industry has also suffered a similar decline of 70 
percent in that same time period, with some areas (such as central 
Oregon) also suffering years of nearly complete closures. While there 
is some mismatch of figures (due to different averaged years) these two 
figures combined will give us a pretty good estimate of total salmon 
industry job losses since 1988. Doing the calculation we get job losses 
as follows: 15,250 x 90 percent = 13,725 jobs lost since 1988 in the 
commercial salmon fishery; 47,500 x 70 percent = 33,250 jobs lost since 
1988 in the recreational salmon fishery; 46,975 jobs lost overall since 
1988.
    In additional, habitat losses and hydropower mortality in the 
Columbia and Snake rivers have also resulted in up to 25,000 lost jobs. 
Adding these lost jobs to the above figures for losses in the Columbia 
River which occurred even before 1988 indicates a total west coast job 
loss within the last two decades of approximately 72,000 family wage 
jobs.
    In other words, roughly 47,000 jobs have been lost in the west 
coast Pacific salmon fishing industry (including both commercial and 
recreational) just since 1988, with a total of 72,000 fishing-generated 
family wage jobs lost--including losses due to the current operations 
of the Columbia and Snake river hydropower system--over the past three 
decades.
    Overfishing is not a likely cause of these declines. Had 
overfishing been a major contributing factor in salmon declines (as 
some have claimed) then past harvest closures should have resulted in 
substantial rebuilding of populations. However, there is no evidence 
that these closures resulted in substantial population increases--
indicating that the limiting factors are in the watersheds, not in 
ocean or in-river harvest levels.\13\ There are also a number of other 
indications leading to the same conclusion, including: (a) the most 
precipitous declines have occurred primarily in the most inshore 
habitat sensitive species (coho salmon) as opposed to chinook salmon 
which spend much less time in inland watersheds and whose populations 
are still relatively robust; (b) precipitous declines have also 
occurred in species for which there is no sport or commercial harvest 
(searun cutthroat) but which originate in inland watersheds in which 
there has been substantial human disturbance (primarily clearcut timber 
harvesting and increased stream siltation from logging road washouts).
---------------------------------------------------------------------------
    \13\ Dr. Chris Frissell, who did much of the GIS mapping for The 
Wilderness Society report cited above, took an independent look at 
whether harvest reductions were a significant factor in population 
dynamics for coho salmon. If overfishing were a significant cause of 
population declines, then harvest reductions should be effective in 
rebuilding depleted stocks. He concluded in his analysis as follows:

        LOverfishing is often cited as a principle factor causing 
decline of salmon runs. However, there are few historical or recent 
records to indicate that curtailment of fishing has lead to increased 
spawning abundance of coho salmon. For example, curtailment of fishing 
seasons has been thought to have reduced harvest-related mortality 
rates on Oregon coastal coho substantially during the past decade. 
However, there has been no evidence of increased spawner escapement 
during this period, suggesting that fishing curtailment is at best 
merely keeping pace with rapid habitat deterioration and declining 
productivity of coho populations.
    (Pacific Rivers Council petition for the coastwide listing of coho 
salmon, dated 10/19/93).

    When seasons remain closed, the enormous economic investment 
already put into the Pacific fishing fleet goes to waste. Just in the 
Columbia River gillnet fleet alone an estimated $110--$129 million in 
capital assets is invested.\14\ Yet the in-river gillnet fleet is only 
a relative handful of small boats and its capital investment is 
certainly only a very small fraction of the overall capital invested in 
the entire ocean salmon fishing fleet. This figure does not even 
include buyer and processor investment. Additional salmon extinctions 
essentially mean the bankruptcy of whole fishing-dependent coastal 
communities and the waste of a tremendous capital investment built up 
over generations.\15\
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    \14\ Figures from Dr. Hans Radtke, Ph.D., fisheries resource 
economist.
    \15\ There is also a cascading effect of these salmon declines 
which impact Alaska's economy as well. Fishing is the leading industry 
in Alaska, greatly exceeding timber production as a source of economic 
support for its communities. Much of that fishing industry is now 
threatened because of international disputes with Canada over the 
collapse of the Pacific Salmon Treaty (PST). That treaty collapsed a 
few years ago primarily because of salmon losses in the lower 48 States 
(particularly the losses from the Columbia). Oregon and Washington 
salmon tend to migrate north toward colder water. Under the PST as 
presently written, Canadian-origin fish caught in Alaskan waters are 
supposed to be replaced by U.S.-origin fish swimming north into 
Canadian waters from the lower 48. However due to widespread salmon 
declines in the lower 48 States, those replacement fish are much fewer 
in number than the fish Canada is losing to the Alaskan fleet. Thus the 
Canadians have demanded cutbacks in the Alaskan catch to balance out 
their own losses. The Canadians are quite capable of enforcing these 
cutbacks through mandatory transit fees (already imposed for a short 
time last year) or even gunboat boardings on the high seas (as in the 
east coast's ``Turbot War'' between Canada and the European Union just 
a few years ago). To date the only thing that has driven salmon 
recovery efforts in the lower 48 is the threat or reality of ESA 
listings. Without a strong ESA-driven recovery of these depleted lower 
48 stocks there is no hope of Alaska long avoiding another ``fish war'' 
with Canada with no end in sight. Were the ESA itself to disappear, 
this international problem would still force shutdowns of much of the 
salmon harvest in Alaska within the next few years. These shutdowns 
would be required not by the laws of Congress but by the laws of 
nature.
---------------------------------------------------------------------------
    Again these extinctions represent lost jobs, lost family income and 
lost local tax revenues suffered by fishing communities as a result of 
poor environmental protection of west coast salmon. These losses are 
being suffered by real people, many of them third or fourth generation 
fishermen, who suddenly find they cannot feed their families, pay their 
home and boat mortgages or help maintain their communities. Better 
protection of salmon and their habitat (through the ESA and other 
strong environmental laws) will help restore these 72,000 jobs to the 
region and rebuild these local economies.
    why the fishing industry needs the endangered species act--$152 
               billion/year and 2.0 million jobs at risk
    Most fish species spend only part of their lives in mid-ocean. 
During their juvenile stage, most live and thrive in the nearshore 
environment of streams, rivers and estuaries. Some, like salmon, 
reproduce and grow far inland in fresh water streams hundreds of miles 
from the ocean. However, salmon are just one example of commercially 
valuable species that are also dependent on inshore or nearshore 
habitat quality.
    All around the country, our industry is utterly dependent on 
species which themselves require healthy watersheds and estuaries for 
the most critical parts of their life cycle. Nearshore waters, 
including rivers, streams and coastal wetlands, are essential nursery 
areas for fully 75 percent of the entire U.S. commercial fish and 
shellfish landings. These sensitive ecosystems are valuable national 
assets which contribute about $46 billion per year to the U.S. economy 
in biological value (including natural flood control and filtration of 
pollutants), as well as providing its healthiest food sources. Salmon 
are only one part of this whole economic picture, and only one of many 
commercially valuable species which need protection. The bottom line 
protection of all these species is the Endangered Species Act.
    All the Nation's $152 billion fisheries have been put at risk as a 
result of the continuing destruction of fish habitat in the Nation's 
rivers, estuaries and coastal ecosystems. This destruction has already 
led to billions of dollars in lost revenue to the Nation every year, 
lost jobs, lost food production, and lost recreational opportunities. 
The collapse of the salmon fishery is only a small part of this overall 
habitat loss problem.
    Nor is coastal habitat loss the only problem. Our entire inland 
freshwater fish resource is also in serious trouble. According to 
studies by the prestigious American Fisheries Society, roughly one-
third of 790 known species of freshwater fish in the United States are 
in danger of extinction or of special concern. In the case of a whole 
family of nonanadromous (i.e., resident) salmonids, more than 50 
percent of all known U.S. species in that family are close to 
extinction. Within the largest known family of fish (the Cyprinidae), 
which include 29.2 percent of all known fish species in the United 
States, the number of species classifiable as endangered (7.2 percent), 
threatened (9.4 percent), of special concern (10.8 percent) or already 
extinct (3.3 percent) totals 30.7 percent of this entire large family 
of fish species. Of the 18 States with greater than 10 imperiled fish 
species, 10 are located in the South and 5 in the West. The 11 States 
with the highest number of imperiled fish species are (in descending 
order) Nevada (43), California (42), Tennessee (40), Alabama (30), 
Oregon (25), Texas (23), Arizona (22), Virginia and North Carolina (21 
each), and Georgia and New Mexico (20 each).\16\
---------------------------------------------------------------------------
    \16\ American Fisheries Society, ``Status of Freshwater Fishes of 
the United States: Overview of an Imperiled Fauna.'' Fisheries, Vol. 
19, No. 1 (January 1994).
---------------------------------------------------------------------------
    This country is in the midst of an ecological disaster which is 
causing tremendous economic losses throughout the Nation in this and 
many other resource dependent industries. The large number of the 
Nation's fish and wildlife which qualify for listing under the ESA is 
just the symptom of this overall ecological disaster.
    The Congress and the Administration need to make a serious 
commitment to the protection of those habitats and ecosystems that 
determine the future productivity of fish and shellfish resources in 
the United States. If this commitment is made, at least a doubling of 
anadromous fish and other near shore dependent marine fish and 
shellfish populations of the ``lower 48'' States can be expected. This 
could produce an additional $27 billion in annual economic output 
(above and beyond the current level of $152 billion) and more than 
450,000 new family wage jobs.\17\
---------------------------------------------------------------------------
    \17\ Figures from Marine Fishery Habitat Protection--A Report to 
the U.S. Congress and the Secretary of Commerce (March 1, 1994), 
copublished by the Institute for Fisheries Resources, East Coast 
Fisheries Foundation and PCFFA, with extensive citations. Copy 
available from PCFFA upon request.
---------------------------------------------------------------------------
    Environmental regulations exist because after decades of neglect 
and pollution, policymakers finally realized that a healthy environment 
is the ultimate source of the Nation's economic wealth, its food and 
the well-being of its citizens. When all other efforts to save these 
valuable biological resources fail, however, the final safety net is 
the Endangered Species Act (ESA). In spite of the problems the ESA has 
created for individual fishermen, it is also the last hope for the 
restoration of whole industries (such as salmon fishing) in many areas. 
Without a strong ESA, the only available remedy for species recovery is 
closing down the fishery, even though the real problems lie elsewhere 
and are caused by rampant destruction of habitat.\18\
---------------------------------------------------------------------------
    \18\ Nowhere in the Nation is the link between inland environmental 
protection and fish production more obvious than in the Gulf States, 
where National Marine Fisheries Service scientists estimate that 98 
percent of the Gulf commercial seafood harvest comes from inshore, 
wetlands dependent fish and shellfish. Louisiana's marshes alone 
produce an annual commercial fish and shellfish harvest of 1.2 billion 
pounds worth $244 million in 1991. Gulf shrimp clearly head the list of 
the region's wetlands dependent species. Without strong wetlands 
protection this extremely valuable commercial fishing industry resource 
would eventually no longer exist in those States. The shrimp industry 
is learning to cope with TED's and other devices to minimize unwanted 
bycatch problems. A far greater threat to that industry comes from 
estuary and wetlands habitat loss. The ESA is a tool which (in the last 
resort) can be used to halt and reverse these losses and protect that 
industry.
---------------------------------------------------------------------------
    This is exactly what has happened to the salmon industry to date--
as onshore habitat declined, as fewer and fewer fish survived to even 
reach the ocean, it has been the fishermen who have been cut back over 
and over again, and who have almost singlehandedly paid the price of 
inland environmental destruction on a massive scale. This is because 
under the Magnuson Act fishery managers can only manage fishermen--they 
have no legal jurisdiction over actions onshore which destroy the 
biological foundations of the fishery itself.\19\ Only the ESA gives 
them the authority to modify or curtail such actions.
---------------------------------------------------------------------------
    \19\ Only recently has this begun to change, with the >Essential 
Fish Habitat' provisions of the Magnuson-Stevens Sustainable Fisheries 
Act, but this authority is still only a weak consultation process that 
allows fisheries management councils merely to comment on proposed 
Federal actions that would destroy fisheries habitat, not to stop them. 
There is no enforcement authority in these provisions.
---------------------------------------------------------------------------
    Thus without a strong ESA, there will never be salmon recovery in 
the Northwest, and the approximately 72,000 lost salmon jobs--which the 
salmon resource could still generate in this region with proper 
protection of the resource--would be gone forever. In short, salmon 
mean business, and it pays to protect them. Without the ESA to drive 
recovery, however, you can kiss the entire Northwest salmon industry--
and many other components of the entire Nation's $152 billion/year 
fishing industry--goodbye!
    The fishing industry represents a significant economic contributor 
to America's economy which is dependent upon a healthy environment. The 
ESA is not the enemy, it is only the messenger. Listing a species is 
like dialing the 911 number when you need an ambulance. It should be 
used rarely, but when it is needed it is real handy to have an 
emergency number to call. Often this can mean the difference between 
life and death.
 the ``environment vs. jobs'' issue is a false dichotomy--the esa does 
               not cause substantial economic disruption
    There is absolutely no evidence that the ESA seriously impacts 
State or regional economies, and every reason to think that it does 
not. For instance, a study by the MIT Project on Environmental Politics 
and Policy, which looked at the statistical relationship between the 
number of species listed in each State as compared to that State's 
economic performance (over the period of 1975-1990) concluded:

          ``The data clearly shows that the Endangered Species Act has 
        had no measurable economic impact on State economic 
        performance. Controlling for differences in State area, and 
        extractive industry dependence the study finds that States with 
        the highest numbers of listed species also enjoyed the highest 
        economic growth rates and the largest increases in economic 
        growth rates. . . . The one and a half decades of State data 
        examined in this paper strongly contradict the assertion that 
        the Endangered Species Act has had harmful effects on State 
        economies. Protections offered to threatened animals and plants 
        do not impose a measurable economic burden on development 
        activity at the State level. In fact the evidence points to the 
        converse. . . .''

    The author of that study also noted that actual ESA listings are 
themselves only affecting a very small number of development projects 
undertaken and that, in economic context, these impacts are very small 
indeed in comparison to other much more major factors:
          ``In fact, for every tale about a project, business, or 
        property owner allegedly harmed by the efforts to protect some 
        plant or animal species there are over one thousand stories of 
        virtual `non-interference.' In reviewing the record of 18,211 
        endangered species consultations by the Fish and Wildlife 
        Service/National Marine Fisheries covering the period 1987-1991 
        the General Accounting Office found that only 11 percent (2050) 
        resulted in the issuance of formal biological opinions. The 
        other 89 percent were handled informally--that is to say the 
        projects proceeded on schedule and without interference. Of the 
        2050 formal opinions issued a mere 181--less than 10 percent--
        concluded that the proposed projects were likely to pose a 
        threat to an endangered plant or animal. And most of these 181 
        projects were completed, albeit with some modification in 
        design or construction. In short, more than 99 percent of the 
        projects reviewed under the Endangered Species Act eventually 
        proceeded unhindered or with marginal additional time and 
        economic costs. Given the political and economic screening that 
        occurs in listings cases it is not surprising that no 
        measurable negative economic effects are detectable. . . .
          Furthermore local economic effects must be considered in 
        context. Hundreds of State and Federal policies have far more 
        injurious impacts on local economies than wildlife protection. 
        For example, the recent series of military base closings have 
        had economic effects hundreds of times greater than all the 
        listings during the 20-year life of the Endangered Species Act. 
        Even greater economic and social harm resulted from the ill-
        conceived deregulation of the savings and loan industry during 
        the 1980's. The number of jobs lost to leveraged buy-outs in 
        the 1980's exceeds by many times the wildest estimates of jobs 
        lost to endangered species; and no social good was accomplished 
        in any of these cases.''\20\
---------------------------------------------------------------------------
    \20\ Stephen M. Moyer (March 1995). Endangered Species Listings and 
State Economic Performance. Massachusetts Institute of Technology, 
Project on Environmental Politics and Policy. Facts on actions cited 
from U.S. General Accounting Office (1992) Endangered Species Act: 
Types and Numbers of Implementing Actions (GAO/RECD-92-131BR).

    In the case of the fishing industry, as well as many other 
environment-dependent industries, judicious application of the ESA to 
protect the biological resources we depend upon can add a substantial 
number of jobs to the regional economy. At least 72,000 additional 
salmon-generated family wage jobs can be restored to the west coast by 
taking steps under the ESA to restore and recover the great salmon runs 
which once made this region the envy of the world. Without the ESA to 
drive recovery, however, this economic revitalization would likely 
never happen.
               problems with the esa and their solutions
    I think all sides of the debate will admit that the Endangered 
Species Act is not a perfect law. As a regulated industry ourselves, we 
certainly know firsthand some of the problems that the current Act has 
created, and are seeking to make the Act work better and more 
efficiently. However, what should not be in question is the need for 
the Act itself. The problems with the Act are not that it is too 
strong, but that it is too bureaucratic and too poorly funded to 
accomplish its purposes efficiently and with the least amount of 
economic pain.
    As a regulated industry organization which also strongly believes 
in the importance of the goals of the Act, we also believe the ESA 
needs improvement in a number of ways, including the following:
    (1) The ESA Should Promote Species Recovery, Not Mere Maintenance 
on Indefinite Life Support.--The principal flaw of the ESA is that it 
establishes a goal far short of actual recovery of species. The stated 
goal of the ESA is to prevent extinction and to establish plans for the 
``conservation and survival'' of listed species. This minimal level of 
conservation does not result, in many cases, in ultimate population 
recovery. Under the current conservation standards, more and more 
species are thus pushed toward, and indefinitely maintained, just short 
of the line of extinction. Massive last ditch rescue efforts begun when 
a species is already hovering over the abyss of extinction is a much 
more expensive proposition than to simply keep the species well-
distributed in several self-reproducing and interbreeding populations 
from which the species will perpetuate itself naturally and at no cost 
to humans. Prevention is always cheaper than cure.
    (2) There Should Be Recovery Plan Deadlines.--Recovery plans do not 
exist for most listed species, even many years later. How can any 
species be recovered enough to delist them without a plan? This is a 
recipe for keeping species on the ESA list forever, just perpetuating 
regulatory uncertainty. Regulatory uncertainty is in many instances the 
cause of more economic dislocation than the species conservation 
measures themselves would be once implemented.
    At present there are no statutory deadlines for the adoption of 
recovery plans, thus perpetuating that uncertainty. For an industry 
such as ours or the timber industry or for farmers, this uncertainty 
makes it very difficult to develop long range business plans or to 
obtain business financing. The law should therefore require the 
Secretary to prepare within 18 months of listing a final recovery plan 
that incorporates the Recovery Target document and all implementation 
plans, and which also contains enforceable deadlines for all action 
items.
    The first step toward a recovery plan is the identification of and 
designation of `critical habitat.' This designation puts landowners on 
clear notice as to what will likely be required of them as a 
contribution toward recovery, and helps identify and ultimately to 
resolve ESA disputes. Designation of critical habitat is a vital step 
in the ESA recovery process that needs to be retained, as well as fully 
funded.
    The law should also require the Secretary to ensure to the maximum 
extent practicable that the combined set of recovery implementation 
plans will, when implemented, achieve recovery of the species within a 
reasonable timeframe. The recovery plan should identify and prioritize 
actions that would have the greatest potential for achieving recovery 
of listed species.
    Recovery plans should also emphasize implementing conservation 
measures which provide the greatest benefit with the least economic 
impact first, as well as include nonregulatory incentive-based efforts 
where appropriate. Again these are all principles that, as a regulated 
industry, we strongly support so long as the goal of ultimate and 
timely recovery is kept central to recovery efforts.
     (3) Assuring Cost Effectiveness and Minimizing Conflicts with 
Private Landowners.--Most of the conflicts between private landowners 
and the government with respect to species protection are more 
perceived than real. Nevertheless, there is a need to minimize those 
conflicts to the extent possible as well as providing for conservation 
measures which achieve the recovery goal as cost effectively as 
possible. Some of the measures that should be incorporated into the law 
to achieve these goals include the following:

          The law should direct the Secretary to emphasize the role of 
        Federal actions and public lands in achieving recovery. The law 
        should be clearer in specifying that Federal agencies have a 
        responsibility to use their existing programs to foster the 
        implementation of recovery plans to the degree they can.
          If critical habitat occurs on privately-held lands, the law 
        should direct the Secretary to identify land for acquisition in 
        the recovery plan (including any land interests less than fee 
        title, such as conservation easements) pursuant to section 5 of 
        the Act, from willing sellers, and should set priorities for 
        acquisition. This process should be well funded and the 
        administrative procedures for financing these acquisitions 
        should be simplified. Many landowners would be more than 
        willing to help with recovery efforts if such financial 
        incentives were more readily available.
          The law should also direct the recovery team and the 
        Secretary, in preparing the list of recovery actions, to 
        consider the cost effectiveness of conservation actions in 
        order to identify ways of reducing costs of recovery without 
        sacrificing species preservation or recovery goals. Landowners 
        should be encouraged to provide habitat protection through a 
        variety of incentive and financing programs, including the 
        following:
          (a) Establish a revolving loan fund for State and local 
        government entities to encourage such entities to develop 
        regional, multi-species Habitat Conservation Plans (HCP's).
          (b) Enable landowners with proposed activities consistent 
        with an approved regional HCP to obtain expedited approvals of 
        those activities.
          (c) Authorize the Secretary to enter into cooperative 
        management agreements with private landowners, providing 
        financial incentives for conservation measures above and beyond 
        those required by the ESA. Conservation activities to be funded 
        under this provision would include those called for by an 
        approved recovery plan, but could also be more pro-active in 
        their approach, rather than reactive as so often the case once 
        a species has been listed.
          The Habitat Conservation Plan (HCP) procedure is a good tool 
        for landowners to restore some certainty into the process as 
        well as to provide for long-term protection measures. However, 
        the current HCP process is deeply flawed and includes too 
        little public notice and comment. Furthermore, HCP's can be 
        inconsistent and even work at cross purposes with approved 
        recovery efforts elsewhere. HCP's are not even required, under 
        present law, to actually contribute toward the recovery of the 
        species, thus shifting the burden onto the backs of other 
        landowners who get their HCP later or not at all. The law 
        should clearly require HCP's to be both consistent with and 
        contribute toward species recovery as embodied in approved 
        recovery plans and goals.

    Both HCP's and recovery plans may have to occasionally be updated 
and revised in light of new scientific information or the results of 
plan monitoring. Current law is vague on how to go about amending an 
HCP in light of new data--including data that indicate that the HCP 
itself is failing. There should be a periodic review process, either 
automatically every 5 years or when triggered by new data indicating 
potential for further declines. During that review process, existing 
recovery plans should be kept in full force, but the Secretary should 
propose modifications to the plan to conform with any new standards. 
These proposed modifications should be widely published for public 
comment and adopted into the recovery plan only when they will promote 
equal or greater protection and faster recovery in a more cost 
effective manner.
    (4) Protection Should Be Aimed at Endangered Ecosystems, Not Just 
Individual Species, So That the Need for Future Listings Can Be Greatly 
Reduced.--A species-by-species approach does not generally work. Multi-
species plans for the protection of endangered ecosystems need to be 
developed so that those species which are part of such ecosystems do 
not begin the slide toward extinction to begin with. The ESA needs to 
become an ``endangered ecosystem'' act as well. Protection measures 
should be wholesale, not retail, in order to be cost effective.
    (5) Funding for Scientific Surveys and Recovery Efforts Should Be 
Greatly Improved.--Generally the listing process is a good one, and it 
needs to be maintained as fundamentally a scientific decisionmaking 
process, not a political or economic one. Far from being missing from 
the ESA, economic factors come into play at almost every other 
decisionmaking process, only the listing/delisting process supposedly 
being truly free of such considerations. This makes sense: either a 
species is, or is not, headed for extinction. How we get to recovery, 
however, has a clear economic and social dimension, but the scientific 
fact of population dynamics is an issue that can only be decided on a 
scientific basis.
    Nevertheless, the process would be better informed if there were 
more scientific data available earlier in the process on the particular 
species under consideration. This requires better funding for such 
things a upfront biological surveys, species status reviews and peer 
reviews. In other words, if Congress wants a better job done, it must 
properly fund the ESA and allow the agencies to do a better job.
    Likewise there needs to be ongoing funding not only for the 
recovery plan implementation process itself, but for better scientific 
monitoring so that it is possible to tell whether recovery efforts are 
in fact succeeding. Adaptive Management (i.e., learning from past 
mistakes) is simply not possible without adequately funded and ongoing 
scientific monitoring.
    (6) Alternative Dispute Resolution for Property Owners.--In our 
experience, and in spite of anecdotal media portrayals otherwise, there 
are really relatively few cases in which there are serious conflicts 
between the needs of ESA species and the rights of landowners. However, 
there are rare instances in which property owners were unfairly treated 
or in which government agencies made inappropriate decisions. This is 
inevitable in any large administrative process, and generally to sorts 
of disputes that courts are intended to resolve.
    However, there should be a speedy and cost-effective way to put 
these problems to rights. Some internal dispute resolution mechanism 
would be very helpful for landowners to minimize unnecessary conflicts 
and resolve disputes. Some of these mechanisms already exist but are 
rarely used. There is, for instance, an existing Alternative Dispute 
Resolution process within the U.S. Court of Claims which allows 
aggrieved landowners to present their case to a Claims Court judge 
without needing a lawyer and without a lot of paperwork. This process 
does not even require a trip to Washington, DC--it can be done by fax 
and phone. At a minimum, the ESA process ought to formally include this 
type of mechanism as a ``safety value'' to prevent problems from 
escalating out of control.
    (7) All Known Information about the Existence and Range of 
Threatened or Endangered Species Should Be Available to the Public from 
a Centralized Data Source.--The process of making a listing decision is 
(or should be) purely a scientific judgment call, based on the best 
scientific and commercial information available. Though landowners 
frequently complain about the science, we believe the trustee agencies 
generally do a good job of gathering and using the best science. 
Generally we find that when landowners complain about `junk science' 
what they are really saying is that the scientists either do not agree 
with their own biased viewpoints, or that the landowner does not fully 
understand the science behind the decision. Also, for many rare species 
even the best available scientific data can be very spotty and full of 
data gaps, simply because the species has not been well studied. It is 
generally only after a listing, and all the extra attention (and 
potential funding) that such a listing brings with it, that substantial 
scientific resources are brought to bear trying to study many of these 
species.
    However, we do not feel that the trustee agencies generally do as 
good a job of making the scientific data base used in the 
decisionmaking process as fully available to the public as it should 
be. In the past this was because the tools for wide dissemination of 
voluminous scientific reports and species surveys was seriously 
deficient and expensive. In today's increasingly digital world, there 
is no excuse for this. Today, voluminous scientific documents can 
readily digitally scanned and converted to CD-ROM format and reproduced 
from that format for a few dollars a copy. The data bases can also be 
made available for easy public consumption on the Internet. All these 
techniques are being increasingly used by Federal agencies, and this 
trend should be encouraged and funded. The more data is freely and 
cheaply available to members of the public the more transparent the 
process will become and the more trust in the process itself the public 
will have, even if some disagree with the policy outcomes.
    Information depositories should be created (perhaps made available 
through the National Biological Service and administered through State 
agencies) so that prospective purchasers of property would be able to 
ascertain quickly and inexpensively whether or not ESA listed species 
are known to exist on the property they are considering purchasing. 
Similar State-based information services are already available in 
States like California, through the local permit process. In theory, it 
would be possible to have all this information in readily searchable 
form with a quick computer inquiry for a very minimal fee. Some of this 
is being implemented now, as for instance the Ceres information system 
maintained by the State of California, or the Streamnet system run by 
the State of Oregon, both of which include extensive GIS data bases 
available on the Internet.
    Most land use conflicts result when landowners have invested 
substantial money and resources in a development project and feel that 
they have no choice except to proceed in order to recoup their 
investment. If a prospective landowner know before close of escrow 
whether or not there might be conflicts between development plans and 
fish and wildlife protection obligations, he or she could plan 
accordingly, propose mitigation measures with acceptance a condition of 
close of escrow, and in general take a number of proactive steps to 
minimize or eliminate any potential future conflicts. The more savvy 
real estate developers are doing that now. Biological impact reviews of 
development plans by State fish and wildlife or local agencies is also 
now routinely done in many States as part of the permit process, and 
this additional data base would fit neatly into that process.
    (8) Citizen Enforcement Is Crucial.--The Federal Government cannot 
be, nor should it be, everywhere all the time. The role and value of 
citizen enforcement of such statutes as the ESA and the Clean Water Act 
are well established. We strongly object to recent attempts by the Bush 
Administration to eliminate well established court avenues for 
resolving ESA disputes or to make government compliance with such court 
orders essentially voluntary. This is a recipe for lawless disregard by 
our own government for its own laws. The end result will be far more 
litigation, and not less, including against the very agencies who 
become scofflaws as a result of such a policy.
    (9) From Beginning to End, the Whole ESA Process Has to be Better 
Funded by Congress.--The total funding for all ESA research and 
recovery efforts now amounts to approximately 50 cents per U.S. citizen 
per year. Given the level of problems the ESA needs to address, and 
given the potential economic return on this investment, and especially 
given the economic dislocation that could potentially result for more 
of the `train wreck' policies of the past, Congress's current levels of 
funding for species identification and recovery borders on the 
ridiculous. Fifty cents per year is too little to invest in our 
biological future.
    In summary, I ask you to remember that fishing is America's oldest 
industry as well as one of its most economically important resources. 
Protecting fish means protecting jobs, protecting food production, 
protecting commerce and protecting recreational opportunities. Without 
a fully-funded and operational ESA, it would be commercial and sport 
fishermen who will find themselves endangered. Where the fish go, so go 
the billions of dollars they produce and the jobs and communities they 
support. Thank you for this opportunity to testify.
                                Endnote
    Figures taken from The Economic Imperative of Protecting Riverine 
Habitat in the Pacific Northwest (Report 5, January 1992) published by 
the Pacific Rivers Council, based on official Federal statistics from 
the Pacific Fishery Management Council. The fishery related job 
breakdown by State, according to that report, was:

 
------------------------------------------------------------------------
              State                Commercial  Recreational     Total
------------------------------------------------------------------------
Oregon..........................        4,450         9,500       13,950
Washington......................        6,800        14,250       21,050
N. California...................        4,000        19,000       23,000
Idaho...........................   Negligible         4,750        4,750
Pacific Northwest Total.........       15,250        47,500       62,750
------------------------------------------------------------------------
Commercial fishery jobs are heavily concentrated in coastal areas.
  Recreational fishery jobs, while a larger number, are more diverse and
  are distributed more diffusely throughout inland communities.

                                 ______
                                 
               [From the Fishermen's News, January 1995]
        The Pacific Coast Federation of Fishermen's Associations
(By Zeke Grader, Executive Director and Glen Spain, Northwest Regional 
                               Director)
             Why Fishermen Need the Endangered Species Act
    Fish are creatures of their environment. Without strong laws to 
prevent water pollution and widescale habitat loss, the fish will be no 
more--and where the fish go, so go the fishermen.
    Most fish species spend only part of their lives in midocean. 
During their juvenile stage, most live and thrive in the nearshore 
environment of streams, rivers and estuaries for the most critical 
parts of their life cycle. Nearshore waters, including rivers, streams 
and coastal wetlands, are essential nursery areas for about 75 percent 
of the entire U.S. commercial fish and shellfish landings. These 
sensitive ecosystems are valuable national assets which contribute 
about $46 billion per year to the U.S. economy as well as its 
healthiest food source. Yet all this has been put at risk by the 
continuing destruction of wetlands, watersheds and estuary habitat that 
these species depend upon for their very existence.
    Environmental regulations exist because policymakers finally 
realized that a healthy environment is the ultimate source of all 
wealth. However, there is a strong national movement afoot to roll 
these protections back because, in the short-term, these protections 
are inconvenient barriers to unrestricted development and short-term 
profiteering. This movement may now have a majority of votes in 
Congress and in many State legislatures. These forces have mobilized to 
roll back and gut those very laws which protect our fisheries, 
including the Clean Water Act, the Safe Drinking Water Act, and the 
Endangered Species Act itself. It is time for our industry to stand up 
and be counted against any effort to demolish the environmental 
protections which fish--and fishermen--need to survive.
    The crown jewel of all environmental protection is the Endangered 
Species Act (ESA). In spite of the problems the ESA may have created 
for individual fishermen, it is in many ways the last hope for 
restoration of whole species such as salmon. Without a strong ESA, the 
only available remedy for species' recovery is closing down the 
fishery. This is exactly what has happened to the salmon industry to 
date--as the productivity of onshore habitat declined, as fewer and 
fewer fish survived to reach the ocean, it has been the fishermen who 
have been cut back over and over again, and who have almost single-
handedly paid the price of inland environmental destruction on a 
massive scale. This situation exists because under the Magnuson Act 
fishery managers can only manage fishermen--they have no legal 
jurisdiction whatsoever over actions onshore which destroy the 
biological foundations of the fishery itself.
    Thus whole watersheds can be destroyed, salmon runs battered to 
extinction and rivers polluted to the point of catching fire, and yet 
the National Marine Fisheries Service (NMFS) can do nothing about it--
until their ESA authority has been triggered by a listing. The ESA is 
thus the key to watershed restoration and salmon protection throughout 
the region. It is also the only hope for putting a stop to onshore 
practices which destroy fishermen's livelihoods.
    That's not to say that the ESA is a perfect law. However, its flaws 
lie in the fact that it is too weak, not too strong. Under current law 
there are no deadlines on recovery plans, so species can sit there on 
the brink of extinction for years without any real effort to save them. 
Current law also does not promise full recovery, only maintenance of 
reproducing populations. Recovery efforts are bureaucratic and poorly 
funded. The recovery planning process also needs to be much more open, 
so we can avoid a repeat of the southern sea otter situation. These 
flaws, however, are fixable and should be remedied as soon as possible.
    What should not be debatable is the need for a strong law itself. 
The ESA has been the legal basis for every suit filed by fishermen's 
groups to protect habitat and to force water policy reforms in the 
Columbia River and the Sacramento Delta. The fishing industry would be 
devastated if this last barrier to extinction of the species it depends 
upon were removed.
    The fishing industry represents a major economic force which is 
directly dependent upon a healthy environment. It is vitally important 
that our voice be heard as the ESA and other environmental protection 
laws we depend upon come on the chopping block in the new Congress. It 
is also vitally important that we stand up as an industry for clean 
water, healthy watersheds and the stringent protection of the species 
upon which we depend for our livelihoods.
    The ESA is not the enemy, it is only the messenger. Listing a 
species is like dialing 911 when you need an ambulance. It should be 
used rarely, but when it is needed it is invaluable. Often it means the 
difference between life and death.
                                 ______
                                 
               [From the Fishermen's News, December 1995]
        The Pacific Coast Federation of Fishermen's Association
                    (By Glen Spain and Zeke Grader)
          A Fishermen's Agenda for the Endangered Species Act
    Commercial fishermen have long had an ambivalent relationship to 
the Federal Endangered Species Act (ESA). On the one hand, the ESA 
represents the last hope for the restoration of hundreds of depressed 
Northwest and Northern California salmon runs which our industry 
depends upon for its long-term survival. On the other hand, all too 
often it has been the fishermen (and no one else) who have had to bear 
the burden of fish protections when these same fish are being destroyed 
in the millions by onshore dams, logging and water pollution.
    The last two Republican Administrations were so hostile to the ESA 
that they deliberately created as much political heat as possible so 
the ESA would be repealed. Under the ``train wreck'' politics of those 
two Administrations, we saw the ESA used as a weapon to close down 
whole chunks of the Southeast Alaska fishery, supposedly to save a 
handful of Columbia River fish, while doing nothing whatsoever about 
the millions of fish killed by the Columbia River dams. In the Gulf 
States, the ESA was used to close down shrimpers because of bycatch on 
turtles, while ignoring other important problems elsewhere which were 
creating turtle declines.
    Yet in neither case did it have to happen that way--any realistic 
strategy for actually dealing with salmon declines would have put the 
Columbia River dams and reversing widespread salmon habitat destruction 
as first priority for changes, not last. Any rational strategy for 
dealing with the turtle bycatch issue would have produced better and 
more effective TED's far sooner by seeking the active help of Gulf 
fishermen, instead of deliberately creating active resistance. These 
two fishing industry ``train wrecks'' were deliberately created by 
hostile Administrations and Agencies for their own political gains, not 
really to solve any of these problems.
    The fact is that the loss of fish habitat is far more of a driving 
force in fish declines (for both sport and commercial fishing) than any 
other factor. The grim figures show clearly that much of this country's 
aquatic resource is in deep trouble and facing biological collapse. 
More than 75 percent of this Nation's entire $158 billion dollar/year 
commercial and recreational fishing industry depends on species that 
need unpolluted estuaries and healthy river systems for their very 
survival. In some places, such as the Gulf of Mexico, the commercial 
fishing industry is 98 percent dependent on coastal wetlands and in-
river habitat, yet much of that habitat is being destroyed. As a 
result, far more shrimp are being lost in the Gulf due to habitat 
destruction than to any number of TED's.
    According to recent estimates, this Nation's commercial fisheries 
already suffer losses equivalent to $27 billion/year (amounting to a 
loss of 450,000 family wage jobs), as the direct result of widespread 
habitat destruction in every coastal State. The inland sport fishing 
industry is also in deep trouble. North America has a huge number of 
native fish species, yet according to a recent survey by the 
prestigious American Fisheries Society, more than 30 percent of all 
this Nation's fish species are now at risk of extinction because of 
inland pollution and habitat loss.
    Pacific salmon resources have been particularly hard hit. About 98 
percent of the once abundant wild salmon runs in the Columbia Basin 
have now been destroyed, causing a total economic loss to the region of 
some $500 million/year and 25,000 family wage fishing-generated jobs. 
All told, about 72,000 family wage jobs have been lost to the west 
coast over the last 20 years due to salmon declines. Almost all of 
these losses are caused by habitat loss or hydropower dams.
    Faced with a nation-wide aquatic crisis, there is little question 
that ESA protection will be necessary, when all else fails, to at least 
keep many of these fish species from extinction while we try to figure 
out how to save them. The problem is that the ESA as currently written 
does little else but keep species on emergency life support--there is 
no guarantee under the ESA as currently written that any of these fish 
species will actually be recovered enough to generate harvestable 
surplus.
    Our own view is that since we are an industry that is going to be 
heavily regulated under the ESA anyway (far more heavily regulated, in 
fact, than the timber industry) that it is our duty to press Congress 
for an ESA that actually works! Congress is now considering major ESA 
reform. This creates a golden opportunity for the fishing industry as a 
whole to weigh in and get a better ESA--one which actually addresses 
the most fundamental issue facing our industry, which is habitat loss.
    Every Congress there are a number of bills touted as ``ESA 
Reform.'' Most were written by lobbyists as wish-lists for industries 
that destroy wildlife habitat and watersheds wholesale and thus caused 
the very declines they now seek to wriggle out of responsibility for. 
We think it is high time our own major industry, which depends utterly 
on the protection of these basic public resources, weighed into this 
debate for an ESA that really works to protect and recover species.
    Here are PCFFA's major goals for ESA reform for this and future 
Congresses:
    (a) Real Recovery.--As currently written, the ESA only guarantees 
protection to the point where the species is no longer at risk of 
extinction, i.e., self-sustaining populations. This is a very long step 
from actual ``recovery,'' defined as abundant and widely distributed 
populations, such as would be needed to generate harvestable surpluses 
of fish.
    None of the bills introduced in the last several years provide a 
better recovery goal than under present law. Some, such as those 
introduced in past years by Senator Gorton, former Senator Kempthorne 
(now Governor of Idaho) and Representatives Don Young and Richard Pombo 
are broad retreats even from the most minimal recovery requirements. 
Under those bills, the Secretary could choose (for purely political 
reasons) to do nothing whatsoever to rescue salmon or any other 
species, and this would be enough to meet legal requirements. This is 
clearly unacceptable.
    PCFFA supports efforts to make real recovery the priority of ESA 
legislation. Only through real recovery can species once listed be kept 
off the endangered species list in the future.
    (b) Maintain Habitat Protection.--Without access to the habitat 
that a species needs for food and shelter it is just as dead as if you 
shot it with a gun. Under current law and recent U.S. Supreme Court 
decisions, the ESA requires the protection of habitat on both public 
and private lands. Without this protection the only actions prohibited 
under the Act would be ``direct take'' actions--like fishing--while 
actions that take the water out from under fish, pollute their streams 
and destroy their food sources would be allowed and unregulated.
    Past bills by Gorton, Kempthorne and Young/Pombo would have 
prohibited protection of habitat on private lands, period. This is also 
the case with a bill reintroduced by Congressmen Don Young and Richard 
Pombo in the 106th Congress (H.R. 3160). Since most species exist only 
or primarily on private lands, these bills would amount to a death 
sentence for most of this Nation's fish and wildlife. Without strong 
habitat protection there is hardly any point in having an ESA at all, 
since it would be biologically irrelevant.
    The far more moderate efforts of a bill by Congressman George 
Miller (The ``Endangered Species Recovery Act'' (H.R. 960 in the 106th 
Congress)) leave the current laws alone, but also increase emphasis on 
payment and incentive programs to assist private landowners in 
conserving species on their lands, an approach we strongly favor.
    (c) Protection of Distinct Population Segments and Sub-species.--
Under the current definition of ``species'' in the Act, protection 
includes both subspecies and ``distinct population segments.'' This 
provision has been loudly and agressively attacked by the timber 
industry because the Northern spotted owl (for instance) is considered 
a subspecies of owl, and the marbled murrelets in the United States are 
only a distinct U.S. population segment of a much larger range in 
Canada where populations are relatively robust.
    The trouble is, almost every aquatic fish stock is a distinct 
population segment. Unlike owls, fish can't fly over mountains to 
interbreed, and their offspring cannot disperse in all directions. Fish 
are always isolated geographically from other fish (even of the same 
species) in other stream systems. Timber industry lobby efforts to get 
rid of the ``subspecies and distinct population segment'' language in 
the Act would make it virtually impossible to protect the habitat of 
individual U.S. salmon stocks ever again, at least so long as any 
healthy salmon populations of the same species still existed in (say) 
Siberia or Chile. This revision would simply make ESA recovery habitat 
protections impossible--but you can bet your fishery would be closed 
down under weak stock management under the Magnuson Act!
    This revisionist definition of ``species'' has appeared in several 
bills sponsored by ``property rights'' and timber industry groups. 
PCFFA believes we must maintain the current legal definitions so that 
we do not tradeoff our weak fish stocks against all others, wherever 
they may be. We need more fish where we are, not just somewhere else.
    (d) Better Scientific Basis for Decisionmaking.--There is broad 
agreement that the decisionmaking process called for in the Act could 
be improved with better science. All the recent bills have provided for 
scientific peer review of the scientific data at various points, in 
particular the recovery planning process and whenever critical habitat 
is designated. However they would have done so in very different ways.
    In many of the bills in the past, a proposed new standard for 
basing the initial listing decision on ``peer reviewed data'' (rather 
than the current law's ``best available scientific and commercial 
information'' standard) was probably much too strict. Until a species 
is identified as ``at risk'' there is often very little scientific 
information on it at all, much less formally peer reviewed reports. 
Also, in many of these mock-reform bills, peer review panels would have 
specifically included representatives from industries such as timber or 
hydropower, and so would not have been truly independent nor unbiased. 
These peer review panels would also have been tainted by politically 
based selection mechanisms in some proposals.
    PCFFA supports obtaining better scientific support for ESA actions. 
However, the science used must be the best available at the time, truly 
independent and completely free of potential political or industry 
bias.
    (e) More Public Input in Tile Listing and Recovery Planning 
Process.--Many of the past problems with ESA recovery planning were 
caused by the almost totally closed nature of the planning process. 
Plans are developed by interagency teams with little or no public input 
or scrutiny. (A good example of this was the disasterous proposal by 
U.S. Fish and Wildlife Service a few years ago to translocate west 
coast southern sea otters as part of their recovery plan.) This closed 
shop practice has fueled charges of governmental arrogance. In some 
cases (such as with the first TED's in the Gulf) this also led to 
requirements which perhaps sounded good on paper to scientists in 
Washington, DC, but which were impossible to implement under real 
conditions.
    All the recent bills provided for better public input. Some, 
however, would have so overburdened the process with additional 
bureaucratic hurdles that it is obvious that the intent of these bills 
was to disable the ESA, not make it more workable. The Young/Pombo bill 
in the 104th Congress, for instance (H.R. 2275), would have required 
over 5,000 separate public hearings (one in every county of the 
continental United States) before the listing of the bald eagle, had it 
been law at the time--at a cost of tens of millions of taxpayer 
dollars, before even one dollar could be spent on actual recovery.
    PCFFA supports a more open and collaborative public process for 
developing plans for species recovery, but not one so overburdened with 
process that it amounts to paralysis. The recovery planning process 
also has to be driven by good science, not by politics and industry 
foot-dragging.
    (f) Getting Away from Species-by-Species Reactive Approaches and 
Moving Toward Proactive Ecosystem Protection.--The ESA should be 
redesigned to encourage multi-species habitat protection plans as well 
as earlier measures designed to prevent the need for listing to begin 
with. Experience has shown that when an entire ecosystem is fragmented 
and destroyed, all the species within it will sooner or later face 
extinction. By protecting the ecosystem you protect everything else. 
Also, once a species has been pressed to the point where it qualifies 
for listing, options are fewer and any recovery efforts undertaken will 
be far more expensive than if protective actions had been taken much 
earlier on.
    The Clinton Administration favors multi-species ``Habitat 
Conservation Plans (HCP's)'' for broad geographical areas, and there 
has been considerable experimentation with this approach. 
Unfortunately, there are no standards for what an HCP must include 
under current law, nor are current HCPs required even to be consistent 
with or contribute toward overall species recovery. Thus each HCP can 
easily become a ``hole'' in the overall recovery safety net which is 
locked in for 50 years or more.
    PCFFA believes that at a minimum HCPs must be both consistent with 
and contribute toward overall species recovery for any species they 
cover. To date, only the bills by Congressman George Miller make this 
important change?
    (g) Recovery Planning Deadlines.--More than half of the species 
currently listed under the ESA have no recovery plan. Many have gone 
without one for over a decade. Unfortunately, there are currently no 
deadlines for producing these plans, so the end result of many listings 
is continuing economic disruption with no end in sight because there 
are no recovery efforts.
    Just about everyone realizes that this problem must be fixed. All 
the recent bills contain deadlines on the development of recovery plans 
once a species is listed, though these deadlines vary. PCFFA supports 
deadlines for developing recovery plans and for listing critical 
habitat. It is inexcusable to just keep the ESA patient on life support 
forever without any effort toward cure or recovery.
    (h) Conservation Incentives for Private Landowners.--At present 
there are a number of disincentives for private landowners who may wish 
to set aside wildlife or fish habitat on their lands, and too few 
economic incentives. Rather than rely solely on mandatory regulation, 
it is better to also bolster species protection incentives and to 
develop cooperative efforts with private landowners whenever possible.
    However, PCFFA does not support ``takings'' language giving 
landowners the legal right to compensation for protecting what are in 
essence public resources. These provisions amount to economic extortion 
and would be terrible public policy. There is no reason landowners 
should be paid NOT to pollute or destroy public trust assets such as 
water, fish and wildlife which happen to be on their land at the time. 
Private property rights are not and never have beenabsolute--landowners 
have an absolute prior obligation to protect public property rights 
first. However, we do support voluntary financial support programs for 
landowners who wish to go above and beyond these minimum legal 
requirements, or who want to do more--as many of them do!
    (i) Better and More Stable Recovery Plan Funding.--The primary 
reason ESA listings so often fail to lead to recovery is that the 
recovery process itself is crippled by lack of funding. The entire ESA 
recovery budget amounts to less than $1 per U.S. citizen per year--a 
truly pitiful investment in our biological future, given the magnitude 
of the problems we are trying to solve.
    Better science, greater public input and speedier deadlines all 
cost money to achieve. Without far better and more stable funding, it 
is unlikely that the ESA will result in full recovery in most 
instances.
    (j) Streamlining of the Whole Process.--At present, the listing 
process and recovery plan development and implementation processes are 
far too lengthy and bureaucratic. Various proposals for streamlining 
the process have been put forward for various reasons, but each will 
have to be judged on a case-by-case basis to see whether they are 
really helpful or merely obstructive. In general, PCFFA supports 
efforts to truly streamline the ESA administrative process, make it 
more efficient and ultimately to get more money applied directly toward 
species recovery.
    ESA reform will be taken up in every Congress until there are final 
resolutions to these questions and concerns. The above are what PCFFA 
has developed as common sense reforms which would be of benefit to the 
entire $158 billion/year sport and commercial fishing industry 
nationwide.
    The ESA is not going to go away--nor should it! Commercial 
fishermen and coastal communities need it to help restore salmon and 
other marine resources throughout the Nation, particularly those 
affected by onshore or nearshore habitat loss and estuary pollution, 
which is the vast majority. Many other inland fish species of concern 
to the sportfishing industry and inland economies are also in serious 
jeopardy for similar reasons. The ESA is always the last resort after 
all other efforts have failed, but it truly helps in an emergency to 
prevent permanent extinction until we can restore a balance so that 
fisheries are truly sustainable biologically as well as economically.
    Most of these losses are not caused by fishermen, they are caused 
by habitat loss. The ESA is also the only statute that brings habitat 
loss on to the table as part of the recovery process. Unfortunately, 
fish managers do not have the legal authority to control onshore 
habitat destruction. Only once the ESA is triggered can they then act 
to reverse the destruction of salmon and other fish habitat which has 
been so economically devastating to our industry in recent years.
    However, a number of the so-called ``ESA reform'' bills of the past 
would have amounted only to ``Fishermen's Extinction Acts'' and not 
true reform. False reform bills (usually promoted by habitat destroying 
industries) give us nothing, they result in no recovery or habitat 
protection, and their full burden would land on the backs of fishermen, 
not those who caused the extinction problem to begin with. These are 
``Trojan Horse'' bills serve only to exonerate those who have caused 
the problem.
    As always, fishermen need to be involved in creating the 
legislative alternatives so that whatever ESA bill eventually comes out 
of the process provides meaningful protection for our fisheries, 
including ultimate recovery of the biologically fragile resources upon 
which we all depend.
    Note: Since this article originally appeared two Congresses have 
come and gone. Accordingly, this article, originally written in 
December 1995, was rewritten and updated November 1999, and will be 
periodically reviewed and updated as necessary. See also ``Why 
Fishermen Need the Endangered Species Act,'' in these archives.
                               __________
              Statement of American Farm Bureau Federation
    The American Farm Bureau Federation, the Nation's largest general 
farm organization representing the interests of over five million 
member families, submits this statement for the hearing record.
    America's farmers and ranchers own and use much of the land and 
waters that are inhabited by endangered and threatened species. They 
feel the impacts of listing species under the Endangered Species Act 
(ESA) every day.
    The overriding purpose of the Endangered Species Act is the 
recovery of species on the brink of extinction. This is to be 
accomplished by placing them on a list of endangered or threatened 
species, where they are to be protected from adverse activity until 
they have achieved ``recovery'' as determined by a recovery team. The 
ultimate goal of the ESA is removal from the lists.
    Species that are lawfully hunted or fished in other parts of the 
continent or country are listed under the ESA, while species that are 
truly on the brink of extinction are waiting. Courts, not the agencies, 
set the agenda for which species get listed. And once listed, species 
rarely are removed from the list, even though they have met stated 
recovery goals.
    We have several concerns with the listing/delisting process, and 
offer some suggestions as to how the ESA might be amended to return to 
its original intent.
  1. the act should require minimum scientific standards necessary to 
      support listing and other decisions affecting listed species
    The most serious deficiency with the ESA listing process is that it 
does not contain any minimum scientific standards to list a species.
    The most celebrated case involving an endangered species remains 
the snail darter. This small fish halted a multibillion dollar water 
project in Tennessee. A lawsuit over this human-species conflict went 
to the Supreme Court, and remains the only substantive case on the 
Endangered Species Act to have been decided in that forum. Following 
the decision in Tennessee Valley Authority v. Hill, Congress passed a 
law exempting the Tellico Dam project from the strictures of the Act.
    A few months later, several more areas were found to be inhabited 
with snail darters. The species was soon thereafter downlisted from 
``endangered'' to ``threatened.'' Millions of taxpayer dollars were 
wasted because of incomplete scientific information.
    Recently, five snails located in the Snake River in Idaho were 
listed as either endangered or threatened, despite the fact that less 
than 1 percent of their possible habitat had ever been surveyed. The 
decision to list was made even though only approximately 300 square 
feet of the entire Snake River had ever been sampled for the presence 
of these species. That is not the use of sound science in the 
application of the Endangered Species Act.
    Endangered Species Act decisions currently are required to be made 
on the basis of ``the best scientific and commercial data available.'' 
The ``best'' scientific data available might be as little as one 
monograph on the subject by a single master's degree candidate.
    With affected species occupying greater habitat areas and affecting 
more basic, pre-existing human activities than ever before, there is 
too much at stake to make such decisions on inadequate scientific 
evidence. Before basic human patterns are disrupted, jobs are lost and 
communities are stripped of economic vitality, we submit that the 
Endangered Species Act decisions must be based on more sound, 
scientific certainty than is currently required.
    The current ``best scientific data available'' standard is really 
no standard at all. It provides no incentive for agencies involved in 
listing decisions to obtain accurate and up-to-date information 
necessary to make an informed decision. All too often, decisions are 
made on outdated, insufficient or misinformed data. Unverified 
hypotheses or assumptions made by one researcher often become truth for 
the next researcher who does nothing more than glance through the 
earlier work.
    The problem with this non-standard can be illustrated by applying 
peer review principles to it. The only function of a peer review team 
would be to determine whether the information used was the ``best 
available,'' not whether it is sufficient to support listing the 
species.
    Often, the correct scientific data is easily obtainable through a 
little effort. For example, in the case of the listing of the five 
snails in Idaho, the Idaho Farm Bureau Federation hired an independent 
biologist to check the Fish and Wildlife Service (FWS) data. With 
minimum effort, he readily discovered that these snails exist in far 
greater numbers and in a far greater number of places than determined 
by the Government. Such information, however, was largely ignored in 
the final decision.
    We are troubled that private landowners are being required to prove 
that government data is incorrect. Private landowners do not have the 
resources that are available to the Government; and even in the face of 
contradictory evidence, there is no guarantee that the Government will 
accept it. We submit that precious time and resources will be saved if 
the listing agency or the agency making the decision is required to do 
it right in the first place.
    Furthermore, requiring an affected private person to disprove the 
Government's data places the ultimate burden of proof for Endangered 
Species Act decisions on the private party. Instead, the burden of 
proving that a species deserves to be listed or that certain management 
prohibitions are appropriate should be on the Government Agency 
proposing the action. The Act requires the FWS to make decisions 
whether or not to list certain species, and those decisions should at 
the very least be based on sound science. The Agency has greater 
resources available to it, is in a better position to obtain required 
data, and should be required to justify its actions.
    The term ``best scientific and commercial data available'' must be 
defined to incorporate minimum scientific standards and procedures 
necessary to sustain a decision that a species be listed or that some 
other action be taken. This amendment is necessary to ensure that 
decisions affecting entire regions of the country are not being made on 
outdated information or on bare assumptions that could easily be 
disproved. Further, there must be some unbiased, objective review prior 
to decision to ensure that the proffered data meets minimum scientific 
standards.
    To accomplish this, we suggest the creation of a truly independent 
Scientific Advisory Panel to peer review ESA proposals to ensure that 
there is sufficient scientific data to support the conclusion. We 
envision the Scientific Advisory Panel to have much the same role as 
the Scientific Advisory Panel within EPA, except that the panel would 
have authority to veto any proposal that did not meet minimum 
scientific standards.
   2. the endangered species act must eliminate application to ``sub-
                 species'' and ``distinct populations''
    One of the reasons leading to the enactment of the Endangered 
Species Act was the increasing number of species that were cited as 
becoming extinct each year. The Act was passed to try to reverse that 
trend. The stated tradeoff for restricting land uses, stifling the 
economy, causing the loss of jobs, and adding millions of dollars of 
regulatory costs as the cost of doing business is to keep species from 
becoming extinct.
    Were the ESA limited to that goal, it would be much easier to 
accept by those who are directly affected by its harsh restrictions. By 
extending the law to ``subspecies'' and ``distinct populations'', 
however, the Act goes far beyond what the public is being told is the 
goal of the law. We submit that the definition of ``species'' should be 
amended to delete protection to sub-species and distinct populations.
    Taxonomic definition to the ``species'' level is sufficient to 
separate different plants, animals and fish that should be protected 
under the Act. Further classification into sub-species often adds 
nothing to the taxonomic definition of a species. So-called sub-species 
are often indistinguishable from others of the species, and there is no 
practical reason for such sub-classifications to be protected 
separately. Classification at the species level is what gives the 
organism its identity--further sub-classifications add little or 
nothing.
    If protection down to the sub-species level bears little 
relationship to whether a species becomes extinct, protection based on 
``distinct populations'' has absolutely no relationship to the survival 
of the species. As with sub-classifications of species, a particular 
plant, animal or fish might be thriving as a whole, but the Act would 
allow that species to be listed as ``endangered'' or ``threatened'' if 
it is not thriving in one particular area of its historical range. To 
permit a listing on that basis where the species is thriving elsewhere 
flies in the face of everything that the Act is supposed to represent. 
Furthermore, this situation siphons scarce resources from species that 
really are in danger of extinction to protect distinct populations of 
more glamorous species. This sort of a listing will ultimately turn 
back the clock and remove people from the land and return it to the 
flora and fauna that might have lived there many years ago.
    The clearest and most visible example of this ``preservationist'' 
strategy is the status of the so-called ``gray wolf '' under the Act. 
From a biological standpoint, all experts agree that the species of 
``gray wolf '' is in no danger of becoming extinct or endangered. There 
are approximately 60,000 of these animals in Canada with an additional 
8,000 in Alaska and 2,000 more in Minnesota, Wisconsin and Michigan. 
Based on the supposed goal of the Act, there is no conceivable way that 
this animal would or should be listed under the Act.
    Using the ``distinct population'' idea, however, the gray wolf is 
listed as ``threatened'' in Minnesota and ``endangered'' in the other 
47 lower-tier States. An introduction of wolves into Yellowstone Park 
and environmentalists touched off one of the more bitter controversies 
surrounding the Act. The Federal Government has conservatively 
estimated that it has spent nearly $6.5 million on the introduction 
project, which represents about one-half the total estimated cost.
    Government officials state that introduction is necessary to 
``recover'' the species. Yet the species is fully ``recovered'' in 
large numbers in Canada and Alaska, and a healthy population lives in 
northern Minnesota.
    Aside from having no rational basis for inclusion in the Act, the 
``distinct population'' criterion is being used in a manner that was 
not intended by the Act. ``Distinct populations'' are not being used to 
decide whether a proposed project should be begun in an area. As with 
the wolf introduction example, or in the example of specifying 
different runs of salmon as separated protectable species, these 
activities affect the basic fabric of people's lives. Instead of 
proposed, future activities, these actions affect the way people live 
and make their livelihoods. It is this very basic difference between 
intention and present reality that demands that the structure, 
functions and priorities of the Act be re-thought.
    So much agency time, attention and money is devoted to listing and 
``recovering'' ``distinct populations'' that species truly in need of 
Federal assistance are left wanting. We submit that both the 
agricultural community and the truly endangered species would benefit 
from a return to the central purpose of protecting those species which 
are in danger of becoming extinct. We submit that the only way this can 
be accomplished is if the Act focuses on plants and animals at the 
species level. Protection for sub-species and ``distinct populations'' 
should be removed from the Act.
    There are a number of ways in which the ``distinct population'' 
concept is being abused by the Agency.
    a. Species that are so plentiful that they are even hunted or 
fished in Canada or Mexico are listed in the United States. There are 
an ample number of gray wolves in Canada and Alaska that they are in no 
danger of becoming extinct. They are lawfully hunted. Likewise, there 
are a sufficient number of grizzly bears in Canada that they are not in 
danger of extinction. Canada lynx are plentiful in Canada, yet on the 
threatened list in the United States.
    b. Atlantic salmon and many Pacific salmon are raised in captivity 
where they are fished and eaten, yet they are on the endangered species 
list. Atlantic salmon raised in fish hatcheries are the same fish as 
the salmon occurring in the wild. They have interbred for nearly 150 
years and have been used to re-stock rivers and streams. They return to 
the river of origin to spawn, just like their brothers. Yet the 
hatchery-raised fish are not counted as part of the salmon population 
for ESA listing purposes. The same is true for Pacific salmon, where 
hatchery fish, whose only distinguishing characteristic is a hatchery 
clipped fin, are actually clubbed to death to prevent excess spawning. 
Both Atlantic and Pacific salmon are served in restaurants.
    All of these listings have caused severe disruption to people 
residing in the affected areas. These species should never have been 
listed in the first place.
3. the act must differentiate and distinguish between species listed as 
              endangered and species listed as threatened
    When Congress first enacted the ESA, it created two classifications 
of listed species--those that were ``endangered'' and those that were 
``threatened.'' While the Act continues these distinctions, the Act is 
also being applied in such a way that there is no practical difference 
between an ``endangered'' species and a ``threatened'' species. 
Congress intended for FWS to adopt flexible management options for 
threatened species that are not as strict as the management mandates 
for endangered species.
    FWS, however, has failed to carry out this intent of Congress. 
Instead, the prohibitions of section 9, applicable in the Act only to 
endangered species, are being applied in toto to threatened species as 
well.
    The Act needs to be amended to carry out the original intent of 
Congress to realize the difference between an ``endangered'' listing 
and a ``threatened'' listing. We suggest that sections 7 and 9 be 
amended to provide a separate list of criteria for ``threatened'' 
species. An alternative to the amendment to section 9 would be to 
require the Secretary to implement conditions of ``take'' for each 
threatened species at the time of listing as part of the listing 
proposal. The Act must then provide that these will be the only 
conditions for ``take'' for that species.
  4. listings should be based on the threat of extinction, not on the 
                       loss of historical habitat
    The ESA sets forth five criteria to assist in the consideration in 
determining whether a species is endangered or threatened. They are 
factors to be considered, not ends in themselves. The ultimate 
determination is whether the species meets the ESA definition of 
``endangered'' or ``threatened.''
    One of those criteria is whether the species has been eliminated 
from all or a significant portion of its historic range. While the loss 
of habitat is a legitimate factor to consider in determining whether a 
species should be listed, a species should not be listed solely because 
it is not found everywhere it once was. Application of that principle 
alone leads to often absurd results, such as the move to list the 
black-tailed prairie dog as a threatened species, despite the fact that 
they are plentiful, spread out across a wide range, and repopulate 
quickly.
    We believe the ESA should be amended to clarify that the five 
listed factors are only aids for consideration, and that the ultimate 
determination is whether the species is threatened with extinction or 
endangered.
   5. the act needs to be amended to require delisting upon attaining
                             recovery goals
    The goal of the ESA is to delist species that have been on the 
endangered and threatened species list. That means they have met 
recovery goals and are considered ``recovered.''
    The ESA requires the development of a recovery plan that is 
developed by a recovery team, a team of scientists and interested 
parties appointed to set the goals which determine when a species has 
recovered. Species meeting the goals are ``recovered,'' and no longer 
warrant being on the list.
    This has not worked in practice, however. Species that have 
attained recovery goals remain under the protection of the ESA when 
they should be delisted. Grizzly bear populations in both Glacier and 
Yellowstone National Parks have exceeded recovery goals since 1990, and 
there has been no move to de-list. Instead of delisting, the Agency 
changed the recovery goals. Still, these populations exceeded the new 
recovery goals. Wolves in the Great Lakes region have also exceeded 
recovery goals, there being almost twice as many wolves in Minnesota 
than required for recovery under the recovery plan. Yet, in a proposed 
reclassification of the gray wolf population in the United States 
published last year, the Great Lakes wolves were not proposed for 
delisting.
    Clearly, a new process is needed.
    We propose that the ESA be amended to require that upon attainment 
of recovery goals, a species should be automatically delisted, and that 
notice of the delisting be published in the Federal Register. A 
mandatory process like this is the only method that will allow 
reluctant agencies to do what they are required by the ESA to do.
    We believe that these suggestions will improve the Act from the 
standpoint of both species listing and reducing conflicts between a 
species and affected landowners. We also believe that these suggestions 
will restore credibility to the Act and help re-focus the Act to the 
objectives that were originally intended.
    We look forward to working with the committee on bringing about 
these changes.
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