[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]




 
  LESSONS LEARNED PROTECTING AND RESTORING WILDLIFE IN THE SOUTHERN 
            UNITED STATES UNDER THE ENDANGERED SPECIES ACT

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

                        OVERSIGHT FIELD HEARING

                               before the

                         COMMITTEE ON RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

           Saturday, April 30, 2005, in Jackson, Mississippi

                               __________

                           Serial No. 109-11

                               __________

           Printed for the use of the Committee on Resources



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                         COMMITTEE ON RESOURCES

                 RICHARD W. POMBO, California, Chairman
       NICK J. RAHALL II, West Virginia, Ranking Democrat Member

Don Young, Alaska                    Dale E. Kildee, Michigan
Jim Saxton, New Jersey               Eni F.H. Faleomavaega, American 
Elton Gallegly, California               Samoa
John J. Duncan, Jr., Tennessee       Neil Abercrombie, Hawaii
Wayne T. Gilchrest, Maryland         Solomon P. Ortiz, Texas
Ken Calvert, California              Frank Pallone, Jr., New Jersey
Barbara Cubin, Wyoming               Donna M. Christensen, Virgin 
  Vice Chair                             Islands
George P. Radanovich, California     Ron Kind, Wisconsin
Walter B. Jones, Jr., North          Grace F. Napolitano, California
    Carolina                         Tom Udall, New Mexico
Chris Cannon, Utah                   Raul M. Grijalva, Arizona
John E. Peterson, Pennsylvania       Madeleine Z. Bordallo, Guam
Jim Gibbons, Nevada                  Jim Costa, California
Greg Walden, Oregon                  Charlie Melancon, Louisiana
Thomas G. Tancredo, Colorado         Dan Boren, Oklahoma
J.D. Hayworth, Arizona               George Miller, California
Jeff Flake, Arizona                  Edward J. Markey, Massachusetts
Rick Renzi, Arizona                  Peter A. DeFazio, Oregon
Stevan Pearce, New Mexico            Jay Inslee, Washington
Devin Nunes, California              Mark Udall, Colorado
Henry Brown, Jr., South Carolina     Dennis Cardoza, California
Thelma Drake, Virginia               Stephanie Herseth, South Dakota
Luis G. Fortuno, Puerto Rico
Cathy McMorris, Washington
Bobby Jindal, Louisiana
Louie Gohmert, Texas
Marilyn N. Musgrave, Colorado

                     Steven J. Ding, Chief of Staff
                      Lisa Pittman, Chief Counsel
                 James H. Zoia, Democrat Staff Director
               Jeffrey P. Petrich, Democrat Chief Counsel


                                 ------                                

                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on Saturday, April 30, 2005.........................     1

Statement of Members:
    Crapo, Hon. Mike, a U.S. Senator from the State of Idaho.....     3
        Prepared statement of....................................     4
    Pickering, Hon. Chip, a Representative in Congress from the 
      State of Mississippi.......................................     2
    Pombo, Hon. Richard W., a Representative in Congress from the 
      State of California........................................     1

Statement of Witnesses:
    Bowen, James Randy, National Recording Secretary, Southern 
      Pine Region Director, Pulp and Paperworkers' Resource 
      Council, Bastrop, Louisiana................................     8
        Prepared statement of....................................    11
        Response to questions submitted for the record...........    13
    Briggs, Eddie, Representing the Head Companies, LLC, Jackson, 
      Mississippi, Oral statement of.............................    43
    Cummins, James L., Executive Director, Mississippi Fish and 
      Wildlife Foundation, Stoneville, Mississippi...............    13
        Prepared statement of....................................    16
        Response to questions submitted for the record...........    22
    Davidson, Paul L., Executive Director, Black Bear 
      Conservation Committee, Baton Rouge, Louisiana.............    61
        Prepared statement of....................................    63
        Response to questions submitted for the record...........    66
    Hartfield, Libby, Director, Mississippi Museum of Natural 
      Science, Mississippi Department of Wildlife, Fisheries, and 
      Parks, Jackson, Mississippi................................     5
        Prepared statement of....................................     7
    Head, David H., Sr., Chief Executive Officer, Head Companies, 
      LLC, Point Clear, Alabama, Prepared statement of...........    45
        Response to questions submitted for the record...........    48
    Johnson, Rhett, Director, Solon Dixon Forestry Education 
      Center, School of Forestry and Wildlife Sciences, Auburn 
      University, and Co-Director, The Longleaf Alliance, 
      Prepared statement of......................................    79
    Robohm, Donald, President, SeaChick, Inc., Escatawba, 
      Mississippi................................................    68
        Prepared statement of....................................    69
    Tazik, Dr. David J., Chief, Ecosystem Evaluation and 
      Engineering Division, Environmental Laboratory, U.S. Army 
      Corps of Engineer Research and Development Center, 
      Vicksburg, Mississippi.....................................    23
        Prepared statement of....................................    24
        Response to questions submitted for the record...........    82
    Vaughan, Ray, Executive Director, WildLaw, Montgomery, 
      Alabama....................................................    48
        Prepared statement of....................................    50
        Response to questions submitted for the record...........    58
    Waldon, Donald G., Administrator, Tennessee-Tombigbee 
      Waterway Development Authority, Columbus, Mississippi......    31
        Prepared statement of....................................    34
        Response to questions submitted for the record...........    41

Additional materials supplied:
    Barbour, Hon. Haley, Governor, State of Mississippi, 
      Statement submitted for the record.........................    79
    Map showing Endangered and Threatened Species in the Southern 
      U.S........................................................    81


 OVERSIGHT FIELD HEARING IN JACKSON, MISSISSIPPI, ON ``LESSONS LEARNED 
 PROTECTING AND RESTORING WILDLIFE IN THE SOUTHERN UNITED STATES UNDER 
                      THE ENDANGERED SPECIES ACT''

                              ----------                              


                        Saturday, April 30, 2005

                     U.S. House of Representatives

                         Committee on Resources

                          Jackson, Mississippi

                              ----------                              

    The Committee met, pursuant to call, at 9:00 a.m., at the 
Mississippi Museum of Natural Science, Rotwein Theater, 2148 
Riverside Drive, Jackson, Mississippi, Hon. Richard W. Pombo 
presiding.
    Present: Representatives Pombo and Pickering and Senator 
Crapo.

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

    The Chairman. Good morning. The oversight hearing by the 
House Committee on Resources will come to order.
    The Committee is meeting today for your testimony on the 
Endangered Species Act. I want to thank you for the opportunity 
to bring the Committee to Mississippi and the Southern United 
States. I look forward to listening, and gaining greater 
insight from the witnesses today on how the Endangered Species 
Act is being implemented in this region of the country.
    First off, I would like to thank Governor Haley Barbour for 
his invitation and encouragement to hold this hearing in the 
great State of Mississippi. I've enjoyed spending the last 
couple of days here, well, day and a half, and meeting with 
folks and getting a better understanding of the prevailing 
wildlife issues.
    I would also like to thank my friend and colleague, 
Congressman Chip Pickering, and thank you for having me here 
and working with me on such an important issue.
    Born of the best intentions more than 30 years ago, the 
Endangered Species Act has failed to live up to its promise of 
recovery of threatened and endangered species to healthy 
populations. In fact, of the roughly 1,300 species listed under 
the Act in its entire history, only 10 have recovered and been 
removed from the list. This translates into a less than one 
percent success rate for the species recovery. We can and must 
do better.
    It is clear that the current system is broken and in need 
of updating and improving in order to protect, cooperatively 
conserve and recover America's species for future generations.
    In regard to the announcement that we had a day and a half 
ago on the ivory-billed woodpecker, and the discovery of the 
species that was believed to be extinct, it's great news, and 
it also gives us the opportunity to step in and try to bring 
back a species which most people believed had become extinct, 
and I salute what the Fish and Wildlife Service is trying to 
do, they had their announcement, I believe it was Thursday 
morning, and are moving ahead, and the Secretary, Judge Manson, 
is very excited about moving forward on this.
    Cooperative conservation is also the key to success. You 
can't have a successful Endangered Species Act without the 
cooperation of the landowners, and in a relationship between 
the Fish and Wildlife Service and property owners that 
encourages them and gives them the kind of incentive they need 
in order to recover those species.
    Private property owners must be part of the solution. Too 
often we have tried to over regulate them, and regulate them 
out of a business, and as a result of that we have had the 
failures over the last 30 years. They must be, and have to be, 
part of an ultimate solution in moving forward.
    I look forward to having the opportunity to hear our 
witnesses. I looked through the list and looked through the 
testimony that's been submitted ahead of time. I believe this 
will be very important in terms of our efforts to draft 
legislation and approve the Act, and I look forward to hearing 
your testimony here this morning.
    I would like to recognize Congressman Pickering for any 
opening comments he would like to make at this time.

   STATEMENT OF THE HON. CHIP PICKERING, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF MISSISSIPPI

    Mr. Pickering. Chairman Pombo, we want to welcome you to 
Mississippi. We want to welcome Senator Crapo. This is a great 
opportunity for those of us in Mississippi, and those of us 
across the Southeast who care about our national resources and 
our wildlife, and conserving and protecting those in the most 
effective and efficient way possible.
    If you look at the cooperative conservation model that 
Chairman Pombo discussed and programs like the Conservation 
Reserve Program (CRP) and Wetland Reserve Program (WRP), as 
well, all of those are incentive-based approaches where we 
build cooperative partnerships with private landowners, 
communities, and all those who have a stake in making sure that 
our natural resources are protected and promoted, and those are 
successful examples and successful models.
    If you look at the Endangered Species Act, however, I think 
that that has created more of an adversarial model than a 
cooperative model, and a regulatory and commanding control 
versus the cooperative incentive-based model. But our hope is 
that as we go forward that we will build off the successful 
examples of cooperative conservation versus the adversarial 
relationship that we have seen too much across the country as 
it relates to the Endangered Species Act.
    I'd like to recognize James Cummins with Mississippi Fish 
and Wildlife Foundation, he's done tremendous work in this 
area; all of those who are on the panel, and we look forward to 
hearing each and every one of you.
    David Bowen, David where are you? Former Congressman David 
Bowen-- who was in the House of Representatives on the old 
Merchant Marine and Fisheries Committee back in the 70's and 
80's--was there in the early days of the Endangered Species Act 
and brings efforts to modify and reform it. It's good to have 
you here, David.
    This is a great opportunity. We truly appreciate, Mr. 
Chairman, that you came to Mississippi to do this and we hope 
that we give you a good story and good information as you take 
it back to Washington, and we want to do everything we can to 
help you in your reform efforts. Thank you.
    The Chairman. Thank you. I'd now like to recognize Senator 
Mike Crapo for his opening comments. But before I let him start 
I'd just say that Senator Crapo originally was elected to the 
House at the same time I was, and after serving several terms 
in the House of Representatives was elected to the Senate, and 
since he has been a member of the Senate he has been a key 
figure in the Senate in dealing with the Endangered Species Act 
and wildlife issues, and has been extremely involved.
    It looks like at this time that he will take the lead on a 
number of issues in the Senate, one of those being the 
Endangered Species Act, so we are very fortunate to have him 
here today. Senator Crapo.

STATEMENT OF THE HON. MIKE CRAPO, A UNITED STATES SENATOR FROM 
                       THE STATE OF IDAHO

    Senator Crapo. Thank you very much, Chairman Pombo, and I 
really do appreciate being invited here for this House hearing. 
It's not extremely common for a Senator to be invited. I think 
it's our friendship that maybe got me the invite to be here, 
but I truly appreciate the opportunity to come here to 
Mississippi and to learn in the experiences that we have on the 
Endangered Species Act in the south.
    And Chip, thank you for inviting me, as well. It's great to 
come to your great state. The hospitality here has just been 
tremendous. I truly do appreciate the hospitality that the 
folks here in Mississippi have shown to me during this visit.
    I also want to thank Governor Haley Barbour, who was very 
instrumental in making sure that we were able to get down here 
and that this hearing was held in Mississippi.
    The announcement this week of an ivory-billed woodpecker 
being seen in Arkansas is a fitting inspiration for today's 
hearing. The ivory-billed woodpecker, a long period extinct, 
has been seen after 60 years of being basically absent. And as 
we mobilize the recovery program for the ivory-bill, the bird 
itself is a lesson for our need for strong recovery provisions 
in the Endangered Species Act. The comments that have been made 
by Chairman Pombo and Representative Pickering are very, very 
accurate and appropriate. We need to make sure that we deal 
with the reasons and the fact that it has not been as 
successful in the past.
    It seems to me that we have succeeded before in some cases 
where we can learn how to proceed in the many cases where we 
haven't yet found success. For example, the whooping crane and 
the California condor were both at one time down to a hand full 
of remaining individuals, and today they're making progress 
toward recovery because of active and intensive efforts and the 
latest technology.
    We should do the same for the ivory bill, and we should do 
the same for almost--well, for all of our deeply endangered 
species.
    To guarantee that we can normalize recovery efforts for all 
of the most endangered species, we must make today's hearing 
the first step toward breaking many years of gridlock on the 
issues. We all understand that the ESA is a powerful law, one 
that touches both our wildlife and our property, both of which 
are precious. That power, however, does not always produce 
conservation that helps wildlife and protects property.
    Frequently, both wildlife and property have endured 
conflicts brought by the power of the Act misdirected, and 
today we begin a new and different path forward. On the new 
path we've got to focus on points of agreement, and I'm 
determined to help improve the ESA with bipartisan support from 
both the House and the Senate, which again, is one of the 
reasons I think it's very significant that we have both the 
House and the Senate represented here today, and I again thank 
the Chairman for reaching out to help that happen.
    The key to agreement is an improved recovery program that 
respects landowners. The steps to the agreement must be 
improving habitat and conservation and recovery and providing 
more and better incentives and enhancing the role of states. We 
must insist on improvements that strengthen the ESA for 
wildlife and for property owners alike. And if we take this 
path the Endangered Species Act will be less contentious and 
more effective, and very importantly we'll have the votes to be 
able to win in Congress.
    The time is right for this new path for the Endangered 
Species Act, and this first hearing of the year is the right 
place to get started. I'm encouraged by the willingness of 
businesses and private groups around the country to focus on 
recovering species. And I see from the testimony today that we 
will be getting a lot more encouragement in this process. 
Again, thank you, Mr. Chairman, for inviting me to be here.
    [The prepared statement of Senator Crapo follows:]

    Statement of The Honorable Mike Crapo, a U.S. Senator from the 
                             State of Idaho

    Good morning.
    Thank you, Mr. Chairman, for including me in this important field 
hearing to examine the lessons learned here in the South. And thank you 
Chip. I appreciate the hospitality you and the folks here in 
Mississippi have shown me during my visit.
    The announcement this week of an ivory-billed woodpecker in 
Arkansas is a fitting inspiration for today's hearing.
    The ivory-billed woodpecker, long feared extinct, has been seen 
after 60 years since the last confirmed U.S. sighting.
    As we mobilize a recovery program for the ivory-bill, the bird 
itself is a lesson of our need for strong recovery provisions in the 
Endangered Species Act.
    We have succeeded before in helping critically endangered birds. 
For example, the whooping crane and the California condor both were at 
one time down to a handful of remaining individuals. Today they are 
both making progress toward recovery because of active and intensive 
efforts and the latest technology.
    We should do the same for the ivory-bill, and we should do the same 
for all our most deeply endangered species.
    To guarantee that we can mobilize recovery efforts for all the most 
endangered species, we must make today's hearing our first step toward 
breaking many years of gridlock on this issue.
    We all understand that ESA is a powerful law: one that touches both 
our wildlife and our property, both of which are precious.
    That power, however, does not always produce conservation that 
helps wildlife and protects property. Frequently, both wildlife and 
property have endured conflicts wrought by the power of the Act 
misdirected.
    Today we begin a new and different path forward.
    On the new path, we must focus on points of agreement. I am 
determined to improve the ESA with bipartisan support in both the House 
and the Senate.
    The key to agreement is an improved recovery program that respects 
landowners.
    The steps to agreement are:
      improving habitat conservation and recovery;
      providing more and better incentives; and
      enhancing the role of states where appropriate.
    We must insist on improvements that strengthen ESA for wildlife and 
for property owners alike.
    If we take this path, the ESA will be less contentious and more 
effective--and we will have the votes to win passage of a bill.
    The time is right for this new path for ESA and this first hearing 
of the year is the right place to get started.
    I am encouraged by the willingness of businesses and private groups 
around the country to focus on recovering species.
    I see from the testimony that I will be further encouraged today.
    Thank you, Mr. Chairman.
                                 ______
                                 
    The Chairman. Thank you. I would like to recognize our 
first panel of witnesses. Libby Hartfield, the Director of the 
Mississippi Museum of Natural Sciences; Randy Bowen, Pulp and 
Paperworkers' Resource Council; James Cummins, the Executive 
Director of the Mississippi Fish and Wildlife Foundation; and 
Dave Tazik, Army Corps of Engineers. Welcome to the Committee 
hearing this morning. Ms. Hartfield, we're going to begin with 
you. I just want to tell all the witnesses here today that we 
limit the oral testimony to five minutes. Your entire written 
testimony will be included as part of the record, so if you 
could summarize your submitted testimony and try to limit your 
oral comments to five minutes, we'd appreciate it. Ms. 
Hartfield.

            STATEMENT OF LIBBY HARTFIELD, DIRECTOR, 
             MISSISSIPPI MUSEUM OF NATURAL SCIENCES

    Ms. Hartfield. First, I would just like to say a quick 
welcome to everybody to the Natural Science Museum, and I hope 
you take time to go downstairs and enjoy a little bit of what 
is here.
    I've worked for the Mississippi Department of Wildlife, 
Fisheries and Parks for the past 27 years, and in the course of 
this work I've dealt with the Endangered Species Act during 
much of that time. The ESA has been good for Mississippi. The 
American Alligator has been fully recovered; the status of the 
bald eagle and the brown pelican has significantly improved and 
they soon will be delisted.
    Species such as the Mississippi sandhill crane, ringed 
sawback, gopher tortoise, red-cockaded woodpecker, least tern, 
piping plover, gulf sturgeon and the pallid sturgeon have seen 
their populations stabilize or have increased. These and other 
species would likely be extinct, or at least extirpated from 
Mississippi if not for the Act.
    The people of Mississippi are close to the land and their 
environment, and the species listed under the ESA are highly 
valued as indicators of our way of life, our quality of life 
and our success at stewardship. Many are also important in 
ecotourism, a significant and growing industry in our State.
    The Mississippi Department of Wildlife, Fisheries and Parks 
is proud of our role in these success stories, and equally 
proud of other successes that are less well known.
    For example, our biologists have conducted and assisted in 
research efforts and negotiations with removing the need to 
list two endemic species, the Camp Shelby burrowing crayfish 
and the Jackson Prairie crayfish. Biologists employed by the 
department have also recently discovered two previously unknown 
breeding ponds for the highly endangered Mississippi gopher 
frog, and have facilitated the establishment of five captive 
populations in zoo populations, in zoo facilities.
    Conflicts with the ESA have been few and far between in 
Mississippi, and they're usually resolved by Federal 
interagency consultations. With few exceptions most private 
actions requiring ESA approval or permits proceed with little 
conflict or attention.
    The application of ESA in Mississippi, however, can be 
improved. There is a need for greater consistency and 
reliability in funding. It is imperative to have a standard 
allocation mechanism based on the number of species within a 
state. Over the past ten years, Mississippi's allocation has 
declined from a high of 160,000 in 1999, fluctuated as low as 
73,000, and now we're back up to about 95,000. Recovery of 
endangered species usually requires much research over several 
years so inconsistent funding has been very problematic for us. 
Consistent funding was available for several years of research 
on Gulf sturgeon, yellow blotched and ringed sawback turtles 
and the information gleaned during those years has been crucial 
in recovery efforts for these animals.
    Conducting basic research, implementing needed recovery 
actions, and assisting private cooperators are currently 
hampered by the low funding. We're concerned about the 
possibility of an unfunded Federal mandate to recover species 
without the proper resources if more responsibility is shifted 
from the government to the states.
    Increasing ESA funding to the states through Section 6 
cooperative agreements would only partially satisfy our funding 
problems because matching requirements already strain our 
resources. Our state revenues have declined, and meeting the 
required 25 percent match is often very difficult. We would 
like to see an overall reduction in matching percentages 
required or see the matched requirement indexed to the relative 
wealth of the state.
    We believe a Federal funding source dedicated to the state 
ESA research and recovery would lead to more successes and 
fewer conflicts. Traditional wildlife and fisheries funding 
sources, such as the Pittman-Robertson and Wallop/Breaux, were 
instrumental in the restoration of the southeastern game and 
fishes during the past century. A similar commitment is 
required to recover threatened and endangered species, and 
importantly to prevent other rare species from becoming 
eligible for protection under the act. Some of the newer 
programs such as the LIP program and many grants that we've 
talked about earlier, have much potential in helping us with 
species recovery if they're funded.
    Much has been learned during the past 32 years of the ESA. 
One major lesson learned is that it is usually easier and 
cheaper to prevent the decline of a species and it's ecosystem 
than to attempt to restore them after drastic decline.
    Another lesson is the need to open communication with all 
stakeholders and to be proactive about identifying and 
resolving potential conflicts. The MDWFP is dedicated to 
continuing to improve this approach.
    Hopefully, during the coming decade, we can learn more from 
these lessons and move forward.
    [The prepared statement of Ms. Hartfield follows:]

 Statement of Libby Hartfield, Director, Mississippi Museum of Natural 
   Science, Mississippi Department of Wildlife, Fisheries, and Parks

    I have worked for the Mississippi Department of Wildlife, 
Fisheries, and Parks for the past 27 years. I served as an educator in 
the Museum of Natural Science for ten years, and as director of the 
Museum for the past seventeen years. In the course of this work I have 
dealt with the Endangered Species Act (ESA) during much of that time.
    The ESA has been good for Mississippi.
      Two species, the American alligator and peregrine falcon, 
have been fully recovered.
      The status of the bald eagle and brown pelican have 
significantly improved to the point where they may soon be proposed for 
delisting.
      Species such as the Mississippi sandhill crane, ringed 
sawback, gopher tortoise, red-cockaded woodpecker, least tern, piping 
plover, gulf sturgeon, and pallid sturgeon have seen their populations 
stabilize or have increased.
      These and other species such as Mississippi gopher frog, 
gopher tortoise, orangenacre mucket, southern combshell and pondberry 
would likely be extinct or at the least, extirpated from Mississippi if 
not for the ESA.
    The people of Mississippi are close to the land and their 
environment, and the species listed under the ESA are highly valued as 
indicators of our way of life, our quality of life and our success at 
stewardship. Many are also important in ecotourism, a significant and 
growing industry in our State.
    The Mississippi Department of Wildlife, Fisheries and Parks is 
proud of our role in these success stories, and equally proud of other 
successes that are less well known. For example, our biologists have 
conducted or assisted in research efforts and negotiations which led to 
management actions that removed the need to list two endemic species, 
the Camp Shelby burrowing crayfish and Jackson Prairie crayfish, under 
the ESA. Biologists employed by the Department have also recently 
discovered two previously unknown breeding ponds for the highly 
endangered Mississippi gopher frog, and have facilitated the 
establishment of five captive populations in zoo facilities. We believe 
information equals alternatives, and our Museum biologists, collections 
and Natural Heritage database have proven this time and again.
    Conflicts with the ESA have been few and far between in 
Mississippi, and they are usually resolved by Federal interagency 
consultations. With few exceptions, most private actions requiring ESA 
approval or permits are also able to proceed with little conflict or 
attention. Although we see the occasional headline that this or that 
listed species or critical habitat will change the world as we know it, 
such issues quietly fade away, usually with little actual impact.
    The application of the ESA in Mississippi, however, can be 
improved.
    There is a need for greater consistency and reliability in funding. 
It is imperative to have a standard allocation mechanism based on the 
number of listed species within a state.
    Over the past ten years, Mississippi's allocation has declined from 
a high of $160,000 in 1999, fluctuated as low as $73,000 and is 
presently at $95,536. Recovery of endangered species usually requires 
much research over several years so inconsistent funding is 
problematic. Consistent funding was available for several years of 
research efforts on the Gulf sturgeon, yellow blotched and ringed 
sawback turtles and the information gleaned from those years has been 
crucial to the recovery efforts of these animals.
    Many of the species protected under the ESA in Mississippi are rare 
and very poorly known. Management and protection of these species will 
require knowledge of their life histories and habitats. We need more 
research and recovery efforts for poorly known endangered or threatened 
species in Mississippi and neighboring States, including those species 
that might need protection in the future.
    Most ESA success stories in Mississippi result from cooperative 
efforts between Federal and State agencies, and private or corporate 
landowners. Guidance and assistance from the local and regional U.S. 
Fish and Wildlife Service personnel has been essential to our work on 
behalf of endangered species. USF&WS has the capacity to work 
regionally and has the expertise to advise states on recovery actions 
for both endemic and wider ranging species. Mississippi has relied on 
this expertise often in developing section 6 projects.
    Conducting basic research, implementing needed recovery actions, 
and assisting private cooperators are currently hampered by low funding 
levels. Even the highest levels of funding ever received under ESA were 
never enough to address recovery of more than a handful of species. We 
are concerned about the possibility of an unfunded federal mandate to 
recover species without the proper resources if more responsibility is 
shifted from the federal government to the states.
    Increasing ESA funding to the states through Section 6 cooperative 
agreements would only partially satisfy our funding problems because 
matching requirements already strain our resources. With state revenues 
declining, meeting the required 25% match is often very difficult. We 
would like to see an overall reduction in the matching percentage 
required or see the match requirement indexed to the relative wealth of 
the states. Finding alternative funding sources through existing grant 
avenues requires substantial financial and time commitments, and may 
also have matching requirements. These grants are often competitive and 
prone to go to more charismatic species or to states which have better 
means to attract the grants.
    We believe a Federal funding source dedicated to State ESA research 
and recovery would lead to more successes and fewer conflicts. 
Traditional wildlife and fisheries funding sources, such as Pittman-
Robertson and Wallop-Breaux, were instrumental in the restoration of 
southeastern game and fishes during the past century. A similar 
commitment is required to recovery threatened and endangered species, 
and to prevent other rare species from becoming eligible for protection 
under the ESA.
    Some newer federal programs such as the Land Owner Incentive 
Program (LIP)have the potential to aid in species recovery if funded 
adequately. Mississippi received a tier 1 LIP grant of $180,000 to plan 
and initiate a program but now must compete for very limited funding 
before the program can be fully implemented.
    Many of Mississippi's listed species are aquatic and draw attention 
to ecosystems in need to management. If we are to recover our aquatic 
species, we need to manage and protect their river and stream 
ecosystems. This may require improving water quality, preserving 
habitat through conservation easements, or re-introductions of species 
into formerly occupied habitats. These recovery actions will require 
cooperation between federal, state, and local governments and will 
require much greater commitment of funding from the federal government 
than has hitherto been available.
    Much has been learned during the past 32 years of the ESA. One 
major lesson learned is that it is usually easier and cheaper to 
prevent the decline of a species and it's ecosystem than to attempt to 
restore them after drastic decline. Hopefully, during the decades to 
come, we can better apply what we have learned.
    Another lesson learned is the need to ensure open communication 
with all stakeholders and to be proactive about identifying and 
resolving potential conflicts. The MDWFP is dedicated to continuing and 
improving this approach.
                                 ______
                                 
    The Chairman. Thank you. Mr. Bowen.

                STATEMENT OF JAMES RANDY BOWEN, 
            PULP AND PAPERWORKERS' RESOURCE COUNCIL

    Mr. Bowen. I would like to take this opportunity to thank 
the House Resources Committee for having this very important 
hearing on the Endangered Species Act.
    I'd like to give a brief history of the PPRC. We're a non-
profit, grass roots organization concerning the fiber supply, 
forest practices and the Endangered Species Act for dedicated 
men and women with one common cause, and that cause is needing 
our jobs.
    We began in the Pacific Northwest where the spotted owl was 
successful in shutting many mills down, thereby causing us to 
lose thousands of good living wage American jobs in the forest 
products, pulp and paper sectors. As time progressed, we 
realized this job loss would not just stay in the Pacific 
Northwest, nor would it just relate to the endangered species 
and our purpose statement is ``To establish a grass root 
coalition concerned with fiber supply, the Endangered Species 
Act and our environment in a way that promotes knowledge and 
political activism so we may influence legislation and policies 
that affect our jobs''.
    The PPRC proposes the Endangered Species Act be updated to 
give equal consideration to social and economic, as well as 
biological, concerns. Currently, too many ESA listings lack a 
substantial basis in hard scientific data.
    The House Resources Committee passed legislation (HR1662-
The Endangered Species Data Quality Act of 2004) that focused 
on the importance of using field-tested data and community 
research. In addition to this language, provisions to the Act 
should insure that the ESA decisions are based on sound 
science, including peer review of listening and recovery 
decisions.
    ESA should limit the definition of threatened and 
endangered species to those species which are biologically 
unique, excluding those that are only geographically isolated 
from other populations of the same species.
    To stop the current tactic by environmental officials of 
targeting state officials who issue permits to private parties 
to merely conduct activities on their land, Congress and the 
Administration should consider actions to limit the liability 
of state officials various means, including legislation if 
necessary.
    The current consultation process in ESA has mushroomed into 
an unnecessary lengthy and expensive process. Congress should 
support the Administration efforts to update these processes 
and provide legislative direction as necessary. Agency meetings 
to list or de-list should be held in geographic areas that are 
economically impacted. After a listing decision is made a full 
consideration should be given to all social and economic issues 
in all subsequent steps of the ESA.
    Litigation by environmental groups has made the critical 
designation process a costly drain of financial and human 
resources with a very little gain in regard to species 
conservation. Congress should focus the critical habitat 
process on species restoration by removing it from the 
regulatory arena and making it part of the recovery process.
    Wood products employees support ESA reform. Protecting 
truly endangered species is in the best interest of the public. 
The impact on people, property and jobs should be evaluated 
when making these regulations.
    The ESA mandate system is not working. The ESA should be on 
equal footing with and not superior to, all Federal laws. The 
ESA needs to be absolutely based on objective and verifiable 
science. The ESA should be a flexible and rational Act and 
apolitical in all decisions.
    There should be a greater role for states and local 
governments in all ESA decisions. State constitutional 
authority over plants and animals should be restored. There 
should be compensation for private property owners when ESA 
diminishes property values.
    The Act should be amended to ensure the species will not be 
listed until a recovery plan is developed and appropriations 
are approved. The word reform means the improvement or 
amendment of what is wrong or corrupt. The PPRC believes the 
time for reform is now and only real reform will help both 
plants and animals and preserve the American way of life.
    The PPRC wants to conserve the Nation's endangered species 
but wants it done in partnership with the Federal government, 
not under the command and control authority of Federal 
agencies.
    The PPRC supports access to information used by the 
government in the ESA decisionmaking processes. The PPRC feels 
that in order to simplify the process and make the Act work, 
ESA decisions should be based on sound science and include peer 
review of listing and recovery decisions.
    The PPRC feels that true scientific facts and field data 
should be weighed more heavily than computer modeling. The PPRC 
supports limiting the definition of threatened and endangered 
species to those which are biologically unique, excluding those 
that are only geographically isolated from other populations of 
the same species. Create economic incentives to encourage 
species and habitat protection among private landowners. 
Recognize the importance and value of private property rights 
and that private property landowners should not have to bear 
all the expenses of species recovery. You should consider 
economic impacts to landowners and adjacent communities during 
all phases of ESA implementation. As you mentioned since ESA 
first became law, there were only 10 species have been 
recovered out of 1300 that's been listed, so that shows that it 
doesn't work.
    The forest products industry is a vital part of the economy 
of the United States, especially here in the southern states. 
Most property in the Southern United States is privately owned. 
Besides all the other environmental hurdles we face, without 
fiber our industry would not survive, and ESA directly affects 
fiber supply. That is why reform is needed.
    Imagine how excited people from the economic community 
would be if a company was looking to come and invest their 
millions of dollars and have millions of dollars of payroll. 
Taxes that are paid. The people that work at that plant are 
involved heavily in community affairs. They gave to the local 
United Way. Think of what the economic impact would be for the 
state. I work at such a plant and it's threatened right now, 
and without reform, that's why I'm here. I'm fighting for my 
job. Bottom line, I'm fighting for a pension. Our organization 
has a real close--I know you've seen it before, and it's a sad 
state of affairs. And the sad thing is that amount is 
continually growing with plants that are closing down and 
closing down, and it all started over the Endangered Species 
Act; which I know various country boys, Senator Crapo and 
Congressman Pombo are from, know a lot about it. It started 
with the spotted owl and it's just mushroomed into something 
that's just out of control.
    So again, I appreciate y'all holding this hearing for us 
and look forward to the reform in the future.
    [The prepared statement of Mr. Bowen follows:]

Statement of James Randy Bowen, National Recording Secretary, Southern 
  Pine Region Director, Pulp and Paperworkers' Resource Council (PPRC)

    I would like to take this opportunity to thank the U.S. House of 
Representatives Committee on Resources for holding this very important 
hearing concerning the Endangered Species Act.
    I would like to give a brief history about the Pulp and 
Paperworkers' Resource Council, more commonly known as the PPRC. We are 
a ``grassroots, non-partisan'' organization, formed in 1992, made up of 
hourly employees who work in the forest products industry. We work on 
fiber supply, forest practices, endangered species and environmental 
issues that impact our jobs. We are dedicated to the conservation of 
our environment while taking into account the economic stability of the 
workforce and our surrounding communities. We are dedicated men and 
women working together for one common cause. That cause being ``OUR 
JOBS''.
    The PPRC began in the Pacific Northwest where the spotted owl was 
successful in shutting down many mills, thereby causing us to loose 
thousands of good living wage American jobs in the forest products, 
pulp and paper sectors. As time progressed, we realized this loss of 
jobs would not just stay in the Pacific Northwest, nor would it only 
relate to endangered species.
PPRC PURPOSE STATEMENT
    ``To establish a grassroots coalition concerned with fiber supply, 
the Endangered Species Act, and our environment in a way that promotes 
knowledge and political activism, so we may influence legislation and 
policies that affects our jobs.''
    The Pulp and Paperworkers' Resource Council (PPRC) proposes the 
Endangered Species Act (ESA) be updated to give equal consideration to 
social and economic, as well as biological, concerns.
      Currently, too many ESA listings lack a substantial basis 
in hard scientific data. The House Resources Committee passed 
legislation ( H.R. 1662--The Endangered Species Data Quality Act of 
2004 ) that focused on the importance of using field-tested data and 
continual research. In addition to including this language, revisions 
to the Act should insure that ESA decisions are based on sound science, 
including peer review of listing and recovery decisions.
      ESA should limit the definition of threatened and 
endangered ``species'' to those species which are biologically unique, 
excluding those that are only geographically isolated from other 
populations of the same species.
      To stop the current tactic by environmental officials of 
targeting of state officials, who issue permits to private parties to 
merely conduct activities on their land, Congress and the 
Administration should consider actions to limit liability of state 
officials various means, including legislation if necessary.
      The current consultation process in ESA has mushroomed 
into an unnecessarily lengthy and expensive process. Congress should 
support Administration efforts to update these processes and provide 
legislative direction as necessary.
      Agency meetings to list or de-list species should be held 
in the geographic area to be economically impacted.
      After a listing decision is made, full consideration 
should be given to all social and economic issues in all subsequent 
steps in the ESA process.
      Litigation by environmental groups has made the critical 
designation process a costly drain of financial and human resources 
with very little gain in regard to species conservation. Congress 
should focus the critical habitat process on species restoration by 
removing it from the regulatory arena and making it part of the 
recovery process.
    Wood products employees support ESA reform. Protecting truly 
endangered species is in the best interests of the public The impact on 
people, property and jobs should be evaluated when making the 
regulations.
    ESA needs to be modernized and updated after thirty years.
      The ESA mandate system is not working.
      The ESA should be on equal footing with, not superior to, 
all other laws.
      The ESA needs to be absolutely based in objective and 
verifiable science.
      The ESA should be a flexible and rational Act and 
apolitical in all decisions.
      There should be a greater role for states and local 
governments in all ESA decisions.
      State constitutional authority over plants and animals 
should be restored.
      There should be compensation for private property owners 
when ESA diminishes property values.
      The ACT should be amended to ensure that the species will 
not be listed until a recovery plan is developed and appropriations are 
approved.
    REFORM (re-form'') n. 1. the improvement or amendment of what is 
wrong, corrupt, etc.
    The Pulp and Paperworkers' Resource Council believes the time for 
reform is now and only ``Real Reform'' will help both plants and 
animals and preserve the American way of life.
      The PPRC wants to conserve the nation's endangered 
species but wants it done in partnership with the federal government, 
not under the command-and control authority of federal agencies.
      The PPRC supports access to information used by the 
government in the ESA decision-making process.
      The PPRC feels that in order to simplify the process and 
make the Act work, ESA decisions should be based on sound science and 
include peer review of listing and recovery decisions.
      The PPRC feels that true scientific facts and field data 
should be weighed more heavily than computer modeling.
      The PPRC supports limiting the definition of threatened 
and endangered ``species'' to those which are biologically unique, 
excluding those that are only geographically isolated from other 
populations of the same species.
Some other consideration:
      Create economic incentives to encourage species and 
habitat protection among private landowners.
      Recognize the importance and value of private property 
rights and that private landowners should not have to bear all the 
expenses of species recovery.
      Consider economic impacts to landowners and adjacent 
communities during all phases of ESA implementation.
    Since ESA was enacted in 1973,over 1300 species have been listed as 
either threatened or endangered, but only 10 domestic species have been 
recovered sufficiently to be removed from the list. That's less than a 
1% success rate. The radical environmental community love ESA as it is 
now. They sue the landowners and governmental agencies to stop 
development and harvesting and management of timber resources. The 
results are violations of private property rights, interference with 
decisions based on sound science, prevention of projects, valuable 
resources access denied, mismanagement of government-owned land, and 
rural America suffers the economic hardship of such actions.
    The forest products industry is a vital part of the economy of the 
United States, especially the southern states. Most property in the 
Southern United States is privately owned. Besides all the other 
environmental hurdles we face, without fiber our industry would not 
survive. ESA directly affects fiber supply.
    ESA reform is needed now!
    Imagine how excited economic developers would be if they got word 
of a business that provided 850 high paying jobs with an annual payroll 
of nearly $60 million.
    This business would pay more than $11 million in state and local 
taxes every year. This would surely be the largest taxpayer in the 
parish. Purchases in a two-parish area alone would top $20 million. 
This business would also provide for nearly 500 associated jobs for 
area residents in transportation and harvesting.
    Employees of this business would be active in almost every aspect 
of the community. Collectively, the group would give an average of 
$150,000 a year to the local United Way.
    Conservative estimates of the total economic impact of that 
operation would be well over 3,000 jobs and $250 million annually. That 
doesn't even include statewide purchases of $110 million for wood 
fiber, raw materials and chemicals and $30 million annually for energy 
to sustain the operation.
    That would have economic development experts, local and area 
elected officials and the general public jumping through hoops to see 
what they could do to land such a prize.
    But what if that business is one that already exists? I know of one 
that already exists. The facts I stated are about International Paper's 
Louisiana Mill in Bastrop, Louisiana. June 13th, I'll have 31 years 
employment there.
    Can you imagine what would happen to the employees and the 
community if we lost that? That is why we are working as hard as we can 
every day to see that we do everything we can to make sure that doesn't 
happen.
    The economic environment for the forest products industry in the 
United States is not good. We see most of the growth overseas and in 
the Pacific Rim.
    Again, fiber supply is vital and ESA affects us. ESA reform is 
needed! You can make a difference. I ask you to put a human face on ESA 
when you consider reform.
    Thank you.
                                 ______
                                 

 Response to questions submitted for the record by James Randy Bowen, 
 National Recording Secretary, Southern Pine Region Director, Pulp and 
       Paperworkers' Resource Council (PPRC), Bastrop, Louisiana

Question submitted by Senator Crapo:
    1.  All of the panelists spoke of contributing time and money to 
species conservation--some more willing than others. If we could 
guarantee that your investment gave you a seat at the table to take 
part in hiring scientists, planning recovery, and taking action on the 
ground--would you be better off?
Response:
    Many private property landowners already contribute time and money 
to species conservation. For example: since 2001, International Paper 
Company has been an active partner with U.S. Fish and Wildlife Service, 
Tennessee Wildlife Resources Agency, Alabama Department of Conservation 
and Natural Resources, and Conservation Fisheries, Inc. in 
reintroduction of the boulder darter into Shoul Creek, located in 
Tennessee and Alabama. The boulder darter has been on the federal 
endangered species list for 17 years. This is just one example.
    Many private property landowners already contribute but many may 
not be able to afford the expense. The ones who can't afford this 
should still be provided a seat at the table if it affects their 
private property land usage rights or may affect their property value.
    My answer is YES if they are affected.
                                 ______
                                 
    The Chairman. Thank you, Mr. Bowen. Mr. Cummins.

        STATEMENT OF JAMES CUMMINS, EXECUTIVE DIRECTOR, 
            MISSISSIPPI FISH AND WILDLIFE FOUNDATION

    Mr. Cummins. Chairman Pombo, Congressman Pickering and 
Senator Crapo, thank you for the opportunity to speak on the 
Endangered Species Act. With the discovery of the ivory-billed 
woodpecker, this is a great time to begin a frank discussion 
about recovery.
    I'm James Cummins, I'm Executive Director of the 
Mississippi Fish and Wildlife Foundation. I'm a certified 
fisheries and wildlife biologist as well as a private 
landowner. Two of our many accomplishments at the foundation 
include conceptualization of the wildlife habitat incentives 
program as well as the Healthy Forests Reserve Program.
    Private lands provide habitat for 90 percent of our 
nation's listed species. Eight of the top ten states with the 
most listings are in the south. This region also provides 60 
percent of our nation's timber. More timber is harvested 
annually from the National Forests in Mississippi than all of 
the entire National Forests in the Pacific Northwest combined.
    Because of this you may wonder why you've not heard a lot 
more about ESA problems here in the south. Most of the 
biologists in the south have a fish, wildlife with management 
background, or in education, not just biology, so they're used 
to trying to resolve conflicts. We try to solve problems in the 
south, not create them. We have very good leadership here as 
well. Sam Hamilton is our Regional Director in Atlanta and he's 
doing a great job.
    The ESA has been very effective in preventing many species 
from becoming extinct, but it has not been successful at 
recovering them. Although recovery will take time for most 
species, it is certainly achievable.
    The ESA should not be a permanent life support system. And 
like a quality health care system, restoring the health of our 
nation's listed species requires significant dollars, but 
spending money is certainly no guarantee of results. 
Emphasizing recovery can build confidence if funds are spent 
wisely.
    I have quite a few suggestions to improve the ESA. Some 
I'll outline today, and others I'll fully describe in my 
written statement. Although the Act can be improved, don't 
forget that many of its problems are in the rules and 
regulations. Stewardship of listed species can certainly 
respect private property rights. Although a free market economy 
is the preferred means of improving environment, it does not 
always worked in this situation and incentive should be 
provided.
    In some cases, like that of aquatic ecosystems, incentives 
do not always work, and a stronger commitment from some of the 
public works agencies is needed. Habitat is the basis for every 
plant, fish and wildlife population, and should be the basis of 
recovery. We're not taking full opportunity of the consensus 
over the importance of habitat management.
    Our nation depends on private lands for economic uses. We 
also depend on them to provide many free services for society, 
such as oxygen, sequestering carbon dioxide and providing 
habitat. We expect all of this while rarely thinking about how 
landowners can afford to provide them free of charge. 
Landowners need the encouragement, the financial, as well as 
the technical support to undertake projects to recover the 
listed species found on their property.
    Incentives provide the basic operating frame work to 
accomplish this objective. Congressman Pickering has certainly 
seen the evidence of that in the Wetland Reserve Program, as 
he's introduced the Wetland Reserve Restoration Act prior to 
this last Farm Bill.
    We also need to recognize that there are other 
opportunities that exist, and many of you are familiar with 
that as you serve on your respective bodies, Agriculture 
Committee. Recovery can be incorporated into the Conservation 
and Reserve and Environmental Quality Incentives Program, and I 
certainly encourage you to work with your colleagues on the Ag 
Committee as we start looking at the 2007 Farm Bill.
    The Administration and the Congress need to fully fund the 
Healthy Forest Reserve Program to develop the first agreements 
prior to year's end. I appreciate Congressman Walden and 
Senators Cochran, Lott, Chambliss, Lincoln and Crapo and others 
requesting funds for it, along with the support of 47 national 
conservation organizations.
    The Healthy Forest Reserve Program is the perfect program 
for recovery efforts of the ivory-billed woodpecker. An 
enormous opportunity exists to allocate funding to it that 
really can provide the greatest benefit to the bird.
    A significant recovery title should be incorporated into 
any new ESA legislation. A recovery and prevention program 
consisting of tax credits should be established.
    These tax credits can be used by the landowner or even 
sold. This will allow the credit to help meet the needs of all 
landowners, including those with limited resources. The origin 
of this idea came with conversations and meetings I had with 
the late Senator John Chafee.
    Eligible land should be in close proximity to existing 
populations where significant recovery can occur, rather than 
including its entire range. Priority should be on lands where 
the opportunity exists to resolve conflicts. The program could 
also consist--should consist of several components committed 
with a voluntary either long term or perpetual easement where 
the landowner would receive a tax credit equal to the appraised 
value of the property plus a half percent of the restoration 
cost.
    The second component could consist of a 30 year easement 
where the landowner would receive 75 percent of the appraisal 
cost as a tax credit, as well as the restoration cost at that 
same amount.
    The third component would consist of a voluntary 10 year 
agreement where the landowner would receive a tax credit equal 
to 75 percent of the restoration cost.
    Those are some of the very similar type provisions that 
you're familiar with in the Wetland Reserve Program and what 
Congressman Pickering had introduced.
    Finally, safe-harbor language should be included so that an 
owner should not be liable for take of a species from altering 
habitat once that agreement has expired. The Safe Harbor 
Program is a tool that began in the south in 1995 to encourage 
voluntary management by landowners to benefit listed species 
without imposing additional regulations on property.
    We need legislation for a strong invasive species control 
program. In 2003 Senator Cochran introduced such a program as 
an independent title to the Healthy Forest Restoration Act; 
however, it was certainly not included in the final version of 
the bill.
    While many people solely blame economic development, 
invasive species ranked as the second most important threat to 
listed species behind habitat destruction, having contributed 
to the decline of 42 percent of listed species.
    These types of proactive approaches that I've described 
will help de-list threatened and endangered species by placing 
an emphasis on recovery and emphasizing economics. They will 
also aid a species before it reaches the list, a status of 
either threatened or endangered, as Libby mentioned earlier, 
thus making it unnecessary to list. Working with private 
property owners and enabling them to restore the habitat is the 
kind of proactive strategy that can head off a regulatory 
crisis, while improving the environment and providing 
opportunities that don't threaten jobs.
    Mr. Chairman, Congressman Pickering and Senator Crapo, this 
concludes my remarks. Thank you.
    [The prepared statement of Mr. Cummins follows:]

   Statement of The Honorable James L. Cummins, Executive Director, 
                Mississippi Fish and Wildlife Foundation

                      The Endangered Species Act:

   A Unique Approach To Recovering Threatened And Endangered Species

``Timely disbursements to prepare for danger frequently prevent much 
        greater disbursements to repel it.''
                                          George Washington
``Conservation will ultimately boil down to rewarding the private 
        landowner who conserves the public interest.''
                                               Aldo Leopold
``Nothing is more priceless and more worthy of preservation than the 
        rich array of animal life with which our country has been 
        blessed. It is a many faceted treasure, of value to scholars, 
        scientists and nature lovers alike, and it forms a vital part 
        of the heritage we share as Americans.''
                                              Richard Nixon
Introduction
    Chairman Pombo, Ranking Member Rahall, Members of the Committee, 
Congressman Pickering and Senator Crapo, thank you for the opportunity 
to appear before you today to speak on the Endangered Species Act 
(ESA), specifically how we can improve the recovery of species. With 
the announcement, this past Thursday of the discovery of the ivory-
billed woodpecker, I know of no better time to begin a frank discussion 
about recovery. We have worked hard over the past 15 years to develop 
programs for recovery and work with private landowners and public 
agencies in the South on recovery efforts. Many of you have spent a lot 
of time on it as well and a lot of us in the conservation community 
appreciate it.
    I am James L. Cummins, Executive Director of the Mississippi Fish 
and Wildlife Foundation. I am a certified fisheries biologist, a 
certified wildlife biologist and a private landowner. Some of the 
Foundation's more significant accomplishments include conceptualization 
of the Wildlife Habitat Incentives Program, helping pass the Grassland 
Reserve Program, developing many of the components of the Wetland 
Reserve Program and conceptualization of the Healthy Forests Reserve 
Program. Regarding public lands, we worked with our delegation to 
develop the Holt Collier and Theodore Roosevelt National Wildlife 
Refuges as well as the Sky Lake Wildlife Management Area, which 
contains the largest stand of ancient cypress in the world. We also 
work in the area of market-based incentives for conservation, such as 
tradable credits for carbon sequestration, threatened and endangered 
species, wetlands and streams. I proudly serve as a member of 
Environmental Defense's Center For Conservation Incentives. The 
Center's most recent program, Back From The Brink, is about recovering 
species. Senator Crapo, I appreciate you hosting Environmental Defense 
to announce the roll-out of Bank From The Brink.
Background
    Many of you represent the West where the vast majority of public 
lands and threatened and endangered species conflicts occur.
    Private lands provide habitat for 90 percent of our Nation's 
threatened and endangered species. The South has the largest percentage 
of listed and candidate species in the nation. And that is unfortunate. 
For the species sake, I wish that list was shorter. Eight of the top 
ten states/territories with the most listings are in the South; they 
include: Alabama (115), Florida (111), Georgia (66), North Carolina 
(63), Tennessee (96), Texas (91), Virginia (71) and Puerto Rico (75). 
Mississippi has 38.
    According to the U.S. Department of Agriculture's (USDA) Forest 
Service (USFS), nationwide, public forest lands comprise 317 million 
acres (42.38%) and private forest lands comprise 431 million acres 
(57.62%). Private forests provide approximately 89 percent of the 
nation's timber harvest. According to the latest data from the USFS, 
specifically the Southern Forest Resource Assessment, nationwide, the 
South alone provides 60 percent of the nation's timber supply, making 
it the largest producer of timber compared to any country in the world. 
Furthermore, more board feet of timber are annually harvested from the 
National Forests in Mississippi than all of the National Forests in the 
Pacific Northwest combined. Although many factors affect these 
seemingly lopsided statistics, the primary reason that private forests 
produce so much timber without substantial conflicts is simple--it is 
called management.
    A case can be made that the ESA has been very effective in 
preventing many species from becoming extinct; however, by all 
accounts, it has not been successful at restoring habitat and 
significantly increasing populations. The Act has listed a great many 
species and kept them from becoming extinct, however it has de-listed/
recovered very few. If our health system operated in a similar fashion, 
it would need to be improved. As an example, we would have put 1,274 
people in the hospital, kept 989 in intensive care (endangered), 275 in 
the regular ward (threatened) and released 10 (de-listed). The ESA 
should not be viewed as permanent life support system for threatened 
and endangered species. There is significant room for improvement, but 
like a quality health care system, restoring the health of our Nation's 
candidate, threatened and endangered species requires dollars--and lots 
of them.
    But spending money is no guarantee of results. We need to break the 
standoff over funding. Emphasizing recovery can build confidence that 
our money is spent wisely, and this confidence can, in turn, build 
support for more investment from both the private and public sectors.
    I have quite a few suggestions to improve the ESA. Although the Act 
can be made better, I want to point out that many of the problems on 
the regulatory side are not always about the Act. They are about the 
rules and regulations governing it. And that, for the most part, is an 
Administrative issue.

Develop New Conservation Incentives and Better Use Existing Ones
    The ESA can be much more effective if new, constructive ideas are 
incorporated into it. Stewardship of threatened and endangered species 
can be encouraged that respects property rights. Although a free-market 
economy is the preferred means of improving the environment, it does 
not always work in this situation and incentives should be provided. 
Incentives appear to be more expensive, but many times are less harmful 
to the economy than burdensome regulations. And in some cases, like 
that of aquatic ecosystems, incentives do not always work and a 
stronger commitment and more cooperation from the public works agencies 
is needed.
    Habitat is the basis of every fish and wildlife population and 
should be the basis of every recovery effort. I am not persuaded that 
the current ideas on the table are taking full opportunity of the 
consensus over the importance of habitat protection, restoration and 
enhancement.
    It is obvious that we cannot set aside unlimited acres for fish and 
wildlife habitat. The ESA calls for the federal government to prohibit 
certain activities that would cause the take of a listed species unless 
such activities are not otherwise authorized by an incidental take 
permit. Many times, if the land use causes a take, the result under the 
current system causes not only hostility on the part of the owner, but 
sometimes damage to the species needing assistance. Ability of 
government to control how property is used can make an enemy out of 
even the most harmless of birds, fish or other listed species.
    Our nation depends very heavily on private lands to produce the 
thousands of products we need every day--from cotton to coal to 
cellulose and beyond. We are also depending on these same lands to 
provide many other services that benefit society, for most of which 
landowners never receive compensation. These free services to society 
include producing oxygen, sequestering carbon dioxide, filtering air 
and water, providing fish and wildlife habitat, including that for 
threatened and endangered species, improving the aesthetic beauty of 
the natural landscape and providing opportunities for recreation and 
solitude, just to name a few. In fact, both Governor Haley Barbour and 
Congressman Bennie Thompson view these services as extremely important 
to economic growth and improving Mississippi's quality of life.
    We as a nation have come to expect all of this from private 
landowners while rarely giving thought to how they can afford to 
provide these services ``free of charge,'' when these services cost 
landowners. It is a cost that can only be recovered through the selling 
of timber, minerals or by divesting of the land.
    While this may be possible for some private landowners, many small 
and medium-sized landowners continue to find it difficult, if not 
impossible, to invest in active and sustainable land management over 
such a long time. Add to this the uncertainty of regulations that might 
limit land management options, as well as the ever-increasing, campaign 
against the use of wood products, and it is easy to see why more and 
more private landowners are choosing to divest of their lands. These 
lands are rapidly being developed and broken into smaller units that 
cannot sustain many of the benefits and services upon which society 
depends. Land having value--even for wood--is a great thing, especially 
when you are competing against concrete and asphalt.
    Landowners need the encouragement, financial and technical support, 
and backing of federal and state governments, to undertake projects to 
recover the declining, threatened and endangered species that are found 
on their property. Incentive-based programs provide the basic operating 
framework to accomplish this objective.
    We need to better utilize existing programs to recover species. 
First, the Bush Administration and the Congress need to fully fund the 
Healthy Forests Reserve Program (HFRP) and develop the first agreements 
under the program prior to this year's end. On the House side, 
Congressman Walden, and on the Senate side, Senators Cochran, Lott, 
Smith, Chambliss, Lincoln, Pryor, Breaux, Landrieu, Miller and Crapo 
have requested funds with the support of 47 national conservation 
groups.
    The HFRP is the perfect program for recovery efforts of the ivory-
billed woodpecker. I am pleased to see that the USDA has allocated $5 
million to aid in its recovery; however, an enormous opportunity exists 
to allocate funding to the HFRP, one of their own programs, that can 
provide the greatest benefit to the woodpecker. I hope additional 
discussion will occur before all opportunities of funding for this 
current fiscal year are exhausted.
    The top ten states with the greatest risk of forest ecosystem loss 
almost mirror those states with the most listed species. These states 
are Florida, California, Hawaii, Georgia, North Carolina, Texas, South 
Carolina, Virginia, Alabama and Tennessee. Restoring forest ecosystems 
like the once great longleaf pine forest of the southern coastal plain, 
fire-maintained natural southern pine forests, southwestern riparian 
forest, Hawaiian dry forest, Southern Appalachian spruce-fir forest, 
mature Eastern deciduous forest, California riparian forest, old-growth 
forest of the pacific Northwest, mature red and white pine forests of 
the Great Lake states, fire-maintained ponderosa pine forests and 
southern forested wetlands are extremely important to the recovery of 
many species.
    One way to increase the rate at which species are recovered is to 
change the way the U.S. Fish and Wildlife (USFWS) allocates funding. In 
allocating conservation dollars, the ESA requires the USFWS and the 
National Oceanic and Atmospheric Administration (NOAA) Fisheries to 
give priority to species that are ``most likely to benefit'' from 
recovery plans which are required for each listed species. In 1988, 
2002 and 2005, the General Accounting Office reported that these 
agencies were instead allocating funds to regions based on other 
factors, such as office workload instead of ``most likely to benefit.''
    In addition to providing funds for species in dire need, the USFWS 
should allocate funds to species that have significant potential for 
recovery. The USFWS should also take into account partnerships among 
diverse stakeholders.
    Recovery can be further incorporated into the programs of the USDA, 
specifically the Conservation Reserve Program and the Environmental 
Quality Incentives Program. I urge you work with your colleagues on the 
House Agriculture Committee to utilize the conservation provisions of 
the Farm Bill to assist in recovery and incorporate specific language 
in the 2007 Farm Bill.
    Furthermore, USDA employees, specifically those of the Natural 
Resources Conservation Service, work with thousands of landowners every 
day. If they were more knowledgeable about threatened and endangered 
species conservation tools and needs, and had more authority in species 
conservation efforts, they, along with State Technical Committees, 
could develop appropriate conservation practices which could reduce 
private landowner anxiety and better enlist them in conservation of the 
species in need.
    A significant recovery title should be included in any new piece of 
legislation concerning ESA reauthorization. An Endangered Species 
Recovery and Prevention Program (ESRPP), consisting of tax credits 
(that can be sold) and direct payments for recovery should be 
established. This potential program should emphasize recovery through 
habitat restoration. Also, it should aid a species before it reaches 
either a status of threatened or endangered. The origin of this idea 
came from several conversations that began in Tulsa, Oklahoma, and 
meetings with the late Senator John Chafee, who also felt that 
incentives are critical to recover threatened and endangered species.
    These tax credits can be used by the landowner. The landowner could 
also transfer or sell the tax credit to another private individual, 
corporation, group or association so it will help meet the needs of all 
landowners, included those with limited resources.
    The ESRPP would focus on restoration of habitat, which would 
function similar to HFRP. This program should be limited to the area 
where there is a realistic possibility of recovering a species rather 
than allowing its entire historic range to be included. The ESRPP would 
allow non-federal property owners to enroll land where significant 
improvements in habitat would occur. Eligible lands should include 
those that are in close proximity to existing habitat and populations 
where significant population recovery can occur. Priority should be 
given to lands where the opportunity exists to resolve landowner 
conflicts with threatened and/or endangered species.
    The ESRPP could consist of three components. The first component 
could consist of a voluntary, perpetual easement being placed on land 
that is in close proximity to existing habitat of a threatened or 
endangered species; the landowner would receive a tax credit equal to 
the appraised value of the property plus 100 percent of the restoration 
costs.
    The second component could consist of a voluntary, 30-year easement 
being placed on land that is in close proximity to the existing habitat 
of a threatened or endangered species; the landowner could receive 75 
percent of the appraised value of the property plus 75 percent of the 
restoration costs.
    The third component could consist of a voluntary, 10-year agreement 
being placed on land to improve a species' habitat before it reaches a 
threatened or endangered status (i.e., candidate, state listed species, 
rare, peripheral, special concern); the landowner could receive a tax 
credit equal to 75 percent of the restoration costs.
    Finally, safe-harbor language should be included so that a property 
owner shall not be liable for any incidental take of any listed species 
or resident species, pursuant to the Act or any other federal law, from 
altering the habitat or making a different use of the area under the 
agreement once it has expired. In providing safe harbor provisions, 
land enrolled in the ESRPP and land in the immediate area that would 
likely be impacted by the restoration plan as the species is 
recovering.
    The Safe Harbor Program is a very important tool. It began in the 
South in 1995 as a novel approach to encourage voluntary management by 
private landowners to benefit listed species without imposing 
additional regulatory restrictions on property use. Today, landowners 
across the nation in 17 states have enrolled and are managing 3.6 
million acres of private property with Safe Harbor Agreements. In the 
South, state agencies have developed and administer state-wide Safe 
Harbor Plans and permits for the red-cockaded woodpecker in Louisiana, 
Georgia, South Carolina and Texas from which private landowners have 
enrolled over 200,000 acres. In Mississippi, the USFWS has approved and 
is about to issue the first permit for a gopher tortoise and the red-
cockaded woodpecker Safe Harbor Agreement. The USFWS and its partners, 
which include the Foundation, Environmental Defense and the American 
Forest Foundation, are currently working to develop a range-wide gopher 
tortoise Safe Harbor Plan, a black pine snake Candidate Conservation 
Agreement and permits. During the first year of this plan, we 
anticipate landowners enrolling approximately 5,000 acres. These 
landowners will restore, grow and produce longleaf pine for timber 
while enhancing habitat for these species. The Safe Harbor Program 
works great and we don't see any need to change this program.
    This type of proactive approach that incentives can provide will 
help de-list threatened and endangered species by placing an emphasis 
on population recovery. It will also aid a species before it reaches 
either a status of threatened or endangered, thus making it unnecessary 
to list a species. Working with private property owners and enabling 
them to restore habitat is the kind of proactive strategy that can head 
off regulatory crises, while improving the environment and providing 
opportunities that don't threaten jobs.
    Lastly, to recruit landowner partners, it is critical that the 
government show progress and highlight ESA success stories. The 
threatened and endangered species list should not be perceived as a 
permanent life support system for fading species. While fully restoring 
many plants and animals will take time, recovery for the vast majority 
of species is clearly achievable. Celebrating successes when they do 
occur will provide the ESA with a necessary, periodic dose of hope and 
optimism.

Better Utilize The National Fish Hatchery System
    For more than a century, the National Fish Hatchery System has 
played a valuable role in providing fish to benefit our Nation. It is 
uniquely positioned to aid in the recovery of aquatic ecosystems 
through leadership in development and application of the best possible 
fish culture and fisheries management techniques. This includes the 
maintenance of healthy, wild fish and aquatic invertebrate populations 
through habitat conservation and improved harvest management, 
maintenance of genetic diversity and the proper use of hatchery stocks 
in achieving management objectives.
    The System is doing some great things in the South regarding 
recovery. The recovery plans for shortnose sturgeon, pallid sturgeon 
and many freshwater mussels directly call for the development of 
cryopreservation techniques or for the genetic conservation of these 
species. The Warm Springs Fish Technology Center in Georgia is 
currently developing cryopreservation techniques for protocols for each 
of these species.
    Here in Mississippi, the Private John Allen National Fish Hatchery 
is working extensively on the gulf strain of walleye. They are spawning 
them, stocking them into selective and suitable sites and evaluating 
them for survival, movement and growth. The Lower Mississippi River 
Coordination Office in Vicksburg has recently conducted six state-level 
planning meetings in the Lower Mississippi River Valley to identify and 
prioritize habitat restoration actions necessary to stabilize declining 
aquatic resource populations protected under the Act. Due to the level 
of cooperation that has developed between the Lower Mississippi River 
Coordination Office and the U.S. Army Corps of Engineers at the 
Mississippi Valley Division and District levels, habitat restoration 
actions identified in the Pallid Sturgeon Endangered Species Recovery 
Plan and the Lower Mississippi River Aquatic Resource Management Plan 
are being implemented by the U.S. Army Corps of Engineers during their 
annual Mississippi River operations and maintenance activities.
    The Natchitoches National Fish Hatchery in Louisiana continues to 
do extensive work in developing spawning techniques for the recovery of 
the pallid sturgeon. In 2004, the hatchery successfully spawned pallid 
crosses and maintained family lots which were stocked according to the 
Pallid Sturgeon Recovery Plan. In the next few years, pallid sturgeon 
will be cultured to address research needs.
    Overall, the Southeast Regional Fisheries Program is addressing 
tasks and needs for 16 species for the recovery and restoration of 
threatened, endangered and imperiled aquatic species. The Southeast 
Aquatic Resource Partnership, which consists of the USFWS, state fish 
and wildlife agencies and fishery management councils, also play a 
major role in habitat restoration and population recovery. The 
partnership is a shining example of innovation and what can be done 
when fisheries management-oriented people try to solve problems.
    At my former university, Virginia Tech, my major professor, Dr. 
Richard Neves, is propagating threatened and endangered mussels through 
the Fresh Water Mollusk Conservation Center, and stocking them in 
suitable habitat in Southwest Virginia. This is extremely important 
since 90 percent of the threatened and endangered mussels are found in 
the Southeast.
    Unfortunately, even with this good work, the hatchery system has 
developed serious problems over its 128 year history. Presently, it 
faces both its worst crisis and its best chance for improvement. Since 
1990, the USFWS's overall budget rose 35 percent, but funding for 
hatchery operations and maintenance has declined by 15 percent. The 
facilities are old and outmoded. A tremendous maintenance backlog 
exists and 25 percent of hatchery personnel positions are vacant. This 
is in part due to an erosion of congressional and public support as 
well as an erosion of support within the USFWS.
    Combined with detailed hatchery work plans, clarified tribal 
agreements, re-defined fish-production responsibilities, updated 
training for hatchery personnel and proper habitat restoration and 
management, the system can not only help restore community lakes and 
streams, reverse declines in rare and declining species of fish, but 
help prevent species from becoming listed and recover threatened and 
endangered species of fish and other aquatic species with the help of 
appropriations from the threatened and endangered species program.
Incorporate Conservation Into Other Departments
    The conservation of threatened and endangered species can be 
incorporated into other departments and programs of the government. In 
many instances multiple objectives can be reached on the same parcel of 
land.
    One good example of this is the military. The Department of Defense 
is faced with a serious and growing threat to its ability to maintain 
the readiness of our Armed Forces. That threat, often termed 
encroachment, is caused largely by developmental pressures and loss of 
habitat in the vicinity of key installations and critical military air 
space and training routes. The list of bases, ranges and airspace 
already seriously impacted by these pressures is long and growing.
    Unless action is taken now, those pressures will become even more 
severe and the adverse impacts on our military will worsen.
    The most effective action we can take to protect these key bases, 
ranges and airspace is to protect the land and important habitat in 
their vicinity. In recognition of the remarkable success of this open 
and collaborative approach in countering encroachment at Fort Bragg, 
Congress authorized the military to enter into agreements with state 
and local governments and conservation organizations to work together 
to protect land in the vicinity of bases and associated airspace. It 
authorized the military to expend operational funds to help acquire, 
from willing sellers only, the minimum property interest necessary to 
ensure that an installation will be able to accomplish its mission now 
and in the future.
    Those of us who have been privileged to work in close partnership 
with the military have the deepest respect and admiration for the 
dedicated professionals, uniformed and civilian, who do so much to 
ensure that as they protect our Nation, they also meet their 
obligations as stewards of the lands entrusted to their care.
    Their efforts, and the unique nature of military activities, have 
resulted in our military bases having some of the best remaining 
habitat for threatened and endangered species in the country and 
functioning as key reservoirs of the biodiversity so fundamental to an 
enduring and healthy environment.
    There is a great opportunity to not only accomplish a key need of 
the military in reducing base encroachment, but recovering and 
hopefully de-listing species that may hamper the mission of the base or 
range.
    Let me provide another example. On February 15, 2002, the Bush 
Administration announced the Climate Change Initiative, which includes 
carbon sequestration. Carbon sequestration is designed to meet the 
carbon-offset objectives of companies by reducing greenhouse gases. A 
carbon-offset program can positively impact clean air and can be used 
to restore ecosystems and enhance the recovery of threatened and 
endangered species, besides having other positive environmental impacts 
such as reducing water pollution.
    There should be an emphasis on reforestation and forest management 
efforts so that it is done in a manner that both sequesters carbon and 
at the same time emphasizes the recovery of threatened and endangered 
species. By doing so, the United States can achieve benefits in other 
national and international commitments. To date, the U.S. Department of 
Interior has been a leader in working with energy companies to reforest 
lands of the USFWS in a biodiverse manner. The Southeast and the 
Pacific Northwest are the two most effective areas in North America for 
the sequestration of carbon.

Reduce The Spread Of Invasive Species
    We need legislation for a strong invasive species control program. 
In 2003, Senator Thad Cochran included such a program as in independent 
title in the Healthy Forests Restoration Act; however, the title was 
not included in the final version of the bill.
    Invasive species, sometimes referred to as nonnative, alien, exotic 
or non-indigenous, introduced species, are those that evolved elsewhere 
and have been purposely or accidentally relocated. It has been 
estimated that invasive species rank as the second most important 
threat to native species, behind habitat destruction, having 
contributed to the decline of 42 percent of our Nation's threatened and 
endangered species.
    This invasion has gained momentum since the last century when many 
of these plants were first imported or accidentally introduced, many by 
the federal government. It is estimated that 100 million acres in the 
United States are already affected by invasive exotic plants. This 
acreage increases annually by an area twice the size of Delaware. 
Almost 20 percent of the species of plants in Mississippi's forests, 
parks, refuges and other open spaces are not native to our state. Some 
of these exotic plants meet few natural constraints and can soon 
dominate a landscape.
    Invasive species can negatively impact native species in any number 
of ways including: eating them; competing with them; mating with them 
and decreasing genetic diversity; introducing pathogens and parasites 
that sicken or kill them; and disrupting available nutrients. An 
introduced species can change an entire ecosystem--changing species 
composition, decreasing rare species and even changing or degrading the 
normal functioning of the system. Ecosystems free of invasive species 
are a key to maintaining and recovering threatened and endangered 
species.
    For example, the chestnut blight fungus from Asia all but wiped out 
the American chestnut, thus changing the makeup of eastern forests. 
Cogongrass, classified as the seventh worst weed in the world, is hardy 
and tolerant of shade, high salinity and drought. It forms dense mats 
that crowd out native vegetation and forage plants and displaces 
species such as the threatened gopher tortoise in the Gulf Coastal 
Plain. It can alter the natural fire regime by causing hotter and more 
frequent fires. Water hyacinth may be the world's worst aquatic weed. 
One of the fastest growing plants known, it displaces native plants, 
fish and wildlife, disrupts water transportation, including that of the 
Tennessee-Tombigbee Waterway, disturbs recreational fishing and blocks 
water intakes at hydroelectric power-generating dams. At one time in 
Florida, 125,000 acres of open water was covered with up to 200 tons of 
water hyacinth per acre.
    Assistance for chemical, mechanical, biological and ecological 
control is needed where invasive species are impacting threatened and 
endangered species.

Other Considerations
    One of the biggest obstacles to restoring threatened and endangered 
species is the inability of the USFWS to approve conservation 
initiatives quickly. The USFWS spends too much time on paperwork and 
not enough time recovering species. The long time it takes to develop 
voluntary conservation agreements, such as Safe Harbor agreements and 
conservation banks, damages landowner relations and hampers 
conservation efforts. Increasing the USFWS efficiency will require 
strong leadership, especially from the new Director.
    We should seek research to develop cost-effective recovery 
techniques. The species protected by the Act are usually rare and not 
well known by the scientific community. Recovery requires determining 
basic life history and habitat needs for many species. This is a proper 
role for the U.S. Geological Survey, state agencies and universities.
    Incentives are more difficult to apply on aquatic ecosystems. 
Greater cooperation among federal agencies that have jurisdiction in 
our waters and are involved in navigation and flood control (i.e., U.S. 
Army Corps of Engineers, Natural Resources Conservation Service) is 
critical. For example, the endangered least tern's status is improved 
due to a partnership among the U.S. Army Corps of Engineers, USFWS and 
the Mississippi Department of Wildlife, Fisheries and Parks to protect 
and improve habitat. The endangered pallid sturgeon's status may be 
improving due to the same agencies partnering to protect and improve 
fishery habitat in the Mississippi River.
    Finally, the USDA's Wildlife Services can continue, and possibly at 
a greater level, providing animal damage control equipment and labor, 
specifically where threatened and endangered species have conflicts 
with commercial livestock, crop or aquaculture operations.

Summary
    Landowners in the South, and particularly Mississippi, have done a 
very good job of conservation of habitat for all species, no matter 
whether they are listed under the Act or not. With a new way of 
thinking to make them more attractive, economically that is, they will 
be much better off.
    The conservation community will support a large habitat and 
population recovery program. I think you will find that both industry 
and conservation groups in my part of the world will help implement 
conservation measures to avoid listings, recover species that are 
listed and do this in a manner that we work with private landowners 
versus against them.
    The type of proactive approach that I have suggested will help 
remove the threatened and endangered species of our nation from their 
respective lists. It will also aid a species before it reaches a status 
of threatened or endangered, making it unnecessary to list a species. 
Working with private property owners and enabling them to conserve 
habitat on their property is the kind of proactive strategy that can 
head off regulatory crises, while improving the environment and 
providing opportunities for economic development.
    Mr. Chairman, Ranking Member Rahall, Members of the Committee, 
Congressman Pickering and Senator Crapo, this concludes my remarks. I 
will be glad to respond to any questions that either of you or other 
members of the Committee may have.
    Thank you.
                                 ______
                                 

 Response to questions submitted for the record by Honorable James L. 
 Cummins, Executive Director, Mississippi Fish and Wildlife Foundation

Question submitted by Senator Crapo
    1.  All of the panelists spoke of contributing time and money to 
species conservation--some more willingly than others. If we could 
guarantee that your investment gave you a seat at the table to take 
part in hiring scientists, planning recovery, and taking action on the 
ground--would you be better off?

RESPONSE:
    In response to the question, yes we would be better off. I am not 
sure how the private sector could participate in hiring scientists, but 
that would help get the most qualified and practical person to respond 
to the need at hand.
    Planning recovery would be most valuable. Many USFWS personnel are 
not aware of all of the recovery techniques and various programs of 
other agencies. We have requested to be on the recovery team of the 
ivory-billed woodpecker, have purchased two web sites (www.ivory-
billed.org and www.ivory-billedwoodpecker.org) to educate the public 
and landowners about recovery techniques and safe harbor, for example. 
It appears that some of this may be happening for the woodpecker. 
Furthermore, by including others, such as the timber industry, the 
bird, or whatever the species in question, will be better off.
    The same goes for action on the ground.
    In all cases, not only will we be better off, but conflicts can 
possibly be avoided, there will be more support from all parties and 
the species of concern will be better off.
    Please let me know if you need additional information.
    Thanks,
                                 ______
                                 
    The Chairman. Thank you. Mr. Tazik.

 STATEMENT OF DAVID J. TAZIK, CHIEF, ECOSYSTEM EVALUATION AND 
   ENGINEERING DIVISION, ENVIRONMENTAL LABORATORY, U.S. ARMY 
            ENGINEER RESEARCH AND DEVELOPMENT CENTER

    Mr. Tazik. Good morning. Mr. Chairman and other Members of 
Congress, it is my pleasure to appear before you this morning 
to highlight research conducted by the U.S. Army Corps of 
Engineers on this important topic.
    I'm a scientist who will limit my remarks to those areas of 
knowledge and the research we are conducting at the Engineer 
Research and Development Center.
    In regard to policy and budgetary questions, I will be 
happy to take those for the record and assure that you will 
receive a full and prompt answer. I intend to demonstrate that 
the Corps' continued commitment to bringing good science and 
technology for the conservation of endangered species and the 
ecosystems----
    The Corps recognizes its duty to address the prohibitive 
and affirmative duties of the Endangered Species Act in the 
pursuit of environmental sustainability goals under the Corps' 
environmental operating principals. One important lesson for us 
is that development and application of sound science is 
essential in endangered species conservation planning. As such, 
we actively engage in research to illustrate the effects of our 
mission related activities on high priority species.
    The Corps has spent from $30 million to over $100 million 
per year since 1996 on over 250 federally listed species. Yet 
reported expenditures may be a substantial underestimate of the 
true cost of compliance. For example, we recently found 
reported costs for sea turtles were only about half the actual 
cost incurred by Corps districts.
    In response, we are developing an approved cost accounting 
system. sea turtle issues arose for dredging projects as early 
as 1980. Prior to 1992, some dredging activities killed as many 
as 50 to 100 sea turtles per dredging project. At the time very 
little scientific data existed on sea turtle biology and 
behavior and water life subject to dredging. The Corps 
responded voluntarily with establishment of the sea turtle 
research program in 1991, that led to development of 
protectional protocols. Since their implementation less than 
one sea turtle incident has been documented for a dredging 
event.
    The pallid sturgeon occurs in large rivers in the 
Mississippi River Basin. The cause of this and other river 
sturgeon is attributed to flood control and navigation 
projects, water pollution and commercial fishing for caviar. 
Studies of the pallid are underway through inner-agency 
collaboration along the Missouri River, the middle and lower 
regions of the Mississippi River. Most are fully or partially 
funded by the Corps. We have documented stable populations of 
the pallid in the lower Mississippi River and their presence in 
the middle Mississippi River during four months of the year. 
Rarity of the species requires a long term commitment to fully 
evaluate the population trends relative to the ongoing mission 
activities.
    We're also partnering with the American Bird Conservancy to 
establish a science-based data collection protocol for Interior 
Least Tern (ILT). Currently accepted population models do not 
account for disbursal between the coastal and interior 
populations of the tern, which may be a key factor in 
regulating size of the interior population, which is federally 
listed. Together we are assisting with coordination of a large 
scale genetic sampling that will help us understand the 
relationship between these two populations.
    We are also partnering with the Conservancy to develop a 
range-wide monitoring plan designed to obtain an accurate 
estimate of the latest Least Tern population. The plan will be 
reviewed by a multi-agency working group, including numerous 
Federal, state and academic institutions.
    The Corps has worked with the Services since enactment of 
the Act to develop science-based solutions to endangered 
species challenges and Corps projects, and we will continue to 
do so. Information resulting from each of the efforts described 
above is intended to provide a more reliable basis upon which 
to formulate habitat restoration and management.
    We cannot always provide absolute certainty that our 
proposed activities will not affect a given species. As a 
result, the decisions about protective measures can be co-
subjective and precautionary. Once subordinates and limitation 
efforts are instituted reversing them can be difficult. Our 
challenge is to provide the tools to quantify the risks and 
uncertainty based on the best available science and to help 
evaluate the efficacy of developing additional scientific 
information.
    I hope that my testimony today illustrates the Corps' past 
and continuing commitment to pursue and use sound science and 
technology to conserve important wildlife resources in the 
Southern United States under the Endangered Species Act. On 
behalf of the Corps and the Engineer Research and Development 
Center, thank you for allowing me the opportunity to appear 
before you this morning.
    [The prepared statement of Mr. Tazik follows:]

   Statement of Dr. David J. Tazik, Chief, Ecosystem Evaluation and 
  Engineering Division, Environmental Laboratory, U.S. Army Engineer 
                    Research and Development Center

    Mr. Chairman and Members of the Committee

Introduction
    I am David J. Tazik, Chief of the Ecosystem Evaluation and 
Engineering Division for the Environmental Laboratory at the U.S. Army 
Engineer Research and Development Center (ERDC) in Vicksburg, 
Mississippi, which is a component of the U.S. Army Corps of Engineers 
(the Corps). I am pleased to appear today on behalf of the ERDC and the 
Corps to provide information as requested in your letter of invitation 
dated 25 April 2005. The Congressional interest in the ERDC's and the 
Corps' contributions to protecting and restoring wildlife in the 
southern United States under the Endangered Species Act (ESA) is much 
appreciated.
    The theme of my testimony today is the Value of Science in 
Implementation of the ESA. I intend to demonstrate the Corps' 
continuing commitment to bringing good science and technology to the 
conservation of endangered and threatened species and the ecosystems 
upon which they depend. While some of our research does support the 
Army and other military Services, I will confine my remarks to the 
Corps' civil works mission.

The Value of Sound Science in Implementation of the Endangered Species 
        Act (ESA)
    The Corps recognizes its duty to address all its responsibilities 
and duties under the ESA, meet regulatory requirements, and pursue 
environmental sustainability goals under the Corps' Environmental 
Operating Principles. And, we have learned a key lesson in the 
implementation of the ESA--that development and application of sound 
science is essential in planning for the protection of threatened and 
endangered species. As a result, we are actively engaged in programs to 
develop empirical data that define relationships between effects on 
high-priority species and mission-related activities.
Economic Costs of Endangered Species Protection
    Based on recent expenditure reports, the Corps has spent from $32 
to over $108 million per year since 1996 on over 250 federally listed 
threatened species and endangered species. Important taxa with 
significant populations in the southern United States include 
sturgeons, sea turtles, mussels, and shorebirds. Reported expenditures 
are suspected to be a substantial underestimate of the true cost of ESA 
compliance. A recent investigation for sea turtles, for example, 
revealed that reported costs were only about half the actual costs 
incurred by Districts. We are now developing an improved cost 
accounting system.

Sea Turtles
    Sea turtle issues arose for dredging projects starting in 1980. 
Prior to 1992, some dredging activities killed as many as 50-100 sea 
turtles per dredging event; yet we knew that some dredging events had 
no impacts on sea turtles. At that time, very little scientific data 
existed on sea turtle biology and behavior in waterways subject to 
dredging. The Corps responded voluntarily with establishment of the Sea 
Turtle Research Program that led to development of sea turtle 
protection protocols. Since 1992, when the protocols were implemented, 
less than one sea turtle incident has been documented per dredging 
event.

Pallid Sturgeon
    The pallid sturgeon occurs in large rivers in the Mississippi River 
Basin. It was federally listed as an endangered species in 1990 and a 
recovery plan was approved in 1993. Decline of this and other river 
sturgeon is attributed to flood control and navigation projects, water 
pollution, and commercial fishing for caviar. Studies of pallid 
sturgeon are underway through interagency collaboration and include 
three reaches of the Mississippi River Basin: Missouri River, Middle 
Mississippi River, and lower Mississippi River. Most research studies 
are fully or partially funded by the Corps from Northwest or 
Mississippi Valley Divisions.
    Recent Corps studies have documented stable populations in the 
lower Mississippi River, and pallid sturgeon are regularly captured in 
the Middle Mississippi River (MMR) during cooler months. Rarity of 
endangered pallid sturgeon requires a long-term effort to fully 
evaluate population trends and habitat preference relative to on-going 
civil works mission activities. And we continue in this endeavor.

Least Terns
    The ERDC and the American Bird Conservancy (ABC) are currently 
partnering to assist the Corps in a variety of issues involving the 
Interior Least Tern (ILT). Our objective is to establish science-based 
data collection protocols for genetic studies and population 
monitoring. We will use results to improve subsequent population 
modeling that ultimately will inform long-term management for this 
species.
    Coastal populations (other than California) of the least tern are 
not federally listed. And, the relationship between interior and 
coastal populations of this species remains a mystery. Currently 
accepted tern population models do not account for dispersal between 
the two, which may be a key factor in regulating population size, 
particularly for the interior population. Planned genetic studies will 
help solve the riddle, and should lead to a more reliable basis for 
future management recommendations. The Corps and ABC are contributing 
to a potentially definitive genetics analysis by assisting with 
coordination of a large-scale genetic sampling effort.
    We are also partnering with the ABC to coordinate development of a 
range wide monitoring plan for the interior population of least terns. 
Our goal is to obtain an accurate assessment of regional and range-wide 
least tern population numbers and trends. The plan will be reviewed by 
the ILT Working Group, a multi-agency group including 4 U.S. Fish and 
Wildlife Service regions, 10 Corps districts and ERDC, several USGS 
science centers, 8 State wildlife agencies, several universities, and 
ABC. Data such as these should provide us all with a reliable basis 
upon which to monitor population status and inform habitat restoration 
and management decisions.
    Many of these decisions are based on the best science available, 
but these are complex, interdependent systems with incredible 
geographic scope, and many aspects of the biology and ecology of these 
species are not well-understood. Taking action necessarily involves the 
agency relying on its considerable expertise and making a judgment 
call, and adjusting those decisions as more science becomes available 
or circumstances change.
    The Corps has worked with the Services since enactment of the Act 
to develop science-based solutions to endangered species challenges at 
Corps projects, and will continue to do so. Information resulting from 
each of the efforts described above is intended to provide a more 
reliable basis upon which to formulate habitat restoration and 
management decisions. Once avoidance and minimization efforts are 
instituted, reversing them can be difficult, yet it is important for 
those making policy and management decisions to use the best available 
science in making those decisions and to be prepared to change course 
in response to new scientific developments.
    In conclusion, my testimony illustrates the Corps' past and 
continuing commitment to the pursuit and use of sound science in an 
effort to meet prohibitive and affirmative duties under the ESA.
    On behalf of the Corps and the ERDC, thank you for allowing me the 
opportunity to present this testimony today.
                                 ______
                                 
    The Chairman. Thank you. I thank the entire panel for their 
testimony.
    Dr. Tazik, just to begin with you, you talked about the 
true cost of compliance in your testimony, and I trust that the 
true cost was higher than what had been estimated in the past--
that once you started looking into it, you believe the true 
cost was higher than what has been reported. Can you expand on 
that a little bit for me?
    Mr. Tazik. Well, there are a lot of costs that are inherent 
in some of the activities that aren't just the labor based or 
Corps personnel engaged in the compliance activities. There are 
contracts associated with dredging activities that often times, 
because of delays in the projects, there are costs incurred 
that don't get captured in the normal proceeding of expenditure 
accounting. So we're trying to work with the districts now to 
develop a, essentially, a spreadsheet that will identify 
specific types of expenditures that may have been missed in the 
past, that we're asking them to now account for and require a 
lot more detail.
    The Chairman. So if a project gets delayed because of 
discussions and consultations being a result of that, that the 
true cost of those delays was not included. It was only the 
Army Corps personnel at the table that is included.
    Mr. Tazik. That's my understanding, sir.
    The Chairman. And as you refine this, your efforts to come 
up with the true costs, are you just looking at Army Corps' 
costs, or are you looking at other state, Federal, local 
agencies and their costs of compliance?
    Mr. Tazik. No, we're looking at our agency cost.
    The Chairman. Just yours.
    Mr. Tazik. Yes, just ours.
    The Chairman. The other thing that or one of the other 
things you talked about was having science-based solutions, and 
I believe it was the Least Tern you talked about that you were 
working with others to come up with surveys that were based on 
science, and to try to figure out what the true picture was 
that you were dealing with. Why would you have to do that? 
Wouldn't Fish and Wildlife have all of the information? And if 
they're regulating you and they're telling you this is what you 
have to do, wouldn't they have all that information already?
    Mr. Tazik. Not necessarily. You're calling upon the agency 
being regulated to try to provide the best science available. 
So we try to work in partnership with the Service and others, 
stakeholders, to come up with methodologies that everyone 
agrees to, that we agree that it's the best science that we can 
bring to the best monitoring that we can. And we certainly 
consult with the Service and coordinate with them and have 
their input provided mutually to come to a, you know, the idea 
of conservation, cooperative conservation, I think is a concern 
here, that we're cooperating to come up with the methodologies 
that we all agree to provide the right kind of data used to 
make management decisions.
    The Chairman. So when you look at these surveys you are 
trying to find out what the habitat is, where the species 
actually live, how many there are, what the numbers are, what 
reproduction rates are, you know, all of the things that would 
give you a clearer picture of whether or not that species is 
endangered, and if it is, what its numbers really are, and what 
you could do in terms of mitigating any impact you may have.
    Mr. Tazik. Well, we certainly try to provide the data, the 
determination of whether they are endangered or not, certainly 
that belongs to the Service, but we try to help provide the 
information that will then be evaluated relative to recovery 
targets.
    The Chairman. Thank you. Mr. Bowen, I found your testimony 
quite compelling, and you talked about the job loss that your 
industry has gone through in the last 20 years and what some of 
those impacts are. But you also come up with some real 
interesting suggestions on reforming the Act, and trying to 
make the Act work better. And one of those, there are a couple 
of them that I think the Committee has worked on in the last 
year, dealing with having better science and reforming the 
critical habitat process.
    Do you believe that, from your experience, that if we had a 
higher level of science, or a more credible level of science, 
that the impacts on your industry, the job loss in your 
industry, would be any different than what it is now?
    Mr. Bowen. I think it would. I think the spotted owl is a 
prime example. I think the spotted owl was poor science. You've 
got, the biggest enemy, from what I understand, of the spotted 
owl is another owl. And as far as the science that was used, I 
mean--so yeah, I believe if we could get good sound science and 
peer reviewed science was used, you know, I think a lot of the 
species that are listed now wouldn't even be on the list. And I 
think a lot of land has been tied up because of it wouldn't be 
tied up right now. And that's the basis of our industry. If we 
can't get the fiber off the land, we're not going to exist.
    The Chairman. Thank you. Time has expired. Mr. Pickering.
    Mr. Pickering. Mr. Chairman, again I want to thank y'all 
for starting your hearings here in Mississippi. I am from 
Clarksdale. It is great to be here in one of the treasures of 
Mississippi, the Museum of Natural Science.
    Mr. Bowen, I found your testimony, as well, very 
compelling. And what I would like to ask all of the panelists, 
it seems to me that the critical habitat designation, and then 
the resulting litigations or conflict, either from listings or 
non-listings, has resulted in most of the resources of the Fish 
and Wildlife Service being caught up in conflicts, controversy 
litigation. That does not go to protect or recover species, nor 
does it go to bring communities together in partnerships, nor 
does it give incentives for private parties to work together 
with all agencies to actually achieve the objectives in a way 
that balances the environment with our economic interest.
    What would y'all recommend in improving the critical 
habitat designation? What reform? What can we do to solve that 
problem? I mean, I'll just start with you, Ms. Hartfield, and 
then I'll go through the panel.
    Ms. Hartfield. That's a hard question, but it's something 
we've got to look at. You're right. There is too much resources 
being spent on litigation. I know our state, and I'm sure all 
of the other states, that's the only one that appears, seeing 
how many start a project as to how open one can be. How can we 
better negotiate creatively with all our partners if we're 
constricted by what we can do so I believe that it's something 
we've just got to open to further dialog.
    Mr. Pickering. Mr. Bowen.
    Mr. Bowen. I agree with what was just said, but it ought to 
include the private landowners in anything that's done, 
including the community that's involved. One way of helping 
stop some of these lawsuits I would like to see Congress do 
something about all of our tax dollars going to these 
environmental corporations. They're not groups, they're 
corporations that's got the funds to file these suits and keep 
everything tied up in court.
    Mr. Pickering. I hear it said sometimes that the current 
ecosystem, because of the litigation and no incentives to 
actually recover is a SSS policy, shoot, shovel and shut up. So 
instead of having a landowner actually come forward, the last 
thing a landowner would ever want to do is say I've got a red-
cockaded woodpecker in my tree. This is my children's 
inheritance and I would like you to come and lock up my land 
and take away my value. That is the wrong way to go about 
solving the issues before us. Mr. Cummins and Mr. Tazik.
    Mr. Cummins. In terms of terrestrial ecosystems, I don't 
feel that critical habitat is that important, but we have to 
find a substitute, and I think you're right on the mark when 
you mentioned the word incentives. We're working right now with 
a landowner on a longleaf pine restoration project. You may 
know him. His name is Judge Charles Pickering. And he's doing a 
great job in terms of--in all honesty, it's people like that 
that are really concerned about conservation, that we can work 
with him on incentive-based programs to help restore habitat.
    When you get to the aquatic side, I think it's a little bit 
more difficult. Critical habitat has some certainly important 
features, but I think we've got to put some more time and 
thought into how do we develop a substitute for that. I think 
that there's a lot of opportunities, utilizing our natural fish 
hatchery system, utilizing the Corps of Engineers as they're 
going through and tweaking maintenance projects for example on 
the mainline Mississippi.
    But to sum it up, I think we can find a substitute in the 
form of incentives on terrestrial systems. But in terms of 
aquatic, I think we've got to put some more thought into what 
that substitute is.
    Mr. Tazik. I think our communication and dialogue are 
important features of that. As far as a specific recommendation 
I can't give you one for that.
    Mr. Pickering. Mr. Chairman, thank you very much. And 
again, we greatly appreciate you starting the hearings here.
    The Chairman. Senator Crapo.
    Senator Crapo. Thank you very much. And to address Senator 
Pickering and say, we had introduced legislation last year that 
would actually change the timing of definition of critical 
habitat to base it more on the biological than a suspicion of 
it, which I think would have actually reduced a tremendous 
amount of litigation, which they were mostly litigating over 
failed dead lines. And there are solutions to that issue.
    Ms. Hartfield, again, as the rest of us, I appreciate the 
invitation to be here in this great facility today. It's a 
tremendous museum. I think we're going to probably have to rush 
off, the airplane cannot go through these meetings, but I wish 
we did have opportunity, and maybe we will be back to do that 
at some time.
    Your testimony indicated that the 25 percent matching 
requirement for Section 6 cooperative agreement was straining 
state resources. Do you have a suggestion as to how far that 
matching requirement should be reduced? Do you have any idea 
what would work?
    Ms. Hartfield. The 25 percent match has been difficult for 
us sometimes. I wish for a 15 because I could sure use it. One 
of our concerns now is that we keep hearing that the match may 
be increased, and already some of the programs require a 50 
percent match, which just kind of puts us out of the 
competition. So anything below 25 would be greatly--any of 
those programs that require 50 percent match are going to be 
difficult for us.
    Senator Crapo. Do you think that if it had been at 15 you 
think you could----
    Ms. Hartfield. It would be some funds that we probably 
could have made use of that we weren't able to.
    Senator Crapo. Thank you very much. Mr. Bowen, I want to 
tell you I can truly appreciate the work of the Pulp and 
Paperworkers' Resource Council. Your counterpart in Boise, 
Idaho, is Owen Squires.
    Mr. Bowen. Right.
    Senator Crapo. A good friend of mine, and I encourage you 
to say hello for me the next time you see him.
    Mr. Bowen. I will sure do that.
    Senator Crapo. At one of your national meetings, I think 
that the efforts that you folks have been involved in is 
tremendous, and I agree with the comments that you made about 
how we've got to start finding ways to create incentives for 
the landowners to be able to--to basically do the things that 
they want to do, but which they don't feel they have the tools 
to be able to do now with the benefits, the habitat and the 
recovery efforts for our species. And I just wanted to 
primarily indicate to you that I believe that your focus on the 
current consultation process and how lengthy and difficult it 
is does need congressional attention. I don't want to expand on 
that at all, but please do if you'd like to.
    Mr. Bowen. That has been said already. The litigation has 
just got everything so tied up. I mean, it's nothing to file a 
lawsuit today, and the environmental corporations, like I said, 
have unlimited funds it seems like.
    Most people think about the Sierra Club, or whomever, that 
it's just that local membership and all, but they're big buck 
business, and that's all it is. They're using capitalism to try 
to do away with capitalism in my opinion. They're trying to 
completely eliminate the manufacturing base in the United 
States, and if you get right down to it, I think it even comes 
down to a case of national security.
    Senator Crapo. I think the importance that you bring to the 
focus on jobs and the economy is a very important part of this 
debate, and the idea of finding working relationships is 
critical.
    Mr. Bowen. Well, what Congressman Pickering said awhile ago 
about trying to save your land and have it for your kids and 
whatever, I can tell you I'm not a big landowner. I've got a 
little bit of land, but I will guarantee you if I see something 
on there I'm not familiar with, I'm just going to see how it 
tastes because I'm sure not going to let anybody know about it.
    Senator Crapo. I think we better let that fly right there. 
I had a hearing--well, I won't get into that.
    Mr. Cummins, I was interested in one of the quotes at the 
beginning of your testimony, your written testimony. You had a 
quotation from Aldo Leopold which said, ``Conservation will 
ultimately boil down to rewarding the private landowner who 
conserves the public interest''. And I truly think that that 
was very thoughtful analysis. Do you know when that was said 
approximately?
    Mr. Cummins. 1934. It was in his publication called 
Conservation Economics.
    Senator Crapo. So back in 1934 the idea by one of the most 
preemptive conservationists of our time, or of our country, has 
indicated that we've got to focus on this question of finding 
ways of incentivizing the private landowners to do the right 
thing.
    Mr. Cummins. Absolutely. And it wasn't until 1985 when the 
Food Security Act was signed for the Farm Bill that we actually 
figured that out.
    Senator Crapo. Sometimes we don't figure things out as fast 
as we should, and hopefully these hearings will help us do 
that.
    I was also interested in the letter that you--that showed 
up where a discussion you had with Senator, former Senator John 
Chafee.
    Mr. Cummins. Yes, sir.
    Senator Crapo. Back in 1996, we focused on the importance 
of providing incentives to improve habitat, and I thought maybe 
I would invite a comment on that briefly. I think most people 
should know that now John Chafee's son, Wayne, is the Chairman 
of the Senate Subcommittee that handles this issue.
    I think that's a very interesting historical perspective. 
As far back as 1996, we had the chairman of that committee 
focusing on incentives for habitat improvement.
    Mr. Cummins. I've had the chance to briefly visit with 
Senator Chafee about that, but I certainly hope that as this 
process evolves I will have more opportunity to have a more 
detailed discussion about the importance of this issue.
    Senator Crapo. Thank you very much. Mr. Tazik, my time has 
expired so I guess I'm not going to get to grill you.
    The Chairman. Thank you. I want to thank this panel for 
their testimony. There are other questions that we may have of 
you, and we would submit those to you in writing, and allow you 
to answer those in writing. I will hold the hearing record open 
to give you an opportunity to answer those, but I would like to 
have them included in the hearing record.
    So I'm going to excuse this panel. Thank you again for your 
testimony. Ms. Hartfield, thank you again for allowing us here.
    Mr. Pickering. Mr. Chairman, if I could, while this panel 
is leaving, I do want to praise the works of the Mississippi 
Fish and Wildlife Foundation. They really have created example 
after example of incentive-based policy and a relationship with 
the State of Mississippi through conservation, maintenance and 
through the advocacy of the Conservation Reserve Program, the 
Wetland Reserve Program and the LIP Program. And in Mississippi 
we're seeing an abundance of wildlife come back and be restored 
and make use of the lands that were wetlands or that gave the 
habitat for all of our species. We're really seeing tremendous 
benefits from that come back to our state because of those 
incentive benefits.
    The Chairman. I would like to welcome our second panel. Don 
Waldon, who is the Administrator of the Tennessee-Tombigbee 
Waterway Development Authority; Ray Vaughan, Executive Director 
of WildLaw; Paul Davidson, the Executive Director of the Black 
Bear Conservation Committee; and Don Robohm, President of 
SeaChick, Inc.
    Welcome to the Committee, welcome to our hearing. We're 
going to begin with Mr. Waldon, and I will remind the witnesses 
again that your oral testimony is limited to five minutes, but 
your entire written testimony will be included in the record, 
so if could summarize it as much as possible I would appreciate 
it. Mr. Waldon.

  STATEMENT OF DON WALDON, ADMINISTRATOR, TENNESSEE-TOMBIGBEE 
                 WATERWAY DEVELOPMENT AUTHORITY

    Mr. Waldon. Thank you, Mr. Chairman, and good morning to 
you and the distinguished members of this Committee. I'm Don 
Waldon. I'm the Administrator of the Tennessee-Tombigbee 
Waterway Development Authority. The Authority is a four state 
interstate compact ratified by the U.S. Congress in 1958 to 
promote the development of the Tenn-Tom and its economic and 
trade potential.
    The four Governors are members of the compact, and 
currently Governor Bob Riley serves as our Chairman.
    I'm also Vice Chairman of the Alabama-Tombigbee Rivers 
Coalition. This organization is a non profit corporation made 
up of business interests and trade associations and has been 
actively involved in the listing of the so-called Alabama 
sturgeon since 1991.
    We've been plaintiffs in three lawsuits against the U.S. 
Fish and Wildlife Service. We were successful in two of those, 
and the other case is pending in Federal District Court in 
Alabama.
    The Waterway Authority and the Coalition, I think this is 
important to set the stage with, we have supported this being 
that we believe were distinct species and that were based on 
the best available science that justified their protection.
    There is something like 115 listings that are occurring in 
the Tenn-Tom region. The business community has only challenged 
seven of those. Eventually six of those were withdrawn and the 
seventh one, the Alabama sturgeon is still pending in Federal 
Court.
    Let me begin by talking a little bit about what we think 
are some of the more prevalent issues, particularly based on 
our experience with the Alabama sturgeon.
    The first is a peer review and best available science. We 
believe the Service has too often relied on shoddy science to 
justify its actions. That was certainly the case for the 
Alabama sturgeon. While technology may have been the best 
scientific information available in the past, today genetics is 
playing an increasingly more important role to determine the 
status of various species. As you gentlemen know the Justice 
Department in coordination with the Interior Department 
routinely uses DNA tests to convict individuals of illegal 
importation of caviar from foreign species of sturgeon.
    Two of the Service's most eminent scientists concluded that 
there was no genetic distinctions between the Alabama sturgeon 
and the far-reaching and abundant Mississippi shovelnose 
sturgeon. Simply stated, they were of the same species, 
genetically. Never the less the Service ignored this evidence 
and listed the fish. The Service also carefully strains others 
allowed to participate in the peer review process and as sure 
as we believe the results sometimes consistently with it's own 
predetermined conclusion. These biases by the Service were well 
documented in two lawsuits filed by the Coalition against the 
Service.
    In both cases, the courts ruled against the Service and in 
favor of the Coalition and both of those ruling were affirmed 
by the Legislature.
    Let me talk briefly about critical habitat. The concurrent 
designation of critical habitat positioning as required by the 
law is largely been ignored by the Service, even though the 
courts have directed the agency to do so. We strongly oppose 
any modifications of the annex that would change the timing of 
the critical habitat designation until sometime later in the 
listing and let me just briefly list three reasons.
    The movement of concurrent designation requirements in the 
law will only provide more opportunity for the Service to 
inexcusably delay the designation of critical habitat and what 
we believe is most important--beginning a recovery program for 
the species. The concurrent requirement also helps insure what 
we believe is a better understanding of the real economic and 
other impacts of this listing and the designation of critical 
habitat at a crucial time in the decision process. As you know, 
only an economic impact analysis now requires that the 
designation of critical habitat but not the listing.
    Third, the current designation will also help insure that 
landowners and others impacted by the listing are not 
needlessly or illegally deprived of public participation in 
this process. Especially those guaranteed by the provisions of 
NEPA. As you well know, the Service largely ignored NEPA 
requirements in its ESA actions. Therefore it is most important 
that Congress direct the Service to comply with the provisions 
of this law so that those impacted by the ESA are afforded 
better opportunities to be involved in the process.
    And let me close by talking about what I think is the heart 
of this hearing and that's species conservation and recovery. 
We support those ESA provisions and programs that encourage the 
states and private entities to take a more active role in the 
conservation and recovery species. But only if the Service 
operates in good faith to support those efforts. And our 
experience with the agency has been to the contrary.
    The Coalition, not the environmental community, but the 
Coalition was instrumental in developing a volunteer five-year 
conservation plan for the sturgeon. It was designed to recover 
the species by increasing its population through propagation. 
At our request and not the Service, the Congress appropriated 
$1.5 million to implement that plan. And we had the support of 
Congressman Pickering and the other congressional delegation.
    The Service and the Coalition of the State of Alabama and 
other interested parties also approved a formal conservation 
agreement and strategy. All participants including the Service 
formally agreed that the plan was the best hope for recovery of 
the sturgeon.
    They felt that the business community as well as the State 
expanded and greatly improved the fish's status and likely 
foresaw the need for any Federal listing because the species 
was already protected by state regulation. The State Service 
stated in its final ruling that the voluntary conservation 
agreement was the most viable approach to the conservation of 
the Alabama sturgeon. Nevertheless, in the year 2000, they 
listed the fish and because of the resource of the funding, the 
Federal source of the funding for that conservation program 
expired. As a result, no active recovery plan for the Alabama 
sturgeon currently exists.
    We also were heavily involved in establishing, over a four-
year period of voluntary work, a multi-species recovery plan in 
the Mobile Basin. That entailed plans for protection of 15 
species--to our knowledge, the only one that's ever been done 
like that in the nation--but because, here again, the Service 
listed the fish, it really destroyed the effectiveness of that 
organization. The business community saw that there was no 
incentive for them to work cooperatively with the Service. So, 
we withdrew and all of that effort was wasted. And here again, 
the big loser was the fish.
    Let me conclude, I see my time is gone, that we believe 
that a lot of the issues being talked today, and certainly 
those that I have mentioned do not need to be fixed by 
legislation. What we need to do is make sure that the Fish and 
Wildlife Service complies with the congressional intent of the 
endangered species laws, that's certainly true on critical 
habitat, complies with NEPA and these things that I've 
mentioned. We're not saying that we don't need reform but we 
can make a lot of progress toward recovery and really carrying 
out the congressional intent of this law by really, more 
oversight by the Congress and hopefully a little bit more 
direction and better management of this program within the 
Department of the Interior. Thank you again.
    [The prepared statement of Mr. Waldon follows:]

   Statement of Donald G. Waldon, Administrator, Tennessee-Tombigbee 
 Waterway Development Authority, and Vice Chairman, Alabama-Tombigbee 
                            Rivers Coalition

I. Background
    Chairman Pombo and distinguished Committee members, my name is 
Donald G. Waldon. I am currently the Administrator of the Tennessee-
Tombigbee Waterway Development Authority (the ``Authority''), which is 
an interstate compact ratified by the United States Congress in 1958 to 
promote the development of the Waterway and its economic and trade 
potential. Funded solely by the member states, the compact currently 
consists of the States of Alabama, Kentucky, Mississippi and Tennessee. 
The Authority's membership is limited to the four governors and certain 
gubernatorial appointees from each state. Governor Bob Riley currently 
serves as the Authority's chairman. Current members include:
      Alabama--Governor Bob Riley; Director of the Alabama 
Department of Environmental Management Trey Glenn, III; Bruce Windham; 
Martha Stokes; W.H. ``Buck'' Borders; State Representative Allen 
Layson; and Robert Barnett.
      Kentucky--Governor Ernest Lee Fletcher; Lt. Governor 
Steve Spencer; Judge Mike Miller; Z.C. Enix; Judge William Shadoan; and 
Brian S. Roy.
      Mississippi--Governor Haley Barbour; Nick Ardillo; Bill 
Cleveland; Dale Pierce; T.L. ``Bud'' Phillips; and Martha Segars.
      Tennessee--Governor Phil Bredesen; Joe Barker; David 
Dickey; Judge Richard Holcomb; Kathy Holland; State Representative 
Randy Rinks; and Eddie Shaw, Jr.
Importantly, the Authority serves as the regional sponsor of the Tenn-
Tom Waterway, promoting the development of the Waterway, exploring 
economic and trade opportunities, and addressing potential impediments 
to the Waterway's beneficial use. As a result, the Authority is deeply 
involved in federal and state policies affecting the Waterway, 
including the Endangered Species Act (``ESA'').
    In addition to serving as the administrator of the Authority, I am 
also the vice chairman of the Alabama-Tombigbee Rivers Coalition 
(``Coalition''), which is an Alabama non-profit corporation consisting 
of sixteen businesses, trade associations and state agencies that rely 
upon Alabama waterways as integral components of their businesses. The 
Coalition has been actively involved in the listing of the Alabama 
sturgeon since 1991, submitting numerous written comments to the United 
States Fish and Wildlife Service (``FWS'' or ``Service'') during the 
listing process and filing suit challenging the listing as contrary to 
law--a case which is now pending before the United States District 
Court for the Northern District of Alabama. See Alabama-Tombigbee 
Rivers Coalition v. Norton, No. CV-01-P-0194-S (N.D. Ala.).
    Given the breadth of issues the Resources Committee is addressing, 
we believe it is critical for private landowners to share their real-
world experiences regarding the ESA. Perhaps the most compelling saga 
in our experience that justifies changes in the administration of the 
ESA centers around FWS' decade-long effort to list the so-called 
Alabama sturgeon as an endangered species. 1 Thus, the bulk 
of these comments are based on the Service's actions during the Alabama 
sturgeon listing process. Outside the listing process, the Tennessee-
Tombigbee Waterway Authority actively participates in various 
conservation efforts with the Service and is often able to reach 
consensus with the Service on protecting species that merit protection 
under the statute. Nonetheless, as submitted below, we believe changes 
in both law and policy are crucial to achieving the ultimate goal of 
the ESA: to protect and recover the Nation's truly threatened and 
endangered species.
---------------------------------------------------------------------------
    \1\ Notably, organizations in Alabama have challenged relatively 
few proposed listing decisions by FWS. For example, of the 115 species 
listed as threatened or endangered in Alabama, businesses have 
participated in challenging only seven of those proposals. Six of the 
seven challenges resulted in withdrawal of the proposed listing 
decision due to faulty science. The seventh--the challenge to the 
listing of the Alabama sturgeon--is still under review by the federal 
courts.
---------------------------------------------------------------------------
II. Peer Review & Best Available Science
    We appreciate and share the Committee's desire to improve the 
quality of the science used in ESA-related decision-making. We believe 
that FWS has all too often relied on shoddy scientific work to justify 
its actions. For example, this Committee is likely aware of the 
concerns raised by states such as Wyoming, over the lack of objectivity 
in the peer review process regarding the Preble's meadow jumping mouse. 
Similarly, in the case of the Alabama sturgeon, the Service relied on 
flawed scientific data in taking the position that the fish is distinct 
from other shovelnose sturgeon found in abundance throughout the entire 
Mississippi River system. As described in more detail below, FWS has 
persisted in its reliance on this flawed data in the face of mounting 
evidence that the Alabama sturgeon is genetically identical to the 
Mississippi shovelnose sturgeon.
    At the same time, we are unconvinced that legislation is needed to 
fix all the ESA's problems, nor do we believe that legislation is the 
most appropriate remedy in certain instances. Much can and should be 
accomplished through administrative management and policy changes by 
the Service utilizing the ESA's existing authorities. Moreover, some 
legislative proposals may have unintended consequences that could prove 
to be quite negative. Although we certainly do not agree with many of 
the policies of the FWS in this area, we see advantages in leaving 
various statutory provisions, such as the ``best available science'' 
standard, broad enough to allow some administrative flexibility to 
respond to the inevitable improvements in scientific technology. For 
example, H.R. 1662 from the 108th Congress would have required FWS to 
``give greater weight to interpretations of data derived from or 
verified by timely field work (commonly referred to as ``empirical 
data'') that have been subjected to peer-review.'' Our experience, 
however, leads us to conclude that so-called peer review is not a 
panacea to the problem of incorrect science.
    Nonetheless, before turning to our experiences in Alabama in 
greater detail, we call the Committee's attention to a matter which we 
hope will not be overlooked. H.R. 1662 proposed to apply new peer 
review provisions to ``covered actions,'' defined as listings and 
delistings, changes in listing status, recovery plan development, and 
Section 7 consultations. Importantly, this list of ``covered actions'' 
omitted critical habitat designations. We recommend that, whatever form 
the Committee's legislation may take in this Congress, it is drafted in 
such a manner as not to imply that a lesser standard of scientific care 
would apply to critical habitat designations compared to other actions 
under the ESA.

A. Administration Policy Should be Revised to Require the Service to 
        Flexibly Determine What Is the ``Best Available Science'' in 
        Each Specific Situation
    Like the standard for ``best available technology'' employed under 
other environmental statutes, what constitutes the ``best available 
science'' evolves over time. While taxonomy may have been the best 
scientific information the Service had available at some point in the 
past, today genetics is playing an increasingly more important role in 
the process of determining the status of various species. For example, 
the United States Department of Justice, in coordination with the 
Service, has employed genetics to convict individuals of illegal 
importation of caviar from foreign species of sturgeon. The Service, 
however, often refuses to employ genetics as a matter of listing 
policy, even where the taxonomic data is subject to scientific dispute. 
Our experience indicates that the Service often simply picks and 
chooses when to use genetics based on the ends it wishes to achieve. 
This is not sound science. Importantly, we do not believe that 
statutory revisions to the ESA are necessary to correct this particular 
concern. The better approach is, instead, to require the Service to 
issue a new policy regarding the standard for best available science in 
the listing process: where taxonomic data is disputed, genetics should 
be used to determine the status of a species.

B. The Service Has Rigged Peer Review to Support Its Preordained 
        Conclusions
    Even where the Service has purported to submit its scientific 
findings and determinations on listing issues to a peer review panel, 
at least in the unfortunate case of the Alabama sturgeon, the Service 
carefully screened those allowed to participate in the process to 
ensure a result consistent with its predetermined conclusions. The 
Service's efforts in this regard are well documented, because they were 
the subject of a Coalition lawsuit challenging the peer review process 
pursuant to the Federal Advisory Committee Act (``FACA''). In that 
case, the Eleventh Circuit confirmed that the Service had violated the 
procedures of FACA in its conduct of peer review for the Alabama 
sturgeon, and the court barred the Service from using the report 
produced by that illegal process. Alabama-Tombigbee Rivers Coalition v. 
Dept. of the Interior, 26 F.3d 1103 (11th Cir. 1994). That case is the 
source for the anecdote provided below.
    After the publication of the first proposed listing in 1993, 
Secretary Babbitt ordered the creation of a ``scientific advisory 
panel'' to ``consider the best available scientific information and 
assess the current status of the species.'' However, a bipartisan group 
of Alabama Congressmen and Senators objected on the grounds that the 
small panel was biased. In response, the Service created a new panel of 
nine members, but that panel included three of the four members that 
sparked the initial concern, and it included none of the six scientists 
suggested by the Alabama Congressional delegation.
    Initially, the Service established a procedure that conveniently 
allowed it to avoid the public notice and participation required under 
FACA: it would have its members file individual reports. However, 
shortly before the reports were due, the Service changed its procedure 
and convened a private meeting, from which ``different thinking'' 
stakeholders and scientists were excluded. The Alabama-Tombigbee Rivers 
Coalition sued, alleging that this process brought the panel's 
activities within FACA, and that the secretive and exclusive meeting 
clearly violated the openness requirements of that Act. See 5 U.S.C. 
App. 1, Sec. 10.
    The Coalition won in the district court in Alabama, which was 
unanimously upheld on appeal to the Eleventh Circuit. The courts held 
that the Service clearly violated FACA. Further, this violation was so 
serious that the courts were compelled to order the Service not to rely 
on the report produced by this illegal procedure. As both the lower and 
appellate courts stated:
        A simple ``excuse us'' cannot be sufficient.... FACA was 
        designed by Congress to prevent the use of any advisory 
        committee as part of the process of making important federal 
        agency decisions unless that committee is properly constituted 
        and produces its report in compliance with the procedural 
        requirements of FACA, particularly where, as in this case, the 
        procedural shortcomings are significant and the report 
        potentially influential to the outcome.
26 F.3d at 1106. The Eleventh Circuit elaborated further: ``Because the 
matters are so serious and of such great concern to so many with 
differing interests, it is absolutely necessary that the procedures 
established by Congress be followed to the letter.'' 26 F.3d at 1107 
n.9.
    That unfortunate episode illustrates the need for a renewed 
commitment to scientific integrity by the Service, especially including 
openness to ideas originating from beyond the favored circle of the 
Service's own staff and the Service-approved and/or favored scientists. 
It also highlights the fact that legislation is not a cure for every 
misdeed at the agency. Adequate laws were in place at the time of these 
events which should have guaranteed an open and inclusive procedure, 
but the Service refused to follow the law. We commend this Committee's 
willingness to address flaws in the peer review process with 
legislation, but we also urge the Committee to continue to exercise 
oversight of the Service and urge the leadership at Interior and the 
Fish and Wildlife Service to require its staff to act reasonably and 
responsibly through administrative, management and policy changes which 
are well within existing legal authorities.
III. Critical Habitat Designations Must Occur Concurrently with Listing
    The ESA requires the Service to designate critical habitat 
``concurrently'' with a listing decision. This Committee has considered 
legislation that would change the timing of the designation of critical 
habitat, such as recent legislation sponsored by Congressman Cardoza. 
We greatly respect the efforts of the Chairman and other Committee 
members, but we are opposed to this concept.
    Our reasons are described in greater detail below. They can be 
summarized as follows: (A) allowing more time only provides greater 
opportunity for the Service to delay and evade its responsibility to 
designate critical habitat; (B) delay would cause the loss of the very 
real benefit of obtaining an economic analysis at the same time as a 
listing decision (a benefit made more important by a recent change in 
Service policy); and (C) we believe the NEPA process should apply to 
critical habitat designations, and this NEPA process should occur early 
in the decision process. Moreover, this issue is under active 
litigation by the Coalition in federal court in Alabama. In the Alabama 
sturgeon case, the Coalition has alleged that FWS' failure to designate 
critical habitat is not only illegal, but that it also impermissibly 
tainted the entire listing process. To change the ``concurrent'' 
requirement would undercut the position of the Coalition in this case.

A. Removing the ``Concurrent'' Requirement Only Provides More 
        Opportunity for Inexcusable Delays
    For years, the Service has flouted the ESA and Congressional intent 
by refusing to designate critical habitat concurrently with listing, in 
spite of the mandate of ESA Section 4(a)(3). The Service has used--some 
might say abused--the excuses available to it, namely, that it is not 
``prudent'' to designate critical habitat, or that while it is prudent 
to do so, the critical habitat is ``not then determinable.'' See ESA 
Sec. 4(b)(6)(C). The Service has argued it would not be prudent because 
of poorly substantiated claims that persons might vandalize or 
otherwise harm species, or that its budget provided insufficient 
funding to cover the cost of the action. For example, the Service 
refused to designate critical habitat when listing the green pitcher 
plant in Alabama due to fears that the designation would result in 
``over-collection.'' See 45 Fed. Reg. 18930-31 (Mar. 24, 1980) (final 
rule listing green pitcher plant as endangered). A wide variety of 
environmental groups and regulated entities have opposed these 
generally specious arguments, with considerable success in the federal 
courts.
    In the case of the Alabama sturgeon, the Service in 1993 declared 
critical habitat to be both prudent and determinable, but it withdrew 
its proposed rule the following year. In 1999, the Service changed 
course, proposing not to designate critical habitat on the grounds that 
to do so could result in illegal takes. The proposed rule, however, 
noted that ``all Federal agencies [including the Service] are currently 
aware of the location and extent of habitat occupied by the Alabama 
sturgeon.'' When it issued the final listing rule in 2000, the Service 
acknowledged that the ``not prudent'' finding was invalid; however, the 
Service then asserted that critical habitat was not determinable, 
despite having previously asserted that areas occupied by the fish were 
indeed well known. The Service also acknowledged that this finding 
resulted in a one-year deadline to designate critical habitat, yet it 
candidly admitted in litigation that it has missed this deadline and 
has offered no plans of imminent action to rectify its noncompliance.
    For whatever reason, the Service simply does not like to designate 
critical habitat. Unable to wish the ESA's requirements away, the 
Service instead postpones compliance for years or simply ignores the 
law altogether. The point is, the Service already misses deadlines to 
designate critical habitat. The appropriate response to this situation 
is not to give the Service more time. The Service surely will only miss 
the later deadlines as well, and the species, environmental advocates, 
and regulated entities alike will be that much farther from a final 
critical habitat designation. Rather, both Congress and the courts 
should seek to require the Service to simply follow the law--to 
designate critical habitat, and to do so on time as the ESA now 
requires.
    We note briefly that we are aware of arguments that critical 
habitat designation should occur later in the process, such as in 
conjunction with a recovery planning process. Some have suggested that 
FWS does not always possess adequate information to designate critical 
habitat at the time of listing, and to require FWS to do so places too 
great a burden on the agency. We would respond by suggesting that if 
FWS does not have enough information to know what areas are critical to 
the conservation of a species, it does not know enough to declare that 
species to be endangered or threatened.

B. ``Concurrent'' Requirement Promotes Understanding of Economic and 
        other Impacts at a Crucial Time in the Decision Process
    In the past, the Service has determined that the designation of 
critical habitat almost never caused an adverse economic impact on the 
grounds that any negative economic impacts associated with critical 
habitat designation would have occurred regardless of the designation, 
due to other requirements of the ESA. However, recent litigation 
brought by a ranchers association resulted in a significant change in 
the Service's illogical approach. New Mexico Cattle Growers Ass'n v. 
U.S. Fish & Wildlife Service, 248 F.3d 1277 (10th Cir. 2001). In this 
case, the court noted that FWS could have chosen to consider all 
economic impacts associated with critical habitat designation, even if 
a given impact was ``co-extensive with other causes.'' Given a choice 
between these two methods, the court found that the ``co-extensive'' 
approach was closer to Congressional intent, since FWS' preferred 
method effectively read out of the Act any meaning for Congress' 
directive to consider economic impacts. Other courts have since 
followed that Tenth Circuit approach. See Home Builders Ass'n of N. 
Cal. v. U.S. Fish & Wildlife Service, 268 F. Supp. 1197, 1230 (E.D. 
Cal. 2003); Home Builders Ass'n of N. Cal. v. Norton, 293 F. Supp. 2d 
1, 3-4 (D.D.C. 2002); Bldg. Indus. Legal Defense Found. v. Norton, 231 
F. Supp. 2d 100, 102 (D.D.C. 2002); Natural Res. Defense Council v. 
U.S. Dept. of Interior, 275 F. Supp. 1136, 1141-42 (C.D. Cal. 2002); 
Nat'l Ass'n of Home Builders v. Evans, 2002 WL 1205743 at *2 (D.D.C. 
2002).
    Although we are not aware of any formal agency guidance or policy 
issuance as of yet, it appears that the Service has embraced the 
reasoning of the Tenth Circuit on a national scale. For example, the 
final rule to designate critical habitat for the California tiger 
salamander noted that its economic analysis ``complies with the 
direction from the U.S. 10th Circuit Court of Appeals, that, when 
deciding which areas to designate as critical habitat, the economic 
analysis informing that decision should include ``co-extensive'' 
effects.'' 69 Fed. Reg. 68,568, 68,579 (Nov. 24, 2004); see also 69 
Fed. Reg. 59,996, 60,012 (Oct. 6, 2004) (noting in the preamble to the 
bull trout critical habitat designation that the Service included 
consideration of economic impacts that are co-extensive with other 
causes). Several court cases also include statements that the Service 
represented to the court that it intended to employ the Tenth Circuit's 
rule in future critical habitat designations. Home Builders Ass'n of N. 
Cal., 268 F. Supp. at 1227-28; Home Builders Ass'n of N. Cal., 293 F. 
Supp. 2d at 2-4; Bldg. Indus. Legal Defense Found., 231 F. Supp. 2d at 
102; NRDC, 275 F. Supp. 2d at 1140-41.
    We applaud the Service for embracing the ``co-extensive'' approach 
to the consideration of economic impacts, and we call to the 
Committee's attention a significant implication of this policy. After 
decades of failing to follow the ESA, the Service is now required to 
offer a meaningful analysis of the economic impacts at the front end of 
the process--that is, at the time of listing. We firmly believe this is 
what Congress had in mind all along, by (1) requiring critical habitat 
designations to occur concurrently with listings, and (2) requiring an 
economic impact analysis for critical habitat designations. We stand at 
the cusp of a significant improvement to the administration of the 
ESA--now is not the time to make a change in the Act that would 
preclude this significant improvement.
    Another discussion of the Alabama sturgeon listing should 
illustrate this point. The listing of the Alabama sturgeon carries 
significant economic and social costs, ranging from impacts on the 
Corps of Engineers' ability to do annual maintenance dredging on 
Alabama's navigable waterways, to imposing greater restrictions on sand 
and gravel mining operations. In addition, the listing could lead to 
increased water flows through hydroelectric dams, which would reduce 
energy generation during peak load periods. NPDES permit limits could 
also be reduced thereby requiring major upgrades to both private and 
publicly owned sewage treatment plants. Notably, a detailed economic 
analysis jointly prepared by Troy State University and the University 
of South Alabama predicted a potential $11.3 billion adverse economic 
impact and the loss of almost 20,000 jobs over a 10-year period in 
Alabama and Mississippi as a result of the Alabama sturgeon listing.
    During the original listing process in the early 1990s, these 
potential adverse economic impacts precipitated significant public 
relations and political problems for the Service. As discussed above, 
while the listing decision is to be made solely on the basis of the 
best available science, designation of critical habitat requires the 
Secretary to consider the economic and social impacts of that 
designation. Therefore, the economic impacts became a big issue in the 
Service's 1993 listing proposal, which also proposed to designate 
critical habitat.
    However, after the Service withdrew its 1993 listing proposal, FWS 
relisted the Alabama sturgeon in 2000 without designating its critical 
habitat. This was an obvious attempt to avoid the previous economic and 
social impacts debate. Nevertheless, the ESA requires FWS to propose 
critical habitat designation concurrently with the listing proposal. 
Consequently, FWS was virtually guaranteed to be sued again--thereby 
perpetuating the sturgeon controversy and costing the private sector 
and the taxpayers even more money. Of course, this is now a critical 
issue pending in the Coalition's Alabama sturgeon litigation before the 
federal courts in Alabama. As a matter of policy consistent with the 
mandate of the ESA, the Service should be required to designate 
critical habitat concurrently with the listing decision, thus requiring 
the ``up front'' consideration of economic impacts during the listing 
process.

C. The Service Should Also Follow NEPA When Designating Critical 
        Habitat
    We have already explained why the Service violates the law by not 
proposing to designate critical habitat concurrently with the proposed 
listing. In addition, when proposing a critical habitat designation, it 
is imperative that the Service also comply with the National 
Environmental Policy Act (``NEPA''). NEPA exists to improve federal 
agency decisions and to provide opportunities for participation by the 
public. Without fully applying NEPA when assessing critical habitat 
designations, the Service could act without realizing that better 
alternatives may exist to protect, restore and enhance listed species. 
Landowners and users of public resources, such as waterways, are 
needlessly and illegally deprived of NEPA's provisions for public 
participation. Perhaps most importantly, the Service's failure to 
comply with NEPA violates a clear Congressional directive. If, as we 
submit, the NEPA process is good for critical habitat designations, 
then any change in the ``concurrent'' requirement would also only serve 
to delay the provision of NEPA's opportunities for landowners and 
others to participate in an ESA decision of major importance to them.
    Prior to 1983, the Service performed a NEPA analysis on actions 
under Section 4(a) of the ESA, including critical habitats. In that 
year, however, the Service published a policy indicating it no longer 
would prepare a NEPA document for listings, delistings, 
reclassifications, and critical habitat designations. 48 Fed. Reg. 
49,244 (Oct. 25, 1983). The Service argued that none of its 
environmental assessments on such actions up to that time had resulted 
in a determination to prepare an environmental impact statement, and 
that the ESA required listings to be based solely on biological 
grounds. Clearly, the first justification is irrelevant. NEPA admits no 
exception for actions arguably similar to past actions for which an EIS 
was not prepared. The second reason is just plain wrong when applied to 
critical habitat designations, for which the ESA explicitly requires 
consideration of economic and other impacts.
    Nevertheless, in 1995, the Ninth Circuit issued an opinion 
supporting the Service's position. In Douglas County v. Babbitt, 48 
F.3d 1495 (9th Cir. 1995), the court found that ESA's procedures 
somehow ``displaced'' NEPA, despite the complete absence in the ESA 
itself of any statement of intent to do so. Second, the Ninth Circuit 
found that no NEPA process was required, because a critical habitat 
designation either had no effect on the environment at all, or if it 
had an impact, the impact was ameliorative. Third, the court found that 
the ESA furthered the goals articulated in NEPA, and that somehow 
excused compliance with NEPA's procedural requirements.
    However, the Ninth Circuit case has been thoroughly refuted and 
discredited by subsequent cases in the Tenth Circuit Court of Appeals 
and the District Court for the District of Columbia. Catron County Bd. 
of Commissioners v. U.S. Fish & Wildlife Service, 75 F.3d 1429 (10th 
Cir. 1996); Cape Hatteras Access Preservation Alliance v. U.S. Dept. of 
Interior, 344 F. Supp. 2d 108 (D.D.C. 2004). These cases present 
persuasive arguments diametrically opposite the Ninth Circuit's 
decision. First, while both NEPA and the ESA operate in the area of 
natural resources and the environment, they establish different goals 
and different procedures. The ESA seeks to protect species and their 
habitat; NEPA seeks to improve the federal government's information-
gathering and decision making for the purpose of improving the human 
environment (which includes reference to social and economic factors). 
Both statutes include public participation procedures, but they are 
different. NEPA, for example, includes a public scoping process in 
which interested persons, among others, may participate in decisions 
about what issues are appropriate for consideration. The ESA provides 
no such opportunity for the public.
    Second, critical habitat designations do in fact have serious 
consequences. The Service has attempted to downplay the significance of 
critical habitat designations--both in their impact on the regulated 
community and in their benefits for species--but as discussed above, 
the courts are increasingly rejecting the Service's arguments in this 
area. Further, because NEPA requires consideration of a broad range of 
impacts, including social and economic impacts, the fact that an action 
may have certain environmental benefits does not excuse compliance with 
the NEPA process.
    Third, the question is not whether the ESA furthers NEPA's goals, 
but rather whether NEPA furthers both its own goals and those of the 
ESA. By seeking to improve the quality of federal decision making, 
application of NEPA would improve the Service's critical habitat 
designations.
    The Service's response to the split between the Ninth and Tenth 
Circuits (prior to the issuance of the recent D.C. case) was to apply 
the Ninth Circuit's holding nationwide, except with respect to 
designations within the Tenth Circuit. This is backward, for two 
reasons. First, the Ninth Circuit decided the case wrongly, and the 
recent 2004 D.C. case is further evidence of this. Second, if forced to 
choose between the Ninth and Tenth Circuit opinions, the Service should 
choose the Tenth Circuit position. By including the NEPA process, it 
will ensure better decision making and a better process for the people 
who are affected by the ESA. Unless the Service takes near term action 
on its own initiative to reverse its policy and begin complying with 
NEPA, the ESA should be amended to require it.

IV. The Coalition Supports Enhancing the Role of States in Species 
        Conservation
    We support ESA provisions and programs which seek to enhance the 
conservation of species by encouraging and incentivizing private 
entities and states to take a more active role in various ESA-related 
processes. We believe this approach can be beneficial both to industry 
and to the conservation and recovery of species, but only if the 
Service operates in good faith to support the program.

A. Voluntary Conservation Plans
    One area where this is certainly true is the implementation of 
``voluntary conservation plans'' by federal, state and private 
entities. Unfortunately, when it comes to listing species, the Service 
often refuses to give adequate consideration to voluntary conservation 
plans, which often would make listing a species wholly unnecessary. 
That was the case with the Alabama sturgeon listing. And, like other 
concerns raised by this testimony, the most effective solution to this 
problem is a policy change within the Service--not necessarily a 
revision to the ESA unless the Service fails to act.

        1.  The Service Should, Where Appropriate, Use Conservation 
        Agreements as a Basis for Deciding Not to List a Species.
    Our experience indicates that, at least in some circumstances, 
regulated entities can join with state and federal governmental 
interests and citizen groups to develop effective conservation plans 
which may, in some situations, make listing a species unnecessary. For 
example, we were instrumental in forming the Mobile River Basin 
Coalition (``MRBC''), a consensus building organization actively 
supported by the Service, the Corps of Engineers, and other Federal, 
State, and local government agencies, businesses, industries, trade 
associations, and environmental groups. These efforts culminated in the 
``Recovery Plan for the Mobile River Basin Aquatic Ecosystem,'' which 
detailed objectives, criteria and tasks for the recovery of 15 
freshwater species in the Mobile River Basin listed under the ESA. See 
63 Fed. Reg. 35277 (June 29, 1998) (public notice requesting comments 
on draft recovery plan).
    In addition, the Alabama-Tombigbee Rivers Coalition, the MRBC, and 
the Service developed a voluntary ``Conservation Plan for Freshwater 
Sturgeon in the Alabama River'' (``Conservation Plan'') in 1996. The 
voluntary Conservation Plan stated that the ``primary threat to the 
continued survival of the freshwater sturgeon is its limited numbers, 
and its inability to maintain its population.'' Accordingly, the 
Conservation Plan ``outline[d] research priorities and estimated costs 
that are considered essential for conservation of freshwater sturgeon 
in the Alabama River.'' Specifically, the Conservation Plan ``proposed 
to develop a sturgeon propagation facility...and to undertake an 
overall five-year research program to obtain ecological, biological and 
genetic data needed for the long term conservation of the sturgeon, to 
develop propagation techniques for the fish, to ascertain its habitat 
needs, and to augment existing stocks to a sufficient level to ensure 
the sturgeon's long-term survival.'' The U.S. Department of the 
Interior, the U.S. Army Corps of Engineers, the Alabama Department of 
Conservation and Natural Resources, and the Rivers Coalition fully 
supported this five-year, multi-million dollar Conservation Plan and 
committed their resources to work together toward its implementation. 
In fact, Congress appropriated over $1.5 million to implement the 
Conservation Plan.
    Similarly, we were instrumental in the development of a formal 
Conservation Agreement and Strategy for the Alabama Sturgeon 
(``Conservation Agreement''), which the Service, the State of Alabama, 
the Rivers Coalition, and other involved parties signed in 2000. The 
Conservation Agreement was developed through a long and often difficult 
process of discussion and negotiation. All participants, including the 
Service, agreed the plan represented the best hope for conservation and 
recovery of the Alabama sturgeon. It was supported by substantial 
funding and in-kind assistance from business interests.
    Throughout the process of negotiating the Conservation Agreement, 
business interests were frank in expressing their desire to implement a 
program which would forestall the need to list the Alabama sturgeon. 
Despite the clear position of the State, businesses and industries, the 
Service subsequently listed the sturgeon anyway. Predictably, this 
caused industry and the Rivers Coalition to immediately withdraw their 
support, financial and otherwise, for the Conservation Agreement. Not 
surprisingly, since the failure of that process and the loss of broad-
based support, the Service has been unable to implement adequate 
conservation measures in terms of effectiveness and available resources 
for implementation. As a result, no active recovery plan for the 
Alabama sturgeon presently exists.
    In the final rule listing the Alabama sturgeon as endangered, the 
Service explained that, in their view, the Conservation Agreement was 
the ``most viable approach to conservation of the Alabama sturgeon.'' 
65 Fed. Reg. at 26456. However, the Service decided to list the Alabama 
sturgeon anyway, resulting in the destruction of the Conservation 
Agreement because, in the Service's words, ``the certainty of the 
effectiveness of these efforts in removing existing threats remain 
unproven and [are] dependent upon many factors beyond human control.'' 
We still do not understand that reasoning, and the sturgeon has been 
the big loser of the Service's bad decision.
    The Mobile River Basin Coalition was another innocent victim of the 
Service's decision to ignore the Conservation Agreement and list the 
Alabama sturgeon. That action destroyed the four plus years of trust 
and credibility which had been carefully nurtured among the members of 
the Coalition and had produced the only multi-species Recovery Plan for 
listed species anywhere in the country. As a result of the Service's 
listing decision, the Rivers Coalition and other business and 
industries terminated their membership in the MRBC, and to date none of 
those parties have been willing to engage in any further similar 
discussions with the Service. The Service demonstrated it did not 
really value those relationships developed with the private sector, and 
it will be very difficult, if not impossible, for the Service to ever 
recreate that dynamic in the Mobile River Basin. In the words of Forest 
Gump, ``Stupid is as stupid does,'' which was applicable to the 
Service's actions.
    As discussed above, the formal Conservation Agreement would have 
guaranteed the best possible approach to restoring the Alabama 
sturgeon. In fact, we believe the ESA currently mandates that the 
Service should forego listing a species where an extensive state 
conservation plan would provide the species with a greater chance of 
recovery. For example, Congress stated in the ESA that ``encouraging 
the States and other interested parties...to develop and maintain 
conservation programs...is a key to...better safeguarding, for the 
benefit of all citizens, the Nation's heritage in fish, wildlife and 
plants.'' 16 U.S.C. Sec. 1531 (a)(5). In addition, the ESA states that 
a ``policy of Congress [is] that Federal agencies shall cooperate with 
State and local agencies to resolve water resource issues in concert 
with conservation of endangered species.'' 16 U.S.C. Sec. 1531(c)(2). 
Section (6)(a) of the ESA also states: ``In carrying out the program 
authorized by this chapter, the Secretary shall cooperate to the 
maximum extent practicable with the States.'' 16 U.S.C. Sec. 1535(a). 
Finally, Section 6(c) of the ESA states: ``In furtherance of the 
purposes of this chapter, the Secretary is authorized to enter into a 
cooperative agreement...with any State which establishes and maintains 
an adequate and active program for the conservation of endangered 
species and threatened species.'' 16 U.S.C. Sec. 1535(c).
    Quite possibly the strongest authority for using a Conservation 
Agreement as the basis for refusing to list a species is found in 
Section 4(a)(1) of the ESA, which states that the Service must 
determine whether a species is threatened or endangered because of any 
of the following five factors: (A) the present or threatened 
destruction, modification, or curtailment of its habitat or range; (B) 
overutilization for commercial, recreational, scientific, or 
educational purposes; (C) disease or predation; (D) the inadequacy of 
existing regulatory mechanisms; or (E) other natural or manmade factors 
affecting its continued existence. 16 U.S.C. Sec. 1533(a)(1)(A). 
Although this language focuses on impacts negatively affecting a 
species, Section 4(b)(1)(A) requires the Service to ``tak[e] into 
account those efforts, if any, being made by any State or foreign 
nation, or any political subdivision of a State or foreign nation, to 
protect such species, whether by predator control, protection of 
habitat and food supply, or other conservation practices, within any 
area under its jurisdiction....'' 16 U.S.C. Sec. 1533(b)(1)(A). Read 
together, Sections 4(a)(1) and 4(b)(1) of the ESA require the Service 
to consider any State conservation measures which either positively or 
negatively affect a species' status (i.e., efforts which create, 
exacerbate, reduce, or remove threats identified through the Section 
4(a)(1) analysis). Each of these sections makes it crystal clear that 
Congress intended for the Service to specifically consider any 
conservation efforts being made by the State when making a listing 
decision. We believe that the Service should begin giving greater 
weight to state-sponsored conservation plans as a means of providing 
the species with the greatest chance of recovery without triggering the 
ESA's costly constraints.
                                 ______
                                 

  Response to questions submitted for the record by Donald G. Waldon, 
Administrator, Tennessee-Tombigbee Waterway Development Authority, and 
           Vice Chairman, Alabama-Tombigbee Rivers Coalition

    Thank you for your letter dated May 11, 2005, which included two 
questions submitted by Senator Mike Crapo following the House Resources 
Committee's field hearing in Jackson, Mississippi, on April 19, 2005. 
On behalf of the Tennessee-Tombigbee Waterway Development Authority and 
the Alabama-Tombigbee Rivers Coalition, we appreciate the Committee's 
continuing efforts to oversee the implementation of the Endangered 
Species Act (``ESA'') and to identify ways to make the ESA work better. 
We are grateful for this opportunity to share our thoughts and views, 
and my responses to the two questions are detailed below.

Question 1: All of the panelists spoke of contributing time and money 
        to species conservation--some more willingly than others. If we 
        could guarantee that your investment gave you a seat at the 
        table to take part in hiring scientists, planning recovery, and 
        taking action on the ground--would you be better off?
    Yes, we believe we would be better off with such a guarantee--with 
an important caveat. Having a seat at the table does not mean that the 
U.S. Fish and Wildlife Service (``FWS'') will listen. As I noted in my 
April 19, 2005, written testimony (see pages 9-10), the Alabama-
Tombigbee Rivers Coalition actively participated in a conscientious 
negotiation which led to the development of a Conservation Agreement 
and Strategy for the Alabama Sturgeon (``Conservation Agreement''). We 
had a seat at the table from beginning to end, but FWS effectively 
vetoed the unanimously agreed upon plan by their subsequent action. In 
that case, FWS should have been required to abide by the decisions 
reached by the participants who developed the Conservation Agreement, 
which included all those parties who intended to provide expertise, 
funding and resources to implement the agreement. Private industry as 
well as several federal and state government agencies committed, 
financially and otherwise, in writing to support the Conservation 
Agreement. Moreover, FWS expressed the view, mutually shared by the 
other participants, that ``implementation of the Conservation Agreement 
is the most viable approach to conservation of the Alabama sturgeon, 
based on current technology and information.'' As FWS well knew, 
continuing support for the Conservation Agreement depended on deferring 
the listing of the Alabama sturgeon; however, FWS listed the fish 
anyway. Predictably, public support for the Conservation Agreement 
dissolved immediately. In the years since then, conservation of the 
Alabama sturgeon has languished without funding or support, and FWS has 
done nothing to recover it.
    Amending the ESA to provide an active role for participants from 
the private sector who are willing to fund conservation measures would 
go a long way toward encouraging their participation in measures which 
might not otherwise be funded or implemented. Under current law, FWS 
has ``legal leverage'' to incentivize so-called ``voluntary'' action 
when FWS' approval is required--that is, in the context of approving a 
federal action under Section 7 or an incidental take permit under 
Section 10 of the ESA. Otherwise, the ESA does nothing to proactively 
promote positive voluntary conservation measures. In our case, we, 
along with the State of Alabama and other federal agencies, sought to 
develop the best conservation plan we could design and to implement 
those measures proactively for the benefit of the species in an effort 
to forestall its listing. However, FWS ultimately disregarded those 
good faith efforts, because FWS claimed they were not one hundred 
percent certain the plan would recover the species, even though FWS 
agreed the plan was the species' best chance for survival.
    Our experience leads us to the view that FWS should be required to 
respect the decisions and conclusions unanimously developed in concert 
with a team of stakeholders which includes the private parties who 
agree to provide funding for the conservation measures. In our view, 
private parties would be more likely to join a process and commit 
resources if they had assurance that FWS would respect the decisions 
made by those participating.

Question 2: Current deadlines for critical habitat are routinely 
        abused, which is why many are considering changing those 
        deadlines. If, however, we kept a requirement for an economic 
        analysis at the time of listing, would that meet your 
        interests?
    As my April 19, 2005, written testimony indicated (see pages 6-7), 
we support the present requirement in the ESA to provide an analysis of 
economic and other relevant social impacts, and we support the 
requirement that this analysis be provided concurrently with listing--
meaning at the front end of the process. Therefore, the proposal 
articulated in this question appears to address, at least conceptually, 
one of our interests.
    I am concerned, however, about another interest that is also served 
by maintaining the present critical habitat designation at the front 
end of the proposed listing process, which is public notice. One of the 
promising albeit routinely ignored functions of critical habitat 
designation is to provide meaningful notice of the listing proposal to 
affected land owners and other members of the public. Under the ESA, 
critical habitat includes areas that are currently occupied by the 
species, encompass ``essential'' physical or biological features, and 
may require special management considerations. We believe that those 
who own land within such an area ought to have that information at the 
time a species is proposed for listing. Such timely notice serves to 
let private landowners know whether they should be interested in the 
listing process and, ideally, brings them to the table to participate.
    We also believe that continuing to require critical habitat 
designation at the front end of the listing process actually improves 
the science. As indicated in my April 19 testimony (see pages 5-6), we 
take issue with those who have suggested that it is too difficult to 
gather and process sufficient data to designate critical habitat at the 
time of listing. If there is insufficient data to know what habitat is 
critical for a species' survival, then we believe there is insufficient 
scientific data to determine that a species ought to be listed in the 
first place. Nevertheless, if my first two concerns are adequately 
addressed and included at the proposed listing stage that would likely 
meet our interests on this particular issue.
    Thank you again for this opportunity to respond to the Committee's 
questions. Please feel free to contact me if I can provide additional 
information or assistance.
                                 ______
                                 
    The Chairman. Thank you. We have Eddie Briggs, who 
represents the Head Companies, Mr. Briggs.

              STATEMENT OF EDDIE BRIGGS, ATTORNEY

    Mr. Briggs. Thank you, Mr. Chairman. My name's Eddie 
Briggs. I'm an attorney here in Jackson. I've participated in 
environmental litigation for Head Companies and the Yates 
Companies. David Head offers his apologies this morning. He's 
trapped by the storm that was sweeping across Alabama as we 
meet today. Senator, welcome to the great State of Mississippi, 
Mr. Chairman, and to my congressman, Chip Pickering, good to 
see you this morning, Chip. Chip knows full well this is the 
last weekend of turkey season and if we weren't dedicated to 
the issue, we'd be out in the Mississippi woodlands this 
morning as I'm sure Judge Pickering is.
    At 9:00 a.m. this morning, I learned that I was going to 
have to summarize David Head's testimony so bear with me as I 
try to make a few of the points that he would make to you 
today. As a developer and investor and a private landowner and 
perhaps to share with you as a practical matter just exactly 
what the Endangered Species Act means for those who try to 
develop our natural resources out there on a day-to-day basis.
    There are four things that we want to point out to you this 
morning for your consideration. First is the Endangered Species 
Act, though not so intended by the Congress is to often in 
practice a local land use tool. Certainly this it is no 
surprise to the members of this Committee. The Act itself is 
primarily used by those who would oppose development as its 
number one weapon in stopping certain types of land 
development.
    Second, the Act has serious economic and other impacts upon 
private landowners whose property provides habitat for 
threatened and endangered species and you've already heard 
testimony in that regard this morning. Third, as currently 
drafted, the Act forces the U S Fish and Wildlife service to 
make the decisions and take positions based on poor data and 
information.
    And fourth, the Act's provisions regarding critical habitat 
designation are neither necessary nor effective as a 
conservation measure, and I mean actually the designation of 
critical habitat doesn't insure the conservation of the species 
at all but the designation of critical habitat does impose 
significant costs to the agency and to the public as a result 
of relatively meaningless rulemaking procedures and consequent 
permitting obligations.
    Like it or not, the Endangered Species Act is the most 
significant local land use tool used by those who oppose 
development. The Act is all too easily invoked as the most 
ultimate zoning tool. I'm going to give you today, a little bit 
of history of two projects that we're currently involved in on 
the Fort Morgan Peninsula in Southern Alabama. These projects 
are in an area that is designated as Alabama beach mouse 
habitat.
    Some several years ago, we started a project called The 
Beach Club there and over the course of development of that 
project, it took us some three years to get through the 
permitting process. We were forced to expend at that time about 
$1.8 million in order to get our project approved. Those costs 
came from resulting litigation, necessary consultants involved, 
and a settlement ultimately with the plaintiff's in that case.
    The current project that we're working on there is called 
the Beach Club West. It's a companion project to another 
project called The Highlands, where some 1,000 additional units 
are planned to be built out on Fort Morgan Peninsula. Those 
facilities will involve an investment of between $300 million 
and $500 million by my client that will ultimately develop a 
real estate value out on that peninsula we believe in excess of 
$1 billion.
    These projects are vehemently opposed by some who would 
oppose multi-family development lots at the same time allowing 
the development for single family residences in this same area 
with no restrictions, virtually no restrictions whatsoever. 
Currently we feel that we've been discriminated against by Fish 
and Wildlife Service because while our projects are held in 
abeyance by Federal Court lawsuit, there are single family 
permits that are being considered or already have been granted 
for some 108 single family units that are going to actually 
occupy more beach mouse habitat than the Beach Club and 
Highland Projects.
    At the same time, the single family projects are not 
required to mitigate their use of the habitat whatsoever and in 
our project we have used about 35 or so acres in developing 
these two condominiums and, at the same time, we set aside an 
interment conservation easement, 110 acres of beach mouse 
habitat to be permanently conserved at a cost of around $90 
million to the developers.
    When you look at the total cost of these two projects and 
these two projects and two facilities over the course of the 
last few years, projects for development and litigation in this 
area and the cost of the delays being included, we've spent 
some $8.5 million on NEPA, the NEPA process, and currently the 
Beach Club West Club project has been held in abeyance for some 
five years while we deal with litigation and with continuing 
road blocks raised by Fish and Wildlife Service.
    One of the things that I feel is most strongly needed in 
this revision of the ESA is to require some time limits, some 
time lines, be met that the agencies that administer this Act 
be required to act in a timely fashion so that they can't just 
delay it and delay it and delay it. At one point during the 
course of this situation we were needing some environmental 
information that could only be provided by an expert who lived 
in Australia according to the Fish and Wildlife Service. We 
were required to wait nine months for this information to come 
in and ultimately the gentleman never did send it, it never 
came but still the delay was there, the cost and expense to our 
group was there.
    When you look at how a multi-family development is treated 
by the Fish and Wildlife Service versus the single family 
developments, you'll find that single family developers used 
230 percent more habitat in developing the same facility to be 
occupied by individuals versus the development of condominiums.
    So, our consideration here today is not only economic but 
it's also that we do the best that we can with the resources 
that we have that the government agencies that we fund as tax 
payers actually respond in a timely fashion to the needs of not 
only the environment but those that are forced to work within 
these rules. I'm quite fond of telling our opponents when we 
have those face-to-face meetings that we do from time to time, 
that what we need is to agree upon a set of rules and then 
everybody proceed by those rules.
    What has happened to us is that we entered into this 
process, we made an investment, we've acted in good faith, 
we've put in place mitigation measures, we've done everything 
that we know how to do and then at every juncture the rules are 
changed. They want us to do more, address a different set of 
issues and that simply does not foster economic development and 
we don't feel like we've been treated equitably under the Act 
as it is now called, as it is now written.
    I thank you for the opportunity to appear before you here 
today and will be glad to answer any questions you may have for 
me.
    [The prepared statement of Mr. Head follows:]

        Statement of David Head, Sr., Chief Executive Officer, 
                             Head Companies

Introduction.
    Mr. Chairman, Members of the Committee, good morning and thank you 
for coming to Jackson to visit with us today. My name is David Head, 
Sr., I am the CEO of Head Companies. Our development activity along the 
Northern Gulf Coast includes numerous condominium projects completed, 
under construction or being permitted. I am an attorney and have been a 
member of the Alabama Bar since 1962. I have over forty years 
experience in permitting and developing properties some nine years of 
which involve the Alabama beach mouse.
    My company is the managing partner responsible for development of 
the Beach Club and Beach Club West Projects, located on the Fort Morgan 
Peninsula of Alabama. In that capacity I have, since 1996, been 
involved with the Alabama beach mouse, which is listed as an endangered 
species under the Endangered Species Act. I sit as a member of the 
Alabama Beach Mouse Recovery Team, to which I was appointed in 2004.
    My remarks this morning will be brief. I would like to address the 
following topics: First, the Endangered Species Act, though not so 
intended by Congress, is too often in practice a local land use tool. 
Second, the Act has serious economic and other impacts upon private 
landowners whose property provides habitat for threatened and 
endangered species. Third, as currently drafted, the Act forces the 
U.S. Fish & Wildlife Service to make decisions and take positions on 
poor data and information. And fourth, the Act's provisions regarding 
critical habitat designation are neither necessary nor effective as a 
conservation measure, but impose significant costs to the agency and 
the public as a result of relatively meaningless rulemaking procedures 
and consequent permitting obligations.

1. Like it or not, the Endangered Species Act is a Local Land Use Tool
    One of the central premises of our federal system is that local 
land use regulation is left to state and local government. True to this 
ideal, it is the Department of the Interior's policy that the 
Endangered Species Act is neither intended nor to be applied as a local 
land use planning tool. However, in matters where a conflict arises 
between local land use activities and endangered species conservation, 
the Act is all too easily invoked as the ultimate zoning tool. And that 
is what is happening on the Fort Morgan Peninsula.
    Our projects are intended to provide recreational opportunities 
allowing our owners and their guests to visit and vacation by the 
seaside on Alabama's Gulf Coast. Both Beach Club and Beach Club West 
are designed utilizing multi-family condominium towers to minimize our 
project footprint, avoid rural sprawl, and minimize habitat and other 
disturbance to the Alabama beach mouse. That design is sound business, 
sound conservation, and allows us to dedicate most of the land we own 
to wildlife conservation, including a substantial habitat preserve area 
and other measures, including conservation funding, for the benefit of 
the Alabama beach mouse. It is, however, controversial with some living 
on our part of the Peninsula who would rather see more single-family 
residences than our higher-density, more compact developments. So much 
so that interests on and off the Peninsula have chosen to use the ESA 
(and the National Environmental Policy Act) as litigation tools to 
delay or prevent us from making lawful use of our property. I will 
describe those events to you in a moment. But first let me say, that 
for whatever reason, the FWS in its ESA implementation has played into 
the hands of our local opponents.
    Our Beach Club West Project and affirmation of the Section 10 
incidental take permit has been indefinitely delayed due to litigation 
and subsequent review under the National Environmental Policy Act 
(NEPA) over endangered beach mouse concerns, the Service has 
inexplicably--and quite unfairly--moved forward to issue scores of 
incidental take permits for single family residences throughout the 
Peninsula, including in the very area adjacent to our projects. While 
our multi-family development is being held hostage in the name of 
considering the potential impacts to this small rodent, the agency is 
allowing virtually unfettered construction of single family residences 
that in aggregate will have at least as significant if not greater 
impacts to the species and without the concomitant conservation 
benefits offered by our Beach Club West project. And our opponents 
including the Sierra Club and others, who ostensibly seek to protect 
the mouse, are sitting by while some 108+ single-family residences are 
permitted or being permitted without objection, and mouse habitat is 
lost. This is not only a subversion of the ESA to use it as a land use 
tool favoring habitat destroying single-family residents over habitat 
conserving multi-family projects, it is fundamentally unfair and poor 
conservation planning to boot.

[GRAPHIC] [TIFF OMITTED] T0971.001

3. History and Costs of Alabama Beach Mouse Litigation
    Both the Beach Club and Beach Club West required the issuance of 
Incidental Take Permits because of potential take of the Alabama beach 
mouse. Our experience in obtaining and defending those permits is 
illustrative of the costs the ESA imposes on land owners. We have 
obtained two take permits from the Fish & Wildlife Service, as 
described above. Both permits have been litigated. And litigation 
continues. Our Beach Club permit was challenged by the Sierra Club in 
1997. That lawsuit was finally resolved in 1999 after 2 1/2 years at 
the cost of over $1.8 million. Our Beach Club West permit was likewise 
challenged by the Sierra Club and other plaintiffs and to date has cost 
us $6,649,309 or a total of $8,449,309 when the Beach Club cost delays 
are included. That litigation resulted in an injunction against project 
construction while more detailed environmental reviews were performed 
under NEPA. The NEPA process is still ongoing; nearly three years after 
the injunction issued, the FWS still has not issued a draft 
environmental impact statement. The horizon for that project, at this 
point, appears very far away.
    In addition to litigating our permits, our opponents have sought to 
prevent our use of our property by first filing a petition with FWS to 
expand the historic designation of critical habitat for the Alabama 
beach mouse, and then by filing yet another lawsuit in federal district 
court when the agency failed to act as promptly as the plaintiffs 
wanted. Their proposal for re-designation would, not surprisingly, 
require much of our property to be designated and regulated as critical 
habitat. FWS for its part has been delayed in responding to the 
petition by limited funds and other resources. In the critical habitat 
litigation, the plaintiffs have sought an injunction prohibiting FWS 
from acting upon incidental take permits such as ours until re-
designation occurs--a process that could take several years. They do 
not object to single-family development which is more destructive. The 
irony of this, if one is a supporter of endangered species 
conservation, is that critical habitat designation and regulation is 
not an effective conservation measure. Designation of critical habitat 
carries with it no promise of conservation measures for the species. In 
fact, the Service itself repeatedly has recognized that the habitat 
conservation plans (HCPs) which are at the heart of Incidental Take 
Permits provide far greater conservation benefits to threatened and 
endangered species than does critical habitat designation. (See the 
attached 25 Mitigation Measures).
    The habitat conservation plan for Beach Club West and an adjacent 
contiguous development known as Gulf Highlands are being permitted 
under a joint HCP which will result in approximately 110.7 acres being 
conserved from development and available to the beach mouse in 
perpetuity. The conserved lands include 909 feet of prime gulf frontage 
that is currently selling for over $100,000 a front foot for 
condominium development. In other words over $90 million of beach front 
land value (before valuing contiguous interior lands) has been set 
aside forever for the beach mouse.
    Under Fish & Wildlife estimates, a single family residence creates 
approximately 1/10 of an acre of impervious lands with no mitigation 
while Beach Club West and Gulf Highlands development plans call for a 
clustered development in which the impervious lands are only a fraction 
of that for a single family home. In an attached exhibit it can be seen 
that our condominium cluster development is exceeded 230% by a single 
family home development on a per unit basis while our mitigation 
measures insure additional acreage that is three times our developed 
lands will never be developed. None of this would happen as a result of 
critical habitat re-designation. And it is a fact that critical habitat 
designation takes at the least years and many tens if not hundreds of 
thousands of agency dollars, while (by FWS' own recognition) yielding 
no greater conservation benefits to the species than already result 
from the fact the species was listed. Those are dollars, and years, 
that FWS does not have. And the fact is that the habitat and habitat 
values which are the subject of critical habitat designation actions is 
already protected for the benefit of the listed species through 
application of the ESA's admonition that federal agencies not 
jeopardize the species. Since beginning our permitting activities over 
nine years ago, we have calculated that we have incurred legal and 
consulting fees along with other expenses directly tied to ESA 
permitting and related litigation in the amount of $8,449,309.

4. The ESA Requires the FWS to Act in the Face of Too Little 
        Information
    I want to illustrate this last point through our own experience. 
When the Alabama beach mouse was listed in 1985, FWS believed there 
existed only 350 acres of habitat suitable for use by the mouse on the 
Fort Morgan Peninsula. Over the past five years, as people have studied 
the mouse, often as the result of Incidental Take Permit requirements, 
our knowledge of the mouse and its habitat has expanded exponentially. 
At this time, the Service has confirmed that the Peninsula has some 
2,700 acres of habitat suitable to meet the needs of the Alabama beach 
mouse, a far different picture than was believed at the time of 
listing. Yet the Act requires that listing be performed based on ``the 
best available information,'' regardless of how little information may 
exist, or whether it is credible, reliable information or not. That is 
a poor basis upon which to perform a regulatory action that can result, 
as demonstrated above, in the imposition of millions of dollars in 
regulatory compliance costs before a landowner can make use of his or 
her property.
    Thank you. I would be glad to respond to any questions you may have 
for me.
                                 ______
                                 

                         25 Mitigation Measures

      Clustering development in the southeastern portion of the 
property to maintain large tracts of ABM habitat in the western and 
northern portions of the property;
      Preserving approximately 105.5 acres as a conservation 
area for the ABM;
      Preserving 909 linear feet of open beach areas, primary 
and secondary dunes, and associated swales, and escarpment;
      Foregoing development of the 102-unit, 17-acre French 
Caribbean tract, for which an ITP was previously issued in 2000, and 
which will become part of the conservation area protected by 
restrictive covenants;
      Locating the two development towers 724 feet and 600 feet 
north of the Gulf, providing a significant buffer between the towers 
and ABM designated critical habitat;
      Selectively clearing the canopy and understory of 10.5 
acres of the property that are not currently believed to be occupied by 
ABM to enhance potential beach mouse habitat;
      Constructing a sloped land surface, rather than a 
traditional concrete retaining wall, along the south side of the 
project to provide refugia for ABM during high water events;
      Posting signage in the construction area to clearly mark 
the boundary of the development footprint;
      Designating a prime contractor to be responsible for 
refuse disposal in tightly closed, rodent-proof waste disposal 
containers during construction;
      Limiting storage of building materials to the development 
footprint;
      Requiring disposal of residential waste capable of 
attracting rodents in rodent-proof containers;
      Stopping construction work and immediately notifying 
Service personnel upon encountering ABM;
      Removing any injured ABM to a secure spot and immediately 
notifying Service personnel;
      Building dune walkover for pedestrian traffic to the wet 
beach;
      Posting signs in the dune area to alert visitors of ABM 
presence;
      Prohibiting off-road vehicles on the dunes or wet beach 
area;
      Providing educational brochures about the ABM to 
construction workers and development residents;
      Prohibiting outdoor lights illuminating the dunes;
      Requiring perimeter fencing to contain large enough 
spaces for ABM movement;
      Prohibiting domestic house cats in the residential 
development;
      Implementing a seasonal trapping program and a 
monitoring, reporting and predator-control program for the ABM, house 
mice, and domestic cat populations;
      Prohibiting the use of rodenticide on the property, 
except in totally enclosed structures;
      Implementing a dune restoration and enhancement program 
to be designed and overseen by a qualified expert approved by the 
Service;
      Assessing a $100 fee per residential unit per year, 
adjusted for inflation, to be used for ABM conservation, including 1) 
acquisition of ABM habitat, 2) enhancement of offsite ABM habitat on 
non-public lands, and 3) management of ABM on non-public lands; and
      Restoring 35 acres of off-site ABM habitat in the project 
vicinity, including creation of a minimum 2000-foot corridor connecting 
existing ABM habitat to the restored habitat.
                                 ______
                                 
    NOTE: Additional attachments to Mr. Head's statement have been 
retained in the Committee's official files.

  Response to questions submitted for the record by David Head, Sr., 
                Chief Executive Officer, Head Companies

    All of the panelists spoke of contributing time and money to 
species conservation-some more willingly that others. If we could 
guarantee that your investment gave you a seat at the table to take 
part in hiring scientists, planning recovery, and taking action on the 
ground-would you be better off?
    Yes.
                                 ______
                                 
    The Chairman. Thank you. Mr. Vaughan.

                   STATEMENT OF RAY VAUGHAN, 
                  EXECUTIVE DIRECTOR, WILDLAW

    Mr. Vaughan. Congressman, Senator, thank you very much for 
having me here today. Especially considering that I and 
WildLaw, the organization that I founded and represented while 
and before the Endangered Species Act faulted in the southeast 
more than anyone else. But I thank God for reminding everyone 
that it's not only environmentalists who filed a lawsuit as 
well.
    But let me just say the Endangered Species Act is not so 
much broken as it is incomplete. In 1973 Congress took its best 
shot at addressing the problem and I agree Congress needs to 
take another shot at this, but it doesn't need to be scattered, 
it needs to be very well thought through. And I appreciate you 
starting to hold these hearings. To be honest with you, a 
number of nationally prominent environmentalists have called 
and e-mailed me asking me not to be here today. But I want to 
be here today.
    I just want to say as often as our system of government has 
let me down, I still believe in it and I'm always willing to 
give it another shot. And I believe there a lot of things that 
can be done, a lot of things have been talked about today are 
basically some of the legislation that's pending are 
limitations on what we already have. And that's not the 
solution. That's a band-aid approach that may, in fact, 
increase the problems that have been cited in litigation. Which 
is really not so much a problem as a symptom of the problems.
    Underfunded agencies. If an agency doesn't have all the 
guidance that it should--but it quite frankly is doing a very 
good job with what little it has--it has problems. There have 
been mistakes in compliance, there have been difficulties in 
service situations. But it's amazing to me that, in my 
experience, tries very hard with what little they have and if 
they had the funding they needed, a lot of the litigation would 
go away on its own because a lot of the problems are because 
they're not being able to meet their deadlines.
    Imagine a health care system where all we had in America 
were emergency rooms. Well, that's what we have for our 
wildlife basically. Is an over all system that gets you back as 
an emergency rooms. What we need is a comprehensive system and 
a lot of the other ideas that have been put forth here today 
and other things, I think are very good to explore. And I have 
a number of things that I put in my written testimony about 
cooperative efforts that have worked and other things that 
could work.
    Things I'd like to highlight would be, first, looking at 
habitat overall. As the Senator mentioned, this is essential 
for a wildlife protection system. The National Forest in 
Alabama, I used to sue them three, four times a year. Why, 
because they were breaking the law. Then they decided to come 
up with ecosystem, habitat-wide management focused on longleaf 
pine restoration. The reason they focused on longleaf pine 
restoration was because that's what's supposed to be there and 
because the red-cockaded woodpecker was an endangered species. 
Also, they had to do it. Once they did it, it's been using 
great science. The scientists love it, everyone loves it, and 
they haven't been sued or appealed in five years.
    That has spread to Louisiana Kisatchie National Forest. The 
former head of the Louisiana Forestry Association actually 
thinks our lawsuit that shut them down too early did great 
things because now they're doing great longleaf restoration all 
over Kisatchie and no one is appealing or challenging what 
they're doing. The key to that was getting all the interests 
together.
    Lawsuits sometimes force that to happen. Hopefully that can 
happen through this process as well, in a better way, in that 
if all the interests come together and have a frank discussion 
on, all right, let's find out what we can agree on. Because 
there are things we can all agree need to be done. Changes that 
may be needed to the current system, improvements, additions, 
things that can be focused on.
    Quite frankly, in a lot of areas an incentive-based 
approach can actually be a good thing. It can encourage the 
polluters to think oh, they have to pollute and I get paid not 
to pollute. I don't think that's the situation with the 
Endangered Species Act private landowners. The landowners 
aren't doing bad things necessarily, they're still making valid 
choices with the rights they have. The incentive-based approach 
increasing cooperative conservation, I think makes sense in the 
Endangered Species long life situation. And that's something we 
ought to explore.
    But even within the current Act, we spend more time in 
working with the business interests than we do working against 
them to find solutions and I've outlined a number of examples 
of that in my written testimony of where the Endangered Species 
problems they initially had became an opportunity to actually 
make things better for them and better for the species as well. 
We need to get a lot of folks together, address this process.
    The Forest Service when they were looking at the new 
National Forest management rates pulled together a great 
meeting of over a hundred people, very balanced with the 
numbers and interests. And if they give us enough time to talk 
good recommendations that were agreed on, we would come up 
great recommendations. Instead, they didn't and they didn't 
listen to what we did say including folks from the industry.
    I think you have the opportunity at these hearings to move 
on, come up with really competent solutions and I appreciate 
it. Thank you very much.
    [The prepared statement of Mr. Vaughan follows:]

         Statement of Ray Vaughan, Executive Director, WildLaw

    As the nation's premier wildlife protection law, the Endangered 
Species Act (ESA) has received a great deal of attention. Designed to 
prevent the extinction and to assist in the recovery of the rarest 
creatures on Earth and particularly those in the United States, the ESA 
was the first major federal statute to attempt to save species for 
their own sakes, regardless of any measurable value to humanity. 
Although it is arguably the strongest of America's environmental laws, 
in reality, the ESA has done very little to prevent the mass extinction 
that is currently occurring throughout the world. Neither the economic 
apocalypse that some opponents claim, nor the wonder law that some 
environmentalists claim, the ESA needs to be viewed in a proper 
perspective that reveals its true strengths and weaknesses and its 
impacts.
    There are indeed a limited number of full success stories under the 
ESA. The recoveries of the American Alligator, the brown pelican, the 
peregrine falcon, the bald eagle and a handful of other species can be 
credited to the protections provided by the ESA and the work of the 
Departments of Interior and Commerce under the Act. For each species 
that has recovered due to efforts under the ESA, however, there are 
hundreds of other listed species that have made very little or no 
progress at all; at best, the majority of species listed under the ESA 
are just barely surviving and have been given only a short reprieve 
from extinction. Further, for all those hundreds of species listed 
under the Act and protected somewhat by it, there are thousands more 
that await listing and protection. Indeed, a number of species have 
gone extinct while waiting to be listed and protected under the 
mechanisms of the ESA. Chronically under-funded, a situation encouraged 
by Democratic and Republican Administrations alike, the recovery 
efforts of the Fish and Wildlife Service under the Act often amount to 
nothing more than ``too little too late'' for most species listed under 
the Act. Nonetheless, the ESA stands as the United States' best effort 
to date at preserving the biological diversity of the country.
    On the other hand, critics of the Act claim that it has 
unnecessarily adverse impacts upon the nation's economy. However, these 
critics can cite no studies to substantiate this claim. From 1987 
through early 1992, almost 74,000 development projects came into 
potential conflict with endangered species under the Act, yet only 18 
of those projects had to be stopped. As Professor Oliver Houck pointed 
out, ``The number of projects actually arrested by the ESA is nearly 
nonexistent.... Alternatives to avoid jeopardy included a mix of 
measures neither surprising nor in many cases very demanding.... 
Rather, they reflect the bare minimum of alternatives necessary to keep 
those species that are listed hanging on, unrecovered, for an 
indeterminate time.'' Oliver A. Houck, ``The Endangered Species Act and 
Its Implementation by the U.S. Departments of Interior and Commerce,'' 
64 U. Colo. L. Rev. 277, 317-23 (1993). During the later years of the 
Clinton Administration and throughout the Bush Administration, I am 
aware of absolutely no projects have been stopped due to the ESA.
    Although the ESA will sometimes have an adverse impact on a 
particular project, the vast majority of economic projects experience 
no difficulty under the ESA; indeed, at least 99.9% of developments 
never have an ESA problem at all. In highly publicized instances such 
as the controversy over the Northern Spotted Owl in the Pacific 
Northwest, the real cause of any economic problems was gross 
mismanagement of natural resources, such as logging at unsustainable 
rates. Rather than causing job losses and economic impacts, the listing 
of the owl under the ESA was a consequence of resource abuse, just as 
the economic impacts were. Often, the ESA and the creatures it attempts 
to protect are used as a convenient scapegoat to hide the fact of 
years, even decades, of irresponsible wasting of natural resources. 
When the facts, rather than the rhetoric, are examined, there is no 
evidence that the ESA or environmental statutes and regulations in 
general have any detectible adverse impact on the nation's economy. 
Political scientist Stephen M. Meyer of the Massachusetts Institute of 
Technology found that environmental regulations have no perceptible 
adverse economic impact at the state and national levels. The states 
with the strongest environmental regulations had the strongest 
economies, and the states with the weakest regulations had the weakest 
economies. Meyer, Environmentalism and Economic Prosperity: Testing the 
Environmental Impact Hypothesis (M.I.T. 1992). This study also found 
that growth in gross state product during the 1980s was more than twice 
as high in states with strong environmental regulations than in states 
with weak ones. Construction jobs grew by 53 percent in strong states 
and fell 1.4 percent in weak states. The same correlation holds true 
for the 1970s. Further updates by Professor Meyer in more recent years 
find the same results. See his articles at http://web.mit.edu/polisci/
faculty/S.Meyer.html.
    This brief examination of the claims of both the supporters of the 
ESA and its opponents gives a better and more accurate perspective of 
the Act. The ESA is not some powerful, miracle law, and it is also not 
some kind of economic catastrophe, or even a hindrance. Instead, it is 
a singular statute that attempts to accomplish something humanity has 
not tried before through statutory means: the saving of other species 
for their own good, regardless of whether those creatures have any 
significance to humanity or not. As such a unique statute, the ESA 
attempts noble things; however, although the Act sometimes succeeds, it 
routinely fails in its mission to bring species back from the brink of 
extinction. In its mission as an emergency room, as a last ditch 
attempt to prevent extinction, though, the ESA is arguably somewhat 
successful, because although it has not recovered many species, it has 
temporarily prevented most of the listed species from continuing to 
slip into the abyss of extinction. For the person who has to deal with 
a situation involving an endangered species, it is important to keep 
the ESA in correct perspective and understand how it really works in 
order to avoid the exaggerations and self-interested propaganda that 
can beset an ESA case. Working examples of protecting wildlife under 
the ESA, and other federal laws, exist in the Southeast.
    Basically, the ESA operates blind; there is little effort to see 
the interaction of various species and to plan for their needs 
together. As a last resort, the ESA has had, and can have, only limited 
success. The current state of the law in protecting rare species does 
too little too slowly, even if the Act and the agencies under it were 
fully funded. Yet the ESA is still the most important of the few laws 
we have that emphasize the value of something on this Earth in terms 
other than its benefit to humans. Further, the ESA is unpredictable and 
erratic in giving businesses an idea of how to operate. These reasons 
emphasize the need to make the ESA more efficient. The Act could use 
strong devices for protecting ecosystems and habitats instead of just 
protecting species one at a time. If our law provided, for example, 
that a certain number of Pacific Northwest old-growth forest ecosystems 
be preserved in their entirety, there would be no need to go through 
the motions of individually listing and protecting species such as the 
Northern Spotted Owl and the Marbled Murrelet. Protecting the whole 
protects all of its parts, and such an approach would be more effective 
at preserving species and more efficient in handling land management 
problems and in alerting business as to where and how development 
projects could be undertaken.
    The dismay that the survival of one species among all the countless 
millions of species in the world could stop a major project is fairly 
common, but it oversimplifies and minimizes the real idea behind the 
ESA. The point is not to save one species but to save all species, to 
protect the entire biodiversity of the Earth upon which all life, 
including humanity, depends. To developers it seems a small thing to 
sacrifice one species to their project and their economic interests, 
but the value of any species is beyond humanity's ability to measure, 
and what is in danger is not just one species, but the entire ecosystem 
of which that species is a part. Because of the emphasis placed on 
saving one species at a time, the operation of the ESA has fueled this 
erroneous viewpoint to some degree. Again, a change to an ecosystem/
habitat approach would put the goals of the Act in a better perspective 
and allow for the protection of all components of an ecosystem at one 
time. Furthermore, economic survival depends upon the survival of 
healthy ecosystems. Since our entire economy is built upon the 
environment of the Earth, the loss of biodiversity cannot continue for 
long before a degrading environment leads to degradation of our economy 
and our own health as a species.
    If this were about health care, it is true that the ESA emergency 
rooms do not work nearly as well as they should, but that is no reason 
to get rid of those emergency rooms or to make them even less 
effective. The current crisis points out the need to design, build, 
fund and operate effectively an ENTIRE health care system so that the 
need for emergency rooms is reduced and ill health is reduced.
    Instead of continuing the interminable traffic jam of litigation 
over the ESA, people who work with the ESA need to focus on more 
proactive solutions to conflicts under the Act. We can remain 
entrenched in a warfare of wills between environmentalists who demand 
full implementation of the ESA, faults and shortcomings included, and 
business interests and an Administration committed to doing whatever it 
takes to maximize profits. Or we can try something else.
    An excellent example of how the current ESA can work to assist 
development instead of hinder it comes from central Alabama. Developers 
want to build up the Exit 38 area on Interstate 85 in east-central 
Alabama, but they do not want to make it a typical exit development; 
they want a forward-thinking model of quality development that enhances 
(and is a gateway to) the unique historic heritage of the area 
(Tuskegee). In the very middle of the planned development is a stream 
that is designated critical habitat for three listed endangered 
species. In a normal situation, that could kill, or at least cripple, 
the plans for development. Instead, WildLaw showed them how this was a 
great and unique opportunity for a development that would HELP 
endangered species. The species, all mussels, are currently being 
hammered by illegal use of off-road vehicles (ORV) riding in the 
stream. Developing the area will close off access to the stream by ORV 
users. If the development is also well done in how it handles basic 
environmental issues (such as sediment, chemical runoff, etc.), as they 
already plan to do, enclosing the critical habitat in a greenway at the 
center of the development would IMPROVE the lot of these species, thus 
making the development a national model and a prime candidate for 
federal funding from politicians who want to see positive ESA solutions 
instead of the usual train wrecks, such as Alabama Senator Richard 
Shelby. Everyone involved in the development LOVED this message and now 
highlights the ESA issue as part of what they are doing instead of 
fighting it.
    WildLaw could have chosen to litigate over the species and critical 
habitat at Exit 38. Instead, we chose to try to work with the 
developers involved. Because the developers were also open to working 
with us, a solution was found that not only makes things better for the 
species but also better for the developers' bottom line.
    Now, development work throughout that area does not get past the 
initial planning without environmentalists being brought in and 
listened to. The paradigm of conflict and distrust is giving way to an 
era of trust and cooperation. Development and sprawl WILL happen; no 
willful and unrealistic wishing will stop it, and no stretching of 
existing law can stop it. The best we can do is guide sprawl and 
development away from the best remnants of habitat and toward better 
ways of impacting the environment. Any claims to the contrary are 
fantasy.
    Swift and favorable resolution of potential ESA conflicts begins 
with early recognition of their possibility. Development projects and 
other economic activities often give early consideration to possible 
problems with zoning, geology, labor, architectural requirements, 
materials availability and costs, transportation availability, real 
estate costs, water, sewer and electrical infrastructure, and many 
other possible factors and events that may impact a project. With 
increasing environmental problems and public awareness of those 
problems, many business activities now regularly screen for potential 
hazardous waste problems, toxic contamination difficulties, ground 
water impacts, surface water pollution concerns, public perception 
issues, and a host of other possible environmental impacts. With the 
increasing sprawl development of wildlife habitat and the rapidly 
increasing rate of species extinction, both in the United States and 
worldwide, consideration of potential ESA conflicts early in the stages 
of a planned project is not only prudent business policy but also good 
public relations material. Redesigning the ESA to encourage more such 
wise and early planning of development with the impacts to wildlife and 
biodiversity in mind would be helpful.
    But it is absolutely amazing how many development interests NEVER 
give consideration to these matters. If business interests would be 
willing to see environmentalists not as natural enemies, they could 
learn from and profit from the expertise and knowledge of those who 
work to protect rare species. If environmentalists would be willing to 
see themselves as something more than just litigators and ``warriors'' 
for a dying cause, they might be useful.
    Many ESA problems occur long after a project has begun and 
progressed some way towards completion. Architectural, building 
supplies, and construction labor contracts are worked on and considered 
long prior to work starting on the ground, but often, possible wildlife 
issues are never considered. One would never begin building a 20-story 
condominium if the architect had only completed a rough sketch for the 
first floor; one needs to know all the possible architectural issues 
and engineering challenges before one begins pouring concrete. With the 
ever increasing depletion of wildlife species and their habitats and 
the increasing demand for development space, wildlife and ESA conflicts 
will grow, and the smart business will prepare for them as they would 
any other reasonably foreseeable event.
    Mainly, one's chances of having an ESA problem are still very slim. 
The overwhelmingly vast majority of projects simply never have a 
potential ESA problem, and the vast majority that have a potential 
problem are shown not to harm the species in question and are not 
hindered. The rarity of actual ESA conflicts with developments show 
that the Act does not cause any major problems to the economy; however, 
the prudent business person can take a few simple steps to virtually 
insure that a conflict will not arise and derail a specific project. As 
these conflicts increase in the future, such prudence will reward those 
who know the workings of the ESA and are prepared for such problems. 
Making the ESA more proactive would also help head off and solve more 
of these problems as they grow in the future.
    One major weakness of the ESA that both proponents and critics 
agree on is that the Act's focus on individual species causes it to be 
less effective and to give business interests less warning of possible 
conflicts. Focusing on individual species is an emergency room approach 
that tries to save a species only after it is already on the brink of 
extinction. An emphasis on habitat and an ecosystem-wide approach to 
preserving biodiversity could lead to a more efficient ESA. America 
would be stupid to base our entire human health care system on 
emergency rooms alone, but we do that for our wildlife health care 
system. Identifying ecosystems that need preservation will enable 
preservation of all the species in those environments before they each 
reach the edge of extinction. Further, a habitat approach will give 
more consistent warning to business of where development projects can, 
and cannot occur. Knowing the habitats that are protected will give 
development interests more continuity, simplicity and predictability.
    Still, the ESA in its current form can work much better that it 
often does; the problem is not in the law but in the attitudes and 
actions of people. Several general points on handling an ESA problem 
under the current law are: (1) full cooperation in the consultation 
process will normally speed up and facilitate a favorable result. (2) 
The hiring of ``experts'' to say what one wants them to say rather than 
speaking the truth and dealing with it does not help. Hire only the 
best and have them work with the Service rather than taking an 
adversarial approach. (3) Taking an adversarial stance with the Service 
increases negative media exposure of the project and increases the 
chances that environmental organizations will become involved. 
Environmental groups tend to look favorably upon the Fish and Wildlife 
Service, particularly the Service's field personnel who do the real 
work of wildlife conservation, and are naturally suspicious of any 
development that will have an impact on a rare species. The lack of 
full disclosure and cooperation makes the environmentalists believe 
that the project is harmful, even if it is not. If a project is not 
harmful to a species, cooperation, not confrontation, will prove that 
point and allow things to proceed. If the project turns out to be 
harmful in some unexpected way, then cooperation again allows for a 
speedier and better result by showing the developer's sincerity and 
willingness to adapt to the needs of the listed species.
    Consider the habitat conservation plan (HCP) submitted by 
International Paper (IP) on the Red Hills Salamander. The Red Hills 
Salamander lives only in a specific hillside habitat of the Red Hills 
of southern Alabama; it is such a unique species that it is the only 
member of its genus. Most of the salamander's habitat is owned by a 
number of large timber companies. The first company to request a ' 10 
permit and to submit a HCP on the salamander was IP. Instead of hiring 
a biologist who would just say what the company wanted him to say, the 
company opted for hiring a member of the Alabama Natural Heritage 
Program who was widely respected both by Fish and Wildlife Service 
personnel and by environmental groups. Instead of hiring the best 
``biostitute'' they could find, IP hired the undisputedly best field 
biologist in all of Alabama. Wanting to know the truth rather than 
wanting just to hear what seemed least expensive for the company, IP 
allowed this biologist full access to its property and its records on 
the salamander and its timber practices. The result was a report that 
no one questioned as to its accuracy and completeness. Basing its HCP 
on that report and adopting most of the biologist's suggestions, IP 
came up with a good plan. The Fish and Wildlife Service was pleased 
with the HCP, and the world's top expert on the salamander, while not 
as pleased, found it acceptable. Environmental groups who were watching 
the salamander and IP's actions found the plan acceptable, and IP got 
its permit without a contest. IP's open and cooperative attitude along 
with full opportunity for the environmental community to participate 
produced a swift and favorable result for the company and an improved 
situation for the salamander. Because no one was actively surveying and 
managing their timber lands for the salamander, IP's HCP would set a 
standard for the other companies when they requested their ' 10 
permits. Thus, before IP's HCP, the salamander's condition and future 
were uncertain; after IP's HCP, the state of the species was better 
known, its habitat was better protected, and IP was shielded from 
potential ' 9 liability, all without any difficult media or court 
confrontation.
    In an opinion piece in The Wall Street Journal, Mark Suwyn, the 
executive vice president of IP's forestry and specialty products 
division, stated that IP took great satisfaction in developing the Red 
Hills Salamander HCP. Suwyn, ``We Saved the Salamander--But It Wasn't 
Easy,'' The Wall Street Journal (November 29, 1993). However, he noted 
that the success of IP's HCP was due to the company's great financial 
assets, and he surmised that small land owners might not be able 
financially to go through the HCP process, thus leaving themselves 
exposed to possible Sec. 9 liability if they proceed or economic loss 
if they do not. The Service has found successful ways to ``group'' 
small landowners into one HCP process, such as the red-cockaded 
woodpecker HCPs for entire states such as Georgia, which then 
eliminates the vast bulk of expense and difficulty for smaller 
landowners. While such groupings will not work for every species, they 
do work for wide-ranging species that have well-known habitat needs. 
Information on the success of that approach for the RCW can be found at 
``Georgia's red-cockaded woodpecker Safe Harbor and Habitat 
Conservation Plan,'' http://www.ncedr.org/casestudies/hcp/georgia.htm.
    In all honesty, it must be stated that for every successful HCP I 
have seen, I have seen at least twice as many that failed utterly to do 
anything to protect or enhance the welfare of wildlife. The HCP process 
CAN be used successfully, but it has also more often been abused.
    Although there are a few small fringe groups that do take 
contrarian positions as a rule, no matter what, the vast majority of 
major national and state environmental groups are not opposed to 
development. Any claims to the contrary are issued by those without any 
knowledge of how environmental organizations work or by outright liars. 
Most active environmentalists do not oppose development that is well-
planned and that provides economic growth. Further, most environmental 
groups take reasonable stands on development issues, and if they can be 
shown that a project will not have significant adverse environmental 
impacts, most will not oppose it. Knowing this, the developer who 
confronts a potential ESA conflict should engage in active cooperation 
with the environmental community rather than in reactive confrontation. 
Indeed, environmentalists have real and unique knowledge that can not 
only avoid a conflict but also might make the business more money in 
the long run.

Where does the ESA go from here
    The Endangered Species Act has been due for a reauthorization since 
1992, but the numerous controversies surrounding it have preventing any 
changes from being made to the Act. The ESA needs a strong 
reauthorization which focuses on recovery, not just the survival of 
listed species, and that will shift the focus more toward ecosystems 
and entire habitats instead of just a species-by-species piecemeal 
approach. Currently political realities make real improvements to the 
ESA very difficult, at best.
    Litigation under the ESA as it exists now seems destined to 
continue. WildLaw has filed a share of the cases under the ESA, 
especially in the southeast, but we have always tried to be careful and 
very strategic in deciding what cases to file and when. We have sought 
to protect either critically imperiled species or umbrella species such 
that protecting them would protect many other species and much habitat. 
A key example was our nine-year fight (consisting of three lawsuits) to 
get protection for the Alabama sturgeon. Protecting the Alabama 
sturgeon protects the entire Alabama River from unnecessary water 
withdrawals. What water withdrawals are we talking about? Atlanta's 
plan to withdraw up to 90% of the water in the two main tributaries of 
the Alabama, the Coosa and Tallapoosa Rivers; the usage of water from 
the rivers by Alabama and its industries does not harm the fish. The 
Coosa River has already experienced the largest mass extinction 
documented in American history, the loss of more than 60 aquatic snails 
and mussel species due to the construction of the string of dams on it 
by Alabama Power in the early 1900s. Far from being a burden on 
economic development in Alabama, the Alabama sturgeon is literally the 
state's last hope for legally limiting the endless sprawl of Atlanta 
that, if fully realized, would mean the destruction of Alabama's 
economy. Try running and growing a state's economy on 10% of the water 
that the state used to have.
    Other litigation, however, does seem more of an exercise in ability 
than in reality. The ESA does have set timelines for making decisions, 
and a case over a failure to meet those guidelines is generally an easy 
case to win for an environmental group. Many lawsuits under the ESA do 
appear to be nothing more than grabs at ``low hanging fruit,'' without 
much, if any, consideration of the strategic and even biological values 
to be won. Has too much litigation been filed under the ESA? 
Absolutely, BUT that litigation is NOT the problem; it is a symptom of 
the problem.
    The problem is that we, as a society, have not decided yet whether 
we care enough about God's other creatures, and even about our own 
species' long-term environmental and economic health, to address fully 
what has to be done to protect biodiversity in the United States and 
the world.
    But what can be done right now with the ESA? Due to too much 
litigation and the constant refusal of the Administration and Congress 
to give the Fish and Wildlife Service the funding it really needs to do 
its ESA adequately, the Fish and Wildlife Service is caught in a vice 
grip. This impasse can be broken one of several ways: (1) Congress can 
adequately fund the work under the ESA (that will most likely never 
happen, especially since the agency never asks for anything within two 
orders of magnitude of full funding), (2) environmentalists and 
business interests can find ways to try real solutions to species 
problems so as to avoid ESA showdowns (some of this does occur, as seen 
above, but not nearly enough), (3) Congress can fundamentally change 
the ESA so as to eliminate these legal problems (but that would 
increase the ecological problems for rare species), or (4) Congress can 
bring ALL the stakeholders together to find ways to truly improve the 
ESA to make it better at protecting biodiversity while not harming 
economic interests.
    Option 3 seems popular on Capitol Hill right now, but ``reforms'' 
that are really just quickie political tricks to thwart legal problems 
will not make the real problems go away. Option 4 is the only one with 
a chance of actually doing something positive, both for imperiled 
species and for the long-term health of the human economy. Here are 
some of my random ideas for starting option 4:
    In February 2003, the U.S. Forest Service brought together 
approximately 100 interested people to discuss options for protecting 
biological diversity on the National Forests under the new National 
Forest Management Act regulations. I was one of the participants in 
that workshop and the only environmentalist/conservationist who gave a 
presentation at it. While the agency ultimately ignored everything this 
group suggested, the people and the balance of types of people (agency, 
industry, scientists, enviros, etc.) at that workshop was excellent. No 
party of interest could claim not to be adequately represented there. 
Given a few more days and a real mandate to find common ground 
solutions to problems on the National Forests, I guarantee that that 
group would have found at least a handful of common sense solutions 98% 
of everyone would have agreed with. The agency could have then moved 
forward on those consensus items and left more contentious issues aside 
for the time being, thus accomplishing much needed work in the public 
forests and reducing litigation significantly. The Forest Service chose 
to go another route and now remains mired in litigation, most of which 
it loses.
    Before Congress goes about changing the ESA in ways that people 
``think'' will improve it, why not pull together the best minds and all 
the interested parties and task them with finding solutions, with 
finding changes that make sense for us to agree to try? Changing the 
law just to change it in response to litigation will result in one 
thing, more litigation to find new ways to use the law in litigation. 
As long as the Endangered Species Act exists, a conservative judge 
somewhere (and I mean a real conservative) will require the agencies to 
do something. Once they have to do something, people will litigate over 
that something endlessly, so long as the underlying conflicts exist. 
You cannot give agencies unbridled discretion in an attempt to make 
them untouchable in court. Unbridled discretion is totally anathema to 
the conservative ideal of limited government. Thus, a true conservative 
judge, not a ``liberal'' one, will be the one who will resurrect the 
litigation wars over the ESA if all you do is amend the Act in an 
attempt to limit litigation. I have practiced in front of more than 100 
judges, and the ones who do the most to enforce the ESA the strongest 
are ALL Reagan and Bush I appointees.
    If and when such a brain trust on the ESA is convened, my humble 
suggestions for ideas to consider follow: It seems to me that the two 
driving forces need to be: (1) what will work better to improve the 
survival chances for rare species (the current system has hit a wall 
trying to be an emergency room and nothing else), and (2) how can (1) 
be accomplished in ways that give incentives to private landowners and 
interests to assist in species conservation and that do not penalize 
people for using their land in otherwise legal ways.
    As a private forest landowner myself, I feel that, on the private 
lands side of the ESA, all punitive measures need to be removed, except 
for direct, willful killing of a listed species (such as shooting a 
bald eagle). Indirect takings of listed species need to be made 
noncriminal and non-illegal civilly, but tied to some tracking/study 
mechanism so we can learn just how much damage those things (like 
development, timber harvest, etc.) really do or do not adversely impact 
species. We could set up a system whereby if landowners, developers, 
etc., agree to report all the impacts from indirect take (such as the 
bald eagle leaves its nest due to the construction of condos next to 
the next tree), their activities are permitted and they have full 
immunity from all such takes and harm. The agencies' budgets and 
abilities for doing such monitoring would have to be enhanced. 
Underfunding these agencies is a key reason for the problems 
(especially the litigation) we face now.
    Thus, permitting would not be the convoluted mess it is now trying 
to modify development plans to minimize impacts, but a swifter process 
that notifies the federal agencies and then sets up monitoring by those 
agencies for scientific purposes; once monitoring plans met 
requirements set in the Act or by regulations, the permit would be 
automatic. All this would be tied to an incentives program (such as tax 
credits, assistance programs, conservation easements and their tax 
breaks, etc.) that would reward private landowners and developers for 
doing more than the minimal monitoring program, such as setting aside 
areas for the species, changing plans to minimize impacts, etc. Direct 
takings, such as shooting or trafficking in listed species, would be 
much more aggressively funded, pursued and prosecuted.
    To make up for lessening species protections on private lands, 
protections of species on public lands would need to be increased by 
beginning ecosystem monitoring and restoration/conservation programs 
that would look to harmonize management with doing minimal harm to 
species and preventing more species from needing listing. Basically, we 
need to move away from the emergency room only approach of the current 
law and build a health care system for critters (although the emergency 
room would still have to be there to some lesser extent). This would be 
tied to a larger and more targeted land acquisition/conservation 
easement program to gain key lands and ecosystems into public 
protection from willing sellers.
    Efforts to restore degraded public lands would fit in well with 
increased ESA protections for species there. A national model of 
success on protecting wildlife on public lands can be found in the 
National Forests of Alabama. In 1992, the National Forests in Alabama 
were the WORST of the forests in the whole Forest Service system; they 
violated every federal law as often as they could in order to ``get the 
cut out.'' Yes, it did take a series of lawsuits, appeals and other 
legal actions to finally shut down all illegal logging in the National 
Forests in Alabama in 1999. Since then, however, the leadership of the 
Forests and much of the staff changed. Instead of continuing the fights 
over bad management, they decided to meet with us and see if we could 
find agreement on solutions for good management.
    Now, all the National Forests in Alabama are implementing 
scientifically-valid restoration programs, all of which were prepared 
under (and in full compliance with) the 1982 NFMA regulations and the 
ESA. These restoration programs are immensely successful. Being the 
first to do this new type of restoration work, the Conecuh National 
Forest prepared a full Environmental Impact Statement (EIS) on what 
restoration is needed for that forest's unique Longleaf Pine/Wiregrass 
ecosystem (the rarest forest type in North America) and on what work 
could be done in five years to correct past mismanagement and restore 
the natural and healthy forest native there. That restoration plan was 
not challenged legally in any way and succeeded, and it has won 
national awards. National Forests in Louisiana, Florida and parts of 
Mississippi are also doing great work at Longleaf Pine restoration, all 
in compliance with NFMA and the ESA. Survey data on threatened, 
endangered and sensitive species is being collected and analyzed. 
Public participation is open and good. NEPA analysis for most of these 
projects is exemplary and does not slow down the agency at all. Indeed, 
these forests have found that doing NEPA analysis right, instead of 
trying to shortcut NEPA, makes their final decisions better and more 
successful. The same could work for the ESA.
    I personally do not oppose revising the scientific standards 
portion of the ESA, SO LONG AS the scientific standards that are 
adopted are indeed SCIENTIFIC, and not political in design. Why not 
convene a blue-ribbon panel of scientists from many perspectives and 
with credentials that no one from any side could attack and have them 
develop standards for listing, delisting, critical habitat, recovery 
plan designs, etc.? As for critical habitat, I would make its 
protections stronger on public lands and, for private lands, make it 
advisory, so that it guides conservation efforts (like land 
acquisitions, conservation easements, local planning, incentive 
programs) but has no actual limiting impact on private landowners. 
Indeed, if the incentives package is designed well enough, having land 
designated critical habitat would actually be an economic boost to a 
landowner, if and only if, they decided to make advantage of it. If 
they wanted to pave the critical habitat over anyway despite the 
incentives to do something better, they could do so freely.
    And further, because every species is a unique and special creation 
of the God who made us all, perhaps we should not be so cavalier about 
those that have passed into extinction at our hands. We should not 
forget so easily. We should do something to remind ourselves and 
recommit ourselves to doing a better job of stewardship with what the 
Lord has given us in trust for future generations. As we have memorials 
to every war, so the brave dead and the lessons of that war are not 
forgotten, just as we have the Civil Rights Memorial in my home town of 
Montgomery, so that those who gave their lives for equality are not 
forgotten, perhaps we should erect a fitting monument to the species 
that have gone extinct during our watch. As my friend Professor Dan 
Rohlf said:
          ``Society remembers things for many reasons, not all of which 
        are pleasant. Wars, calamities, and episodes of genocide are 
        seared in society's collective memory in museums, memorials, 
        books, and other cultural expressions, in part to remember 
        victims, and in part to remind society of the tragedy and 
        horror of these occurrences in an effort to prevent similar 
        ones in the future. However, there are few, if any, reminders 
        of extinct species. Therefore, as Cokinos points out, people 
        quickly and unfortunately become accustomed to a biotic 
        landscape that no longer has clouds of passenger pigeons 
        (Ectopistes migratorius) numbered in the millions or billions, 
        or huge ivory-billed woodpeckers, called by some the `Lord God 
        Bird,' drumming on huge trees deep in Southern swamps. Other 
        monuments have demonstrated the power of a simple list of names 
        of the fallen as a spare, yet potent, means of keeping memories 
        and knowledge alive. A list of extinct species could perhaps do 
        likewise. It may be an uncomfortable reminder of human and 
        agency failures. Yet it would almost undoubtedly serve as a 
        source for interest in species that no longer exist, and in the 
        causes of their demise. And with this interest, increased 
        resolve to protect and restore the biosphere's biological 
        heritage, and thus hope for the future of all species on the 
        threatened and endangered lists, may follow.''
Daniel J. Rohlf, ``Section 4 of the Endangered Species Act: Top Ten 
Issues for the Next Thirty Years,'' 34 Envtl. L. 483, 552-53 (2004).
    The ultimate issue comes down to: what is it we want to accomplish 
here? Do we want to find solutions to improve the environment and the 
survival of God's special creatures, and thus improve the long-term 
chances of the survival and advancement of our own society and economy? 
Or are we just going to keep playing expedient, short-term political 
games with extinction, something all sides and people involved 
(including me) are guilty of?
    I deeply appreciate this opportunity to address the Committee and 
present this testimony before it. I remain committed to working with 
the Committee's members and staff to find real solutions for making the 
ESA a better and more effective law. Representative Joe Barton has 
publicly invited environmental groups ``to come out of the trenches'' 
and meet y'all halfway. If that invitation is truly sincere, as I 
believe it is, I am here to do that.
    Thank you,
                                 ______
                                 

    Response to questions submitted for the record by Ray Vaughan, 
     Executive Director, WildLaw, 8116 Old Federal Road, Suite C, 
Montgomery, AL 36117; 334-396-4729; 334-396-9076 (fax); www.wildlaw.org

                  Question submitted by Chairman Pombo

1. You expressed a willingness to explore ways to improve the science 
        used in ESA determinations. One of the issues with regard to 
        the adequacy of scientific data is that the science, used 
        whether it pertains to a not likely to adversely affect 
        determination or a determination to list a species, although 
        perhaps the ``best'' available science, may be extremely 
        limited. Can you suggest terms that define some minimum 
        threshold of data that could be required for making 
        determinations that would reduce the incidences of future data 
        revealing that determinations, as a result of incomplete data, 
        were incorrect, diverting scarce conservation dollars and 
        increasing conflict?

RESPONSE:
    It seems that you are considering only a part of the interaction of 
science, law, and policy as these disciplines come together in 
implementing the ESA. Accordingly, when one looks at only part of a 
problem, the sorts of solutions that one might design to deal with it 
may not work very well, and could even backfire. I am the last person 
to suggest that the ESA does a very good job of properly integrating 
law, policy, and science, but it does better than most other 
environmental laws. However--and this is an important however--I think 
that trying to set legal standards for science in a vacuum, i.e., 
without systematically considering the respective roles of science and 
policy in constructing a biodiversity protection regime, simply does 
not and cannot work. That's the main problem I have with last year's 
bills that sought to set scientific standards for listing and other 
determinations under the Act. Given the way the Act currently works, 
those bills are simply ways to make it harder to list species or 
protect them under section 7, with a ``good science'' label but without 
any real basis in science and without any real decision on what we want 
the public policy of the ESA to be.
    Courts have interpreted the ESA's ``best science'' mandate to 
simply require that the agencies consider all available scientific 
information that is relevant to the determination at hand. Courts have 
generally not required the agencies to give certain types of info more 
weight than others as a matter of law, but instead have allowed the 
agencies to use their expertise in deciding how much credence to give 
all the various bits of info. Unless Congress wishes to pursue policies 
that are different from those currently expressed under the ESA--or 
unless Congress is willing to undertake a much more comprehensive 
effort to better integrate science, law, and policy under the current 
version of the law--I think the existing science standard is still the 
best one possible.
    The question implies that it is somehow bad to make decisions in 
the face of incomplete data, when in fact, given our limited knowledge 
about other species, we are virtually ALWAYS going to be making 
decisions under the ESA with incomplete information. Indeed, we do that 
in every area of life; if one had to have complete, peer-reviewed data 
upon which to base stock market decisions, the economy would collapse 
instantly; no one would ever buy any stocks. Since scientific 
uncertainty is going to be a given, the question is what to do at that 
point. The ESA's current answer--i.e., use all available information to 
make the best decision given what we know--seems to me to be a sound 
approach. The alternatives lead to policy choices that are arguably 
less than optimal. If we say that we should act cautiously whenever 
there is uncertainty, one could make an argument that we'd have to 
protect most species most of the time, thus incurring social costs that 
many people will likely be unwilling to bear. On the other hand, when 
one starts imposing requirements for information greater than the 
current ``best science available'' standard, the burden of uncertainty 
works against species conservation.
    For example, one could require that any restrictions on human 
actions be justified by peer-reviewed studies in order to cut down on 
instances of unduly restricting human actions. However, this sort of 
policy could justify allowing people to cut down all the trees near the 
area in which the ivory-billed woodpecker was spotted since there are 
NO modern peer-reviewed articles discussing the habitat requirements of 
these birds. In other words, I think that imposing a higher data 
standard on listing and similar decisions (at least standing alone) is 
essentially just a policy choice to make it more difficult to protect 
species.
    There is an obvious solution to the ``problem'' that more data in 
the future means that we may realize that some decisions we made in the 
past were wrong: change the past decisions based on the new 
information. Perhaps delisting due to new information showing that the 
original listing was not needed could be put on a faster track than 
delisting due to recovery. Yes, that might mean that in some instances 
we will protect species that did not need that degree of protection or 
did not need protection at all. But one must also realize that it works 
the other way as well; there are many instances (in fact, I think there 
are actually more instances) when we use the best info available to 
decide NOT to protect certain species, or give listed species certain 
limited protections, and we later learn that we should have provided 
more protections. Our recent case over the Florida Scrub Jay proved 
this; it was listed as threatened and only certain actions were taken 
to protect it, and then the population collapsed and fell by half. It 
should have initially been listed as endangered and given more work on 
its protection and recovery.
    In other words, the ESA at present incorporates a sort of adaptive 
management approach--do the best we can with the info we now have, and 
change if we get better info that suggests a different course. That 
seems sensible to me.
    Nonetheless, I think that things can be done to make the 
utilization of the ``best science available'' standard work better and 
lead to less conflict. Keep the standard just as it is, but add a layer 
of administrative appeals to ESA work (like we have with the Bureau of 
Land Management, Forest Service, EPA, etc., but designed better to fit 
the ESA context and needs) and provide for the administrative appeals 
process to include a peer-review panel (only if quality of science is 
an issue on the appeal) to review whether the agency did use the best 
available science. The job of the panel would not be to reinterpret the 
data but merely to see if the agency had it and considered it 
reasonably and not arbitrarily, deferring to the agency on 
interpretation.
    The panel would determine only IF the agency had and looked at the 
best available science; it would not second-guess the conclusions from 
that agency review. The only power of the panel would be to say whether 
or not the agency missed anything, thus solving, at least for that 
moment in time, the issue of whether the data was incomplete. All the 
legal conflicts I have seen over listing have not been about ``the 
agency used all the available data but the data turned out to be 
wrong'' (that has been used later as an reason for delisting), but the 
actual conflicts over listing, AT THE TIME OF LISTING, are almost 
always over the agency ignoring or refusing to look at some data or 
research. It is usually either environmentalists or industry folks 
claiming the agency ignored something favorable to them. The panel 
review during appeal would say whether or not the info at issue was 
available science that was ignored or not. If yes, the decision would 
be reversed and the agency tries again. If not, then the agency's 
decision based on the info is deferred to. And having such a panel 
would make a judge's job later easier, as he would not have to 
determine if something proffered by one side was or was not science the 
agency should have reviewed, as he could defer to the panel saying that 
the best available data was reviewed.
    Thus, the issue would be the same thing judges decide now but it 
would be in the quicker, cheaper, less confrontational administrative 
appeal/mediation process first. Also, instead of a judge deciding the 
``best available science'' was used, when few, if any judges, have a 
science background, you would have actual scientists making that review 
decision. That decision would then be due even greater deference by any 
courts that later might review the issue than the deference the agency 
gets now.
    I think a well-designed appeals process (not a full trial de novo 
like some agencies have but also not a nearly meaningless perfunctory 
review, like the Forest Service has) would go a long way toward 
resolving many of the issues over the ESA right now.
    Also, another thing I think worth suggesting is, just like I think 
we should have a big committee of all interests to work on solutions 
and changes before a bill is drafted, perhaps we should also have a 
balanced committee of scientists to ponder this question and find some 
possible improvements.

                  Questions submitted by Senator Crapo

2. You state that in February 2003, the U.S. Forest Service brought 
        together approximately 100 interested people to discuss options 
        for protecting biological diversity on the National Forests 
        under the new National Forest Management Act regulations. Did 
        you find in that experience (and in other experiences) that 
        federal agencies are able to promote collaborative solutions 
        through such large group exercises?

RESPONSE:
    The February 2003 viability conference COULD have been a major step 
forward in resolving issues over the management of the National 
Forests. Yes, the agency did a great job of bringing the group 
together, but then the agency hamstrung the mission of the group by 
artificially limiting the work to two options no one (in industry or 
environmentalists) really supported. Then, when the group spontaneously 
broke out of the mold the agency had put it in and starting working on 
finding common ground solutions, the Forest Service cut off that 
process and ignored any work done.
    I have been in other, smaller (but longer) collaborative processes 
run by agencies that worked very well, such as the multi-year 
development of valid restoration programs in all the National Forests 
in Alabama. That worked due to the commitment of the agency people 
involved to ensure full public participation and open discussion of 
ideas. No top agency people led on that, but the local staff were given 
free rein to lead and they did.
    On a forest-specific scale, the Conecuh National Forest has run a 
collaborative monitoring process of its Longleaf Pine restoration work 
for about five years now, bringing together environmentalists like me 
with industry people and state wildlife personnel. That has worked 
well.
    So, I think agencies ARE capable of promoting and managing 
collaborative processes that can lead to collaborative solutions 
through large group exercises. The issue is really whether they WILL do 
so. Thus, leadership must come from somewhere. I don't think many top 
agency people in any agency will exercise such leadership. If Congress 
explicitly provided that leadership, I think we can do something 
positive with the agencies. I think the agencies can manage and 
maintain a fire, but they will not provide the spark to start that 
fire; Congress needs to do that.

3. What roles for state wildlife agencies do you see as helpful in a 
        comprehensive wildlife conservation policy?

RESPONSE:
    State wildlife agencies are vital to any successful wildlife 
conservation policy, but so many of their staff are trained in game 
species with few experienced in dealing with the issues involving rare 
species. Still, even state wildlife people who know little about rare 
species understand the basic premise and need for protecting habitat 
and how protecting the whole usually protects the parts, and they 
should be able to integrate habitat and rare species protection 
information and work into their existing programs with little problem, 
provided they are given the resources to do that. Given additional 
resources to broaden their abilities to deal with rare species 
management, state agencies would be vital and key focal points for 
implementing incentive programs for protection of rare species and 
habitat on private lands.
    Currently, the U.S. Fish and Wildlife Service does not have much 
``local'' presence with private landowners while the state agencies do 
but that presence is mostly limited to game species management. Finding 
ways to better combine the expertise of federal staff with the contacts 
and local knowledge of state agency staff would be critical to making 
incentive programs work on private lands.

4. All of the panelists spoke of contributing time and money to species 
        conservation--some more willingly than others. If we could 
        guarantee that your investment gave you a seat at the table to 
        take part in hiring scientists, planning recovery, and taking 
        action on the ground--would you be better off?

RESPONSE:
    It is always tricky when talking about ``investment'' giving one 
person or entity greater access and say on an issue of public concern 
paid for with public dollars. Still, many problems (and then 
litigation) have arisen from situations where one side or the other did 
not feel that the process the agency used was fair and open to all who 
were interested. When industry people have direct access to the 
Secretary of Interior (getting to meet with the Secretary several 
times) during a listing process and environmentalists like me do not 
get even the chance to talk to the Secretary even on the phone (as 
happened with the Alabama sturgeon listing process), obviously 
something is wrong. When the agency listens to certain scientists but 
ignores others, something else is wrong.
    Certainly, everyone would be better off with a CLEAR and SET 
procedure for how the agencies handle listing decisions and how public 
participation works in that process. This would not really require a 
change in the Act, but clear agency regulations on how this works would 
help. If the agency won't do that, then the only change required in the 
ESA itself would be for Congress to mandate the adoption of such 
regulations and what they must include. The FWS does not have such 
detailed rules while some other agencies do. When the Forest Service 
proposes a timber sale, I know exactly what the process is they will go 
through and when and how I can become involved as a member of the 
public. And Congress had to direct the Forest Service to adopt such 
rules.
    At the most basic level, only those people interested and affected 
by an ESA issue get involved in the processes under the Act; thus, they 
have already demonstrated ``investment'' of time and often money. A 
better and clearly defined process for how listing petitions are 
handled and how decisions are made would make everyone better off. 
Again, a well-designed administrative appeals process for listing 
decisions would also provide a needed check on any abuses in this area, 
thus heading off much of the current litigation.
    As for allowing those people or entities interested in species 
conservation to actually take part in more agency-specific actions, 
such as hiring scientists, planning recovery and taking other on-the-
ground actions, diverse and cooperative participation in such work is 
usually helpful, in my experience. The agencies can make cooperative 
agreements now with states and other partners, but this has not been 
used much, in my experience. While able to do such things now, the 
agencies have no directive from Congress to mandate, or at least 
encourage, such partnerships. I have seen recovery plans developed with 
multi-party participation, including on developing science needed for 
the plan. A mandate from Congress that the agencies adopt and try such 
a cooperative and open public process in the development of recovery 
plans and actions might make sense. Then those who are interested would 
invest time, and if they could, money, and get to participate. If 
someone did not choose to participate, then they would waive their 
ability to participate or complain about the results. If one 
participated but still did not like the results, their options to 
appeal the plan or challenge actions under it would still be available 
to them, but such an open process should improve recovery plans such 
that litigation over actions under them would have less viability than 
it does now. If no one showed up, then the agency could go ahead and do 
the plan themselves.
    Thank you for the opportunity to answer your questions further, and 
I remain ready and available to you and your staffs to work on the ESA. 
Feel free to call on me or write me any time.
    Thank you,
                                 ______
                                 
    The Chairman. Thank you. Mr. Davidson.

        STATEMENT OF PAUL DAVIDSON, EXECUTIVE DIRECTOR, 
               BLACK BEAR CONSERVATION COMMITTEE

    Mr. Davidson. Thank you for the opportunity to be here 
today, Congressman, Senator. I had planned on giving an 
eloquent presentation but couldn't get the technical aspects of 
it ironed out. I figured out about 15 years ago people would 
rather look at pretty pictures than me. But we're going to have 
to endure, deal with me today, I'm afraid.
    I am Paul Davidson. I'm Executive Director of the Black 
Bear Conservation Committee which is a diverse coalition of 
interests. We've been working together for the last 15 years to 
recover the threatened Louisiana black bear. The membership of 
the Black Bear Conservation Committee represents as diverse 
constituents as I guess you possibly imagine from Sierra Club, 
Audubon Wildlife Federation to the Cotton Growers Association, 
The Farm Bureau, the Louisiana Forestry Association, all the 
major timber companies in the region. And it has worked very 
well and I really appreciate Mr. Vaughan's comments about 
cooperative efforts because I think that the Black Bear 
Conservation Committee is probably one of the, certainly one of 
the best examples of what can happen and progress can be made 
when people work together.
    The proposal to list the Louisiana black bear was made in 
July of 1990 which many of you know was the height of the 
conflicting controversy with the spotted owl and there weren't 
any interest in our region that felt that, you know, try to 
bring that sort of train wreck as it's been called, into this 
region was in anybody's best interest.
    And in that way of thinking the Louisiana Forestry 
Association Wildlife and Recreation Committee hosted a 
committee meeting to address the potential implications of a 
listing and talked about bears. They brought down Dr. Michael 
Pelton from the University of Tennessee who made a statement, 
that in order to preserve bears in the southeast would require 
a very coordinated and cooperative approach from the interest 
to who controlled the land. The public and private entities 
that controlled the land. That concept was embraced and the 
Black Bear Conservation Committee was formed.
    We had some basic rules that we chose to go by and again 
put the resource first, leave your organizational vibes at the 
door, no confrontations regarding people--attack ideas, not 
individuals--and try to have a good time during this process. 
We felt we could keep these on the table, we made it fun, so we 
always had socials. We always took food and several cases of 
beer. So that did help create friendship among interests that 
historically are at odds and on the opposite side of the table.
    Since that time we have made tremendous progress. Our 
primary mission is to restore the Louisiana black bear in 
Louisiana, Mississippi, Southern Arkansas and a good portion of 
East Texas, using education, research and habitat management. 
The primary reason that the bear got in trouble was original 
bottomland hardwood forest in the Mississippi River Valley, 
which was 24 million acres, has been largely converted to 
agricultural lands and was less than five million acres in 
1990.
    We initiated an educational program, created brochures, 
newsletters, we wrote a management handbook for landowners 
which essentially was EMP'd from the Mississippi Forestry 
Commission that we published and distributed to landowners. The 
initial printing that was 10,000, the next one was 6,000 and we 
have 5,000 in print right now. It was a big demand for that, 
had a lot of education about bears but it talks about the fact 
that management for bears is very compatible with most of the 
land and certainly with the public sustainable management. On 
the research front, if we're going to be educated about bears, 
we've got to know what's going on about bears. And because 
we've had all the people at the table we're able to keep up 
with the research as it is done on a day-to-day basis. We all 
get weekly updates from our researches. Primary research going 
on today, population assessments using DNA. We're repatriating 
projects. The delisting criteria for the Louisiana black bear 
mandates that we have connective habitats between populations 
from Arkansas to the Gulf of Mexico, that we have this evidence 
of genetic flow between re-existing populations and then some 
protective status of those habitats.
    So, working with the official Wildlife Service, Natural 
Resources Conservation Service, the University, State agencies, 
we've delineated a habitat priority area of black bear priority 
area from Arkansas, and now incorporate a ranking where 
landowners in that region get up to 150 extra points on their 
numerical ranking with WRP projects. Such as there is actually 
incentive now for landowners having bear around is an asset, 
wanting a bear around is an asset. We have property owners 
asking to put bears around now. So we're working that aspect 
from the habitat perspective.
    We're also moving bears back in population between the 
different populations which is embraced by the landowners. 
Because of these incentives associated with WRP, we've got, 
since 1990, I guess, 365,000 acres have been reforested with 
CRP and WRP. And throughout the region, if you look at CRP, WRP 
with Parks, Fish and Wildlife and the thousands, tens of 
thousands acres that have been reforested for carbon 
infestation by utility companies, we're looking at a million 
acres in the last few years these regions have been planted 
back with trees. All from marginal and non-productive farm 
lands and high productive farm lands.
    So, I guess my major point is people when they work 
together can accomplish a lot and there's been much said about 
cooperation which I think is absolutely essential. Things said 
about incentives what with being habitat restorations in our 
region relative to these Federal programs. I think we need to 
look seriously at endangered species conservation incentive 
programs.
    How that would work, I think should be a combination of tax 
breaks, everything, every tool we have in the box should be 
investigated. I was really glad to see Dr. Greg Schildwachter 
here from Senator Crapo's staff. If I were to recommend someone 
who is competent to write and partner on the Endangered Species 
Act to help people in this country, Dr. Schildwachter would be 
one of them. I can assure you he has worked on a number of 
things over the years and I'm pleased to see that you are wise 
to have him on your staff.
    Again, incentives, incentives, incentives, I cannot 
overstate that. I would like to say how with this cooperative 
program and project that we have in the 14 or 15 years since 
the listing of the Louisiana black bear, there have been no 
permits denied, no jobs lost, no landowner has not been able to 
do anything having to do with the land, that's talking about 
oil wells, we're talking about seismic, surveys, crops, timber 
harvest. Probably the biggest thing that got us going was the 
flexibility that the United States Fish and Wildlife put in the 
Act at the listing or put in the listing which was the 4(d) 
Rule that excepted normal agricultural activities from the 
takings provisions of the Act and that was criticized by some 
but it actually opened the door and the good faith effort by 
the Service and the timber industry and faced that as such and 
the timber industry has been a very, very willing and 
enthusiastic partner since day one.
    So, again, people working together can accomplish just 
about anything, people working against each other can undermine 
just about anything.
    I appreciate the opportunity to be here today. Any other 
information in the future you'd like to get from me on black 
bear conservation, please feel free contact us, thank you.
    [The prepared statement of Mr. Davidson follows:]

          Statement of Paul L. Davidson, Executive Director, 
                   Black Bear Conservation Committee

    I would like to thank Representative Pombo and the House Committee 
on Resources for the opportunity to speak to you this morning. My name 
is Paul Davidson. I am the Executive Director of the Black Bear 
Conservation Committee (BBCC), an independent and diverse coalition of 
landowners, state and federal agencies, private conservation groups, 
forest and utility industry, agricultural interests, the academic 
community and other interested citizens working cooperatively to 
address management and restoration of the Louisiana black bear. I am 
also a landowner, the owner of EquiTerra Farm, LLC, a working farm 
growing a variety of fruits and vegetables, and raising Belgian draft 
horses, Katahdin sheep, meat goats, pastured broilers, and laying hens.
    As is usually the case when a species is proposed for listing under 
the provisions of the Endangered Species Act (ESA), quite a controversy 
was created over the proposed listing of the Louisiana black bear 
(Ursus americanus luteolus). Some thought that the listing was the 
bear's salvation. Others feared that the listing was going to place a 
heavy burden on private landowners, and still others felt listing was 
detrimental to the animal's well-being in that it could deny private 
landowners and wildlife managers the latitude, flexibility, and 
incentive necessary to manage for the bear.
    In October of 1990, the Wildlife and Recreation Committee of the 
Louisiana Forestry Association hosted a meeting to discuss black bear 
ecology, management, and the implications of the U.S. Fish and Wildlife 
Service (USFWS) listing proposal. At that meeting, Dr. Michael Pelton 
of the University of Tennessee planted the seeds for a cooperative 
approach to managing for bears in the Southeast Coastal Plain by 
stating that a viable future for bears in the region would require a 
concerted and coordinated effort by the private and public agencies 
that control the land in occupied and potential habitat. The group 
adopted this cooperative attitude and the Black Bear Conservation 
Committee (BBCC) was formed.
    Virtually all major groups in the region with an interest in bear 
management, conservation, research, or with land use in current or 
potential bear habitat, are active participants in the BBCC. The broad 
objectives of the BBCC are to stabilize and manage existing bear 
populations and to restore black bear to suitable habitat within 
Louisiana, Mississippi, east Texas, and southern Arkansas. Participants 
recognize that the best way to avoid any regulatory burden, whether 
perceived or real, is to actually restore bear populations to a point 
where the species is no longer threatened.
    Extensive habitat loss and human exploitation are blamed for the 
decline in Louisiana black bear populations throughout their historic 
range. Black bears once occupied forested habitat throughout the 
region, but probably reached greatest densities in the expansive 
bottomland hardwood (BLH) forests of the Lower Mississippi Alluvial 
Valley (LMAV). Federally subsidized agriculture programs encouraged 
large-scale conversion of flood plain forests to agriculture. 
Unfortunately, these vast tracts are often marginal or totally non-
productive as cropland. Unlike other parts of the country where there 
are considerable public land holdings, in the historic range of the 
Louisiana bear, 90% of the forested habitat is privately owned. 
Therefore, any action perceived to restrict activities on private 
properties has the potential to create adversarial positions relative 
to bear restoration efforts.
    Recognizing that restoration of bears would require restoration of 
habitat, almost entirely on private land, it was clear from the 
beginning that private landowners would have to be involved in the 
program from planning through implementation if the restoration goal 
was to be achieved. To restore a federally listed species on private 
lands would require creating a situation where the species was not 
considered a liability to the private landowner. The BBCC had to create 
a scenario where it was in the landowners best interest, both financial 
and otherwise, to manage for bears and bear habitat.
    To help achieve this goal the BBCC began by establishing five 
subcommittees: 1) Information and Education, 2) Habitat and Management, 
3) Research, 4) Conflict Management, and 5) Funding.
    As with most wildlife populations, the objectives and attitudes of 
landowners, land managers, and the general public will determine if a 
healthy bear population is considered positive or negative. The 
Information and Education Subcommittee works to promote the philosophy 
that a healthy bear population is an asset to the community and that 
with protection and responsible management, the black bear can co-exist 
with other land use objectives.
    Numerous PowerPoint presentations have been developed and are shown 
at forums throughout the region. A newsletter is published, three 
editions of a management handbook for landowners have been printed and 
distributed, along with a comprehensive restoration plan, a poster to 
help educate hunters about the protected status and associated 
penalties, and brochures to help educate the public about bears. Two 
tabletop displays are available for use in libraries, nature centers, 
weekend sportsman's shows and other events that educate the community. 
When the audience is appropriate, an effort is made to promote 
conservation incentive programs like the Wetland Reserve Program, 
Conservation Reserve Program, and Partners for Fish and Wildlife 
Program. All BBCC publications are available in the BBCC website at: 
www.bbcc.org
    The goal of this BBCC effort is to:
    1)  Prevent further habitat fragmentation or loss,
    2)  Establish forested corridors between existing forested habitat,
    3)  Coordinate management among tracts to effectively use 
resources, and
    4)  Focus efforts of a diverse user group toward common management 
objectives that benefit the bear as well as the local communities.
    For the past two years, the BBCC has received funding from the 
USFWS Private Stewardship Grants Program to plant trees and enhance 
habitat on private lands in Louisiana. In 2003, a grant for $85,200 was 
received to plant trees on 860 acres. In 2004, $65,800 was received to 
plant trees and control exotic plant species on Louisiana salt domes 
and other lands in coastal Louisiana.
    Management recommendations are based on science and the best way to 
obtain this information is through research. The Research Subcommittee 
identifies research objectives and works to coordinate them to avoid 
duplication of efforts and to keep scientists working together. The 
primary areas of interest have been: habitat assessment; ecological 
data; population data; systematics; and repatriation to suitable 
habitat.
    Groups involved in research projects are the USFWS, Louisiana 
Department of Wildlife and Fisheries, Mississippi Department of 
Wildlife and Fisheries, Arkansas Game and Fish Commission, Texas Parks 
and Wildlife Department, Louisiana State University, Mississippi State 
University, the University of Tennessee, and Virginia Tech. Various 
private and corporate landowners have been essential cooperators in all 
research projects and very little of the work would be possible without 
their support.
    In the radio-telemetry work done in Louisiana, over 300 different 
bears have been captured and tagged. The major research project 
currently being funding is the repatriation of bears to unoccupied 
habitat in east-central Louisiana. Adult female bears with newborn cubs 
are moved from their winter dens in the Tensas Basin to prepared dens 
in lower Concordia and eastern Avoyelles Parishes. The intent of this 
work is to establish a viable bear population between two existing 
populations to speed up the recovery process. From 2001 to 2005, 23 
adult females with 55 cubs have been moved to the repatriation area. 
Other research efforts focus on DNA hair snare work in the coastal 
population to determine the bear population and an effort to document 
the effectiveness of hazing nuisance bears with aggressive dogs.
    Coordination of the activities of various state and federal 
agencies relevant to the bear is also an area that has required 
attention. The Conflict Management Team has been a key element in this 
effort. The USFWS, with input from the BBCC membership, drafted a 
``Contingency Plan for Dealing with Human/Bear Conflicts in 
Louisiana.'' The plan clearly delineates those parties responsible for 
resolving problems that may arise when bears come into conflict with 
human activities. The BBCC, working with the Louisiana Department of 
Wildlife and Fisheries, established a ``Protocol for Dealing with 
Nuisance Bears.'' Since the BBCC is housed within the Louisiana agency, 
communication is efficient and effective. A very active and dedicated 
Conflict Management Team is committed to prevention and resolution of 
problem situations. Participants are the LA Department of Wildlife and 
Fisheries, USDA Wildlife Services, Louisiana State University, the 
BBCC, and USFWS.
    The USFWS has provided funding to USDA Wildlife Services for 
electric fencing materials to exclude bears from apiaries as well as 
travel and labor expenses associated with nuisance bear problems. The 
Conflict Management Team has been very successful at working with local 
communities where bears are present. Most people, once educated about 
bears, will readily accept their presence and help to protect them. 
Since most conflicts with bears are associated with something to eat, 
this usually involves something as simple as proper management of 
garbage or feeding pets in areas not accessible to bears.
    To take the management of problem bears to a higher level, the BBCC 
Executive Director and his wife, the LDWF Bear Biologist, purchased and 
trained two Blackmouth cur puppies in the spring of 2001. These dogs 
were trained to haze nuisance bears from around homes and workplaces. 
Since the development of a protocol addressing nuisance bears that 
involves the aversive conditioning with these dogs, 90% of the nuisance 
animals are not found in a nuisance situation again. The program has 
been so effective that other states and agencies are looking at 
replicating it in their states. The New Jersey Division of Wildlife has 
purchased three dogs and three others have been donated to biologists 
working for USDA Wildlife Services. A Louisiana State University 
graduate student is currently documenting the effectiveness of the dogs 
for a Masters thesis.
    Funding for the BBCC has come from member organizations in support 
of their representatives for travel and meeting expenses. The timber 
and utility industries have provided funding necessary for printing of 
newsletters, brochures, and handbooks, as well as research support. A 
grant from the USFWS partially funds the activities of the Executive 
Director. An additional grant from the National Fish and Wildlife 
Foundation provided the initial funding to establish the BBCC Landowner 
Assistance Program. That program is supported by other grants from 
foundations as well as corporate support.
    Since July 1, 1997, the Louisiana Department of Wildlife and 
Fisheries has provided an office for the BBCC as well as covering 
telephone and postage expenses. This in-kind contribution saves the 
BBCC a considerable sum in operating expenses. Various timber companies 
allow the use of their properties for BBCC Board meetings at no cost as 
well as hosting social gatherings associated with BBCC activities. The 
overall in-kind contributions to the BBCC add up to many thousands of 
dollars each year.
    Since its founding, the BBCC has had the primary objective of 
reversal of those factors that brought about the steady decline of the 
Louisiana black bear. The membership of the BBCC believes that it is 
possible to secure a place for the continued existence of the bear 
within its historic range.
    The BBCC continues to actively solicit input from all parties that 
may be affected by a larger bear population and work with them to 
resolve potential conflicts. Without the support of the general public, 
and the landowner in particular, the goals of the BBCC can never be 
achieved and the Louisiana black bear will likely remain listed under 
the ESA.
    This continued pro-active, inclusive, and cooperative effort will 
increase the probability of successful restoration of the Louisiana 
black bear and help establish a foundation for many other conservation 
projects. Developing working relationships with other conservation 
programs like the Migratory Bird Initiative in the Lower Mississippi 
Valley serve to build additional support for the BBCC effort.
    The BBCC serves as a model, a means of resolving a resource 
management issue by encouraging input from all interested stakeholders, 
from the entire community. Priorities have been to put the resource 
first, to find common ground, to build coalitions while avoiding 
conflicts, to replace emotion with credible science throughout the 
management process, and to have a strong commitment to the achievement 
of the restoration objective.
    By working together, the BBCC has had a positive impact on 
everybody involved and will, in the end, help restore a truly unique 
and magnificent component of our wildlife heritage.
    None of this could be done without the full support of the USFWS, 
state agencies, timber companies and their biologists, private 
landowners, and many concerned individuals who sincerely believe that 
we need to look at things a little differently in a constantly changing 
social and political climate.
    The BBCC has operated using what we call the Southern Rules of 
Engagement. These rules are:
    1)  Come to the table.
    2)  Leave your organizational 2 X 4 at the door.
    3)  Polarized opinion generates more heat than light and has no 
place at the resource management table.
    4)  Pick solutions, not fights.
    5)  Search for the most expansive common ground that is not 
intrusive.
    6)  Attack ideas, not individuals.
    7)  Differences of opinion can lead to enlightened decision making.
    8)  No personal attacks. One strike and you are out.
    9)  Have fun!
                                 ______
                                 

  Response to questions submitted for the record by Paul L. Davidson, 
         Executive Director, Black Bear Conservation Committee

Follow-up questions submitted by Chairman Pombo

    1.  How important was the 4(d) rule in your efforts to conserve the 
Louisiana black bear?
         a)  How would your efforts have been hampered if there were no 
        4(d) rule?
         b)  Would the threat of more restrictive regulation reduced 
        participation of private landowners?

RESPONSE:
    Without question, the 4(d) rule was extremely important in putting 
forth a ``good faith effort'' on the part of the U.S. Fish and Wildlife 
Service. The timber industry was very concerned that a listing for the 
bear would mean that they would have to secure permits for all timber 
harvesting activities, which could be costly. The rule allowed for 
``normal silvicultural activities'' to be exempt from the ``takings'' 
provisions of the Act. Flexibility is inherent in the ESA, but too 
often not utilized. The listing of the Louisiana black bear was the 
first time that section 4(d) was used for an exemption since 1973 when 
the law was passed.
    Without doubt, our efforts would have been hampered without the 
rule. Forest landowners have been essential partners in all work being 
done in Louisiana and are eager to see bears restored and delisted.
    It was actually the threat of regulation that brought all the 
diverse stakeholders to the table. Initially, many of the participants 
believed that we could show that we could get the job of restoring 
bears done without the listing. But once everybody started working 
together, it was obvious that we could actually get the job done, and 
done quite painlessly, effectively and efficiently.
    We have been successful largely because of the incentives offered 
by the Farm Bill programs that pay to plant trees on marginal and 
nonproductive farmed wetlands. The beauty of it all is that what we do 
in the name of bears has tremendous implications on other species, 
water quality, groundwater recharge, floodwater retention, and 
atmospheric carbon.
    People working together can accomplish remarkable results. People 
working against one another can bring all progress to a halt.

Follow up questions submitted by Senator Mike Crapo
    2.  All of the panelists spoke of contributing time and money to 
species conservation-some more willingly that others. If we could 
guarantee that your investment gave you a seat at the table to take 
part in hiring scientists, planning recovery, and taking action on the 
ground-would you be better off?

RESPONSE:
    I think that species in peril would benefit to a large degree if 
the stakeholders were active participants. Without that participation, 
decisions that potentially impact local communities are made by someone 
hundreds of miles away in some office cubicle. That person may have no 
first hand knowledge of the impacts of their decisions. I hate to get 
too philosophical, but when our forefathers designed this democracy, 
their vision was to have citizens involved in the decision making 
process. Unfortunately, too many Americans have gotten lazy and found 
comfort in sitting back and allowing others to make decisions for them. 
In my opinion, that is why things don't work. This is not rocket 
science, but it can be complicated, often more from the social 
perspective than the science. We would all be better off with more 
stakeholder participation in the process of addressing imperiled 
species.

    3.  Please elaborate on the point-reference system used as an 
incentive for black bear conservation under the Farm Bill.

RESPONSE:
    When the Wetland Reserve Program was first implemented, it took a 
``shotgun'' approach to wetland restoration, planting trees in hundred 
acre tracts tens of miles from other project enrollments. Biologists 
looked at what was happening and felt that forest fragmentation was 
being promoted. So representatives from the state and federal agencies, 
universities, and NGO's all sat down and agreed that we needed a plan 
to focus the restoration efforts where they would do the most good. We 
had no idea at the time that WRP would be so popular and funded so 
generously.
    Initially we looked at existing forested tracts and agreed that 
when the opportunity presented itself, we would try to expand on those 
tracts. To enable bears to travel from tract to tract would require 
wooded corridors. So we identified riparian corridors and expanded on 
them, but also identified corridors to link fragments that were not 
associated with a river or bayou.
    We then prioritized the corridors, giving a narrow corridor the 
maximum number of additional points in the ranking process and moved 
out with areas with fewer points. We then ``fine tuned'' the maps by 
making sure that boundaries were clearly defined along roads or 
waterways to make them readily identified in the field.
    The incentives were actually designed for the restoration of 
converted wetlands, but because of all the partnerships developed by 
the BBCC, all the players were able to sit down and make it work for 
bears. Because bears require large areas of habitat, most participants 
recognized that a whole host of other creatures would benefit from the 
collaborative project. Nonpoint source pollution from agricultural 
fields would be significantly reduced, as well as the cost of 
maintaining the drainage infrastructure. So not only did this process 
bring additional millions of dollars into depressed local communities, 
but millions more were saved by not having to maintain the drainage 
systems.
                                 ______
                                 
    The Chairman. Thank you. Mr. Robohm.

              STATEMENT OF DON ROBOHM, PRESIDENT, 
                         SEACHICK, INC.

    Mr. Robohm. Chairman Pombo, Senator Crapo, Congressman 
Pickering, thank you for the opportunity to appear before you 
today to speak about the Endangered Species Act. I'm the 
founder and investor of SeaChick (Miss.), Inc., a private 
Mississippi Corporation that holds Mississippi's Aquaculture 
Permit number 1.
    I appreciate the opportunity to participate today in making 
what I hope would be a positive contribution to strengthening 
the Endangered Species Act. Although SeaChick started with 
Hybrid Stripped Bass as its principle species, in January 1988, 
we switched to growing Tilapia, which continues today as our 
focus. SeaChick uses water and a single pass flow through 
technology involving sequential poly culture and reuse of well 
water. SeaChick can pump up to eight million gallons of well 
water per day and discharges a like quantity. ``U''-tube 
technology is used to effectively inject liquid oxygen to 
oxygenate the 48 above ground circular concrete tanks in our 
production.
    SeaChick was the first commercial fish farm in the world to 
use computers to feed fish. SeaChick had experienced some bird 
predation from such species as egrets, herons, osprey and 
cormorants during the years in which we focused on hybrid 
striped bass. We placed shade clothes over the 48 production 
tanks in a tent like manner centered over the water, leaving 
access to the fish along the edges of the tank wall. We placed 
lightweight meshed bird netting over the small fingerling pond 
and stretched mono-filament fishing line in a grid pattern over 
the two larger settling ponds.
    We referred to this as passive exclusions. When passive 
exclusion by itself wasn't getting the job done the Atlanta 
office of the U.S. Fish and Wildlife Service urged SeaChick to 
apply for a species specific take permit to shoot. I've never 
owned a gun or held a hunting license.
    With genuine reluctance, I allowed SeaChick to acquire a 
U.S. Fish and Wildlife Service take permit for each of the 
species then giving us problems. We created a ``no-fly'' zone 
over our production tanks using the lightest load shotgun 
shells, shooting warning shots in the vicinity of the birds to 
scare them away. Then shooting closer behind the flight path of 
the returning leaders. When the leaders continued to return, we 
shot at them from a considerable distance to reach-out and 
touch them but did not harm them. Only as a very last resort, 
did we shoot to kill these few remaining troublesome birds.
    This protocol has maximized the number of, excuse me, 
minimized the number of birds taken and maximized the desired 
behavior modification. For five consecutive years SeaChick has 
been permitted to take five osprey per year and we have 
actually taken none over the last five years despite osprey 
visiting SeaChick almost daily. The brown pelican was listed 
throughout this range under an Endangered Species Act in the 
early 1970's. In 1985 brown pelicans in Florida and Alabama 
were delisted and the Alabama, Mississippi border was selected 
as the boundary for this action. At the time U.S. Fish and 
Wildlife stated that this was ``This was done to ensure 
continued protected for Pelicans from Louisiana if they feed on 
opened nearby Mississippi waters''.
    So while Mississippi's brown pelican had recovered by 1985, 
the Fish and Wildlife Service located in Albuquerque, New 
Mexico continued the listing of Mississippi brown pelican. 
SeaChick is located approximately ten miles west of the Alabama 
border where we could get a take permit for brown pelicans. Due 
to no brown pelican recovery problem in Mississippi, 20 years 
ago the entire State of Mississippi remained penalized without 
take permits possible for the brown pelican. The Endangered 
Species Act allows the regional office of Atlanta to issue our 
take permits but allows the Albuquerque office to impose brown 
pelican listing upon Mississippi, but does not allow the 
regional office in Atlanta to start the delisting process of 
the brown pelican for states within its region. I'm told by 
U.S. Fish and Wildlife personnel that continued control of the 
delisting of species resides with the originating regional 
office--in the case of the brown pelican in Albuquerque, New 
Mexico.
    I have three recommendations for you to consider as new 
ideas for the Endangered Species Act. The first one--when 
sustained observations and data support that a species is 
recovered in a specific area, that species should be promptly 
delisted. To recruit partners in the recovery process, it is 
critical that the U.S. Fish and Wildlife Service carefully 
monitor that process and when there is a success story, 
promptly act on that success. And the acknowledgment of 
successes as they happen will provide the Act, private 
landowners and those involved with enforcing the Act with 
credibility and continued delisting support.
    One of the greatest problems with working with listed 
species is the inability of the Fish and Wildlife Service to 
approve actions quickly. They spend too much time doing paper 
work and not enough time working on recovery or delisting 
issues. This lengthy amount of time damages relations with 
landowners and others and hampers the recovery of other listed 
species. Finally, we suggest that some type of financial 
assistance be considered for landowners and businesses that 
have significant financial losses due to threatened and 
endangered species. Some form of crop insurance which is 
available for almost any other kind of crop wall should be 
considered as one component of reauthorization of the Act. 
Furthermore, providing a tax credit for damage control 
equipment and labor should be included.
    Mr. Chairman, this concludes my remarks. I'll gladly 
respond to any questions.
    [The prepared statement of Mr. Robohm follows:]

     Statement of Donald Robohm, President, SeaChick (Miss.), Inc.

    I am the founder and an investor in SeaChick (Miss.), Inc., a 
private Mississippi corporation that holds Mississippi's Aquaculture 
Permit No. 1. Started in August of 1987, SeaChick was involved with 
drafting the Aquaculture Act of 1988, with permitting done by the 
Mississippi Department of Natural Resources. Four years later, SeaChick 
started the legislative initiative which shifted permitting under the 
Aquaculture Act from the Mississippi Department of Wildlife, Fisheries 
and Parks to the Mississippi Department of Agriculture and Commerce, 
where it remains today. I welcome the opportunity to participate today 
in making what I hope will be a positive contribution to modifying the 
Endangered Species Act.
    Although SeaChick was started with hybrid stripped bass as its 
principle species, in January 1998, we switched to growing tilapia, 
which continues today as our focus. Our high-intensity warm-water 
facility can be seen in the accompanying aerial photo: Exhibit A. 
SeaChick uses geothermal 1/4-mile deep-well water and cooler shallow-
well water in a single-pass flow-through technology involving 
sequential poly-culture and reuse of the well water. SeaChick can pump 
up to 8 million gallons of well water per day and discharges a like 
quantity per day. ``U''-tube technology is used to efficiently inject 
liquid oxygen to oxygenate the 48 aboveground circular concrete 
production tanks. SeaChick was the first commercial fish farm in the 
world to use computers to feed fish. A close-up of the tanks and the 
feeding system is shown in the photo labeled Exhibit B. Much of 
SeaChick's high-intensity fish culture technology is protected by trade 
secret and does not leave the facility. An example of SeaChick's 
technology which does leave our facility can be found in U.S. Patent 
6,557,492--``A System For Transporting And Storing Life Fish''.
    Today SeaChick produces its tilapia following five principles: 1) 
there are no antibiotics used anywhere in the facility, rather SeaChick 
is a world-leader in competitive exclusion, that is, using good 
bacteria to out-compete bad bacteria; 2) no sex-reversing or growth 
hormones are used; 3) no genetically modified fish are used; 4) no fish 
meal is used in our all plant protein (APP) production feeds; and 5) 
clean, pollution-free well water as old as 20,000 since it last fell as 
rain on the earth's surface, is used. We spin the water in our tanks so 
that our fish are swimming in moving water at all times, build and 
toning their muscles. By feeding them around the clock, under lights at 
night, SeaChick produces a flesh marbled with fat, much like red meats, 
but rich in the heart-friendly omega-3 lipids.
    SeaChick started with three species of tilapia in 1988, that is, 
aurea, nilotica, and the mossambica. Hand selecting and breeding has 
been ongoing since then with the result called the SeaChick Gray, a 
hearty, fast-growing, efficient feed converter, with the goal of 
maximizing the percentage of boneless, skinless fillet weight to total 
live weight. The broodstock are placed in earthen ponds which combine 
first and third world technology in a manner which can produce 80-
85,000 fingerlings per month with an average size of 80 to 120 grams 
for stocking into production tanks. 90-120 days after stocking we can 
harvest 1 1/4 to 1 1/2 pound market-sized food fish. These ponds range 
from 1/4 acre to 1 acre in size.
    SeaChick had experienced some bird predation from such species as 
egrets, herons, osprey, and cormorants during the years in which we 
were focusing on hybrid striped bass. We placed shade clothes over the 
48 production tanks in a tent-like manner centered over the water and 
leaving access to the fish along the edges of the tank wall. We placed 
lightweight meshed bird netting over the smaller fingerling ponds and 
stretched mono-filament fishing line in a grid pattern over the two 
larger ponds. We referred to this as passive exclusion. When passive 
exclusion, by itself, wasn't getting the job done the Atlanta office of 
the USF&WS urged SeaChick to get a species specific limited take permit 
to shoot. I have never owned a gun or held a hunting license. I 
volunteered to serve in South Viet Nam as a member of the Agriculture 
Team of International Voluntary Services from 1967 to 1969, and never 
carried or possessed a gun for the two years I lived and worked in the 
war zone.
    With genuine reluctance, I allowed SeaChick to acquire a USF&WS 
take permit for each of the species then giving us problems. We created 
a ``no-fly'' zone over our production tanks using the lightest load 
shotgun shells, shooting ``warning shots'' in the vicinity of the birds 
to scare them away. Then shooting closer behind the flight path of the 
returning ``leaders''. When the ``leaders'' continued to return, we 
shot at them from a considerable distance to ``reach-out and touch 
them'' but not harm them. Only as a very last resort, did we shoot to 
kill these few troublesome birds. This protocol has minimized the 
number of birds ``taken'', and maximized the desired behavior 
modification. For five consecutive years SeaChick has been permitted to 
``take'' five osprey per year, and we have actual taken none over those 
five years, despite osprey visiting SeaChick almost daily.
    The Mississippi brown pelican was listed under Endangered Species 
Act in 1985, while Florida and Alabama brown pelicans were not. The 
reason, cited by the listing USF&WS regional office in New Mexico, was 
that the State of Mississippi would be used as a ``buffer'' state for 
the State of Louisiana, which did have a pelican problem. SeaChick is 
located approximately 10 miles west of the border with Alabama, where 
we could get a USF&WS take permit for brown pelicans. Due to no brown 
pelican problem in Mississippi, but instead due to a Louisiana brown 
pelican problem, the entire State of Mississippi was and remains 
penalized, without take permits for brown pelicans.
    The Endangered Species Act allowed the Albuquerque USF&WS (the 
USF&WS Atlanta Regional Office issues SeaChick's take permits) to 
impose the brown pelican listing upon Mississippi, but does NOT allow 
the USF&WS Atlanta Regional Office to start the delisting process of 
the brown pelican for states within its region. I am told that control 
of delisting a species covered by the Endangered Species Act resides 
with the originating regional office in Albuquerque. Meanwhile 
Mississippi and SeaChick suffer crippling losses to brown pelicans. We 
estimate direct losses to brown pelicans at $300,000 to 400,000 during 
the 2003-2004 pelican season at SeaChick. This does not include the 
indirect losses to parasites, diseases, and lost sales opportunities. 
Electrical events between brown pelicans and power lines at SeaChick 
did thousands of dollars of damage to motors, transformers, wiring, 
electrical components, computers and various electronics throughout the 
facility.
    During the 2000-2001 and the 2001-2002 brown pelican seasons, 
SeaChick managed to received a USF&WS brown pelican harassment permit 
which included a capture/tag/relocation provision. We were able to 
capture grossly engorged brown pelicans filled with our tilapia. With 
experimentation and research done at SeaChick's expense and documented 
with the USF&WS, we developed a relocation technique that was 80-90% 
successful in relocating none-returning brown pelicans. Imagine our 
dismay when the USF&WS refused to renew the harassment permit provision 
for relocating brown pelicans because the Migratory Bird Act required 
banding, and SeaChick personnel were NOT licensed to band migratory 
birds. Twice in the 2004-2005 pelican season, SeaChick returned brown 
pelican harassment permits. These well-intentioned harassment permits 
were so restrictive and detailed as to make lawful compliance all but 
impossible. We choose to have no harassment permits during those 
periods. Eventually a temporary authority was granted to SeaChick to 
resume relocating brown pelicans using the relocation technique we had 
developed and documented in previous years. This ``conflict'', over 
banding brown pelicans, between the Endangered Species Act and the 
Migratory Bird Act must be resolved.
    SeaChick has filed a 90-day letter with the USF&WS Atlanta Regional 
Office of its intent to submit an invoice for the regulatory taking of 
our tilapia crop during the 2004-2005 brown pelican season. We have 
invested tens of thousands of dollars per year protecting our crop and 
protecting the brown pelican. Over the years, Federal and state 
agencies have placed their representatives at our facility for weeks at 
a time and witnessed and recorded the unnatural behavior of brown 
pelicans at our facility despite our best efforts. Given our highly 
successful take permit results with other species, SeaChick seeks 
relief by delisting the brown pelican in Mississippi.
                                 ______
                                 
    The Chairman. Thank you. I thank the entire panel for your 
testimony. I'm going to begin by recognizing Senator Crapo for 
his questions.
    Senator Crapo. Thank you very much, Mr. Chairman, and I 
want to use my five minutes to basically talk about the issue 
of collaboration and I'm really going to focus on Mr. Vaughan 
and Mr. Davidson--but Mr. Vaughan, it interested me that you 
indicated in your testimony that there were those who had 
encouraged you not to come today. That doesn't surprise me 
because I don't know how many people feel like this but back a 
few months ago Chairman Pombo and I, along with Senator Chafee 
and Congressman Walden from Oregon held a press conference 
where we indicated that we wanted to try to bring people 
together and get past the fighting that has been going on and 
build a fast forward system where consensus based reforms were 
being made to the Species Act.
    And although that press announcement was received very 
positively in most quarters, there was some from various 
perspectives of the issue who immediately attacked and I think 
primarily was the attacks were based on a lack of trust. It was 
believed that we didn't really want to bring people together 
and try to find good solid consensus based solutions. And that 
was a disappointment to be honest with you. It was not one that 
was unexpected. We had seen this kind of reaction and it's not 
just from just one side or the other. This was the kind of 
reaction that comes, I think, from decades of fighting over the 
Act. And there needs to be a trust level brought and so first 
of all, Mr. Vaughan, I appreciate you coming today and sharing 
your concerns and your willingness to see if there can't be 
some consensus based solutions.
    Mr. Davidson, I was very interested in your testimony as 
you talked about how it was done and you listed in your 
testimony some southern rules of engagement which I hope you'll 
allow me to take back to the west. The items listed in your 
written testimony, I'll go over them very quickly. It is, come 
to the table, leave your organizational 2 X 4 at the door, 
polarized opinions generates more heat than light and has no 
place at the resource management table, pick solutions, not 
fights, search for the most expansive common ground that is not 
intrusive, attack ideas, not individuals, differences of 
opinion can lead to enlightened decisionmaking, no personal 
attacks. One strike and you're out and have fun. I think 
there's some real wisdom in that approach and we need to get 
people across the country focused on the fact that we have an 
opportunity now where we're trying to build a bipartisan, 
bicameral solution to some of the serious problems that have 
faced the species recovery and we're focusing on recovering 
species. That's what we want to seek as our objective and I'd 
just like to invite Mr. Vaughan and Mr. Davidson to comment if 
you would on this general issue.
    Mr. Vaughan. I appreciate your remarks very much. Let me 
just say, coming from an environmental community, having done 
work like this as an attorney for almost 20 years and before 
that, just on my own for 10 years and it's no different for 
development in industry business like this. We've seen Federal 
agencies do horrible things to the environment. We've seen 
agencies do horrible things to economic interests or things 
that made no sense.
    And a lot of times the only way we can address this type of 
thing is through litigation. And years ago the National Forest 
of Alabama they were breaking every law they could. There were 
some bad apples brought into those forests. But they brought in 
new people after the litigation changed some attitudes in the 
agency and we've all seen cooperative efforts that didn't work 
but I've seen some that did successfully, wonderfully 
successfully, mostly on public lands but some on private lands.
    Paul's work on Louisiana's black bear on private land is a 
pretty amazing example in the southeast. So we have success 
stories that maybe folks elsewhere haven't seen and there's a 
lot, like Senator Barton said, it's strange warfare. So 
somebody's got to come around the trenches and halfway across. 
I'm willing to do that. I think some other folks are too, there 
is a lot. We certainly hope there are people who are willing to 
do that and want to create a safe haven for people who are 
willing to come up out of the trenches and get engaged in this 
process. Mr. Davidson.
    Mr. Davidson. Please don't take this wrong but, you know, I 
have been in Washington, D.C., way more times than I'd like to 
admit, and it is probably the most polarized, partisan, turf-
protected environment I've ever been in my life.
    Senator Crapo. You've got that right.
    Mr. Davidson. And I don't like it. I don't like being there 
and that was what we were trying to avoid, of course, with the 
heat of the spotted owl breathing down our neck, we really 
wanted to get everybody together and what's been alluded to 
several times today, private landowners are key to anything you 
do in the Southeast. But probably all over the country but 
certainly in the Pacific Northwest where you have 80 percent of 
the habitat is public land. It's a different world than it is 
here when 90 percent is private so anything you're going to do 
that has any consequence across the landscape has to engage 
landowners and right now they are scared to death. You know 
that this government is going to come in and take their land 
largely because interests outside of this region are telling 
them it's going to happen. I mean, we've seen instances where, 
you know, we just had some big national organizations and this 
comes from my experience, you know. I, in the past, served four 
terms as the Chair of the Sierra Club in Louisiana and, you 
know, I butted heads with the National Sierra Club all the 
time. I was President of the Louisiana Wildlife Federation 
twice. I had a better relationship with the National Wildlife 
Federation and we still disagree on a lot of things.
    That Washington turf protective spar, left or right, 
whichever side you're on, you want to call it, does not 
encourage genuine collaboration and communication. It's his 
last stand and I'm not budging. And what we have learned is 
that this concept that when you collaborate, when you work 
together, that somebody's got to give up something. That's not 
necessarily the case. If you go in with the objective, trying 
to get everything you can get, I'm talking about every interest 
in the room, shoot for the stars, you'll be surprised that most 
of the time you can walk out of there with everybody getting 
everything they need.
    So, it can happen. I don't see how in the world you'd ever 
legislate it but it certainly needs to be encouraged and I 
think if you talked to the Lafayette, Louisiana, U.S. Fish and 
Wildlife Service office, they'll tell you that our efforts have 
certainly made their lives easier and certainly made recovery 
of the Louisiana black bear move forward much more quickly than 
it could ever be done just with that agency.
    Senator Crapo. Thank you. Mr. Chairman, I know I'm over but 
let me just take one 30 seconds here to say I agree with the 
points that have been made by these witnesses. I know the other 
witnesses have similar feelings and we've got to get the 
confidence and the trust built up to allow us to do a, to start 
here to get people to come to the table and find these 
consensus based solutions. I am convinced that we can find 
solutions that are better for the environment and better for 
the economy than what we are driven to now under the current 
system and it's that objective that we want to achieve. We want 
people to be willing to come forward and participate in this 
process knowing that we're not going to run rough shod over 
anybody, we're going to try to bring people together and find 
consensus based solutions that will benefit everybody and 
especially the endangered species.
    Thank you.
    The Chairman. Thank you. We now recognize Congressman 
Pickering.
    Mr. Pickering. Senator Crapo, I just want to join with your 
very thoughtful approach but also to say Mr. Vaughan that I 
appreciate and I'm encouraged that you're here. Paul Davidson, 
you give a model for the rest of the country on how to approach 
these issues and what I'd like to do is to follow up and ask 
some questions so that we can avoid the litigation and the 
adversarial relationships and instead of having prolonged, 
extended, adversarial and backed in litigation and this may 
well not be, sometimes litigation leads to settlement. It is a 
catalyst for settlement.
    But our problem is that sometimes it takes three, four, 
five years to get to that point. Would it not be better if we 
could look at front end settlements and cooperative agreements 
through our laws that we would give alternative dispute 
mechanisms that once an issue comes up that we would give very 
strict deadlines, time lines for either an agreement to be 
reached by all parties to the agencies and private and 
community interest. If those agreements are not reached within 
a certain time line, they'd have mediation or arbitration with 
the time lines and as Mr. Briggs talked about, part of the lack 
of credibility of the Act is because the goal post seems to 
have moved or that it could be extorted either by competing 
economic interest or environmental interests.
    So there's a sense that there's a fairness built into the 
process but also a very quick conflict resolution process that 
can follow the model of the black bear either by cooperative 
efforts or by statutory requirements of conflict resolution. 
Would that be helping, Mr. Vaughan and Mr. Davidson.
    Mr. Vaughan. I'm actually trained in mediation and I'm a 
big fan of that. I'm not a big fan of binding arbitration 
because as an attorney and citizen, we should have a viable 
avenue for the court that's created by the constitution. But I 
think that might be a possibility. Some of the things for 
instance in the Healthy Forest Restoration Act, while I don't 
agree with everything how it was put together, when the process 
of that sort of pre decision or talking with each other and 
having meetings, having dispute raised before the decision, is 
done with everyone being honest and open about it. I've seen it 
work. But, it's a little too loose I think.
    But I think you could come up with a system whereby the 
public participation front end, is not so much formal but much 
more inclusive and where you could have had a mediation like 
objection process first.
    The Forest Service appeals process, a lot of people 
criticized it and some environmentalists just say, well, that's 
just a hurdle, I have to jump it before I get to the court, but 
we've actually settled a lot of the appeals, a lot more than we 
filed lawsuits in because we did meet with them and we were 
meeting with agency staff that were very open and honest about 
it. We came to a resolution because we weren't just against the 
project. We were against the public problems to the project 
even though it was going to fix it. The project went forward 
and there was no litigation. So I think that could be worked 
on. The processes that exist now are incomplete. Wildlife 
Services are quite inadequate so that would be something that 
should be explored, I think.
    Mr. Davidson. Again, I don't know how you'd legislate 
cooperation. It's certainly a component I think that's missing 
in what's going on now and so much of all the horror stories 
that reoccurred over the years, you know, we never dealt with 
that. For whatever reason I couldn't explain to you exactly why 
things worked as they have but we have always had good working 
relationships among the agency personnel and we just, you know, 
we never got into the--this week we had a big conference call 
with BCC, U.S. Fish and Wildlife Service, Louisiana Parks, 
Wildlife and Fisheries, the Nature Conservancy and USDA, 
Natural Resource Conservation Service prioritizing, you know, 
WRP roles. I mean, that's in the counties and the parishes 
where we have, where we're running out of land to enroll and 
everybody didn't have a problem with our account of what we did 
best and all that, you know.
    The critical habitat stuff which was so controversial, you 
know, with--years ago, over a beer, we decided that the way to 
resolve it is just to change the name to Way Cool Habitat and 
everybody would want it. But it's not going to be that easy. 
There has to be some flexibility, like in the laws which 
mandate designation of critical habitat, you now have different 
openings for a lawsuits.
    There is no question that some species that require certain 
niches need a designation of critical habitat. Animals like a 
bear are generous, there's no need for that. What has happened 
over time as I have witnessed it, with the U.S. Fish and 
Wildlife Service, rather than designate critical habitat they 
incorporate the same things into the Section 7 consultations 
such as, they are accomplishing the same thing that critical 
habitat would accomplish through Section 7 without all the 
formal designation critical habitat and the paper work and 
again the agency resources that go into that. So there's a way 
to do all this, gentlemen, and I won't pretend to have all the 
answers but I know there are people out there who can put it 
all together for us. Thank you.
    Mr. Pickering. Thank you, Mr. Davidson. That, perhaps we 
could shift, perhaps we could shift litigation resources to 
your endangered species incentive program and that the funding 
is there for that, maybe that would be one way to bring people 
to an agreement more quickly than if it would end this 
litigation. I want to thank Senate Crapo. We have one thing in 
common, one of the many things in common, but one thing we have 
in common, I think you have five children as well, so now that 
your family's back home, we appreciate you leaving the comforts 
of home and family and Mr. Pombo and I share another thing in 
common. Our children play baseball and he's missing baseball 
games too.
    Senator Crapo. Right.
    Mr. Pickering. We've all slapped hands, we had one injury, 
in which the wheels came off and there are baseball games this 
morning. But I noticed everyone is here because this is an 
extremely important issue for our development of our 
environment and health of our economy and talks about some 
issues and Mr. Chairman, I greatly appreciate you being here 
and I look forward to working with both of you as we go through 
this process.
    The Chairman. Thank you. You know I'm going to take that 
last quote that you just said about there's a way to do this if 
we want to do it and I'm going to blow it up on a big board 
like that and hang it in view because that's what I've been 
saying for the last 12 years. If you really want to do it, we 
can do it. It frustrates me beyond belief because one of the 
reasons I hold these field hearings is to come out here and 
listen to people like you outside of Washington. Back in 
Washington, if we were having the same hearings, there's nobody 
that would say the things you have said. We know Senator 
Crapo's right, you know. We got together and said we're going 
to work across the Capitol, we're going to try to bring 
everybody in on this, we're going to try to make this thing 
work. We hadn't even gotten done talking, and the press 
releases were already being distributed to the reporters that 
were in the room trashing us for gutting the Endangered Species 
Act. We hadn't even finished announcing that we were going to 
work together and we were already accused of gutting it. That's 
why I bring the Committee out.
    That's why we do these things because you're not going to 
get this done working with that group back there.
    You know, if Mr. Vaughan, you talk about funding being a 
major problem. I know the three of us agree with you. I've 
introduced bills so many times increasing the amount of money 
to go through Fish and Wildlife Service that, that I can't 
count them all. But, it's not just a matter of more money going 
into Fish and Wildlife Service, you got to change the dynamics 
that's there. You got to start focusing on what the goal is 
instead of a lot of the stuff that's going on right now and Mr. 
Davidson talked about they didn't see the same problems here 
that we saw when it started out.
    Well, one the reasons is that, you know, Mr. Vaughan talked 
about this and we did a lot of things wrong with that. I mean, 
there were things that we did with development, there were 
things that we did with Forest Management, there were things we 
did in Agriculture that were wrong. And we caused a lot of 
problems that we've got right now. But when we got in to 
spotted owl management, it really had nothing to do with 
spotted owls. It had to do with we didn't want any more cutting 
of timber. One of the main litigants in that whole situation 
was quoted as saying something to the effect of, thank God for 
the spotted owl because if it hadn't been for that, if we 
hadn't had the spotted owl we would have had to create one in 
order to stop the timber harvesting going on.
    And it's kind of that attitude that has gotten us to where 
we are right now. Mr. Briggs, I want to ask you a question. You 
know, we went through the testimony, Mr. Head's testimony, and 
I thank you for pinch hitting here. I know that we got a call 
earlier that he was grounded and wasn't going to be able to be 
here today. And I appreciate you coming in. But in the 
testimony it outlines how much land has been set aside for 
mitigation and what the company was willing to do. Are you at 
the point right now where you could proceed with development.
    Mr. Briggs. No, sir, we cannot proceed with development and 
there is no foreseeable resolution to our current project which 
began its permitting process some five years ago and we're 
currently held up, we feel like, by Fish and Wildlife not 
necessarily by the litigation or the Act itself since it is 
Fish and Wildlife people bringing up additional issues or 
raising the bar changing the requirements. We will use about 35 
acres of habitat in our project and we have already committed 
110 acres to a conservationist. So three times what we've 
utilized.
    At the same time, this issue is not really about the 
Alabama beach mouse, it's about people who don't want multi-
family projects built on the Fort Morgan Peninsula because at 
the same time 108 single family units have been permitted or 
currently are being permitted under the process in place now 
with no mitigation. They used 230 percent more of real estate 
per unit than we did. It's not an issue that deals with 
protecting the mouse or increasing the mouse's chance of 
survival.
    The Chairman. Now, that's what I wanted to get at. That 
right there. If I could sit down with Mr. Davidson and you and 
put you in the room and say, OK, the goal here is to protect 
this mouse and recover it, how do we allow him to use his land 
in recovery of the mouse. Now, if that's the goal, if that's 
what put on the table, I believe you can come to a solution.
    Mr. Briggs. Certainly.
    The Chairman. And I don't know if 110 acres are right or 
$20 million into an account somewhere that goes toward 
conservation or propagation or what have you, but----
    Mr. Briggs. We do that as well.
    The Chairman. I'm sure you do.
    Mr. Briggs. We set aside--and annually the homes and the 
multi-family owners set aside two, three hundred dollars that 
goes into a beach mouse fund. Here again, none of these things 
are required if you build a single family housing. It's not 
usual.
    The Chairman. I'm of the mind that if the goal is to 
recover a species, we can get there. If the goal is to stop 
this development from going forward we can't get there. And, 
Mr. Vaughan, I'm not real familiar with the work that you've 
done and things that have happened down here but I believe that 
the goal is to preserve species. We can get there.
    There can be mitigations done, there can be things that we 
do that the Fish and Wildlife that allow people to use their 
private property without taking away their right and at the 
same time recovery of the species. I believe that we can get 
there. But, you know, what we run into in Washington so often 
is that recovery of species has very little to do with this 
whole debate. It has to do with, a lot to do with partisan 
politics, has a lot to do with political power and as a result 
of that we have these conflicts with private property owners. 
Were not doing a good job of recovering the species. We're not 
getting anywhere and we just keep fighting every year.
    Now, it was like 12 years ago, one of the things I said 
when I was first elected, I wanted to reform the Endangered 
Species Act. I had no clue 12 years later I'd still be trying. 
You know, it made perfect sense to me that we had problems that 
we needed to fix and I think most responsible people in the 
environmental community will look at and say, yeah, there are 
some problems. There's something we need to do differently than 
what we're currently doing. And as we move forward with this I 
know that Senator Crapo talked about this, as we move forward 
with this we just got to sit down and my door is open to you 
any time and to Mr. Davidson. You guys want to come in and talk 
about what needs to be changed and how we make this thing work, 
I'm willing to listen.
    Mr. Davidson. Congressman, let me just say, I've already 
had meetings with Doug Crandall, your Committee staff member, 
that would be great, be fair with Doug and I appreciate the 
invitation but Doug's been, same invitation been very open. 
He's the key to having me here today, I appreciate him doing 
that. To give you an example, I was involved early on in 
litigation over Mr. Head's property, the very first one down 
there because I believed it was about the beach mouse and there 
was no doubt the ball has been dropped on the Alabama beach 
mouse by the agency over all.
    But very quickly I got out of that litigation and ceased 
representing the parties involvement in the litigation that's 
going on and on and on since then, which I have no involvement 
with, because it isn't really about the beach mouse. There are 
a lot of instances where everybody on all sides are doing as 
they should. A lot of times it's unintentional, a lot of times 
it's a reaction to the past.
    Yet somehow we've got to get past the past and I'll be 
happy to work with you, Mr. Crapo, and folks on your staff at 
any time to find a real solution to the real problems.
    The Chairman. Thank you. I really appreciate this entire 
panel and the testimony that you've given here this morning. I 
think it's been very helpful but I think it helped. I know with 
Chip and I, in the House and Senator Crapo, it helps us to move 
forward in trying to come up with something that will actually 
work because I do believe we can get there and it's just a 
matter of getting people in the room who actually want to come 
to a solution on this and those who don't, stay out. Now, I 
think we can get there and I appreciate that. I appreciate 
Senator Crapo agreeing to be here at the hearing, you know, we 
normally don't invite Senators because they talk too much. 
Mike's been a friend for a long time so he always comes to my 
hearings and I believe something's in the water over there, I 
don't know what it is.
    Senator Crapo. It's the rules.
    The Chairman. And of course, you know, when we started 
talking about where we would do the hearings across the country 
and Chip has talked to me several times about the Endangered 
Species Act, the impact that it's had down here, it has, but, I 
think more importantly, he talked about what some of the 
successes were and the total cooperation that they've had down 
here and I felt that that was important to include as part of 
building a record in the hearings that, you know, it's not all 
failures. There are some times when things actually work, and 
we need to make that part of whatever the ultimate solution is.
    I appreciate Chip inviting us down here and allowing us to 
come into his district and take a little time to be part of 
this hearing here morning.
    I want to again thank the Museum for inviting us and the 
Governor for his cooperation. I can tell you that he originally 
had hoped to be a part of the hearing. We ended up changing the 
date that we were going to come down here and it conflicted 
with his schedule. Unfortunately, he wasn't able to join us 
here today, but I appreciate his invitation and cooperation.
    Thanks to all the staff, everybody that helped make this 
hearing possible. I'll tell this panel before I adjourn the 
hearing that I know there'll be further questions and those 
will be submitted to you in writing. Answers might be included 
as part of the hearing process and I would appreciate it if you 
would respond in a timely manner to that as well.
    If there is no further business before the Committee, the 
meeting's adjourned.
    [Whereupon, the Committee was adjourned.]

    Additional materials submitted for the record follow:]
    [A statement submitted for the record by The Honorable 
Haley Barbour, Governor, State of Mississippi, follows:]

               Statement of The Honorable Haley Barbour, 
                     Governor, State of Mississippi

    Good morning. I am proud to welcome to Mississippi Congressman 
Richard Pombo, Chairman of the House Committee on Resources, Senator 
Mike Crapo of Idaho, and our own Third District Congressman, Chip 
Pickering.
    Mississippi is proud to host this first congressional field hearing 
in an effort to update and modernize the Endangered Species Act. We 
have learned a lot of lessons since the Act became law, and many of 
those have been in the South.
    The Endangered Species Act is over 30 years old, and no changes to 
it have occurred since its expiration 14 years ago. It has been 
effective preventing some species from becoming extinct; however, by 
all accounts, it has not been successful increasing listed populations. 
Recovering and achieving sustainable populations of listed species 
should be the ultimate goal of this important law.
    To date almost 1,300 species have been listed under the Act, but 
only ten have recovered sufficiently to be removed from the lists. 
Clearly, it is time to update the Act to employ the best fish and 
wildlife management practices so can we do a better job recovering 
these species. I believe without a stronger focus on restoring habitat, 
the full recovery and de-listing of populations of many species will 
not happen.
    It is fitting that efforts to improve the Act begin here in the 
South. After all, the region has one-quarter of the listed species in 
the Nation, with approximately 300 endangered or threatened species. 
For example, eight of the top ten states and territories with the most 
listings include: Alabama, 89, Florida, 100, Georgia, 54, North 
Carolina, 50, Tennessee, 82, Texas, 81, Virginia, 55 and Puerto Rico, 
69. Mississippi has 29. Only California and Hawaii have more.
    Landowners in the South, and particularly Mississippi, have done a 
very good job conserving and creating habitat for all species, whether 
listed under the Act or not. Any legislation should include a strong 
recovery component and include incentives for private landowners to 
voluntarily participate.
    As you begin this process, I encourage you to spend some time in 
the state and allow our people to showcase some of Mississippi's 
efforts to protect, restore, and enhance habitat for species that are 
listed, and in some cases, species we are trying to prevent being 
listed. I think you will find the South, and particularly Mississippi, 
will help you formulate solutions to modernize the Act so conservation 
measures can be implemented to avoid listings, recover listed species, 
and do it in a manner that works with landowners and industry, not 
against them.
    Thank you for your time in addressing such an important issue, and 
I hope you enjoy your time in our great State.
                                 ______
                                 
    [A statement submitted for the record by Rhett Johnson, 
Director, Solon Dixon Forestry Education Center, School of 
Forestry and Wildlife Sciences, Auburn University, and Co-
Director, The Longleaf Alliance, follows:]

 Statement of Rhett Johnson, Director, Solon Dixon Forestry Education 
 Center, School of Forestry and Wildlife Sciences, Auburn University, 
                 and Co-Director, The Longleaf Alliance

    One of my particular personal and professional interests is the 
longleaf pine ecosystem, one of the ecosystems that occurs here in the 
Southeast. It is estimated that longleaf pine covered some 90 million 
acres of the uplands of the southeastern United States prior to 
European discovery and settlement. Some forest historians suggest that 
that may have constituted the largest forest area on the continent 
dominated by a single species. Today an estimated 3 million acres of 
longleaf remain, much of it in badly degraded condition. There are a 
number of species indigenous to longleaf ecosystems that are in similar 
decline, several of them listed and protected by the Endangered Species 
Act and familiar to Southeastern forest landowners. These include the 
gopher tortoise, the Eastern indigo snake, and, perhaps the best 
recognized, the red-cockaded woodpecker. Others, like the gopher frog, 
the black pine snake, and Bachman's sparrow, face futures linked to the 
health and availability of the longleaf pine ecosystem.
    The Longleaf Alliance is an organization formed to slow the decline 
of the longleaf ecosystem and, hopefully, reverse that trend. As we 
contemplated our strategy, two related facts shaped our approach. More 
than 90% of the forestland in the area previously occupied by longleaf 
is owned by private interests and about 75% of that by non-industrial 
owners. It seemed intuitive that any significant recovery of longleaf 
pine would by necessity involve the participation of these landowners. 
In addition, it was and is our contention that, although there is a 
strong stewardship ethic shared by these landowners, economic return is 
also a strong driving force in their management decisions. We made the 
decision to build strong economic as well as ecological arguments for 
longleaf, reasoning that museums protect things that once were but 
won't be again. Further, that the way to save things was to give them 
value and the way to give them value was to use them. This approach has 
been very successful and longleaf recovery is well on its way.
    The point of this discussion is to suggest that there is 
considerable logic in proposing longleaf pine and longleaf ecosystems 
as threatened or even endangered. After all, a 97% decline in acreage 
over the last 300 years is pretty dramatic! Instead, we learned to 
avoid either of those words assiduously. The alarm those terms excite 
among the majority of landowners would make our task next to 
impossible. In fact, the association of longleaf with species like the 
red-cockaded woodpecker concerns many landowners contemplating planting 
or even retaining longleaf. The perception that the Endangered Species 
Act triggers onerous government intervention in private matters and 
imposes strict and costly restrictions on landowners' decisions is 
alive and well in the Southeast. The fact is, for most affected 
landowners, the Endangered Species Act is punitive in nature, imposing 
either direct or indirect costs on those unlucky enough to have a 
listed species present on their land. I don't see much evidence of 
illegal ``preventative actions'', although I know it did occur with 
some frequency in the past. I think it is much more likely now for 
landowners to passively manage so as to discourage the presence of a 
threatened or endangered species on their land, e.g., to halt a 
prescribed fire program and allow habitat to become unsuitable for red-
cockadeds or gopher tortoises.
    The U.S. Fish and Wildlife Service has made great strides with 
programs like Safe Harbor to lessen the blow for landowners who have 
protected species on their properties, but the fact remains that 
landowners who host listed species are not rewarded for doing so and, 
in fact, are forced to support endangered species, at the request of 
society at large as expressed by the Endangered Species Act, at their 
own expense. The number of affected landowners is small, but the impact 
on many of those who are affected can be profound. Some accommodate the 
constraints imposed on them easily--even gladly--while others face both 
direct and opportunity costs, decreased land values at time of sale, 
etc.
    Currently, the prospect of relief because of species recovery and 
subsequent de-listing remains remote. In fact, one of the species whose 
recovery probably merits delisting, the bald eagle, has begun to turn 
the tables on us. Eagles have largely occupied the very best remaining 
habitat and are now beginning to nest in otherwise marginal habitats. 
They are now encroaching on our habitats. There are active eagle nests 
in downtown Apalachicola, Florida as well on busy nearby St. Georges 
Island. These birds are afforded the same protections under law as 
their cousins in more remote locations. If the ESA were indeed 
successful in recovering many listed species, the prospect of similar 
conflicts would be truly significant.
    On the other hand, there are demographically isolated populations 
of listed species, particularly at the edges of their ranges, which 
offer virtually no potential to contribute to the recovery of the 
species, yet are accorded the same degree of protection as those who 
do. The contribution of these fragments of populations can only be to 
provide genetic diversity to populations with better prospects. Yet the 
individuals in question are seldom candidates for re-location, denying 
the affected landowners relief and the larger population better hope 
for recovery. It is a fact that relocation is often unsuccessful and 
that leaving these individuals in place at least preserves them for the 
short term. Nevertheless, the museum analogy is still appropriate. 
Locking valuables in the closet only buys time and, in the process, 
landowners pay the price.
    I am a proponent on an Endangered Species Act for many reasons. 
Some species are keystone species whose loss would cause entire 
communities to be placed in jeopardy. There are others who offer 
answers to questions that plague us. If Eastern indigo snakes are 
immune to the venom of all North American venomous snakes, and they 
are, wouldn't it be wonderful to understand the mechanism that allows 
that immunity and add it to our own pharmacy? If we lost the indigo, we 
can never make another one, only God can. Other listed species are 
listed because they have exacting habitat quality requirements. They 
can act as ``canaries in the coal mine'' for us. Flattened musk turtles 
require high water quality and silt-free streambeds for their continued 
success. Their presence assures us that the water quality protection 
strategies we have adopted are working, for us and for the turtles. 
Finally, we, as a society, have elected to protect some species because 
we just prefer not to live in a world without them. That generally 
applies to fairly dramatic species like grizzly bears, California 
condors, whooping cranes, bald eagles and Florida panthers and not to 
American burying beetles and Tulatoma snails, even though those species 
may actually be more important in strictly ecological terms. Still, 
those former species have intrinsic appeal that most Americans 
understand and embrace.
    ``Fixing'' the Endangered Species Act should protect both species 
at risk and the private landowning public charged with providing their 
habitat. Better science to determine which species are truly at risk 
and which may have never been numerous is a start. Better science to 
identify and focus on those most likely to be recovered might also gain 
traction with the public. Delisting should be a real goal and not a 
distant and unobtainable Grail. If recovery is not likely, 
extraordinary efforts to preserve might be required and justified. 
These efforts must include rewards to landowners hosting these 
populations to relieve them of a burden imposed by the larger society. 
Restrictions on landowners should be carefully examined to determine 
efficacy and potential to contribute to the species recovery. If they 
are found to be unnecessary or without clear benefit, they should be 
re-examined and discarded if found to be lacking.
                                 ______
                                 

    [A map showing Endangered and Threatened Species in the 
Southern U.S. follows:]

[GRAPHIC] [TIFF OMITTED] T0971.002


 Response to questions submitted for the record by Dr. David J. Tazik, 
  Chief, Ecosystem Evaluation and Engineering Division, Environmental 
     Laboratory, U.S. Army Engineer Research and Development Center

Follow up questions submitted by Chairman Pombo:
    1.  The Corps carries out and/or funds a significant amount of 
scientific research pertaining to endangered and threatened species. 
Some of this research is conducted in association with Corps projects. 
Has the Corps funded endangered or threatened species research in 
association with Corps projects that does not relate directly to the 
impacts or affects of the project on a species but would more 
accurately be described as scientific research regarding the species?
    Answer: Most scientific research funded or carried out by the Corps 
does relate directly to Corps project impacts (e.g., our extensive work 
on freshwater mussels and pallid sturgeon). Nonetheless, there are 
examples of scientific research funded by the Corps that does not 
relate directly to the impacts or effects of Corps projects on listed 
species, but may be required by the Services for projects to go 
forward. However, this research often yields information on species 
requirements that can in the end help determine project impacts.
      If so, is any of this research ever conducted as a 
condition of a determination made by the FWS or NMFS?
    Answer: We are aware of at least one example where this research is 
a condition of a determination made by FWS or NMFS. Reasonable and 
Prudent Measures (RPM) subject to terms and conditions under the NMFS 
Biological Opinion regarding ``Dredging of Gulf of Mexico Navigation 
Channels and Sand Mining (`Borrow') Areas Using Hopper Dredges by COE 
Galveston, New Orleans, Mobile, and Jacksonville Districts,'' require 
the Corps to collect tissue samples from all live and dead turtles 
captured by relocation trawling or dredging. The RPM further requires 
the Corps to provide tissue samples and funds needed for analysis to a 
specified NMFS lab.
      Does any such research conducted by the Corps appear to 
be more consistent with the missions of FWS and NMFS than the mission 
of the Corps?
    Answer: This appears to be the case in research conducted by the 
Corps on the Interior Least Tern (ILT), which is intended to establish 
scientifically sound population monitoring guidelines and to assess the 
status of the species in specific drainages where status questions 
remain--notably the Cimarron and upper reaches of the Canadian and Red 
Rivers. The ILT is high priority species for the Corps due to its 
impact on the Corps mission, having been the subject of RPMs in several 
biological opinions issues by the U.S. Fish and Wildlife Service. The 
Corps has a strong incentive to take a leadership role in this 
activity. Since this species is directly tied in many cases to 
navigable waters, it is in our interest to address species conservation 
to maintain a balance between our navigation and environmental 
stewardship missions. We have extensive capability to address such 
issues, and prefer to cooperate proactively with the FWS. Our 
hypothesis, to be tested as part of this research, is that the ILT is 
healthy and warrants consideration for delisting. Our intent is to help 
provide the data needed to make this determination. Other activities 
funded by the Corps include genetic research on pallid sturgeon and 
federal fish hatcheries for pallid sturgeon propagation. The Corps 
funds this work to assist the Service with reintroduction and 
population augmentation in case population numbers become low. Basic 
genetics research is needed, although Corps research funding might be 
more effectively applied to habitat restoration research and 
monitoring. We advocate a habitat-based approach to endangered species 
conservation.
    2.  In the Corps' opinion, are there any listed domestic sturgeons 
that may be questionable in terms of their uniqueness or 
distinctiveness from other listed or unlisted groups of sturgeons?
    Answer: There are numerous questions on hybridization between 
shovelnose and pallid sturgeons. There have been some genetic questions 
regarding the taxonomic classification of the Alabama sturgeon, which 
has not been seen for about 5 years, and only a few individuals had 
been captured prior to that. According to our research staff, a 
recently published journal article unequivocally establishes that the 
Alabama sturgeon is a true species.
    3.  Are there any species that, in the Corps' opinion, may have 
population trends, numbers or distribution and/or that face 
overestimated threats indicating that the species may not merit its 
current endangered or threatened species status under the ESA?
    Answer: The FWS and the NMFS are the Federal agencies responsible 
for listing and delisting species, and for accomplishing, compiling, 
and evaluating information upon which such decisions are based. That 
said, the Corps does have extensive expertise of its own in terms of 
habitat and species management and based upon this experience it 
appears that status reviews may be warranted for several species.
      Based on the Corps' experience and knowledge are there 
any specific species that the Corps would suggest for status review?
    Answer: Species to consider include pallid sturgeon, two species of 
mussels, and Interior Least Tern. In the case of the pallid sturgeon, 
our data suggest that populations in the lower Mississippi River are 
stable, and probably in the middle Mississippi River as well. Two 
mussel species currently listed as endangered should be considered for 
downlisting or delisting--the fat pocketbook mussel (Potamilus capax) 
and the fat threeridge mussel (Amblema neislerii). Both have been found 
to be common to abundant and exhibit good evidence of recruitment. 
Depending upon the outcome of on-going surveys, the ILT might also be 
considered. In any event, recovery plans for each should be updated.
    4.  Do you have any thoughts or comments you would like to offer 
with regard to taking a regional or system-wide view of the endangered 
species challenge or of increasing emphasis on conservation planning 
via the ESA's Section 7a(1).
    Answer: This is an important question affecting the Corps, notably 
as it relates to its ecosystem restoration authorities and projects 
being implemented across the country. A shift of emphasis from project-
specific approach to endangered species issues (mostly the present 
practice) to a more regional or system-wide approach could alleviate 
inconsistency and inefficiency, while promoting an more holistic 
ecosystem approach to species and habitat conservation. Project level 
analyses of endangered species should always be conducted in the 
context of a larger scale program. Optimum use of limited resources to 
protect and manage species is not possible via a piecemeal approach 
that deals somewhat independently with each project. A good example is 
the pallid sturgeon that ranges over 3,000 miles in the Mississippi 
River basin. A more systemic approach would allow project planning, 
maintenance, and operations to more effectively support species 
protection and recovery. Another example is the $8 billion, 35 year 
effort to restore the Florida Everglades and over 18,000 square miles 
of marsh and associated habitats where there is a tension at times 
efforts to recover species such as the Florida Panther and Snail Kite, 
and holistic efforts to address the needs of all species and their 
habitats.
    Section 7a (1) of the ESA provides each agency with the authority 
to develop what amounts to a conservation plan for listed species. 
Proactive implementation of this section of the law once a species is 
listed and before a crisis develops could go a long way towards 
preventing trouble down the road. Application of sound scientific 
principles and early coordination between regional offices of the Corps 
and the Services will help to ensure environmentally acceptable 
projects. Ideally, conservation plans should tier off of species 
recovery plans. Unfortunately, many recovery plans are outdated and 
need to be revised.
    The Corps recognizes a need to develop guidance on implementation 
of this provision. The Corps and the Services need to work in 
partnership to develop a better approach especially for wide-ranging 
species. Two good working models exist for the Corps. The first is the 
region-wide biological assessment and guidelines for management of the 
Red-cockaded Woodpecker that were developed by the Army in 
collaboration with Region 4 of the FWS (circa 1996). The second is the 
Corps' Sea Turtle Research Program and region-wide biological 
assessment and biological opinions for the Gulf and South Atlantic U.S. 
Corps navigation Projects (circa 1990).
    5.  You made several interesting comments with regard to the Corps' 
reported ESA expenditures. Is there any additional information or 
insights with regard to the expenditures the Corps makes to comply with 
the ESA that you think might be helpful?
    Answer: The Corps reported $33.5M in expenditures for threatened 
and endangered species during 2003 (most recent year published). While 
meeting the requirements for reporting, there are concerns that the 
reported amounts underestimate the total expenditures. For example, we 
found that Corps actual cost for sea turtles was $4.6M compared to the 
$2.3M reported by the Districts. Costs reported to FWS may be 
underestimated for several reasons, including: costs in contracts that 
go unreported; equipment costs not accounted for; and variations in 
District cost estimation procedures. We are developing a new reporting 
process to be used by Corps staff for the 2005 report. As the 
accounting of total costs improves, this cost information will be used 
in decisions to approve, modify, or in some cases abandon projects due 
to required commitment of ESA costs.
Follow up question submitted by Senator Crapo:
    1.  All of the panelists spoke of contributing time and money to 
species conservation--some more willingly than others. If we could 
guarantee that your investment gave you a seat at the table to take 
part in hiring scientists, planning recovery, and taking action on the 
ground--would you be better off?
    Answer: As a federal agency, we enjoy the privileges suggested by 
Senator Crapo. Nonetheless, we endorse this approach. The Corps makes a 
considerable investment in hiring scientists and participating directly 
or indirectly in recovery planning, and taking action on the ground, 
often in partnership with others. We agree that stakeholders should 
have a seat at the table and participate in the scientific process and 
in recovery planning. Annually, the Corps participates in recovery 
efforts for about 70 listed species. Certainly it would be helpful if 
more funds were freed up for conservation and recovery planning--most 
agree that many plans are in need of updates.
    Clearly, there will often be a wide range and diversity of 
interests in ecosystem management, including extreme positions on both 
sides of the house. Certainly we would all be better off, as would 
listed species, working through effectively managed partnerships 
emphasizing cooperative conservation. We firmly believe that if all 
were focused on the goal of species conservation we could find the ways 
and means of accommodating long-term species health while allowing 
reasonable human economic growth and development.
    The Corps is willing to bring its considerable science and 
engineering expertise to the table to help find the ``third way'' in 
addressing the complex and often contentious issues surrounding 
conservation of endangered species and the ecosystems upon which they 
depend.

                                 
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