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



 
 THE NEED FOR IMPROVEMENTS AND MORE INCENTIVES IN THE ENDANGERED SPECIES 
                                  ACT
=======================================================================

                                HEARING

                               before the

      SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE & TECHNOLOGY

                                 of the

                      COMMITTEE ON SMALL BUSINESS
                        HOUSE OF REPRESENTATIVES

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                   WASHINGTON, DC, SEPTEMBER 15, 2005

                               __________

                           Serial No. 109-31

                               __________

         Printed for the use of the Committee on Small Business


 Available via the World Wide Web: http://www.access.gpo.gov/congress/
                                 house


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                      COMMITTEE ON SMALL BUSINESS

                 DONALD A. MANZULLO, Illinois, Chairman

ROSCOE BARTLETT, Maryland, Vice      NYDIA VELAZQUEZ, New York
Chairman                             JUANITA MILLENDER-McDONALD,
SUE KELLY, New York                    California
STEVE CHABOT, Ohio                   TOM UDALL, New Mexico
SAM GRAVES, Missouri                 DANIEL LIPINSKI, Illinois
TODD AKIN, Missouri                  ENI FALEOMAVAEGA, American Samoa
BILL SHUSTER, Pennsylvania           DONNA CHRISTENSEN, Virgin Islands
MARILYN MUSGRAVE, Colorado           DANNY DAVIS, Illinois
JEB BRADLEY, New Hampshire           ED CASE, Hawaii
STEVE KING, Iowa                     MADELEINE BORDALLO, Guam
THADDEUS McCOTTER, Michigan          RAUL GRIJALVA, Arizona
RIC KELLER, Florida                  MICHAEL MICHAUD, Maine
TED POE, Texas                       LINDA SANCHEZ, California
MICHAEL SODREL, Indiana              JOHN BARROW, Georgia
JEFF FORTENBERRY, Nebraska           MELISSA BEAN, Illinois
MICHAEL FITZPATRICK, Pennsylvania    GWEN MOORE, Wisconsin
LYNN WESTMORELAND, Georgia
LOUIE GOHMERT, Texas

                  J. Matthew Szymanski, Chief of Staff

          Phil Eskeland, Deputy Chief of Staff/Policy Director

                  Michael Day, Minority Staff Director

     SUBCOMMITTEE ON RURAL ENTERPRISES, AGRICULTURE AND TECHNOLOGY

SAM GRAVES, Missouri, Chairman       JOHN BARROW, Georgia
STEVE KING, Iowa                     TOM UDALL, New Mexico
ROSCOE BARTLETT, Maryland            MICHAEL MICHAUD, Maine
MICHAEL SODREL, Indiana              ED CASE, Hawaii
JEFF FORTENBERRY, Nebraska           RAUL GRIJALVA, Arizona
MARILYN MUSGRAVE, Colorado

                   Piper Largent, Professional Staff

                                  (ii)


                            C O N T E N T S

                              ----------                              

                               Witnesses

                                                                   Page
Pombo, Rep. Richard (CA-11), Chairman, U.S. House of 
  Representatives Resources Committee............................     3
Wells, Mr. Mike, Chief of Water Resources, Missouri Department of 
  Natural Resources..............................................     5
McNally, Ms. Nancy Macan, Executive Director, National Endangered 
  Species Act Reform Coalition...................................     8
Peterson, Mr. Bob, President, Ohio Farm Bureau Federation, 
  American Farm Bureau...........................................    11
Wiseman, Mr. Larry, American Forest Foundation...................    13
Kostyack, Mr. John, Director, Wildlife Conservation Campaigns and 
  Senior Counsel, National Wildlife Federation...................    15

                                Appendix

Opening statements:
    Graves, Hon. Sam.............................................    27
Prepared statements:
    Wells, Mr. Mike, Chief of Water Resources, Missouri 
      Department of Natural Resources............................    29
    McNally, Ms. Nancy Macan, Executive Director, National 
      Endangered Species Act Reform Coalition....................    32
    Peterson, Mr. Bob, President, Ohio Farm Bureau Federation, 
      American Farm Bureau.......................................    50
    Kostyack, Mr. John, Director, Wildlife Conservation Campaigns 
      and Senior Counsel, National Wildlife Federation...........    54

                                 (iii)
      



THE NEED FOR IMPROVEMENTS AND MORE INCENTIVES IN THE ENDANGERED SPECIES 
                                  ACT

                              ----------                              


                      THURSDAY, SEPTEMBER 15, 2005

                   House of Representatives
Subcommittee on Rural Enterprises, Agriculture and 
                                         Technology
                                Committee on Small Business
                                                     Washington, DC
    The Subcommittee met, pursuant to call, at 9:36 a.m. in 
Room 2261, Rayburn House Office Building, Hon. Sam Graves 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Graves, Christensen, Fortenberry, 
Grijalva, Udall 
    Chairman Graves. Good morning. I want to welcome everybody 
to this hearing. It is the Subcommittee on Rural Enterprise, 
Agriculture and Technology and the Small Business Committee.
    Today we are going to be discussing the Endangered Species 
Act and the need to protect individual private property rights. 
I do appreciate everybody's participation in this hearing. I 
know a lot of folks have come from a great distance and I do 
appreciate that very much.
    The Endangered Species Act was created in 1973 with the 
purpose to recover our nation's most endangered and threatened 
species. Although well intentioned, the Act has failed at its 
purpose, recovering approximately one percent of the listed 
species.
    However, over the span of 30 years, the scope of the 
Endangered Species Act has expanded greatly. Currently, there 
are a total of 1,264 listed species, compared to just 109 when 
the Endangered Species Act was passed into law.
    Now the increased scope of the ESA is impeding on the 
rights of landowners, with 80 percent of those species dwelling 
on lands owned and operated by farmers and ranchers.
    The situation involving the Missouri River has piqued my 
interest in the Endangered Species Act. The Court has ruled 
that the ESA supersedes Congressional intent to provide for 
flood control and navigation along the Missouri River, which 
Congress enacted in 1944.
    This has brought great distress to the region because of 
the uncertainty this ruling creates. In order to protect the 
habitat and increase the spawning habits of protected species 
on the river, the Army Corps of Engineers has the authority to 
lower or raise water levels at points that would not support 
navigation.
    This uncertainty in river flows in the past has caused 
major shippers to cancel their Missouri River operations and 
has caused extreme alarm for farmers in the Missouri River 
flood plain. Missouri farmers and small business owners have to 
live with these uncertainties year in and year out.
    The financial burden this uncertainty creates is just 
another problem facing farmers in Missouri who continually face 
season after season of drought and rising energy prices.
    Shipping costs by barge traffic is the cheapest and most 
efficient form of transportation for farmers. However, if the 
Missouri River cannot support navigation, farmers will have to 
find other more expensive modes of transporting their goods. 
This additional expense would be detrimental to their survival.
    Farmers themselves, in my opinion, have become an 
endangered species, with only two percent of the population 
undertaking this important enterprise.
    I consider myself a conservationist. I am a farmer by 
trade. It is in my best interest to preserve the ecosystem on 
my property, but I don't want to have to limit my harvest 
because of an endangered weed located on my property, 
especially when my family depends on a successful season.
    I would like to see the Endangered Species Act work, but it 
is time to update this broken law and improve it so we can 
recover more species while preserving the rights of our 
property owners.
    This is why I have introduced H.R. 3300, the Endangered 
Species Improvement Act. My bill seeks to create a voluntary 
program that provides incentives and compensation to landowners 
who participate in the recovery of endangered species.
    Through this bill, it is my hope that landowners' rights 
will be preserved, more endangered species will be recovered, 
and a positive working relationship between the landowner and 
the government is going to be fostered.
    Far too often, the landowner will try to cover up the fact 
that the endangered species is located on their property. 
Through HR 3300, it is my hope that this will end and 
landowners will welcome the opportunity to recover protected 
species.
    Offering incentives will encourage participation and rid 
the negative feeling associated with the Endangered Species 
Act. Far too often, we get into ``the shoot, shovel, and shut 
up'' situation if you do find a species on your property.
    Again, it is important to me that we consider the impact of 
landowners, farmers, and small businesses when making plans to 
recover species. We must find ways to work with people and not 
against them so we can all achieve our goals.
    I think increased incentives is part of the solution. As a 
member of the Small Business Committee and Chairman of the 
Subcommittee on Rural Enterprise, Agriculture and Technology, I 
believe it is my job to see that farmers and small business 
owners are protected during the debate.
    I turn now to Mr. Fortenberry.
    [Chairman Graves opening statement may be found in the 
appendix.]
    Mr. Fortenberry. Not at this time, Mr. Chairman. Thank you 
very much for your support on this.
    Chairman Graves. Thank you very much. We have got panel 
one, which is going to be Congressman Richard Pombo, who is 
Chairman of the Resources Committee, who has jurisdiction over 
ESA, and Mr. Pombo, thanks for being here. I appreciate it.

STATEMENT OF THE HONORABLE RICHARD POMBO, CHAIRMAN, U.S. HOUSE 
             OF REPRESENTATIVES RESOURCES COMMITTEE

    Mr. Pombo. Well, thank you. Thank you, Mr. Chairman. I 
appreciate you holding this hearing and your attention to this 
issue.
    We find ourselves in a situation with the Endangered 
Species Act where it is a law that is generally supported by 
the public. Saving, preserving, conserving our nation's 
endangered species, our wildlife, is a moral value that we as 
Americans share.
    The problem that we face is that with the Endangered 
Species Act, we have a law that is a failure. It has not worked 
in the way that it was originally intended when it was passed 
30 years ago.
    The idea was is that we would recover species. Currently, 
we have close to 1,300 species which have been listed as 
endangered on the list, and out of that, less than 10 have been 
recovered.
    Of those 10 that have been removed from the list, I would 
argue that probably half of them never should have been put on 
the list to begin with because of their inadequate science that 
was used in a listing process.
    We also have a law where over three-quarters of the species 
which are listed, 77 percent, either have declining populations 
or Fish and Wildlife doesn't know what status the species is 
in.
    That cannot be defended. A law such as that that is not 
working for its stated purpose is something that desperately 
needs to be updated. It is something that we as Congress have 
the responsibility to look at and change.
    At the same time, we have had a number of conflicts with 
private property owners and economic development because of the 
way that the Act is implemented.
    What we are trying to do in Congress right now is update 
the law, modify it so that it does a better job of recovering 
species. It puts the focus on recovery and at the same time 
removes some of the conflicts.
    One of those ways and taken from a bill that was introduced 
by you, Mr. Chairman, is dealing with the incentives.
    Right now, there is a built-in negative incentive that 
exists under the law. It is looked at as a negative if a 
property owner has an endangered species on their property, 
whether it is a plant, an animal, an insect, or what have you 
that has been listed as an endangered species.
    They see that as a negative and they do what they can in 
terms of managing the property to not attract endangered 
species, to not protect the habitat, which works exactly the 
opposite way in terms of trying to work towards recovery of 
that species.
    If you change those incentives, if you make it a positive 
for that property owner, you will have property owners managing 
their property differently.
    One of the things that we have looked at quite extensively 
is a system or a series of grants and aid and tax incentives 
that would make it possible for someone to maintain an improved 
habitat on their own property, therefore increasing the amount 
of habitat for an endangered species and have the government be 
a partner with that.
    Nearly 90 percent of the listed species have the majority 
of their habitat on private property. Because of that, the 
property owner has to be a partner. They have to be part of the 
solution. We can't continue to do it the way that we are doing 
it right now.
    We have also seen and looked at other countries and the way 
that they have dealt with their wildlife and where they have 
had successes and not had successes.
    The biggest successes that we have found anywhere are ones 
that have positive incentives that make it an economic 
incentive for the property owner to conserve species and 
conserve habitat. That is the kind of thing that we need to 
change.
    We are also looking at in terms of the science that is used 
under the Act ways that we can improve the level of science. 
There is a lot of debate today about the level of science that 
is used under the Endangered Species Act.
    It is a much lower bar than any of our other environmental 
laws that are in force, and raising that bar so that we have 
greater confidence in the science it used not only makes it 
easier to implement the Act, but it also gives us much greater 
confidence in the recovery plans and habitat plans, habitat 
conservation plans that are adopted in order to recover those 
species.
    Also looking at the whole issue of critical habitat, what 
is actually necessary to recover a species? I think the focus 
needs to be placed on recovery and not on land use control.
    We have seen over the years the Act has become more about 
land use control and less about recovery. We are trying to 
change that focus. We are trying to put the focus on recovery, 
what is necessary to bring those species back to a sustainable 
population. What kind of things do we need to do? What habitat 
is necessary to make that happen?
    Those are the kind of things that we are changing in the 
law. We are working on a bill right now. We have been working 
for several months negotiating with members of the Committee, 
and it looks like within the next several days we will be able 
to put a bill together that will be introduced as a bipartisan 
bill with the majority of the Committee's support and be able 
to move that, and that is the direction that we would like to 
go.
    Finally, I would just say, Mr. Chairman, that because of 
legislation like the bill that you introduced and others, we 
have been able to pull from a lot of different members a lot of 
different ideas as to ways to improve this and been able to 
incorporate much of that in the bill and the draft bill that we 
are working on now.
    I believe because of that, we will have the kind of 
legislation that when it becomes law is something that they can 
implement and it will actually work, which is what all of our 
goal is.
    So thank you for inviting me to be part of this hearing 
here this morning. I thank you for focusing the attention of 
the Committee on what is a very important issue.
    Chairman Graves. Thank you very much. I appreciate you 
being here. I know you are busy and are going to have to run 
off. This is very important to small business, and 
unfortunately, too many times, it gets in the way of businesses 
doing what they need to be doing and that is running their 
business. But I do appreciate you coming in today and 
testifying.
    Mr. Pombo. Thank you very much.
    Chairman Graves. I want to point out too for the record all 
the statements made by members and the witnesses are going to 
be placed in the record in their entirety.
    We will go ahead and seat the second panel now. Thanks, Mr. 
Chairman, for being here.
    [Brief pause.]
    Chairman Graves. Thank you all for appearing today. Again, 
I know some of you have traveled a long ways and I do 
appreciate that very much, coming in, and I look forward to 
hearing your testimony.
    What we will do is basically just let everybody give their 
opening statement. Then we will open it up for questions, which 
I know that I have a few. Propriety is fairly informal.
    We don't use the timing mechanism. We tell everybody they 
have five minutes, but if you have something to say, I want you 
to say it and so we usually don't depend on the timers too 
much. In fact, we don't even have them here today. So we will 
see how it works out.
    First, we have got Mike Wells with us today. He is Chief of 
Water Resources with the Missouri Department of Natural 
Resources out of Jefferson City. Mike, I appreciate you being 
here and thanks for coming and I look forward to your 
testimony.

    STATEMENT OF MIKE WELLS, MISSOURI DEPARTMENT OF NATURAL 
                           RESOURCES

    Mr. Wells. Thank you. Good morning, Mr. Chairman and the 
Committee. My name is Mike Wells, and I am Deputy Director of 
the Missouri Department of Natural Resources and the Chief of 
Water Resources for the State of Missouri.
    The Department of Natural Resources is the agency that has 
statutory responsibility to the state's water resources.
    As Chief of Water Resources, I represent the state in all 
interstate water issues. I want to thank Congressman Graves for 
inviting me to give testimony this morning on this very 
important issue.
    Let me begin by saying the State of Missouri is truly 
concerned about protecting endangered species and the natural 
habitat along our rivers.
    In fact, we were one of the earliest proponents for 
increasing funding for habitat restoration projects in and 
along the Missouri River, which is an issue we continue to 
support.
    However, we take issue with the manner in which the 
Endangered Species Act is being applied in the management of 
the Missouri River.
    Instead of the flow changes that are being proposed, we 
strongly believe there are common sense ways to protect the 
species without harming citizens who live and farm along the 
Missouri River or who rely on the river for their livelihoods.
    The Missouri River is a vital resource for the State of 
Missouri, providing drinking water to over two million of our 
citizens, cooling water for our utilities, waters to support 
navigation, unique recreational opportunities, and a valuable 
fish and wildlife habitat.
    We are concerned that changes in the management of the 
river which some have characterized as necessary to comply with 
the Endangered Species Act will be harmful to many of these 
uses.
    In December 2003, the U.S. Fish and Wildlife Service 
released an amended biological opinion which found that the 
U.S. Army Corps of Engineers' operations of the Missouri River 
would cause jeopardy for the pallid sturgeon, an endangered 
fish.
    Far too little is known about the pallid sturgeon, its life 
history and its needs. Yet, the Endangered Species Act is being 
administered in a very prescriptive manner when more reasonable 
courses of actions seem to be available.
    The Service has mandated certain actions based on 
questionable science and with little or no regard for the 
significant adverse environmental impacts and economic 
consequences of the action.
    These mandates include a summer low flow and spring rise. 
The Service demanded a period of low flow during the summer 
even though scientists have shown that this would produce 
minimal benefits for the species.
    Habitat restoration projections undertaken by the Corps of 
Engineers has created 1,200 acres of shallow water habitat 
since 2003.
    This habitat precluded the need, at least for now, for 
summer low flows. This alternative action was much less harmful 
to the other uses than the flow changes.
    In their opinion, the Service also indicated a spring rise 
was needed as a spawning cue to ensure the continued survival 
of the pallid sturgeon.
    The Service prescribed a spring rise despite the fact that 
fishery scientists had indicated that water temperature and 
photoperiod and not flow may be the controlling factors for 
pallid sturgeon spawning.
    Even today, the Service continues to insist on the manmade 
spring rise which would increase river levels by one to three 
feet during May and June.
    The Missouri River is free-flowing for more than 800 miles 
below Gavins Point Dam, which is the lowest of the six dams of 
the Missouri River reservoir system, to the confluence of the 
Mississippi near St. Louis.
    More than 550 of these miles are within the State of 
Missouri. Water released from Gavins Point Dam can take 10 to 
12 days to travel this distance.
    Once water is released from Gavins Point Dam, it cannot be 
retrieved. Given that local rainfall has caused the Missouri 
River to rise up to 10 to 12 foot in less than 24 hours in our 
state, it would be unwise to implement an artificial spring 
rise that would add additional feet of water to the river 
during the spring.
    An artificial spring rise would compound interior drainage 
and flooding problems for our farmers and communities along the 
river.
    In most years, the State of Missouri already experiences 
natural spring rises. With spring being the time of the year 
when Missouri floodplain farmers are already at the greatest 
risk at being flooded, artificially adding even more water to 
the river in the spring will only intensify this risk.
    The Missouri River's floodplain encompasses approximately 
one million acres in Missouri. Much of this is prime farmland.
    Any manmade or artificial spring rise that puts floodplain 
farmers and riverside communities at greater risk of being 
flooded is counter to the 1944 Flood Control Act.
    Congress expressly established the Missouri Reservoir 
System to control flooding, not to flood farmers.
    In light of this fact and the uncertainty about the pallid 
sturgeon needs, it is illogical for the federal government to 
implement a plan that would increase the risk of flooding.
    The Service is characterizing the artificial spring rise 
which they speculate will only benefit approximately 200 miles 
immediately below Gavins Point Dam as an experiment. The 
federal government should not be conducting experiments that 
threaten people's livelihoods.
    The range of the pallid sturgeon includes over 1,600 miles 
of the lower Missouri and Mississippi River and a significant 
reach of the Yellowstone River in Montana that all have spring 
rises, natural spring rises now.
    By focusing on habitat development in and along these 
reaches, the Service and the Corps could take advantage of 
reaches of river that have more natural hydrographs. This would 
avoid the contentious issues related to flow while providing 
benefits to the pallid sturgeon.
    It is unreasonable for the federal government to consider a 
flow plan that may only benefit the pallid sturgeon for less 
than a 200-mile reach of the Missouri River.
    A common sense application of the Endangered Species Act 
would suggest that the federal government should concentrate 
research and recovery efforts on the nearly 1,600 miles of 
river that already have a spring rise instead of conducting an 
experiment which could harm downstream citizens.
    Let me reiterate that the State of Missouri is truly 
concerned about protecting endangered species and natural 
habitat along our rivers, but we believe that there are common 
sense ways to protect the species without harming our citizens. 
We rely on the Missouri River for many uses.
    I thank you for this opportunity to testify and I would be 
glad to answer any questions.
    [Mr. Wells' testimony may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Wells. I appreciate your 
testimony.
    Next we are going to hear from Nancy McNally, is that 
correct?
    Ms. McNally. That is correct.
    Chairman Graves. Executive Director of the National 
Endangered Species Act Reform Coalition here in Washington. I 
appreciate you coming over and I look forward to your 
testimony.

 STATEMENT OF NANCY MACAN MCNALLY, NATIONAL ENDANGERED SPECIES 
                      ACT REFORM COALITION

    Ms. McNally. Thank you. I appreciate the opportunity to be 
here, Mr. Chairman, delegates to the Committee and Mr. 
Fortenberry.
    As everyone knows and we talked about a great deal, the 
Endangered Species Act was enacted over 30 years ago with the 
promise that we can do a better job of protecting our species 
and the habitats on which they depend.
    Today, over 30 years later, on behalf of the National 
Endangered Species Act Reform Coalition, I bring that same 
message back to the Subcommittee. We can and must do better.
    We have learned many lessons over the past three decades 
about how and what can be done to protect the endangered and 
threatened species.
    One of those important lessons that we have learned is that 
all too often, the ESA has created conflict where partnership 
and cooperation has been needed.
    N.E.S.A.R.C. is pleased to testify this morning about ways 
to introduce incentives into the process that will allow 
landowners and property owners to voluntarily cooperate in 
species protection efforts, which we continue to believe is one 
of the most effective ways to ensure that we address the 
species' needs.
    We also want to take the opportunity before I go any 
farther to commend Subcommittee Chairman Graves on your 
leadership on the introduction of H.R. 3300, the Endangered 
Species Improvements Act of 2005.
    N.E.S.A.R.C. supports H.R. 3300, and we believe it 
introduces a critical new element to the ESA by providing 
financial incentives for landowners to develop species recovery 
agreements that will protect and restore habitat for listed and 
candidate species.
    We are very pleased to note Chairman Pombo testified this 
morning that he is looking to include measures like yours into 
the product that they are putting together for consideration by 
the Resources Committee, and we certainly have been an advocate 
for that inclusion. We think it is an important piece of 
legislation.
    Before I go any farther, let me step back and briefly 
describe NESARC. The National Endangered Species Act Reform 
Coalition members come from a wide range of backgrounds.
    Among our ranks are farmers, ranchers, cities and counties, 
water districts, rural irrigators, electric utilities, forest 
and paper operators, mining companies, aggregate companies, 
homebuilders, and other businesses and individuals throughout 
the United States.
    What our members have in common is that they have been 
impacted by the implementation of the Endangered Species Act 
and they want to update and improve the Act.
    Attached to my testimony is a NESARC white paper that was 
developed last year after an extensive dialogue with our 
members.
    We stepped back from a long debate that has been fraught 
with polarization over the years and said, what do we really 
need to do going forward?
    We have a lot of experience under the Act. We need to look 
at the successes that we have had in species protection, and we 
need to look at the roadblocks that we have experienced and see 
what we can take away and learn from both the successes and 
those failures and look for ways to improve the Act so that we 
can draw upon the successful areas and make those more the norm 
than the exception with implementation of the Act.
    We identified several key issues that our members would 
like Congress to consider, and I am going to quickly go through 
them because everyone has a copy of the white paper.
    First and foremost, we wish to expand and encourage 
voluntary conservation efforts by landowners. We found that a 
universal concern with the Act is that it does not fully 
promote and accommodate voluntary conservation efforts.
    A critical element of updating and improving the Act must 
be the development of additional voluntary conservation 
programs that encourage landowners to participate in species 
conservation efforts.
    These incentives can take the form of voluntary species 
recovery agreements as you have outlined in H.R. 3300, and 
there are a number of other approaches that can be adopted as 
well.
    We are not looking at one particular goal as incentive but 
believe we need to look at a variety of incentives that would 
work. Modifying existing programs like Safe Harbor Agreements 
is also something that the Coalition has looked at.
    Second, we believe we must give the states the option of 
being on the front line of species conservation. We need to 
take advantage of state and local expertise and abilities by 
providing more flexibility so that states can facilitate 
voluntary efforts to protect and enhance species population.
    Third, we believe Congress should increase funding for 
voluntary and state programs for species conservation. We need 
to financially support the voluntary programs and state and 
locally run initiatives that are critical to ensure species 
recovery.
    Fourth, we must encourage prelisting measures. We need to 
promote efforts like the collaborative efforts by states, local 
governments, and private parties to develop most recently the 
sage grouse protection program to address species' circumstance 
before they have to be listed under the ESA. Bring the parties 
together early on and see what we can do to be helpful to the 
species before it gets to that critical point.
    Fifth, we must establish recovery objectives. Establishing 
recovery objectives will give us a goal to work toward, and 
when that goal is reached, the species will be removed from the 
list.
    Next, we must improve habitat conservation planning 
procedures and we would seek to codify the current no surprises 
policy.
    The HCP process has the potential to be a success story, 
but too often, property owners are stymied by the delays and 
the cost of getting approval of the HCP.
    Landowners involved in conservation efforts need to know 
that when they enter into these agreements, a deal is a deal, 
and that is why we would like to codify no surprises.
    Finally, and this should go without saying it is so 
obvious, we must ensure an open and sound decision making 
process. The ESA must be open to new ideas and data.
    We need a decision making process that allows for full 
public participation, better data collection, and independent 
scientific review to support the listing, critical habitat, and 
recovery provisions under the Act.
    While each of these elements that we have outlined is 
important, the need to encourage cooperative conservation 
activities by landowners deserves special attention.
    We are pleased that you are focusing in on that in the 
hearing this morning. What many people do not recognize is that 
protecting species in their habitat requires financial support, 
it requires time, it requires technical expertise.
    So we support H.R. 3300 as introduced precisely because it 
recognizes these complexities and addresses the key 
considerations that arise in species conservation efforts by 
landowners.
    Specifically, we are very pleased that H.R. 3300 takes a 
voluntary approach to conservation efforts. We think that is 
critical to bring landowners into these types of agreements.
    We believe that financial incentives for participating 
landowners is critical as well. One of the biggest hurdles for 
conservation activities is identifying ways to fund the work 
that must be done.
    A required element of the species recovery agreements 
authorized under your legislation, Mr. Chairman, is the 
provision of compensation by the Secretary.
    This will help ease the financial burden on landowners for 
developing the necessary protection and restoration activities.
    While we all recognize that funding is a difficult 
question, when we try to figure out where that funding will 
come from, we do believe that it is critical that as we all 
look towards this national goal of protecting species, we share 
in that burden of the cost.
    Finally, 3300 provides technical assistance, again, one of 
those things that probably is stating the obvious but sometimes 
gets lost in the rhetoric of the debate.
    Most landowners are not biologists and few, if any, will 
have expertise to independently identify the appropriate 
measures needed to help species on their property.
    Providing technical assistance, as H.R. 3300 does, and 
management training will increase the likelihood of enrollment 
and ultimately create a broader, more effective program. So we 
believe that is critical.
    For more than a decade, Congress has struggled with the 
question of what, if any, changes to the ESA should be made. In 
the interim, landowners and businesses have had to take the 
existing Act and make it work.
    It has been time-consuming, expensive, often frustrating, 
and the successes have been limited. While many species' 
populations have stabilized, maintaining the status quo is just 
not good enough.
    We need to find a way to do a better job of conserving our 
species. We need to find new and more effective ways to reach 
this goal of the ESA.
    N.E.S.A.R.C. urges this Committee and the remainder of the 
House and the Senate to take stock of the lessons we have 
learned today and the successes that we have had in order to 
identify important improvements that are necessary to make the 
Act work better in the future.
    We appreciate your leadership in looking at the voluntary 
incentives as one component of that. Thank you.
    [Ms. McNally's testimony may be found in the appendix.]
    Chairman Graves. Thank you very much.
    Next we have Bob Peterson, who is President of the Ohio 
Farm Bureau Federation, and he is here also representing the 
American Farm Bureau Federation. You come to us from Sabina, 
Ohio and I appreciate you being here. Thanks for coming.

     STATEMENT OF BOB PETERSON, OHIO FARM BUREAU FEDERATION

    Mr. Peterson. Thank you. Glad to join you. I need to 
applaud you on your pronunciation. You are the only person I 
know that can pronounce Sabina correctly the first time out.
    Good morning. I am Bob Peterson. I am a grain and livestock 
farmer. I have the pleasure of serving as the President of Ohio 
Farm Bureau and then with American Farm Bureau board of 
directors.
    I also appreciate the opportunity to be here today to talk 
about the needs for more and better incentives under the 
Endangered Species Act. I ask that my written statement be 
submitted for the record.
    The need for these incentives is readily apparent when you 
realize that almost 80 percent of listed species occur, to some 
extent, on private lands.
    Almost 35 percent occur exclusively on private lands, 
meaning that they are totally dependent on the actions of 
private landowners for their continued existence.
    Most of these lands are agricultural lands. Cooperation of 
private landowners is essential if the Endangered Species Act 
is to be successful.
    Farmers and ranchers enjoy the benefits of having wildlife 
on their lands. Most farmers and ranchers are already taking 
measures on their own to protect listed species and habitats. 
They need the tools to be able to do it better.
    Many landowners would like to protect listed species, but 
the Endangered Species Act as currently written makes that 
difficult.
    Most farmers and ranchers are also small businessmen and 
businesswomen who can least afford any adverse impact from 
endangered or threatened species on their lands. The Endangered 
Species Act does not address the needs of many small 
businesspeople.
    We support H.R. 3300 because it provides a framework for an 
Endangered Species Act cooperative conservation program that 
addresses the needs of small businesses such as farmers and 
ranchers. We commend the Chairman for introducing the bill.
    The Farm Bureau has long supported the use of cooperative 
conservation as a way to implement the Endangered Species Act. 
We are convinced that cooperative conservation is a win, is a 
way to make the Act work for both landowners and for species, 
producing a win-win situation for both.
    The Ohio Farm Bureau plays a leadership role in 
collaborative efforts with government agencies and other 
organizations to develop and implement voluntary, flexible 
conservation programs that provide a wildlife habitat for land 
and aquatic species.
    Our sleek, environmental assessments and water quality 
testing programs have resulted in landowner engagement and a 
multitude of working land conservation initiatives benefiting 
the listed species.
    The White House recently sponsored a conference on 
cooperative conservation in St. Louis in which the American and 
Ohio Farm Bureaus participated.
    We were heartened by the commitment from the 
Administration's top officials from five cabinet-level 
departments, the Interior, Agriculture, Commerce, Defense, and 
EPA.
    The need for greater flexibility in the Endangered Species 
Act was among the most cited changes that were needed.
    We believe that H.R. 3300 provides farmers and ranchers the 
flexibility they need to meet their land-use goals while at the 
same time providing effective protection for listed species.
    The voluntary species recovery agreements specified in the 
bill allows both the landowner and the government agency the 
flexibility to craft an agreement that will provide maximum 
benefits to both species and the landowner.
    A voluntary incentives-based program should be responsive 
to the needs and concerns of private landowners.
    Some are concerned with the impact the estate taxes will 
have on their ability to pass the operations along to future 
generations. Some others are concerned about maintaining a cash 
flow that would allow them to meet the bank loan payments and 
other obligations. Some are concerned about whether they will 
they be able to continue to operate with the listed species on 
their property.
    An effective program should include a choice of direct 
payments, estate tax or property tax or other tax deductions or 
credits or simply the removal of ESA disincentives or 
restrictions. One size does not fit all.
    Other elements that are essential parts of any cooperative 
conservation program include it must incorporate working 
landscapes and not be strictly a set-aside program.
    It must provide certainty to landowners, and once an 
agreement is in place, no additional management obligations or 
restrictions will be imposed.
    It must provide incidental-take protection to landowners 
who enter cooperative conservation agreements. Lands covered by 
cooperative conservation agreements must be excluded from 
critical habitat.
    Critical habitat designation would be a duplication in 
terms of cooperative conservation agreements.
    I thank you for holding this hearing on this important and 
timely issue. I look forward to answering any questions that 
you may have later.
    [Mr. Peterson's testimony may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Peterson.
    Next we have Larry Wiseman with the American Forest 
Foundation here in Washington. I appreciate you being here. I 
look forward to your testimony.

     STATEMENT OF LARRY WISEMAN, AMERICAN FOREST FOUNDATION

    Mr. Wiseman. Thank you, Chairman Graves. Along with 
spending a lot of time in Washington, I spend a lot of time 
working with members of our American Tree Farm System.
    The American Tree Farm System encompasses about 80,000 
individuals, families mostly, who are engaged actively in the 
most significant of enterprises, growing trees.
    Our members manage together about 35 million acres of 
America's forest land. Together with four and a half million 
other individuals, they own about two-thirds of America's 
forest land.
    In other words, families and individuals are the majority 
owners of America's woodlands, not the feds, not the states, 
not industry, but families, all of them working in small 
enterprises in most of the states of the union.
    Like many small enterprises, most of the decisions that 
these folks make about their business are made around the 
kitchen table.
    Increasingly, as I have sat and drank tea, sweetened and 
unsweetened tea in various parts of the country with these 
folks, I sense a recognition among them that the decisions made 
in hearing rooms like this will have as much impact on the 
future of their enterprise as the decisions that they make 
around the kitchen table.
    For that reason, we are very pleased and honored to be here 
today, because it isn't often that people recognize the 
valuable role that family forest owners, most of whom are not 
farmers, most of whom aren't ranchers, play in supporting rural 
economies in rural environments.
    Indeed, fully two-thirds of the fiber that is grown to 
support our wood and paper industries in the United States are 
grown by these family enterprises.
    That industry in turn supports about a million plus jobs, 
many in rural communities, many among the most important 
sources of jobs for those rural communities.
    So what happens to family forest owners, what they can and 
can't do, has a profound impact not just on the environment and 
the economy but also on the culture and heritage of rural 
America, so we very much appreciate the opportunity to be here.
    Most of our members, when we talked to them about why they 
own land put wildlife recreation aesthetics as their primary 
reasons for owning land.
    Very often, many of the folks in Ohio and elsewhere who are 
members of the American Tree Farm System will say that their 
goal is to leave the land better than they found it and then to 
continue that heritage of stewardship by their family.
    Many of them actually welcome the opportunity to manage for 
endangered species. What happens, sadly, as the other witnesses 
have pointed out, is that they often lack the knowledge and the 
technical skills and most importantly, the resources to 
implement the practices that are needed for these ecosystem 
services.
    Just to give you an example, there was an article in USA 
Today on Tuesday featuring one of our members, Judd Brooks, a 
tree farmer in Mississippi who has spent the last 30 years 
creating a beautiful forest, I have been on it myself, 2,100 
acres, and he was managing it not just for income and an asset 
but also as gopher tortoise habitat, one of the critical 
endangered species in that part of the world.
    Post-Katrina, Judd's trees were all lying on the ground, 
and he has no way of supporting the restoration that will be 
needed not just to put his enterprise back together again but 
to continue the work that he had been doing with us and with 
other organizations to protect the gopher tortoise and 
associated habitats.
    Whatever the motives for owning forests, family forest 
owners need cash flow. They need income to pay taxes and 
insurance to invest in the future of their land.
    If they believe that endangered species protection is going 
to tip their cash flow the wrong way, many of those who have 
the opportunity to sell for development at hugely inflated 
prices will choose to do so, and that is bad for the 
environment.
    Now some owners of course may choose that as a potential 
land use and we certainly endorse that. That is their right and 
perhaps within the context of their family or obligation.
    However, many would want to stay on the land, and they 
would view species conservation not just as something that is 
important to them but as a service they provide to the public.
    They believe that that service is not only valuable to the 
public; it is a service that is worthy of public support. Share 
the costs of endangered species protection through incentive 
programs.
    You are familiar with many of the incentive programs that 
exist today for forest and species conservation. They are 
meager. They are confusing. There was some $4 billion in 
unfunded applications for conservation projects last year, and 
of those that were funded, a very, very tiny fraction went 
towards forest conservation.
    Many of these folks just aren't on the radar screen in some 
states. Under the EQIP program, which is the largest federal 
conservation incentive program, less than two percent 
nationwide of expenditures were directed at forest conservation 
practices.
    Given that about half the rural land in the U.S. is 
forested, not farmed or ranched, that suggests that we have a 
disparity that we have to understand.
    H.R. 3300, let me compliment you, Chairman Graves. It is 
the first time I was able to pick up a piece of legislation, 
read it from page one to page two, just two pages, and 
understand exactly what you were getting at. I was very 
impressed. Even I could understand it.
    It addresses a lot of concerns that our people have with 
endangered species policies. It addresses regulatory 
uncertainty. We like the notion of a contract which specifies 
which practices will be used.
    It addresses the notion of simplicity. Right now, people 
don't know where to go, who to call. Once they get in the door 
to a program, there are so many applications and committees and 
requirements and priority listings that very often, they just 
say I quit. The program's simplicity is an enormous virtue and 
one that we see clearly demonstrated in H.R. 3300.
    There are a few things that we would like to see improved 
in endangered species policy generally. Some of the issues that 
surface in H.R. 3300 that we draw your attention to, many of 
our owners plan for the long haul.
    They plan for 30, 40, 50, 60, 70, and 80 years and then 
they cross their fingers and hope a hurricane doesn't come. 
Insurance isn't available for these folks, generally.
    We appreciate that H.R. 3300 recognizes those existing 
operations within the context of an SRA. However, some people 
may want to change their operations, and we hope that, over 
time, they would be able to do so through an SRA that had some 
flexibility in that regard.
    Model agreements, that is an interesting idea. It is a 
tough one, I think, one that we would counsel some flexibility 
for.
    A lot of different species are out there and management 
practices will vary from region to region, state to state, even 
site to site, so some flexibility needs to be built into that.
    The length of the agreement, five years, is short. Our 
members are deeply interested in not obligating their great, 
great, great, great-grandchildren to agreements that they make 
tomorrow.
    So perpetuity is obviously too long, but five years may be 
a term not quite long enough to address some of the species' 
considerations that have to be addressed at the forest level.
    Lastly, I'm worried about outreach and education. Although 
the witnesses have talked about the importance of technical 
assistance and resources, currently the Department of Interior, 
Fish and Wildlife Service has lowered the funding available for 
outreach and education, focusing their dollars on acres 
restored on particular properties.
    That is easy to count. Acres are easy to count, but in so 
doing, by not funding outreach and education, they undermine 
one of the most important ways that new practices and new 
technologies move from place to place in rural America, and 
that is the peer-to-peer mentoring and the outreach and 
education that can magnify an investment in 100 acres through a 
change in practices on 10,000. I would encourage you to think 
of that as you continue.
    With that, sir, let me thank you for the opportunity to 
testify on behalf of our 80,000 members.
    Chairman Graves. Thank you very much, Mr. Wiseman.
    Next we are going to hear from John Kostyack, who is the 
Director of the Wildlife Conservation Campaign and the Senior 
Counsel for the National Wildlife Federation here in 
Washington, is that correct? I appreciate you being here very 
much. Thank you.

    STATEMENT OF JOHN KOSTYACK, NATIONAL WILDLIFE FEDERATION

    Mr. Kostyack. Thank you for having me, Chairman Graves, and 
Chairman Graves, Congressman Udall, Congressman Grijalva, and 
Delegate Christensen, I really appreciate the opportunity to 
testify today.
    The bill that is the focus of this hearing, H.R. 3300, the 
National Wildlife Federation believes is an excellent starting 
point for addressing the needs for better endangered species 
conservation incentives.
    We support this bill, subject to a few suggested 
improvements, which I would like to get into in my testimony 
today.
    First, I would like to address some of the myths and facts 
about the Endangered Species Act and its accomplishments, 
because that is how we opened up the hearing.
    We heard Mr. Pombo stating that the Endangered Species Act 
is a failure and that it is sort of the predicate for 
everything we do from here.
    That is contrary to the data. We have been researching this 
issue, studying it, looking at it, talking to people around the 
country who are implementing this law, looking at the 
statistics generated by the U.S. Fish and Wildlife Service and 
NOAA Fisheries, and it has been a remarkably successful law, 
especially considering the limited resources that have been 
provided, as we have heard from the previous witnesses.
    Here are three crucial facts based completely upon U.S. 
Fish and Wildlife Service statistics that no one has contested.
    Roughly 99 percent of the species ever protected by the 
Endangered Species Act are with us today. In large part due to 
the Endangered Species Act, they have been kept from 
disappearing into extinction. They were headed toward 
extinction. The Endangered Species Act came along. Today, they 
are here for our children and our grandchildren.
    Number two, of the species whose condition is known, 68 
percent are stable or improving. Mr. Pombo focused heavily upon 
the unknown condition as in one whose condition is unknown, 
blamed that on the Endangered Species Act, assumed all of those 
are headed to extinction.
    Well, the fact is the fact that we don't know the condition 
of some species is not the fault of the Endangered Species Act. 
In fact, the Endangered Species Act has spurred more research 
on wildlife than any other law or program, but we have a 
situation where there is inadequate funding, and that is not 
the fault of the Endangered Species Act that we don't have the 
funding needed to identify the condition of those remaining 
species.
    The third statistic is perhaps the most important one. When 
species are protected by the Act, their condition stabilizes 
and improves over time.
    In other words, yes, you can find a significant number of 
species that are declining in the five or 10-year period after 
listing, but if you look at the period over time, if you look 
at the individual five-year segments, every time you look at 
another five-year segment, you find that more and more species 
are joining those categories of stable and improving in the 
Fish and Wildlife Service recovery reports. That is 
fundamental. The Act is working.
    Now we have wildlife icons such as the gray wolf, the 
Yellowstone grizzly, our nation's symbol, the bald eagle, and 
these are major success stories with increase in populations 
thanks to the Endangered Species Act that we should all be 
celebrating.
    We have other species like the whooping crane, black-footed 
ferret, California condor that at the time they were listed by 
the Endangered Species Act, they were at the absolute brink of 
extinction.
    Today, their numbers are rebounding where you can go out 
there, and I have done with my kids, go out there and enjoy 
these species, and it is another thing that we should be out 
there celebrating. They were on a glide path to extinction when 
the Endangered Species Act came along. We have turned them 
around. Let us celebrate that fact.
    It is not just the species. We have habitats that benefit. 
The ecosystems that people depended upon, not just wildlife, 
for drinking water, clean air, flood protection, quality of 
life, recreation, these remain functional, oftentimes in large 
part to the Endangered Species Act.
    The critics of the Act were focusing primarily on a single 
statistic, the fact that only a handful of species have 
recovered to the point where they can be delisted, but the main 
factors that lead to the fact that we have not gotten to 
recovery and delisting for most species are ones that are 
unrelated to the performance of the Endangered Species Act.
    There are three. One, inadequate funding. We heard about it 
from all these witnesses. It is a perennial problem.
    Two, slow biological processes. If the reproductive phase 
of a species in wildlife is 50 years, then you can't expect to 
turn that species around in 10 years.
    Most species, the median amount of time they have been on 
the endangered species list is 15.5 years, and if you look at 
the recovery plans of all the listed species, the experts on 
these species are all saying median time for recovery 30, 40, 
50-year range.
    So to blame the Endangered Species Act on the fact they 
have not gotten to the point of recovery and delisting is just 
ignoring that biological fact.
    Finally, the Endangered Species Act contemplates in a very 
common-sensical way that if you are going to remove the 
protections of the Endangered Species Act due to recovery, you 
need to have adequate regulatory mechanisms in place so the 
species doesn't immediately slip back toward extinction and 
completely squander all the investment we made in that 
recovery.
    It is not the fault of the Endangered Species Act that we 
do not have an alternative safety net in place for so many 
species that are approaching the point of recovery.
    So these are all factors beyond the control and influence 
of the Endangered Species Act that makes it essentially a 
difficult but right now inalterable fact that we don't have a 
lot of species delisted.
    Now let us talk a little bit about H.R. 3300, because I 
really do want to focus on what is positive. Today, we have a 
bill that I think is extremely encouraging.
    The Endangered Species Act certainly would benefit from 
Congressional attention in certain areas, and the area where 
attention is most needed is the very area targeted by H.R. 
3300, the lack of sufficient funding and technical assistance 
for private landowners and others who are interested in 
carrying out recovery actions.
    The Act does have a number of provisions calling for 
recovery actions, but it doesn't specifically address the need 
that we just heard from these other witnesses, the farmers, the 
private landowners, small businesses who are particularly on 
working landscapes who want to help make recovery happen but 
lack the funding and the technical know-how to do so.
    This is crucial, because as we have heard from the other 
witnesses, roughly 80 percent of all the listed species rely in 
part on private lands for their survival and recovery.
    Leaving those habitats alone is just not enough. Protecting 
them from harmful activities won't do it. For most endangered 
species, we are going to need active restoration and 
management. That means lighting prescribed fires; removing 
invasives; building wildlife crossings over roads that are 
leading to so much mortality and fragmenting habitats; 
planting, repairing, and vegetation.
    These measures are all costly. Private landowners and 
others are not likely going to be able or willing to take them 
without a helping hand from the government.
    So, for that reason, National Wildlife Federation supports 
H.R. 3300 with a few modest changes, because this is the bill 
that addresses that fundamental challenge we have.
    But there are five changes we would like to recommend, and 
I will go through them quickly. I go into them in much more 
detail in our written testimony.
    First and perhaps most important, the species recovery 
agreements, which I think is a great concept, that has to be a 
line with the recovery plans that are already being prepared 
and approved pursuant to Section 4[f] of the Endangered Species 
Act.
    The way the bill is written right now, the Secretary 
conceivably could be approving agreements that are completely 
at odds with the recovery plan.
    Recovery plans are the blueprint that are supposed to be 
directing all of our resources to the management and 
restoration of these species. The last thing we want to do is 
jeopardize the investment we have made in the recovery plans. 
Oftentimes, they are prepared over a series of years, enormous 
stakeholder involvement from conservation and industry groups, 
lots of resources.
    We don't want to then start approving agreements that are 
inconsistent with what was just completed in the recovery 
planning process. We would recommend that the SRAs be aligned 
with recovery plans.
    Second, the role of states should be acknowledged by simply 
including them among the qualified recipients of species 
recovery agreements.
    They are often in virtually every state the crucial player 
in management and restoration of imperiled species, and they 
should be on the ground floor of this species recovery 
agreement innovation.
    Third, the language relating to integrated with existing 
operations, we think that is an unnecessary limitation.
    I think consistent with what some of the other witnesses 
were saying, species recovery agreements are completely 
voluntary, and so there is no reason to place that limitation 
on the types of SRAs that landowners can proceed with.
    Fourth, and this is perhaps an oversight, the two types of 
species that are currently qualified to benefit from these 
agreements are listed and candidate species, candidates 
presumably because they have already been deemed warranted for 
listing.
    But there is another category of species that also have 
been deemed warranted for listing known as the proposed for 
listing category, and we suggest they be added as well. We 
think that is a pretty minor and technical amendment.
    Finally, just for not only good government, but to benefit 
landowners, we think there ought to be a database at least on 
the Internet, perhaps available in paper or hard copies as 
well, of all species recovery agreements that are approved.
    That is basically going to be the knowledge base that 
landowners and conservationists can turn to to build on for 
their own innovations and also hopefully will improve 
transparency, which we have been lacking in a lot of these 
grant programs and ensure the tax dollars are wisely spent.
    Let me just wrap up. We are hopeful that H.R. 3300, with 
these targeted improvements, will herald a new era in species 
conservation.
    It is going to take meaningful funding. It is one thing to 
authorize. You then need to follow up with the appropriations, 
and when I heard that number about 4 billion, my jaw dropped, 
but I guess it shouldn't be too surprising to have $4 billion 
worth of conservation projects waiting out there that are 
unfunded, and that is significant. That needs to be addressed.
    But if we want to save our nation's endangered wildlife for 
future generations, we are going to have to lend a helping hand 
to private landowners, so we commend Chairman Graves for moving 
forward this bill.
    At the same time, we just want to leave with one cautionary 
note. Congress cannot think that it can use these voluntary 
incentive programs to replace the safety net protections of the 
Endangered Species Act. It is these mandatory protections that 
help to keep hundreds of species from disappearing into 
extinction.
    They have fostered collaborate exercises all across the 
country that would never have happened without the Endangered 
Species Act.
    In fact, one of them is on the Missouri River. We have had 
a multi-state, basin-wide collaboration to save that river, to 
essentially keep it a living river, that perhaps would never 
have happened without the Endangered Species Act.
    So the only way to make the Endangered Species Act work and 
to have a productive Endangered Species Act reauthorization 
debate is to recognize the tremendous value provided by both 
the voluntary incentive programs and the Act's safety net 
features.
    Thanks for the opportunity to testify. I would be happy to 
answer questions.
    [Mr. Kostyack's testimony may be found in the appendix.]
    Chairman Graves. Thank you, Mr. Kostyack.
    I do have a couple of things I want to get some 
clarification on with the various parts of the testimony, and I 
am going to start with Ms. McNally.
    You mentioned the safe harbor agreement. Could you explain 
that in a little bit more detail?
    Ms. McNally. Sure, Mr. Chairman. There are two policies 
that were put in place during the Baffid Administration, safe 
harbor agreements and the notice to parties of policy, both of 
which would give the landowner some certainty that when they 
enter into an agreement with the government for protection of a 
species and its habitat that that would be protected for a 
period of time.
    Again, one of the things we personalize with businesses 
today is that landowners need some certainty. One of the things 
that we hear when we go out and talk to folks about this is, as 
you have heard from witnesses today, we want to protect the 
species.
    We want to be good stewards. We want to be able to do the 
right thing, but we need to know what the right thing is, and 
we need to know if we ask to delay and we delay that we are not 
going to get in trouble for it or find out later that we should 
have done C or D.
    So they are agreements that are administrative policies now 
that are in place that would bring some of that certainty to 
this process, and our members have worked over time to codify 
this and will be working on the policies.
    Chairman Graves. Could you also explain, you talked a 
little bit about and touched on it, the prelisting and how it 
would improve the ESA?
    Ms. McNally. One of the things that we have often talked 
about and I think John would actually agree with this is that 
the Endangered Species Act is when a species is in crisis, then 
we look at putting in place a lot of regulatory mechanisms to 
protect that.
    Frankly, that is where a lot of our conflict arises as we 
go forward. The ultimate goal and I think everybody agrees that 
the ultimate goal is to make sure that we do as good a job as 
possible of preserving the species and preserving the habitat 
where necessary to preserve the species.
    Let us get ahead of the curve. Let us not wait until we are 
in that crisis situation where all the regulatory mechanisms 
have to come into place.
    So, for instance, with the sage grouse, which you will 
assess potentially I think it was listed in 13 states, with a 
lot of regulatory restrictions.
    The landowners came together, the property owners, the 
states, the local governments, and they worked with the federal 
government to say how can we put into place now a program that 
we all agree will help protect the sage grouse going forward 
before we get to that point where it has to be listed and 
triggers all the regulatory mechanisms.
    That has been incredibly successful. If you bring people 
around the table at the beginning of the process and invest 
them in the process where they feel like they are part of 
decision making in terms of what to do to protect the species, 
you not only get a great deal more investment from the 
landowners in the process, I believe you get a better outcome 
for the species.
    One of the things that people have chafed against is 
feeling like once the Endangered Species Act's hammer, for lack 
of a better word, comes down, that they don't want to be 
subject to it. They don't want to deal with it.
    If you make them a part of the process before the species 
is listed, I think you just have a much better atmosphere going 
forward with a lot better results for the species. So we would 
like to see those types of actions implemented going forward.
    Chairman Graves. Mr. Wells, you mentioned and we all know 
it is at least those of us in Missouri know, the changes to the 
Missouri River and the drastic changes in terms of what we are 
doing with flow. It is affecting the entire river from one end 
to the other, you know, and we are doing that, those drastic 
changes, for basically and you mentioned the 200-mile stretch.
    You might explain that in a little bit more detail what is 
taking place and what they are hoping for. Just a little bit 
more detail.
    Mr. Wells. Okay. Well, as I mentioned, in the State of 
Missouri, you know we are in the lower river, especially where 
the Platte River comes in in Nebraska, which is about 200 miles 
below Gavins Point Dam, which is the lowest dam.
    We get a significant spring rise every spring. So we have a 
spring rise there. That is the spawning cue for the pallid 
sturgeon, and then from that point where the Platte comes in 
all the way down the Mississippi and Atchafalaya actually, its 
all the range for the pallid sturgeon.
    We have at least 1,600 miles of river already available. We 
just need to work on habitat and find out what we need to be 
doing in this part of the river.
    Let us do our experimenting here where we already have 
natural spring rises. Let us not do the artificial spring rise.
    The area right below Gavins Point Dam right now, again, is 
about 200 miles before it hits the Platte River is the area we 
are focusing on now.
    We have been told this is a controlled experiment. In other 
words, you can release water out of Gavins Point Dam at a 
certain time of the year and all the researchers can be lined 
up to see what it looks like when this comes out.
    It is a little more difficult, obviously, down on our part 
of the river around Jefferson City and Boonville in those areas 
where you don't know when you are going to get the rise, so you 
have got to be out there all the time during the spring of the 
year and monitoring.
    So I think that is part of the difficulty, but it also puts 
our farmers and our cities at a greater risk of being flooded.
    Just a good example, this spring, as you well know, the 
river was very low for a period of time, and then late May, 
early June, we had a significant rise, about 12 foot at St. Joe 
overnight in the middle of May, and it stayed there for an 
extended period of time.
    During that period of time, we had quite a bit of local 
rainfall. It didn't go over any levees, so we didn't flood 
anybody out by going over levees, but our drainage gates were 
closed.
    From the time we got the rain on the Tarkio and some of the 
other tributaries, all this water backed up, and we estimated 
we lost or damaged about 100,000 acres of crops in the spring 
from the natural spring rise.
    So that is the fear that our people downstream have with 
it. If you add an additional increment of water on that or if 
you extend that period of time, you just increase the risk of 
flooding.
    Chairman Graves. Is anybody paying attention to the 
interior drainage issues? You know, when a lot of people think 
about what is being done to the Missouri River, for instance, 
they think just in terms of that river, that it is just going 
to affect that river.
    You touched on interior drainage. The fact is we have 
tributaries that are flowing into that river everywhere, and 
they do back up. Those flood gates close or whatever tributary 
it is just backs up and water, for the most part, you know, 
doesn't move.
    It does backflood all of those areas, and nobody seems to 
be paying a whole lot of attention to that. It affects people, 
miles and miles off of the Missouri River just from the backup 
of those interior drainages. Is anybody studying that?
    Mr. Wells. Well, I don't know how much studying is being 
done. One of the things that our staff did this spring and 
summer in collaboration with the Missouri Levee and Drainage 
District Association, we went out and tried to get elevations 
on as many of the outflow pipes as we could and tried to then 
talk with the people that live along the river who understand 
the river and know what stage say at St. Joe their gates start 
to close.
    So we developed what we called interior drainage 
constraints. In other words, when the river is at a certain 
stage, the gates start to close, and one of the things we have 
always been concerned about is that you can look downstream and 
the river can be down and say well, this is a good time to 
release water. It affects St. Joe in that it takes about four 
days for it to get there. But we do have a pretty good 
forecast. So one of the things we said, look at the seven-day 
forecast and let us include interior drainage constraints.
    If we are going to have to do a spring rise and obviously 
we are still opposed to a manmade spring rise, but if we have 
to do one, let us look downstream and look at the interior 
drainage situation, see where the river stages are, and we can 
provide that information to the Corps of Engineers and Fish and 
Wildlife Service.
    I think it needs to be fine-tuned obviously. Because we 
worked this summer, we didn't have time to really maybe fine-
tune it as much as say we could, but they have that 
information. We provided them what we call interior drainage 
constraints, so that information is available.
    Chairman Graves. Mr. Grijalva.
    Mr. Grijalva. Thank you, Mr. Chairman.
    Just a brief comment and a couple of questions just for my 
clarification.
    I want to thank the Chairman for the opportunity to deal 
with a piece of legislation that opens up the opportunity for 
party agreements in terms of species recovery.
    I think that is a good opportunity. Aside from all of the 
rhetoric that we are hearing all over the place about the 
Endangered Species Act, this does open a door for opportunity 
and I appreciate that very much.
    On the Endangered Species Act itself, I believe very 
strongly that the Act has a strong legacy in this country, a 
legacy of good work.
    It is a necessary Act, and this discussion today is not to 
replace the Endangered Species Act but to open up for voluntary 
agreements between parties, and I think that is a good 
opportunity.
    I was just going to ask, if I could, Ms. McNally, just one 
question.
    Ms. McNally. Mm-hmm.
    Mr. Grijalva. In your view, as the species recovery 
agreement that is outlined in H.R. 3300, back to my point, do 
you think that replaces ESA, in your opinion?
    Ms. McNally. Absolutely not.
    Mr. Grijalva. So if a landowner or business doesn't 
participate voluntarily in a recovery or let us say the 
Secretary doesn't acknowledge that species recovery agreement--
    Ms. McNally. It would continue to be subject to the same--
    Mr. Grijalva. Okay. All right. Thank you. Those are my 
questions. Thank you, sir.
    Chairman Graves. Dr. Christensen?
    Dr. Christensen. Thank you. I am not a member of this 
Subcommittee. I am a member of Small Business, but as ranking 
on Parks Subcommittee on the Committee of Resources, I really 
wanted to be here to hear the testimony on H.R. 3300, which 
seems to be a modest proposal that might provide another tool 
to protect endangered species while giving more protection to 
private property land rights.
    But we have to be concerned because the Act is important 
and has a great legacy that we don't weaken it in the process.
    I wanted to just highlight two of the problems, one of 
which Mr. Kostyack mentioned, but two of the biggest problems 
that I think we face with Endangered Species Act are one, the 
funding.
    In 2003, the Fish and Wildlife Service had said that 
approximately 153 million would be needed to address the 
current backlog of listing and critical habitat obligations, 
and our budget for 2006 is just 18.1 million for the listing 
and critical habitat designations.
    In addition to that and probably related, we are very 
behind on critical habitat designations and recovery plans so 
that only 38 percent of those listed have both.
    So we are really behind, and I wonder if this is not more 
of a problem than the types of requirements that are placed on 
landowners.
    I guess I would have two questions. One is to you, Mr. 
Wells, because you raised the issue about the pallid sturgeon 
and perhaps that we are not looking at the entire river that 
could help the sturgeon to survive and protect its life and its 
habitat.
    In that area, is there a critical habitat designation and a 
recovery plan in place? Because you question the science and--
    Mr. Wells. Yes, there is. I don't know all the details 
about it, but I think that most would agree and even the people 
who have worked on it that it needs to be updated. I think it 
is dated. It just appears that in the last five or six years we 
have really started to do quite a bit of research on the pallid 
sturgeon, and there is a lot, as the scientists say, there is a 
lot more we don't know about the life cycle of pallid sturgeons 
than we do know.
    I think that is one of the things that concerns us most is 
we have got various prescriptions of I guess measures being 
proposed here or being mandated, not proposed, when there are a 
lot of things we don't really know yet about it.
    So we do support additional research I think and probably 
an updated recovery plan.
    Dr. Christensen. Has the Fish and Wildlife Service been 
consulted on this? Because in preparing recovery plans, they go 
through a peer review process with independent peer reviews and 
the GAO has cited that their process is sound.
    Mr. Wells. Well, just to give you an example on the 
Mississippi River, we deal with both Missouri and Mississippi 
obviously in our state, the recovery plan on the Mississippi is 
much more precise, if you will and the accomplishments are 
greater there. They have accomplished more.
    So I think we are just, on the Missouri, we are just behind 
a little bit in getting to the point of understanding the 
species and getting a recovery plan that is perfect today.
    Dr. Christensen. Thank you. I think, you know, some kind of 
consultation with the Fish and Wildlife Service, you know, 
perhaps could end up in resolving some of those.
    Again, back to wanting to be certain that we are not 
weakening the Endangered Species Act, my original plan was to 
ask is the critical habitat conservation agreement more 
stringent than the species recovery or not, but Mr. Kostyack 
made several recommendations, one of which is that any SRA meet 
the requirements of the established recovery plan under ESA.
    Do any of you have any disagreement with that proposed 
amendment, or do you have any disagreement with having any 
voluntary species recovery agreement be required to meet the 
established recovery plan under ESA?
    Ms. McNally. I don't believe so on its face, although I 
would like to reflect on that and we have to look at first of 
all the species that don't currently have recovery plans and 
not tie it to the fact, not make it contingent upon a recovery 
plan, because we certainly want to be able to have species 
recovery agreements even for those species lacking recovery 
plans.
    Mr. Wiseman. I would concur with that. One of the other 
factors that would have to be considered in aligning these SRAs 
with the recovery plans is very often the recovery plans cover 
large landscapes, and most of the folks who are going to be 
affected by this bill own very small tracts, and the scope and 
scale issues that arise when you try to take a plan that was 
designed for 100,000, most people, hundreds of thousands of 
acres, and apply it to a, you know, 40-acre tract are pretty 
daunting.
    You have to take that into account as you try to see how 
best to align the two, but clearly you want everybody to be 
pulling in the same direction.
    Dr. Christensen. Well, my concern also, Mr. Chairman, would 
be given the fact that it requires some funding associated with 
this bill and we are behind in funding for the requirements in 
the ESA, I just wonder if the funding is not there, the bill 
does no good.
    It requires incentives, and I just have some concerns about 
funding this proposal given the fact that we are not funding 
what is required under ESA presently.
    Chairman Graves. Mr. Peterson, will you talk to me about 
critical habitat and how that affects a farming operation, in 
particular if you obviously have a threatened or endangered 
species or the critical habitat to support that particular 
species?
    Mr. Peterson. It certainly has the ability to stop your 
farming on your farm. Can the government take without the 
opportunity to be paid for that taking?
    My father and brother certainly don't have the number of 
endangered species in Ohio as is in the west, but it certainly 
has the potential if you own a 100-acre tract of land that you 
farm, there is an endangered species there and the demand to 
the claim is large enough that you would not be able to farm.
    I would like to suggest that maybe a better way to handle 
some of that is what we are doing in Colorado. We have the 
mountain clover where a farmer is willing to open up their 
ground and say let us find them, show us where they are and 
went through and they flagged all the mountain clover, and they 
have allowed the farmer to farm around those nests, preserving 
the nests, making sure the habitat was there for the animal to 
continue to survive and thrive in an agricultural landscape.
    It also allows the farmer to continue to farm in that area, 
continue to work his land. I think that is important.
    Probably the best thing that happened in the process was 
the farmer had to buy in. There is buy-in and interest in 
preserving the habitat and so that is important.
    Chairman Graves. This program or at least what I am 
proposing I think fits in very well with exactly what you just 
pointed out. That is a good example. That is a real good 
example.
    I do think that we need incentive programs rather than, the 
situation we have now, because it is a taking is what it is in 
many cases. It is exactly that, and many times you have a 
business or a farm that that is their livelihood and the 
success of their operation depends on being able to work that 
property.
    Then when they are told they can't do that, the 
responsibility becomes the recovery rather than the operation. 
It is a problem.
    Dr. Christensen, do you have any more?
    Dr. Christensen. No.
    Chairman Graves. Well, I appreciate everybody coming in 
today very much. I know many of you traveled a long ways.
    This issue has become very important to me because of what 
is happening back home on the Missouri River and what is going 
on particularly with interior drainage.
    Very few people are actually taking a close look at that, 
and a lot of folks don't realize that when you implement 
procedures that it affects a lot more folks than maybe those, 
in the river's case, than those directly alongside the river.
    It affects miles and miles back up, and then when you have 
got government agencies that can't even figure out which 
direction or they are arguing over which direction, in this 
particular case, Forest or Fisheries and Wildlife and the Corps 
of Engineers, they can't come to an agreement on what should 
happen. Then you have even more uncertainty and a lot of 
landowners that don't know what to do.
    But I have become very involved in this issue and we would 
like to find some sort of common ground. It doesn't have to be 
all or nothing.
    That is the reason we came up with the incentive program, 
and we will continue to work to make it workable and include it 
hopefully in the ESA reauthorization, with Chairman Pombo. We 
are working with him on that, and again I do appreciate all 
your input.
    Please stay close to this process and give us your 
suggestions. I do appreciate it. Thank you all for coming in, 
and this hearing is adjourned.
    [Whereupon, at 10:54 a.m., the Subcommittee was adjourned.]

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