[Senate Hearing 109-991]
[From the U.S. Government Publishing Office]



                                                        S. Hrg. 109-991
 
 THE ENDANGERED SPECIES ACT AND THE ROLES OF STATES, TRIBES, AND LOCAL 
                              GOVERNMENTS

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

                                HEARING

                               before the

                       SUBCOMMITTEE ON FISHERIES,
                          WILDLIFE, AND WATER

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                               __________

                           SEPTEMBER 21, 2005

                               __________

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


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


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                       ONE HUNDRED NINTH CONGRESS

                             FIRST SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
JOHN W. WARNER, Virginia             JAMES M. JEFFORDS, Vermont
CHRISTOPHER S. BOND, Missouri        MAX BAUCUS, Montana
GEORGE V. VOINOVICH, Ohio            JOSEPH I. LIEBERMAN, Connecticut
LINCOLN CHAFEE, Rhode Island         BARBARA BOXER, California
LISA MURKOWSKI, Alaska               THOMAS R. CARPER, Delaware
JOHN THUNE, South Dakota             HILLARY RODHAM CLINTON, New York
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
JOHNNY ISAKSON, Georgia              BARACK OBAMA, Illinois
DAVID VITTER, Louisiana
                Andrew Wheeler, Majority Staff Director
                 Ken Connolly, Minority Staff Director
                              ----------                              

             Subcommittee on Fisheries, Wildlife, and Water

                 LINCOLN CHAFEE, Rhode Island, Chairman
JOHN W. WARNER, Virginia             HILLARY RODHAM CLINTON, New York
LISA MURKOWSKI, Alaska               JOSEPH I. LIEBERMAN, Connecticut
JIM DeMINT, South Carolina           FRANK R. LAUTENBERG, New Jersey
DAVID VITTER, Louisiana              BARACK OBAMA, Illinois


                            C O N T E N T S

                              ----------                              
                                                                   Page

                           SEPTEMBER 21, 2005
                           OPENING STATEMENTS

Chafee, Hon. Lincoln, U.S. Senator from the State of Rhode Island     1
Clinton, Hon. Hillary Rodham, U.S. Senator from the State of New 
  York...........................................................     5
Inhofe, Hon. James M., U.S. Senator from the State of Oklahoma...     4
Jeffords, Hon. James M., U.S. Senator from the State of Vermont..     7
Obama, Hon. Barack, U.S. Senator from the State of Illinois, 
  prepared statement.............................................    30

                               WITNESSES

Baughman, John, Executive Vice President, International 
  Association of Fish and Wildlife Agencies......................    25
    Prepared statement...........................................    99
    Responses to additional questions from:
        Senator Chafee...........................................   109
        Senator Inhofe...........................................   110
        Senator Jeffords.........................................   111
Burnham, Bill, President, The Peregrine Fund.....................    24
    Prepared statement...........................................    83
    Responses to additional questions from:
        Senator Chafee...........................................    95
        Senator Inhofe...........................................    98
        Senator Jeffords.........................................    98
Davison, Robert P., Wildlife Management Institute................    22
    Prepared statement...........................................    55
    Responses to additional questions from:
        Senator Chafee...........................................    82
        Senator Jeffords.........................................    82
Frank, Billy, Jr., Chairman, Northwest Indian Fisheries 
  Commission.....................................................     8
    Prepared statement...........................................    30
    Responses to additional questions from:
        Senator Chafee...........................................    33
        Senator Jeffords.........................................    35
Gardner, Cory, Colorado State Representative.....................    10
    Prepared statement...........................................    36
    Responses to additional questions from:
        Senator Chafee...........................................    39
        Senator Inhofe...........................................    44
        Senator Jeffords.........................................    46
Pasteris, Michael, A., Executive Director, Forest Preserve 
  District of Will County, IL, National Association of Counties..    12
    Prepared statement...........................................    47
    Responses to additional questions from:
        Senator Chafee...........................................    49
        Senator Inhofe...........................................    50
        Senator Jeffords.........................................    50
Shaw, Dwayne, Executive Director, Downeast Salmon Federation/
  Downeast Rivers Land Trust.....................................    20
    Prepared statement...........................................    51
    Responses to additional questions from:
        Senator Chafee...........................................    53
        Senator Jeffords.........................................    54

                          ADDITIONAL MATERIAL

Cartoon, 10-Journal-Advocate, Sterling, Colorado, September 14, 
  2005...........................................................    39
Chart, Species Breakdown.........................................    42
Conservation Plan...............................................117-141
Letter from Dave Freudenthal, Office of the Governor, The State 
  of Wyoming to Senators Chafee and Clinton......................   147
Position Paper, International Association of Fish and Wildlife 
  Agencies, September 30, 2004..................................102-109
Report, Practical Solutions to Improve the Effectiveness of the 
  Endangered Species Act for Wildlife Conservation, The Wildlife 
  Society, Technical Review 05-1, 2005........................... 63-81
Statements:
    Scarborough, Karen, Undersecretary, State of California 
      Resources Agency...........................................   113
        Responses to additional questions from:
        Senator Chafee...........................................   142
        Senator Inhofe...........................................   143
    Owens, Bill, Governor of Colorado and Dave Freudenthal, 
      Governor of Wyoming on Behalf of the Western Governors' 
      Association................................................   144


 THE ENDANGERED SPECIES ACT AND THE ROLES OF STATES, TRIBES, AND LOCAL 
                              GOVERNMENTS

                              ----------                              


                     WEDNESDAY, SEPTEMBER 21, 2005

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Wildlife, and Water,
                                                    Washington, DC.
    The subcommittee met, pursuant to notice, at 9:33 a.m. in 
room 406, Dirksen Senate Office Building, Hon. Lincoln Chafee 
(chairman of the committee) presiding.
    Present: Senators Chafee, Inhofe, Clinton, and Jeffords.

OPENING STATEMENT OF HON. LINCOLN CHAFEE, U.S. SENATOR FROM THE 
                     STATE OF RHODE ISLAND

    Senator Chafee. Good morning. This is a meeting of the 
Subcommittee on Fisheries, Wildlife, and Water, and it is a 
hearing on the Endangered Species Act and the Role of the 
States, Tribes, and Local Governments. Welcome, everybody.
    This morning we will be focusing on the roles of States, 
tribes, and local governments in implementing the Endangered 
Species Act. A variety of witnesses have been invited to 
testify before us today, all with extensive knowledge of the 
Act and how it works at the State, tribal, and local levels.
    According to the U.S. Geological Survey, a study based on 
National Heritage data in all 50 States found that federally 
listed species, over 50 percent of these species are found on 
non-Federal lands, such as State, local public lands, tribal 
lands, or private lands; and 64 percent of all listed species, 
including State-listed species, are found exclusively on non-
Federal lands. Meanwhile, only 12 percent of federally listed 
species are known to spend their lives solely on Federal lands.
    This data points strongly to the importance of developing 
and strengthening Federal efforts for protecting species by 
meeting the partnerships and cooperative agreements with State 
and local agencies, nonprofit organizations, and private 
landowners.
    Since the enactment of the ESA in 1973, Congress has 
recognized the important role that States play in protecting 
species within their boundaries. Section 6 of the ESA is 
dedicated exclusively to working with States in implementing 
the law.
    As indeed its title, ``Cooperation with the States,'' 
indicates, the law further mandates the Secretary of the 
Interior and Secretary of the Commerce shall cooperate to the 
maximum extent practicable with the States in carrying out the 
programs authorized by this Act.
    While all 50 States currently have some type of cooperative 
agreements with the U.S. Fish and Wildlife Service and NOAA, 
many of these agreements focus exclusively on specific species 
and are not comprehensive enough. A lack of strong Federal 
funding for cooperative agreements may be one cause for this, 
or State budgetary downturns and program staffing reductions. 
Regardless, I am interested in finding out more where we can 
improve the relationships between the States and the Federal 
Government for improving the prospect of species recovery.
    In a similar vein, tribal governments play an important 
role in protecting and conserving species across the landscape. 
I look forward to hearing more from Mr. Billy Frank, Jr., our 
tribal witness, on ways in which we can strengthen the Federal 
Government's trust partnership with the tribes in order to 
reach the shared goal of protecting threatened or endangered 
species.
    Local governments are also integral to the ESA solution, 
and work closely with States and Federal agencies to implement 
species conservation programs, including voluntary land 
management initiatives such as Habitat Conservation Plans, Safe 
Harbor Agreements, and Candidate Conservation Agreements with 
Assurances.
    Without willing local officials and private landowners 
working in partnership with the Federal agencies, States, 
tribes, and nongovernmental organizations, effective species 
conservation and recovery would come to a screeching halt. I 
believe we are all here with a common shared goal to locate the 
right formula for propelling species protection and recovery 
forward, while also preventing healthy species from ever 
reaching the status where they need to be listed as threatened 
or endangered.
    As we have heard in the past hearings, a renewed focus on 
voluntary landowner incentives appear to be a critical 
component for successful species recovery in this country. 
During today's hearing, we will be looking at the second 
important component for species protection, enhancing the role 
of States, tribes, and other non-Federal entities in species 
conservation.
    Strong Federal funding leveraged by public and private 
funds will be critical to any effort to encourage a greater 
role for States, tribes, and local governments. Federal funding 
opportunities for ESA section 6, State Cooperative Programs, 
Voluntary Landowner Incentive Programs, and Recovery Plans, to 
name a few, will need to be identified and significantly 
increased in order to encourage partnerships at all levels of 
government.
    As we move forward with taking a hard look at ESA and its 
need for reauthorization, there are two main areas in which we 
must focus our attention: preventing species from being added 
to the list and recovering species currently on the list. 
States, tribes, and local governments have the expertise, 
knowledge, and relationships with private landowners to work as 
strong, committed partners with the Federal Government to 
accomplish both of these tasks.
    Thank you. I will note that there is legislation in the 
House, and this is our third hearing, as I mentioned, and we 
will just be evaluating the different legislations that come 
forward. But this hearing is centered, as I said, on the title 
of the cooperation between States, tribes, and local 
governments and the Federal Government.
    [The prepared statement of Senator Chafee follows:]

        Statement of Hon. Lincoln Chafee, U.S. Senator from the 
                         State of Rhode Island

    Good morning and welcome to the Subcommittee on Fisheries, 
Wildlife and Water's third hearing on the Endangered Species 
Act (ESA).
    This morning, we will be focusing on the roles of States, 
tribes and local governments in implementing the ESA. A variety 
of witnesses have been invited to testify before us today, all 
with extensive knowledge of the Act and how it works at the 
State, Tribal and local levels.
    According to the U.S. Geological Survey, a study based on 
National Heritage Data in all 50 States found that among 
``federally listed species,'' over 50 percent of these species 
are found on non-Federal lands such as State and local public 
lands, tribal lands, or private lands; and 64 percent of ``all 
listed species'', including state-listed species, are found 
exclusively on non-Federal lands. Meanwhile, only 12 percent of 
federally listed species are known to spend their lives solely 
on Federal lands.
    This data points strongly to the importance of developing 
and strengthening Federal efforts for protecting species by 
means of partnerships and cooperative agreements with State and 
local agencies, non-profit conservation organizations, and 
private landowners.
    Since enactment of the ESA in 1973, Congress has recognized 
the important role that States play in protecting species 
within their boundaries. Section 6 of the ESA is dedicated 
exclusively to working with States in implementing the law, as 
indeed it's title ``Cooperation with the States'' indicates. 
The law further mandates that the Secretary of Interior and the 
Secretary of Commerce ``shall cooperate to the maximum extent 
practicable with the States'' in carrying out the programs 
authorized by this Act.
    While all 50 states currently have some type of cooperative 
agreements with the U.S. Fish and Wildlife Service and NOAA 
Fisheries, many of these agreements focus exclusively on 
specific species and are not comprehensive enough. A lack of 
strong Federal funding for cooperative agreements may be one 
cause for this, or State budgetary downturns and program 
staffing reductions. Regardless, I am interested in finding out 
more about where we can improve the relationships between the 
States and the Federal Government for improving the prospect of 
species recovery.
    In a similar vein, Tribal governments play an important 
role in protecting and conserving species across the landscape. 
I look forward to hearing more from Mr. Billy Frank, Jr., our 
Tribal witness, on ways in which we can strengthen the Federal 
Government's trust partnership with the Tribes in order to 
reach the shared goal of protecting threatened and endangered 
species.
    Local governments are also integral to the ESA solution, 
and work closely with States and Federal agencies to implement 
species conservation programs, including voluntary land 
management initiatives such as Habitat Conservation Plans, Safe 
Harbor Agreements, and Candidate Conservation Agreements with 
Assurances. Without willing local officials and private 
landowners working in partnership with Federal agencies, 
States, Tribes, and nongovernmental organizations, effective 
species conservation and recovery would come to a screeching 
halt.
    I believe we are all here with a common, shared goal--to 
locate the right formula for propelling species protection and 
recovery forward, while also preventing healthy species from 
ever reaching the status where they need to be listed as 
threatened or endangered.
    As we have heard in past hearings, a renewed focus on 
voluntary landowner incentives appears to be a critical 
component for successful species recovery in this country. 
During today's hearing, we will be looking at the second 
important component for species protection--enhancing the roles 
of States, Tribes and other non-Federal entities in species 
conservation.
    Strong Federal funding, leveraged by public and private 
funds, will be critical to any effort to encourage a greater 
role for States, Tribes and local governments in species 
conservation and recovery programs. Federal funding 
opportunities for ESA Section 6 State Cooperative Programs, 
Voluntary Landowner Incentive Programs, and Recovery Plans, to 
name a few, will need to be identified and significantly 
increased in order to encourage partnerships at all levels of 
government.
    As we move forward with taking a hard look at the ESA and 
its need for reauthorization, there are two main areas in which 
we must focus our attention--preventing species from being 
added to the list, and recovering species currently on the 
list. States, Tribes and local governments have the expertise, 
knowledge, and relationships with private landowners to work as 
strong, committed partners with the Federal Government to 
accomplish both of these tasks.
    Thank you.

    Senator Chafee. Chairman of the committee.

 OPENING STATEMENT OF HON. JAMES M. INHOFE, U.S. SENATOR FROM 
                     THE STATE OF OKLAHOMA

    Senator Inhofe. Thank you, Mr. Chairman. I regret that I am 
going to have to be in and out today; I have other committee 
commitments. I do regret that because this hearing was kind of 
my idea, to get the people who are affected most and closest to 
the problem.
    As a former mayor, I can attest that dealing with the 
Federal Government is not easy. Many times the Federal 
Government believes they know the State and local problems 
better than the local people do, and that is not right. There 
is this kind of a mentality in Washington that if the decision 
isn't made in Washington, it is not a good decision. I have 
lived with this for a long time and I will share a story I 
don't think any of my colleagues have heard, but it goes back.
    Here I chair the Environment and Public Works Committee, 
but many years, when a good friend of all of ours, David Boren, 
and I were freshmen legislators in the Oklahoma State House of 
Representatives, in January 1967, David Boren and I came to 
testify before this committee, the Environment and Public Works 
Committee. It was Randolph from West Virginia, the chairman at 
that time. I can remember this wasn't even built yet, I guess, 
at that time, but I remember this lofty committee and we were 
here protesting Lady Bird's Highway Beautification Act of 1965 
on the basis of property rights.
    I think all too often there is, as I say, a mentality that 
the decisions made here are the right decisions, and that is 
not true. People who live close to the problems are the ones 
who are most familiar with it. I have served in the State 
legislature, I have served as mayor of a major city, and I have 
served in the House and the Senate, and I can assure you that 
when I was mayor of Tulsa, I was much more familiar with those 
problems.
    So there are some good things that we have been doing. We 
had a hearing in Oklahoma on the Partnership Act. Very good. It 
is something that has worked really well. It shows that the 
landowners are big on conservation, the environment, and the 
endangered species. They want to do something to help, but they 
want to do it in concert with us in Washington, not in spite of 
us in Washington.
    So those things are the things that I will be looking at 
during the deliberation of the Endangered Species Act. I want 
to know, whether it is the Arkansas shiner or one of the other 
critters, how that is going to affect my Oklahoma farmers. So 
we are going to be coming to you guys and coming to the local 
entities for our information, and that is certainly the way 
that I will be performing on this subcommittee on 
reauthorization of the Endangered Species Act.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Inhofe follows:]

       Statement of Hon. James M. Inhofe, U.S. Senator from the 
                           State of Oklahoma

    Mr. Chairman, thank you for holding this third hearing on 
updating the Endangered Species Act (ESA). Today, we are 
examining the role of State and local roles in implementing the 
ESA. I look forward to hearing from the witnesses about their 
successes and their frustrations in working with the Federal 
Government on species conservation and recovery.
    As a former mayor, I can attest that dealing with the 
Federal Government is not easy. Many times the Federal 
Government believes they know better than State and local 
entities. When I was mayor of Tulsa, I knew the 
characteristics, concerns, and challenges of my city and its 
people better than any bureaucrat in Washington.
    With respect to conservation efforts, State and local 
government entities are the front lines. These are the 
individuals with the closest knowledge of the species, its 
habitat and local conditions. These individuals also have a 
responsibility to the people they serve to ensure economic 
viability of their state, city or county. As a mayor, you spend 
countless hours working with agencies, interest groups and 
private citizens to manage your city's resources and plan for 
the future. These decisions and plans are not made lightly. I 
have heard numerous stories where State and local officials, 
private landowners, local environmental and citizen groups have 
worked together in partnership and have agreed to a sensible, 
protective strategy to recover species while protecting land 
use rights, only to have the Federal Government come in and 
overrule them.
    In each of the previous hearings, I have expressed concern 
that those closest to the problem are all too often ignored 
when it comes to regulatory decisionmaking under the ESA. As we 
look at legislative changes to the ESA this fall, it will be a 
priority for me that we open up the regulatory process, 
increase the public participation of all parties, including 
private stakeholders, and provide State and local government 
with specific authorities and responsibilities for recovery and 
day-to-day, on-the-ground implementation. I hope that the 
testimony today will help us find a clear path as to how best 
to do that with recommendations from the front line.
    Thank you, Mr. Chairman, for holding this important hearing 
and I look forward to hearing the testimony.

    Senator Chafee. Thank you, Chairman Inhofe. Senator David 
Boren also came to the Senate.
    Senator Inhofe. Yes. I succeeded him. That is right.
    Senator Chafee. And now he is president of the University 
of Oklahoma?
    Senator Inhofe. That is right. Don't talk about that 
football for a while. We will wait for a couple of years.
    Senator Chafee. Thank you.
    I yield to Senator Clinton.

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

    Senator Clinton. So far as we know, though, the Sooners are 
not an endangered species.
    Thank you so much, Mr. Chairman, for holding this third 
hearing on the Endangered Species Act. I really want to commend 
our committee and our leadership, Chairman Inhofe and Ranking 
Member Jeffords, because they have initiated the keystone 
center dialog along with myself, Senator Chafee, Senator Crapo 
and Senator Lincoln, and I think that is a very ingenious and 
productive way of dealing with some of these quite difficult, 
thorny problems that are raised with this reauthorization.
    I am delighted that today we are going to be talking about 
State, tribal, and local roles in protecting threatened and 
endangered species. But before I make just a few comments about 
that, I do want to say that I am quite concerned about the bill 
that Chairman Pombo introduced on the House side earlier this 
week, which is scheduled for markup in the Resources Committee 
tomorrow.
    I regret that that has sort of jumped the gun. I think that 
our committee has a very deliberative and thoughtful process 
that I think will lead to the right kind of decisions being 
made with respect to the reauthorization.
    But the bill introduced by Chairman Pombo really, I think, 
would abandon our national commitment to species recovery, 
would diminish habitat protection, would provide very broad 
exemptions to Federal agencies, creates more bureaucracy, the 
way I read it, with more layers of decisionmaking, instead of 
trying to streamline and allocate responsibility. I think it 
turns sound science on its head and it requires taxpayers to 
pay companies and developers for actions that may or may not be 
ones that are in the public interest or the furtherance of 
species preservation.
    So I believe, as I have said in prior hearings, that the 
Endangered Species Act certainly can be improved to work better 
for all stakeholders. I think we can do a better job at 
achieving recovery. Unfortunately, the House bill, as 
introduced, simply does not meet those goals, and, therefore, I 
think that what this committee, and particularly the 
subcommittee under Senator Chafee, is attempting to do is 
really try to find where true consensus exists and where 
progress is possible on a broadly bipartisan basis.
    Now, this keystone center dialog group has already begun 
its work; it will meet twice later this year. It should have 
recommendations for us, which is what we have asked them to do, 
regarding critical habitat by early next year. I think that 
there may be additional hearings that our committee and 
subcommittee want to hold. So I really applaud both the 
chairman of the full committee and the chairman of the 
subcommittee for proceeding in a very careful, thoughtful way.
    As for today's hearing, I am looking very much forward to 
the testimony of our witnesses because you do bring perspective 
from different governmental partners and wildlife management. 
States, tribes, and local governments have expertise and 
resources, as well as a strong interest in wildlife management. 
So I think it is clear that we want to explore how States, 
tribes, and local governments could play a greater role in 
implementing the Endangered Species Act.
    Now, I think it is also evident, however, that the capacity 
of States varies widely in this regard. Some States are very 
well equipped right now. Even some municipalities are. Some 
counties are. But many others are not yet in a position to 
assume the kind of responsibility that we would want to pass on 
to them.
    As I have noted earlier, I think the test for any change in 
the Endangered Species Act, including a change in the State, 
local, or tribal role, ought to be whether it can create 
conditions to avoid the listing of species because we have a 
positive, healthy habitat plan in place, and whether it can 
help us move species off the list. Those are the two main 
things.
    In looking at the bill introduced by Chairman Pombo--and we 
haven't had a lot of time to analyze it--I don't believe that 
we would have saved the grizzly bear or the peregrine falcon or 
other species that are important to our sense of self--the bald 
eagle--with the plan that he outlines. I think we can do better 
and make improvements without losing sight of our commitment to 
protecting and promoting wildlife in our country.
    So I am going to have several questions. First, how 
effectively are States, tribes, and local governments already 
implementing their current authorities under the Act? Do they 
have the resources and legal authorities they need to be 
effective? If not, what do they need? How can State, tribal, 
and local roles in species conservation be enhanced? Are 
changes to the Act advisable? If so, what? Would more funding 
of the current section 6 be helpful or sufficient? Are there 
other ways in which the relationship among Federal and non-
Federal partners can be improved?
    So again, Mr. Chairman, I thank you for the very 
deliberative way you are proceeding here. It is exactly what I 
think needs to be done. I believe we can reach a consensus 
which is a win-win for everybody. None of us will get 
everything we want, but we will come up with some enhancements 
and reform to the ESA that I think will really stand the test 
of time.
    Senator Chafee. Thank you, Senator Clinton.
    Senator Jeffords.

OPENING STATEMENT OF HON. JAMES M. JEFFORDS, U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Senator Jeffords. Thank you, Mr. Chairman, for holding the 
third in a series of hearings on the Endangered Species Act.
    I want to thank all the witnesses for coming here today to 
share their views on the important role that States, tribes, 
and local governments play in preventing species extinctions.
    When it passed the Endangered Species Act in 1973, Congress 
recognized that the successful development of an endangered 
species program would be dependent upon good working 
arrangement between Federal and State agencies.
    In my State of Vermont, the Fish and Wildlife Service has 
worked with the State's Department of Fish and Game Outreach 
for Earth Stewardship and the Central Vermont Public Service to 
restore bald eagle population that is now thriving. The 
collaboration between the agencies is the reason for this 
success. Vermont also has a cooperative agreement with the Fish 
and Wildlife Service that is continuing to foster 
collaboration.
    I am sure there are other examples of successful 
collaborations that we will hear today from other witnesses. I 
am sure you will also hear ways that the Act can be improved.
    I also look forward to hearing how we can build on Federal-
State partnerships and new ideas you may have to those 
partnerships so that they survive and thrive.
    Thank you, Mr. Chairman.
    [The prepared statement of Senator Jeffords follows:]

   Statement of Hon. James M. Jeffords, U.S. Senator from the State 
                                Vermont

    Thank you, Mr. Chairman, for holding the third in a series 
of hearings on the Endangered Species Act.
    I want to thank all of the witnesses for coming here today 
to share their views on the important role that States, tribes 
and local governments play in preventing species extinction.
    When it passed the Endangered Species Act in 1973, Congress 
recognized that the successful development of an endangered 
species program would depend upon a good working arrangement 
between Federal and State agencies.
    In my State of Vermont, the U.S. Fish and Wildlife Service 
has worked with the State Department of Fish and Wildlife, as 
well as the National Wildlife Federation, Outreach for Earth 
Stewardship, and Central Vermont Public Service to restore a 
bald eagle population that is now thriving. The collaboration 
between the agencies is a reason for this success.
    Vermont also has a Cooperative Agreement with the Fish and 
Wildlife Service that is continuing to foster collaboration. 
I'm sure there are other examples of successful collaborations 
that we will hear about today from other witnesses. I am sure 
we will also hear about ways the Act can be improved.
    I also look forward to hearing how we can build on Federal-
State partnerships and new ideas you may have to make those 
partnerships thrive.
    Thank you, Mr. Chairman.

    Senator Chafee. Thank you, Senator Jeffords.
    We will now proceed to the first panel. We have Mr. Billy 
Frank, Jr., chairman of the Northwest Indian Fisheries 
Commission; Mr. Cory Gardner, a Colorado State Representative; 
and Mr. Michael Pasteris, executive director of the Forest 
Preserve District of Will County, IL to represent the National 
Association of Counties.
    Welcome, gentlemen.
    You can see the electronic box which allocates the 5 
minutes per witness, with a yellow light coming on and then a 
red light at the conclusion of the 5 minutes. Make every effort 
to strive to keep the comments within that timeframe to allow 
us adequate question time.
    Thank you, Mr. Frank. Welcome.

   STATEMENT OF BILLY FRANK, JR., CHAIRMAN, NORTHWEST INDIAN 
                      FISHERIES COMMISSION

    Mr. Frank. Thank you, Mr. Chairman and the Senate 
Committee. This is an honor to be here and listen to you. It 
gives us hope in the great Northwest along the Pacific Ocean. I 
am chairman of the Northwest Indian Fisheries Commission. I 
represent 20 tribes and speak with one voice when I come to the 
U.S. Congress, and I think today is going to be a great day.
    The Endangered Species is an important law to the tribes, 
and everyone else. As far as our treaties in the Northwest are 
concerned and throughout the Nation, the Endangered Species is 
something we can work with and make it happen as partners with 
the Federal Government, as partners with the States--State of 
Washington in my case--and with the local governments, and the 
ports and all of the volunteers on the watersheds--and we have 
a lot of them up in the Northwest.
    Treaty rights are the supreme law of the land, as everyone 
knows, and the ESA is the pit bull dog of the Federal law; and 
we understand that. It is very important that we get together 
and sit down and have hearings like this to move us forward.
    ESA has helped return the eagle and the gray whale along 
the Pacific Coast and in our backyard, in Puget Sound and 
throughout the Pacific Coast, and I have seen them where they 
weren't on the beaches anymore and along the Nisqually River, 
where I was born and raised and lived, and still live there. 
All of us brought the eagles back along the Pacific Coast, the 
U.S. Government as well as the local and the State of 
Washington, U.S. Fish and Wildlife, and Commerce, and all the 
tribes.
    We worked together to make that happen, and they are there, 
healthy right now, and getting healthier. The eagle stories are 
very important to all of us to hear, and if I had time I would 
tell you some.
    The salmon recovery efforts in the Pacific Northwest, the 
Endangered Species is part of that, is part of everything that 
we do, with our hatchery reform, all of our things, working 
with our wild stock and everything, making it happen. The 
funding is probably the biggest part of everything that we do 
out there, and the funding has to continue.
    There have been some failures. The Endangered Species is 
looking at, more or less, as part of the hatchery and the 
harvest of salmon, it does not look at the habitat up on the 
watersheds. It has to look at the habitat. The habitat is the 
most important thing to bring our recovery and all of our 
salmon back to us.
    The habitat is part of everything that we are talking 
about; all the animals and all the critters, and everything 
that is alive up there; the food chain, the cycle of the food 
chain and all of that. We have to work with the timber industry 
as we do. We have agreements with the timber industry, the 
tribes and the State, and all of us in the Northwest.
    We have agreements with the agriculture community, as we 
heard a little bit earlier one of our Senators talking about 
how important the agriculture community is, and it is very 
important to us. We want the agriculture community to stay 
where they are. We want them to be in the agriculture business, 
whether they are farmers or what.
    We are getting overrun with people in the Northwest, more 
people and more people coming, and we have to work together. We 
can't depend upon the U.S. Congress to write laws for us. It is 
all right if we all go to the Congress and ask for the laws, 
but we have to work together to make it happen. It is up to us 
out on the ground to make that happen.
    The timber industry, we want them to stay in business. We 
want them to harvest; we want them to reproduce; we want them 
to keep growing trees and make it happen. But that habitat is 
so important to all of us in the great Northwest along the 
Pacific Ocean.
    I have to tell you this little story in my little time. We 
had a head-on collision when the Endangered Species, as our 
Senator said, in 1973, it came together. Well, it was kind of a 
head-on collision for the tribes, treaty rights and ESA coming 
together, Endangered Species. So we got together, over maybe 
100 or 200 tribes got together and we said we can't have a 
fight over this head-on collision, so what are we going to do.
    We came up with a secretarial order. It took us 2 years to 
negotiate that with the Interior and Commerce. We negotiated it 
and that is working together, not colliding with one another. 
So that is very important to tell that story and make that 
known, that we work together side by side.
    The tribes in the Northwest are very important. We are co-
managers with the State of Washington. We sit on the United 
States-Canada International Treaty; we sit on the Pacific 
Salmon Management Treaty, 200 miles managing out in the ocean. 
Along the Pacific Coast, we have comprehensive plans throughout 
the Northwest, working with the State and the local governments 
and the ports, and anybody and everyone. We are leaders in the 
infrastructure of the tribes, keeping them together and keeping 
them moving forward.
    The environment and our salmon are so important in our 
culture and way of life is so important to us. The Indian 
tribes today, the majority, maybe 80 percent of our tribes are 
sitting on the bank now, we don't harvest salmon like we did 
anymore. It is very important that we work together and recover 
that salmon back to a harvestable number to keep the economy 
going in the great Northwest and all of our communities along 
the Pacific Coast, as well as inside.
    So thank you for letting our tribes come today, and 
hopefully we can answer any questions that arise. Thank you, 
sir.
    Senator Chafee. Thank you, Mr. Frank.
    You mentioned back in 1973, building the coalition and 
Senator Clinton talking about the keystone coalition here these 
many years later, doing the same thing, hopefully, trying to 
get us all together instead of in conflict.
    Mr. Gardner, welcome.

    STATEMENT OF CORY GARDNER, COLORADO STATE REPRESENTATIVE

    Mr. Gardner. Thank you, Mr. Chairman, Senator Clinton, and 
Senator Jeffords. Thank you for holding this hearing and 
allowing me to share my perspective this morning on the States' 
role in the Endangered Species Act.
    I am a member of the Colorado General Assembly. My 
constituents depend on farming and ranching for their 
livelihoods. Over the past 32 years, the role of the Endangered 
Species Act has grown dramatically in their lives, and, 
unfortunately, many times has instilled fear rather than trust 
and cooperation.
    The Act may have noble intentions. Unfortunately, the 
actual recovery of species doesn't necessarily happen every 
time we put the animal on the list, or the plant. The numbers 
speak for themselves. Of the 1,827 listed species, only 16 have 
been delisted as a result of recovery.
    I urge this committee to make it a top priority to update 
the Endangered Species Act and craft a policy that results in 
real recovery, while respecting property rights and the rights 
of those who live on the land. The following recommendations 
will help update the Endangered Species Act to help meet its 
intended purpose.
    Point No. 1, the State must be made a co-equal. The 
research, talent, efficiencies of State resource programs 
should be utilized and rewarded. After all, it is the State 
that has to live with the Act.
    Point No. 2, flexibility in the administration of section 
6. Giving greater flexibility would clarify and delineate the 
roles of States and Federal agencies, and allow them to take 
over many of the programmatic responsibilities of the 
Endangered Species Act.
    Point No. 3, the Secretary should give a presumption in 
favor of State information and recommendations on listing. The 
State has a far better understanding of its species needs than 
the Federal Government.
    For example, in 2003, the Fish and Wildlife Service 
considered listing the range rodent, which would have resulted 
in a significant portion of eastern Colorado being designated 
as critical habitat. Studies by the State of Colorado found 
seven times the amount of habitat acreage than those same 
studies performed by the Fish and Wildlife Service. Yet, under 
the Endangered Species Act as written, this doesn't matter that 
much when the State comes up with that kind of finding.
    Point No. 4, taxonomic and genetic uncertainties should be 
studied and independently peer reviewed prior to listing of a 
species. Because of the power of the Endangered Species Act, it 
should not be a matter of act now, ask questions later. Nothing 
illustrates this better than the Preble's Meadow Jumping Mouse 
in Colorado. Officials listed the mouse in 1998, based on a 
1954 study, the best science that had been done up until the 
listing of the mouse.
    Over $100 million has been spent to cope with the Preble's 
Meadow Jumping Mouse since then. Ranchers were prohibited from 
clearing weeds out of their canals, reservation was constructed 
in the middle of the worst drought in 300 years, a $5 million 
bridge was built to cover the expanse of Preble's habitat.
    Finally, a Denver scientist released a modern genetic study 
revealing that the Preble's Meadow Jumping Mouse was actually 
identical to the Bear Lodge Meadow Jumping Mouse.
    To avoid mistakes like the Preble's listing, the scientific 
bar must be raised to embrace modern scientific techniques and 
independent peer review.
    Point No. 5, flexibility to not list a certain area or 
State if it is receiving adequate management within that 
portion of its range. Last year, the Fish and Wildlife Service 
entertained the listing of the Mountain Plover. Working with 
local farmers, ranchers, Federal agencies and nongovernmental 
organizations, a partnership formed to conserve the Mountain 
Plover.
    The ultimate product included agreements between individual 
landowners and the Department of the Interior, wherein 
landowners agreed to put into place conservation measures to 
stave off the listing of the bird. Had the Mountain Plover been 
listed, though, this solution would not have been available. 
Section 9 taking prohibitions and section 7 consultation 
requirements would have imposed restrictions that would have 
stopped the agreement in its track.
    Point No. 6, significant changes should also be made to 
critical habitat designation. The State and individual 
landowners should be equal partners with the Federal Government 
during the designation process. Statutory time lines should be 
eliminated, thereby providing State and Federal Governments 
with greater flexibility to enter into private contracts and 
other cooperative agreements.
    Point No. 7, true recovery plans should be published at the 
time of listing. The Fish and Wildlife Service should be 
statutorily required to develop a quantifiable recovery plan at 
the time of the species listing. In Colorado, it took 14 years 
to establish recovery goals for the Upper Colorado Fish 
Recovery Program. The recovery plan should identify key 
benchmarks and measurable scientific data that is designed to 
provide a road map to the species recovery and delisting.
    We have spent the last 32 years living under an Endangered 
Species Act that falls short of accomplishing its goals of 
delisting. It is time to put aside the perception that changes 
to the Endangered Species Act will result in a complete 
rollback of ESA protection. The measures offered by the 
Endangered Species Act should not be the status quo, but, as 
many have said before me, should be a tool of last resort. 
Earnest modernization will make this a reality.
    Thank you, Mr. Chairman and the committee. I have prepared 
more detailed remarks and hope that they will be included in 
the hearing record, and would be happy to answer any questions.
    Senator Chafee. Those remarks will be included in the 
record without objection. Thank you for your concrete 
suggestions and also the cartoon, part of your submitted 
testimony.
    Mr. Pasteris, welcome.

 STATEMENT OF MICHAEL A. PASTERIS, EXECUTIVE DIRECTOR, FOREST 
 PRESERVE DISTRICT OF WILL COUNTY, IL, NATIONAL ASSOCIATION OF 
                            COUNTIES

    Mr. Pasteris. Good morning, Chairman Chafee, Senator 
Clinton, and distinguished members of the subcommittee. Thank 
you for holding today's hearing on the roles of States, tribes, 
and local governments in implementing the Endangered Species 
Act.
    I am the executive director of the Forest Preserve District 
of Will County, IL. In that capacity, I represent the National 
Association of County, Park, and Recreation Officials on the 
Board of Directors of the National Association of Counties, on 
whose behalf I am appearing today.
    Will County is located in highly urbanized northeastern 
Illinois, just southwest of Cook County. Forest Preserve 
Districts are special units of county government in Illinois. 
Our statutory mandate is to preserve natural and cultural 
resources within the county for the education and recreation of 
the public.
    The Forest Preserve District of Will County currently owns 
or leases approximately 18,000 acres, 7,000 of which are 
actively managed to conserve natural resources. These include 
the habitats or known populations of 13 threatened and 7 
endangered species listed under the ESA. We also provide 
habitat for dozens of species listed as threatened or 
endangered under Illinois law.
    As you know, the ESA was enacted in 1973 with the promise 
that we can do a better job of protecting and conserving our 
Nation's resident species and the ecosystems that support them. 
Today, over 30 years later, on behalf of the Nation's 3,066 
counties, I bring that same message back to this 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 species, and it is time to update and improve the ESA 
to reflect those lessons.
    NACo has identified several key elements that should be 
considered as Congress considers legislation to update and 
improve the ESA.
    First, counties should be full partners in all aspects of 
implementing the ESA. Our experience in Will County bears this 
out. For the last several years we have been actively engaged 
in efforts to preserve the habitat of the endangered Hines 
Emerald Dragonfly. County Forest Preserve Districts staff were 
part of the team formed to develop the Dragonfly recovery plan.
    Because of our close connection to the local communities, 
we have been able to facilitate effective communication 
strategies with adjacent private landowners and municipalities 
about the habitat needs of the dragonfly. Our efforts have led 
to a number of adjacent property owners reducing groundwater 
use voluntarily and to adopting best management practices for 
stormwater management within the watershed.
    Similarly, we have been invited to serve on the team 
developing a recovery plan for the Eastern Massasauga 
Rattlesnake, a species listed as threatened under the ESA and 
which is in decline. Even while recovery plan is in the 
development, the District has been acting to improve the 
rattlesnake's habitat using section 6 funds from the Illinois 
Department of Natural Resources and discretionary funds from 
the Fish and Wildlife Service.
    This model of a cooperative conservation partnership is an 
important key, we believe, to setting threatened and endangered 
species on a path to recovery. Unfortunately, it is a model 
that is not always emulated. We believe that the ESA's 
provisions for Federal, State, and local communication, 
cooperation, and collaboration could be strengthened so that 
the positive partnerships currently benefiting the dragonfly 
and rattlesnake and the citizens of Will County can be 
reproduced around the country.
    Sonoma County, CA, provides another example of how local 
participation in ESA decisionmaking has aided efforts to 
recover threatened and endangered species. While the final 
listing of the California tiger salamander in 2003, Sonoma 
County was jolted by the realization that, given the location 
of the salamander habitat, much of the county's entire economic 
future was in serious jeopardy. This is because much of the 
salamander habitat is within a voter-approved urban growth 
boundary.
    Because the U.S. Fish and Wildlife Service was short of 
personnel, consultation on individual projects, as well as 
field survey requirements, were lengthy and at times 
inconsistent. The Service recognized that, in order to deal 
with Sonoma County's unique challenges relating to the 
salamander, a different and more collaborative approach was 
required. This led to the creation of the Santa Rosa Plain 
Conservation Strategy Team in March 2004.
    In 17 months, this collaborative team has developed a 
cooperative conservation plan that will lead to conservation 
and recovery of the salamander, and at the same time a 
consistent process for the approval of projects that are 
important to the economy of Sonoma County.
    The willingness of the Fish and Wildlife Service to engage 
in cooperative conservation plans that support the President's 
Executive order on cooperative conservation issued in August 
2004 has resulted in a successful partnership that is directly 
benefiting the welfare of the salamander, while preventing 
serious financial detriment to Sonoma County.
    Both Will and Sonoma Counties' experiences demonstrate the 
great potential for new collaborative locally driven approaches 
to the conservation of endangered species. We believe that 
provisions to encourage it, and to remove barriers to it, 
should be built into the ESA.
    Second, NACo believes that science must be used more 
effectively in all aspects of implementing the ESA. I recounted 
for you the initial success of our efforts in Will County to 
contact private owners and municipalities to reduce their 
pumping of groundwater in order to improve the Hines Emerald 
Dragonfly habitat.
    This effort was made possible by the fact that we had in 
our hands the results of a unique hydrological study which 
mapped the aquifer which feeds the habitat. This information 
enabled us to persuade groundwater users to voluntarily reduce 
pumping in ways that will improve the habitat.
    However, we were only able to afford this study because the 
U.S. Army Corps of Engineers happened to have money available 
from penalties paid by a local party in violation of section 
404 of the Clean Water Act. Obviously, essential information 
should not be available only to communities ``lucky'' enough to 
have large Clean Water Act violations in their neighborhood.
    We know by our own experience that local governments and 
their citizens want to do the right thing to protect species, 
but we need to take action based on good information. Too often 
actions are prescribed by the Federal Government on the basis 
of a scientific record that is incomplete and unpersuasive to 
all stakeholders. We believe that a major investment needs to 
be made in gathering and interpreting data in a way that is 
open and transparent so that it can withstand the scrutiny of 
both the scientific community and can command the respect of 
the public.
    Third, and finally, NACo believes that the ESA could be 
strengthened and improved by creating more opportunities for 
State and local governments to encourage and facilitate 
conservation measures. Again, we believe that local people want 
to do the right thing, but more often than not, they lack the 
tools to get the work done on the ground.
    There is so much more that Will County could do to protect 
and enhance the habitat, and thereby the populations of species 
and species of concern, if only we had funding. If the goals of 
the ESA are indeed a national priority, then the burden of 
meeting them rests with Congress. Counties stand ready to 
implement sensible strategies at the ground level, but it is 
simply unjust to expect all the costs to be borne by our local 
taxpayers.
    Ultimately, NACo believes that environmental values must be 
balanced with socioeconomic values to achieve a policy which 
results in a high degree of environmental protection, while 
also preserving and enhancing local community sustainability. 
County officials and their constituents are keenly aware of the 
historical, economic, and aesthetic values of their local 
environment, as they are certain of the need to prepare for a 
sustainable future to assure the viability of their 
communities. We look forward to being your partners on the 
ground as we work toward these common goals. Thank you.
    Senator Chafee. Thank you very much, Mr. Pasteris.
    Picking up on that theme, in some of the previous hearings 
we have had, the incentives for landowners to protect critical 
habitat have been hailed as being successful, and you talked 
about providing the funding so that landowners can have some 
compensation for protecting habitat. I think we are hearing 
that refrain.
    I would just ask the three members of the panel if I am 
correct in that assumption, that if we can generate the funding 
and the incentives, we are going to eliminate many of the 
conflicts and the criticism of the ESA that have come over the 
years, as the conflict comes between landowners and the desire 
to protect species? Am I correct in that?
    Mr. Pasteris. The simple answer is yes. The current ESA 
forces and mandates certain activities, but provides no 
resources for assistance.
    Senator Chafee. Do you think there would be a willingness 
on the part of the local governments to participate in that 
funding if there were some Federal funding already available?
    Mr. Pasteris. I have already seen it throughout the Nation, 
where local communities are even probably more interested than 
the Federal Government in certain cases in preserving species 
in their own area.
    Senator Chafee. Mr. Gardner.
    Mr. Gardner. Mr. Chairman, thank you.
    Certainly funding is a concern that State governments have, 
as well as counties and those involved with the actual 
conservation practices themselves on the ground. However, it is 
only one part of an overall fix to the Endangered Species Act. 
I believe further delegation of section 6 programs for the 
powers under section 6 of the Endangered Species Act, allowing 
the States greater flexibility and a greater role could 
eventually lead to cost savings at the Federal level, which you 
could then turn around and use some of that savings and provide 
on the ground incentives. Not necessarily increasing funding, 
but finding cost savings within the Federal Government to help 
those incentives and pay for them.
    But, again, I think that would help. It is one part of an 
overall solution.
    Senator Chafee. Is there any danger in changing the section 
6 requirements that the local municipal or State might weaken 
the requirements? Certainly you don't want the heavy hand of 
Federal Government everywhere, but, on the other hand, there is 
a fear that the local governments might not be stringent 
enough, just the pressure to protect the business--whether it 
is a timber business or a farming interest--might be greater 
than the species.
    Mr. Gardner. Thank you, Mr. Chairman.
    Mr. Chairman, I think that the States will do--and they 
have done--a very good job of not only policing themselves, but 
enforcing the agreements that they have, and making sure that 
the agreements they are carrying out are fulfilled to the 
letter of the Endangered Species Act and the law.
    The concern that I would continue to have on not giving 
States greater flexibility, Fish and Wildlife Service right now 
is overworked; they are consumed with litigation, with listing 
work, reviewing petitions, doing work that the biologists 
simply don't have time to do here in Washington, DC. Allowing 
States greater flexibility to control section 6 delegation 
under section 6 would alleviate some of the workload in the 
headquarter office, in the Washington, DC office, and I believe 
that the States have done and will continue to do an excellent 
job of species recovery under section 6.
    Senator Chafee. Thank you. Before I move to Mr. Frank, I 
have one more question.
    Mr. Frank. Mr. Chairman, the ESA is a good law, and as long 
as the treaty rights are respected, and minor changes are 
probably coming. But an example of the great Northwest and the 
Pacific Ocean from Alaska to New Mexico, we have salmon 
recovery going on, and we have a comprehensive plan together 
working on all the watersheds, and that is big time, and that 
includes everyone on the watershed--the agriculture, the timber 
industry, the hydroelectric. That is everyone, the private 
landowners, the volunteers, the Army and the Navy. That is 
everyone.
    Now, when we say we have a comprehensive plan, we work with 
the agencies, Fish and Wildlife, Commerce, NOAA, and all the 
agencies, the Federal EPA and everyone. What we do is when we 
put a comprehensive plan together--you have heard the things 
here today--we stand ready to be challenged by the courts. We 
stand ready.
    We have to put a plan together that is going to stand up. 
We know where we are going to be challenged. We know that the 
challenge will come when we put the plan together, and it will 
be there. We have to have our day in court to make that happen, 
that ESA coincides with what we are doing, and the wild stock 
and everything else that we take into consideration.
    So we stand ready to work with everyone on all of our 
watersheds, including the ocean, including the Puget Sound and 
cleaning up. We have a lot of challenges ahead of us, not only 
just ESA, but a lot of the Hood Canal in the Northwest is 
dying. We have to be together to make that come alive. If the 
other part of South Puget Sound starts dying in water quality 
and quantity and all of that, then we are all in trouble.
    So we have to work together. We have to make it happen, the 
people on the watershed and the partnership with the Federal 
Government, the partnership with the States and the local 
governments and all of us. We have to work together. Funding is 
so important that makes it whole.
    Senator Chafee. Thank you, Mr. Frank. Yes, chilling words, 
a dying ecosystem or a dead ecosystem, especially when you are 
talking about such a vast watershed area.
    Mr. Frank. Yes, sir. It gets the attention of the people up 
there in the great Northwest.
    Senator Chafee. I am sure it does.
    Senator Clinton.
    Senator Clinton. Thank you, Mr. Chairman.
    I want to thank the witnesses. Their testimony is very 
helpful and certainly provides a lot of good ideas. In Mr. 
Frank's written testimony he makes a very profound statement, 
he says,

    ``Wild salmon recovery in western Washington is a biologically 
simple, but politically difficult, task. All the fish need is clean, 
cool water, adequate spawning and rearing habitat, and adequate numbers 
of returning adult salmon to spawn, and they will take care of the 
rest.''

    So that about sums it up. But getting from where we know we 
need to go to where we can go is sometimes a difficult journey. 
So I appreciate these suggestions.
    What Senator Chafee and I are attempting to understand is 
how better to describe this partnership. The partnership 
exists. I mean, if it didn't exist in Will County, if it didn't 
exist in Colorado, if it didn't exist in the Northwest, none of 
the examples you have given would be available or relevant. So 
we know that the partnership between different levels of 
government, between the public and the private sector is a 
fact.
    Our challenge is to figure out how to make it more 
effective, how to put certain accountability into it that would 
enable us to be sure that the objectives were being achieved. I 
guess what I would ask first Mr. Gardner and then Mr. Pasteris 
is, right now, what is the capacity of your State, county, and 
local agencies, both in terms of staffing and budget, for the 
enhanced ESA role that you both have outlined in your 
testimony?
    Mr. Gardner.
    Mr. Gardner. Thank you, Senator Clinton. Obviously, States, 
as well as the Federal Government, have financing issues that 
they have to deal with. But I do believe working together in a 
full partnership it would be very beneficial to both and they 
would indeed have the resources to accomplish the tasks set out 
before them in the Endangered Species Act. Whether it is 
working with a Federal biologist who is also partnering with a 
State wildlife biologist, I believe between the two 
governmental entities, they do have the resources to handle 
these types of responsibilities.
    The resource work going on in Colorado has at times been a 
partnership, but it is a one-sided partnership often. The 
Federal Government, for instance, during the Preble's Meadow 
Jumping Mouse situation, based their determination to list on a 
50-year-old study.
    Senator Clinton. I wanted to ask you about that because I 
was very struck by your point in your testimony that taxonomic 
and genetic uncertainties should be studied and independently 
peer reviewed prior to listing of a species, and the 
information threshold and listing petition should be raised.
    How do you envision that happening? Is this an ad-hoc 
occurrence, where we are dealing with a species of mouse or a 
species of bird or fish, and you go out and try to find experts 
and put them together, or do you envision more of an organized 
ongoing independently peer reviewed scientific effort?
    Mr. Gardner. Thank you, Senator Clinton. There are a number 
of ways that you could do that. One of the problems that arose 
with the Preble's Meadow Jumping Mouse is indeed it was peer 
reviewed, unfortunately, it was not independently peer 
reviewed.
    Senator Clinton. Now, explain what you mean by that.
    Mr. Gardner. There were a number of members on the 
committee who were involved in the listing in 1998. So it is 
hard for anyone to go back on the work that they did previously 
and say I was wrong, this never should have been listed.
    So when I talk about independent peer review, I mean taking 
the pool of national experts that we have across the country 
within the Government agencies and saying, let us form a panel, 
let us form a committee, let us form a review that, when 
questions do arise and there are genetic uncertainties, or 
perhaps when the data is the best available and not the best 
possible, that we do have a way to independently peer review 
and get to the science that we need in order to make an 
effective listing, because the Endangered Species Act has 
tremendous impact.
    Over $100 million was spent on the Preble's Meadow Jumping 
Mouse, and it really affected development, affected farmers and 
ranchers. So those are the things that we have to do and be 
prepared to deal with at the national level.
    The other partnership issue that I would like to address 
with you is the Western United States and the ownership of 
Federal lands. In Colorado, in 2002, we lost hundreds of 
thousands of acres to devastating forest fires. One of the 
problems, of course, was the undergrowth in the forest and the 
need to go in, clear the undergrowth in the forest to alleviate 
some of the fire concerns and some of the fuel for the fires.
    Unfortunately, the Snowshoe Hare was living in the 
undergrowth. Snowshoe Hare just happens to be food for certain 
endangered species. So without a partnership, the Federal 
Government's hands were tied to clear the undergrowth because 
it was habitat to the necessary species for an endangered 
species.
    So we risked losing an entire forest from a forest fire 
because of the vast amounts of undergrowth, but we left it 
there because there was an endangered species issue that had to 
be dealt with. Those are the kinds of partnerships, whether it 
is critical habitat or other, that we need to be dealing with.
    Senator Clinton. Thank you.
    Mr. Pasteris, same question to you about resources and 
capability.
    Mr. Pasteris. I happen to be in a rather lucky situation or 
a special situation. My form of county government is in fact 
mandated with the protection of natural and cultural resources. 
As a result, one of our specific goals is the protection of 
endangered and threatened species.
    In addition to that, since I am in a highly urbanized area 
of the Chicago land region, we have often gone back to our 
citizenry and asked for their input, and they have resoundingly 
approved two referendum in the past 6 years providing us with 
$165 million to buy additional lands and preserve what 
remaining natural resources we have.
    As far as staff goes, with all the budget cuts we have seen 
in the Federal Government, especially in the areas of U.S. Fish 
and Wildlife, and now in the State of Illinois, I probably 
actually have more biologists on staff than the Federal 
Government or the State currently has, which puts me in a 
unique position.
    I do not have time, the citizens of Will County don't have 
time to wait for the Federal Government; we are doing it on our 
own. I do not think, however, though, that most counties 
outside of Illinois would be in that similar situation.
    I must stress again, I am a special unit of government. In 
most States, my function would be part of county government, 
and I have a feeling that it would be somewhere lower on the 
list of priorities amongst roadways, health services, and other 
services that a county must provide. So in that case, I would 
think that Federal funding is almost mandatory if we are going 
to get anything done on the local level.
    Senator Clinton. Well, thank you. It is extremely 
interesting testimony, and the points about the forest preserve 
districts are ones that I am interested in, because what you 
have done, as you have described it, is to create an entity 
that is largely a habitat preservation entity that can create 
public support for that function apart from every other county 
function, and people can focus their attention on what needs to 
be done. As I understand what you said, you even have a 
referendum and taxing authority to go directly to the people. 
That is a very unusual arrangement.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you, panelists. I think there is some 
justified criticism. I don't know about Preble's Jumping Mouse 
and what happened there in particular, but we always strive to 
do it right, and I think some of our testimony about the big 
four fishery rivers in Colorado, we did do some things right. 
So that is our goal in the big four fishery rivers of Colorado. 
Am I correct in that?
    Mr. Gardner. Yes, sir. Thank you, Mr. Chairman. They did 
some wonderful things. Unfortunately, in that example, it took 
14 years to reach the recovery plan and to come up with a 
recovery plan for delisting.
    But they have done a tremendous job and that is a great 
example of what I see as perhaps delegating section 7, section 
9 authorities, maybe through a pilot program to the States, and 
allowing a massive project like that to move forward. So 
instead of having 800 individual section 7 consultations going 
forward based on every single water use, you did have one 
umbrella program that was given the authority to make the 
necessary decisions.
    Senator Chafee. Well, thank you very much, panelists.
    Mr. Frank, one more comment?
    Mr. Frank. Mr. Chairman, none of this is a quick fix. You 
know, we sit on watersheds, all of us, and your next panel will 
understand, but we are looking out maybe 50 or 100 years to try 
to find a balance, and a balance between all of us, and that is 
so important.
    We have a lot of models. You have heard some today, models 
of us working together, how important it is to start, if we are 
in the 9th Circuit Court of Appeals, an example is to work our 
way back to the district and then out and get agreements 
settled. We have a lot of models like that, and I think with 
this hearing it gives hope to me. Thank you, Senator Clinton 
and thank you, Senator Chafee.
    Senator Chafee. Thank you for traveling so far to be here, 
all of you, and also for your good testimony. Much appreciated. 
I hope we can make the ESA stronger and better. Thank you, 
gentlemen.
    I will now welcome the second panel: Mr. John Baughman, Mr. 
Bill Burnham, Dr. Robert P. Davison, and Mr. Dwayne Shaw. 
Welcome. Once again, thank you for traveling here and giving us 
your comments on the ESA.
    We will start from the other end this time. Mr. Dwayne Shaw 
is executive director of the Downeast Salmon Federation/
Downeast Rivers Land Trust.

 STATEMENT OF DWAYNE SHAW, EXECUTIVE DIRECTOR, DOWNEAST SALMON 
             FEDERATION/DOWNEAST RIVERS LAND TRUST

    Mr. Shaw. Thank you. I appreciate the opportunity to come 
here from Downeast, ME to talk to you about the Endangered 
Species Program that we are involved with and to make a few 
suggestions.
    The tremendous bounty and the natural beauty of our 
environment is a gift that has been bestowed upon us and has 
co-evolved with us over many millennia. Stewardship of and 
respect for our fellow inhabitants on this planet is a 
responsibility which was delivered to each of us by previous 
generations and which we have a responsibility to pass on to 
the next generations. In this regard, the Endangered Species 
Act is perhaps one of our most enlightened of all laws and 
exemplifies our commitment to protect and restore the most 
vulnerable of all creatures in their habitats.
    After 32 years, the Act remains among the most popular and 
effective environmental laws of our country. I believe the 
public support for this law exists because it is viewed as a 
strong response to an unacceptable and most often entirely 
avoidable loss of a species.
    I come to you from the Northeastern most hinterlands of our 
country, Washington County, ``The Sunrise County'' of Maine. 
This is a hardscrabble Yankee region, most known for lobsters, 
lumber, and leisure--for some, tourists and others--but is also 
known as the home to five of the eight remaining rivers in the 
United States with endangered populations of wild Atlantic 
salmon.
    Three other wild Atlantic salmons rivers in the United 
States designated under the ESA are also in Maine, though 
historically the Atlantic salmon ranged throughout most of New 
England in numbers plentiful enough to have been at one time a 
source of fertilizers for fields and even up until recently, a 
great recreational economic resource in our very poor region.
    The wild Atlantic salmon is often referred to as ``the King 
of Freshwater Game fish'' and its loss to our region has meant 
the loss of millions of dollars in tourist and fisheries 
revenues. Salmon is a fabled species that the European settlers 
were pleased to find in abundance upon arriving on this 
continent. In fact, the earliest documented stone pictographs 
found throughout the British Isles are ornate carvings of 
Atlantic salmon.
    It is clear that both Europeans and First Nation peoples of 
this continent possessed great reverence and placed high value 
upon salmon as food, and this reverence symbolizes and 
persists, despite the atrocities that have been dealt by our 
ignorance upon our fisheries and waters. The ESA and its 
implications for restoration of this species, and many, many 
other species, illustrates that current generations understand 
our need to protect our heritage and our interconnectedness 
with the environment of our ancestors and of generations yet 
unborn.
    Is the ESA protecting salmon? From direct experience on the 
ground working to protect and restore Atlantic salmon in 
Washington County and beyond for the past 22 years, I can tell 
you that the positive implications under the ESA for our salmon 
have been the difference between night and day in Sunrise 
County.
    In 2000, the Atlantic salmon ``Distinct Population 
Segment,'' encompassing at first seven and later eight rivers 
in Maine, was granted emergency endangered status under the 
ESA. Unfortunately, this designation was granted only after a 
lawsuit was threatened by several conservation organizations, 
including Trout Unlimited and the Atlantic Salmon Federation, 
with whom my organization is affiliated.
    The bottom line at that time was that the State of Maine, 
under then Independent Governor Angus King, sought to 
circumvent the listing via implementation of a ``State Recovery 
Plan'' that had been sanctioned and approved under the ESA 
itself, under the 4-D rules. This approach was widely 
encouraged and endorsed by industry and economic development 
forces in the State.
    Many angler groups and other conservationists were drawn 
into the ``State plan'' because it promised a much greater 
level of industry cooperation and government interest and 
investment than the preceding decades, during which very little 
attention was paid to serious population enhancement efforts 
and habitat protection. However, when it became apparent that 
Governor King and his Salmon Task Force were more interested in 
maintaining the status quo than seriously retooling and 
applying needed resources to the situation, it was very 
fortunate that the Federal services were standing by to pick up 
the pieces.
    Provisions under ESA allowing for States to manage species 
recovery under the 4-D rules should be examined very closely by 
your committee, particularly within the context of the Maine 
Atlantic salmon case study. Many believe that valuable time was 
lost for Atlantic salmon while the State reacted to the 
interests of a few influential user groups.
    In the end, when the populations were listed, a number of 
groups were brought together through the watershed councils, 
and this, combined with the additional funds and resources 
provided under the heightened Federal salmon programs, gives 
new hope that a dire situation will improve. This hope and 
optimism is what draws the private sector into the greater 
effort, again, despite the fact that fishing was ended several 
years ago.
    Federal funds directed toward salmon recovery through 
challenge grants issued by the National Fish and Wildlife 
Foundation, which are Federal funds coming to the Foundation, 
are particularly effective in sustaining public investment and 
interest. In just the past 3 years, our organization, working 
at the local level, has brought in an estimated $2 million 
worth of private investment into salmon recovery in the poorest 
county in our State, and one of the poorest in the Nation. 
These numbers are phenomenal and have been largely attributable 
to small Federal seed investments in our outreach efforts, 
which have made it possible because of the listing.
    I wanted to make just a few points because I see my time is 
nearing here.
    Essentially, I think that the Federal investments in 
outreach and education are extremely important. This is 
something that hasn't been raised earlier this morning, I don't 
think, to a great degree. But getting that funding level at the 
local level, where peer to peer, landowner to landowner, 
neighbor to neighbor can be brought information that provides 
them with a clear image of what is needed for a species is 
crucial.
    Funds need to be applied at the local level. That can be 
through a local conservation organization such as ours, through 
a county, perhaps, in some cases through a municipality. But, 
again, it needs to be put and done through an organization that 
has a real interest in seeing the species recovered.
    The need for additional Federal resources--this is a common 
theme we have heard this morning--and a more equitable and 
consistent funding mechanism needs to be developed for all ESA 
listed species. There are species receiving no funding and 
there are species receiving tremendous funding. If you look at 
the discrepancy between Atlantic salmon and Pacific salmon, you 
will see a vast difference, despite the fact that the regions 
in which these species occur are comparable in size, or the 
areas that they did occur.
    In Maine we have a particularly interesting situation, and 
that is a joint listing between two Federal agencies of a 
single species. We have the U.S. Fish and Wildlife Service and 
NOAA Fisheries, both equally responsible for the recovery of 
this species.
    Somehow we need to streamline this process. This creates a 
problem for everyone involved, and we do not want to lose 
Federal funds in any way toward the effort by reducing or 
making one the lead entity, but in some way I think that that 
is something that could be looked at more closely.
    Thank you.
    Senator Chafee. Thank you, Mr. Shaw. Good points. You say 
in your prepared statement, ``Finally, if I am to avoid being 
brined for lobster bait.''
    Mr. Shaw. I skipped that part.
    Senator Chafee. Certainly don't want to let that happen.
    Dr. Davison is from the Wildlife Management Institute. 
Welcome.

 STATEMENT OF ROBERT P. DAVISON, WILDLIFE MANAGEMENT INSTITUTE

    Mr. Davison. Thank you, Mr. Chairman, Senator Clinton. I 
appreciate this opportunity to provide the views of the 
Wildlife Management Institute on the role of States, tribes, 
and local governments in implementation of the Endangered 
Species Act.
    I am also pleased, as the Chair of the Wildlife Society's 
Technical Review Committee on the Endangered Species Act, to 
present the relevant portions of the committee's report titled 
``Practical Solutions to Improve the Effectiveness of the 
Endangered Species Act for Wildlife Conservation.'' The full 
report here is appended to my testimony. It presents the views 
of the appointed committee members and the Wildlife Management 
Institute, but not necessarily the views of the employers of 
other committee members, nor of the Wildlife Society itself.
    In general, implementation of the Endangered Species Act 
would be improved by greater partnerships with States, tribes, 
and local governments. Specifically, there are four points that 
I will highlight from my written statement.
    No. 1, State fish and wildlife agencies are not being 
provided adequate and stable funding from the section 6 
Cooperative Endangered Species Conservation Fund which is 
needed to fulfill State roles in the conservation of endangered 
and threatened species. This is not a matter of Federal 
assistance to States, it is a matter of effective conservation 
of imperiled species. I think we need to look at it that way.
    Eighteen years ago, this committee expressed the concern 
that ``Current Federal-State cooperative efforts to protect 
endangered species are inadequate and in danger of 
disintegrating altogether.'' Matters only have gotten worse, if 
anything. By the start of fiscal year 2006, there will be 1,264 
listed U.S. species. That is more than six times the 194 U.S. 
species that were listed in 1977.
    Yet, the $9.9 million appropriated in State grants under 
section 6 for this coming fiscal year--which is a record, by 
the way--has only somewhat more than one-third as much buying 
power as the $4.3 million that was provided 28 years ago. Six 
times the number of species; a third to a half the funding.
    The section 6 Cooperative Endangered Species Conservation 
Fund should be restored to its original intended purpose of 
providing adequate and stable funding to State fish and 
wildlife agencies to make it possible for them to participate 
as full partners. In doing so, priority should be given to the 
programs that maximize leverage of non-Federal match with the 
available Federal dollars.
    No. 2, too often State expertise, data, personnel, and 
their working relationships with others still are not 
sufficiently utilized in listing and critical habitat decisions 
and actions. State fish and wildlife agencies should have a 
clearer and more significant role in efforts to prevent species 
from becoming candidates and in listing decisions and critical 
habitat designations. Increased Federal funding should be 
provided to the States under the State Wildlife Grant Program 
to conduct monitoring and evaluation of declining species.
    No. 3, although under the Endangered Species Act recovery 
is the responsibility of all Federal agencies in partnership 
with the States, in reality the States too often are not full 
partners in these efforts. Given the importance of non-Federal 
lands to the conservation of listed species, collaboration with 
tribes, local governments, NGO's, private landowners is 
essential to recovery of many listed species. However, these 
partnerships also currently are insufficient.
    Recovery plans should be developed by teams that are of 
manageable size and sufficiently diverse to include the needed 
expertise and representation of entities responsible for 
management of the species and its habitats, including State 
fish and wildlife agencies, Federal land management agencies, 
tribes, local governments, private landowners, and any others 
needed to recover species.
    The section 6 cooperative agreement provisions should be 
redesigned to function as a true recovery partnership agreement 
requiring close collaboration and coordination among States, 
tribes, and the U.S. Fish and Wildlife Service and NOAA 
Fisheries. State fish and wildlife agencies and tribes should 
be provided with the opportunity to take the lead in 
development, implementation, and monitoring of recovery plans 
and plan activities.
    No. 4, too many private landowners continue to distrust and 
fear any application of the Endangered Species Act to their 
lands or to their activities. State and local government 
involvement is a key aspect of addressing successfully these 
issues. The States increasingly have sought umbrella style 
section 10 permits to assume responsibility for minimizing and 
mitigating non-Federal incidental take activities and promoting 
non-Federal habitat conservation.
    These are innovations that should receive far greater 
support both in terms of authority and funding. Through 
increased Federal matching funding and expanded use of section 
6 agreements and other mechanisms, State fish and wildlife 
agencies should be allowed and encouraged to assume the lead 
for administration of Safe Harbor Agreements, Candidate 
Conservation Agreements, and Habitat Conservation Plans.
    Thank you.
    Senator Chafee. Thank you, Dr. Davison. Does your region 
encompass the Klamath issue at all?
    Mr. Davison. It does, Mr. Chairman.
    Senator Chafee. Dr. Burnham is the president of the 
Peregrine Fund. Welcome.

    STATEMENT OF BILL BURNHAM, PRESIDENT, THE PEREGRINE FUND

    Mr. Burnham. Thank you. I appreciate the opportunity. I am 
glad you are interested in hearing of our experiences and our 
recommendations.
    The Peregrine Fund was founded in 1970 to try to prevent 
the predicted extension of the peregrine falcon. About 29 years 
later the species was delisted, so the efforts were successful. 
Through those almost three decades we learned a great deal. We 
ended up working in 29 different States with quite a large 
number of tribes and local communities and with thousands or 
people in the private sector, as well as with government.
    As a matter of fact, to document this, we wrote a book, and 
I would like to leave a copy for your committee library, if I 
may, ``Return of the Peregrine Falcon,'' as written by 69 
authors that were involved importantly in peregrine falcon 
restoration with The Peregrine Fund and government and States 
and beyond that.
    Another project and species we are involved with is the 
California condor restoration in Arizona and Utah. We are 
working there with local governments, tribes, and various 
government agencies. The condors are being released under 
section 10, part J of the Endangered Species Act, as a 
nonessential experimental population. That effort goes quite 
well.
    We are also working with restoration of the aplomado falcon 
in Texas. There are 58 counties involved in this restoration 
effort. There are 1.8 million acres of private property 
enrolled in the Safe Harbor. I would assume it is the largest 
Safe Harbor that presently exists.
    We also have experience in Hawaii working with about a 
dozen endangered birds there, none of which are birds of prey. 
We are no longer involved in that project at this point in 
time.
    Based on these experiences, we conclude that for the Nation 
to be successful at endangered species restoration, the ESA 
must be changed because the original intent has been subverted. 
No change will only mean a worsening political and biological 
situation. Part of the change should be shifting more 
responsibility, authority, and funding to the States.
    The U.S. Fish and Wildlife Service role should be more 
facilitation and, as appropriate, oversight, the State and 
private sector roles being coordination and implementation. The 
role of the tribes and communities can be fit within this 
framework. The ESA restoration must become a local endeavor. I 
emphasize that based on 30-some years of experience.
    Our general recommendation is to refocus the ESA on 
incentives. As part of the refocusing, the ESA and the 
regulation should be simplified. Listing and delisting species, 
recovery team composition and function, recovery plan process 
and content, and other administrative changes should be made to 
enhance function and effectiveness. A stronger State and 
Federal partnership should be established, and greater private 
sector involvement incorporated.
    In summary, the ESA should be made more effective at 
conserving species and less burdensome for those it affects, 
particularly natural resource users. Unless the ESA is 
modified, or until the Nation has a law focused on habitat and 
biome conservation, endangered species will continue to suffer 
from lack of private sector and landowner support. This will 
continue to produce conflict over designation of critical 
habitat and punitive measures; litigation will continue to 
consume dollars critically needed for recovery actions. 
Congress should consider passage of a new law dealing with 
habitat and biome conservation at the same time they consider 
modifying the Endangered Species Act.
    Within the modifications, I would also emphasize that, 
wherever possible, flexibility should be instilled. What is 
being done under 10(j) of the Endangered Species Act is very 
important with condors and other species. Safe harbor is great. 
That flexibility provides a lot of opportunities.
    Another thing it helps create is trust, and that is an 
essential component. By making this more of a local issue, 
moving it to States, local communities, involving the tribes 
and others in this process, particularly the private sector, 
you can help increase that trust. You need to be able to look 
the guy in the eye and believe what they are saying, and that 
is not going to happen when they are dealing with the Federal 
Government.
    Senator Chafee. Thank you, Dr. Burnham.
    Mr. Baughman is the executive vice president of the 
International Association of Fish and Wildlife Agencies. Good 
to have you here.

     STATEMENT OF JOHN BAUGHMAN, EXECUTIVE VICE PRESIDENT, 
    INTERNATIONAL ASSOCIATION OF FISH AND WILDLIFE AGENCIES

    Mr. Baughman. Thank you, Chairman Chafee and Senator 
Clinton. It is my honor to be here before you today. I am John 
Baughman, executive vice president of the International 
Association of Fish and Wildlife Agencies.
    Your State wildlife agencies, in fact, all 50 State 
wildlife agencies and the Federal agencies charged with 
wildlife land management are members of our association.
    I am also past director of the Wyoming Game and Fish 
Department, which gives me a first-hand perspective on some of 
these Federal-State interactions on some of our most 
contentious threatened and endangered species.
    Our more detailed testimony has been submitted, and we have 
also appended our white paper on our principles recommended for 
Endangered Species Act Reauthorization Enhancement, along with 
a Web site reference to materials on proactive conservation 
through State Conservation Plans.
    Given our limited time, I will simply summarize our 
recommended principles, then offer a few personal observations.
    Our five recommended principles have been worked on for 
over 15 years; they have broad support in the conservation 
community; they are the basis for much of the National 
Governors' Association and Western Governors' Association 
policy, and they are as follows:
    No. 1, restore congressional intent that reflects and 
respects authorities, roles and responsibilities of the State 
fish and wildlife agencies for wildlife conservation in 
general, and for listed species in particular.
    No. 2, make recovery plans meaningful and nondiscretionary, 
including both incentives and obligations for all parties to 
the plan.
    No. 3, restore congressional intent in creating the 
statutory distinction between threatened and endangered status.
    No. 4, a full portfolio of incentives for private 
landowners and also other government agencies and industry need 
to be statutorily institutionalized.
    No. 5, congressional recognition of the need for preventive 
conservation.
    Many of our former speakers mentioned some of those same 
points. We have more specific details on each of these points 
in the white paper.
    I would like to close with a few perspectives from my days 
as director of a State wildlife agency.
    Wyoming has relatively few listed species compared to 
California or Hawaii. Some of those States have hundreds. But 
we had some of the most expensive species: grizzly bears, grey 
wolf, peregrine falcon, bald eagle, black-footed ferret. The 
State spent literally millions of dollars--as did the 
surrounding States--on the restoration and management of these 
species, and the States continue to spend the money.
    When we at least look at grey wolves, grizzly bears, bald 
eagles, peregrine falcons, these species reached recovery goals 
long ago. Grizzly bears in the greater Yellowstone area first 
reached their recovery goals in 1989. In 1994 Wyoming asked for 
the Federal Government to pursue delisting. These species, the 
ones I just mentioned, are the poster children for America's 
charismatic mega-fauna, and we ought to be celebrating the 
recovery of these species, and the progress and the good things 
that can be done under an Endangered Species Act.
    Unfortunately, these species symbolize many of the negative 
aspects of the Endangered Species Act, such as a lack of 
progress toward legal recovery, never-ending Federal control, 
tens of millions of dollars wasted on years of litigation and 
bureaucratic process, and the source of endless acrimony 
between Federal, State, and private interests.
    You can contrast this situation with the conservation 
efforts for sage grouse, where a decision not to list a 
species-at-risk has allowed State, Federal, corporate, and 
individual partners to come together in over 70 working groups 
in 10 States to consult and cooperate in planning and 
delivering on-the-ground restoration efforts for sage grouse 
and their habitat.
    Government agencies, organizations, individuals, even our 
pet dogs repeat behaviors that consistently get rewarded. It is 
no doubt unintentional, but right now administration of the 
Endangered Species Act rewards litigation instead of 
collaboration, it rewards lack of progress instead of recovery, 
it rewards listing instead of restoration and proactive 
management of species-at-risk.
    If we truly want to enhance the whole process--and really 
this endangered species issue is a whole process, it is not 
just the act; it is our Federal, State, tribal agencies, it is 
individuals, it is corporations, it is a lot of ancillary 
legislation, appropriation bills, the farm bill and so forth--
if we want to improve the whole process to better serve species 
conservation and our citizens, we need to reward efficiency, we 
need to reward people who work together, we need to reward 
private land conservation, and we need to reward conservation 
of species before they become threatened and endangered.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you, Mr Baughman.
    Thank you, panelists. I think the common theme is that 
funding is important. Probably the reality is, as you all know, 
that is going to be difficult. But we will do our best on that 
front. Also a common theme is better cooperation with the local 
people that are on the ground, as the hearing is titled, 
Cooperation Between the Federal Government, Tribes, State 
Government, Local Governments.
    Dr. Davison, I asked about your experience in the Klamath 
Basin. How was that cooperation between the local 
municipalities and the Federal Government as that challenge was 
tackled?
    Mr. Davison. Well, Mr. Chairman, I think that the 
cooperation certainly could have been greater. The difficulty 
in resolving this issue, though, had less to do with 
cooperation with the local government, and more to do with 
scientific uncertainty about effects of the action and the 
difficult process in the west of trying to resolve many 
competing demands, including conservation of endangered 
species, within the framework of western State water laws and a 
large Federal project.
    I think the Klamath is a case where more open transparent 
decisionmaking would have helped tremendously, where more 
robust decisionmaking would have helped, and in that sense 
cooperation was lacking.
    Senator Chafee. Thank you. Many of the panelists have 
talked about specific species, whether it is the Preble's 
Jumping Mouse or Atlantic salmon or peregrine falcon or 
California condor. I think everybody agrees that seeing them 
recovery is a positive. Maybe, Mr. Baughman, some might not 
agree that the recovery of grizzly bears or grey wolves is 
positive. In your experience, was that true, the ranchers in 
the area affected by loss of lands or calves? How is the 
conflict there?
    Mr. Baughman. Well, there are certainly differences of 
opinion on these large predatory animals, depending on people's 
interests, but I would think most people take great pride in 
the fact that those animals are recovered in the greater 
Yellowstone area. The real frustration is that after reaching 
management objective and actually restoring these species with 
active on-the-ground management, which, with these large 
predatory species will be needed forever, there is great 
frustration that we never get to an end point.
    Just like the upper Midwest with the grey wolves and, again 
the greater Yellowstone area, the Northern Continental Divide, 
the same with grizzly bears, where there is total uncontrolled 
expansion of these animals that includes a great deal of cost 
and conflicting problems. That worries people, that there is no 
end point, there is no place where the public and the State 
agencies get re-involved in establishing meaningful objectives 
and meaningful on the ground programs, so it is just seen as a 
constant money pit.
    Senator Chafee. Thank you.
    Senator Clinton.
    Senator Clinton. Thank you very much, Mr. Chairman.
    You know, one of the recommendations that we have heard 
from the prior panel, as well as some of the witnesses on this 
panel, is to create a co-equal role for States, and I would 
like to ask Mr. Shaw and Dr. Davison to comment. Do you think 
that delegation of ESA authority to State is advisable? I know, 
Mr. Shaw, you, in your testimony, talk about what you consider 
to be an unsatisfactory experience with the State attempting to 
deal with Atlantic salmon. How do you think that the Federal 
Government and the States could work better? Mr. Shaw and then 
Dr. Davison.
    Mr. Shaw. Yes, thank you. I think that, again, we come back 
to the funding issue. In my written statement, I made the 
statement that better funding would float all boats, and that 
means that those people interested in development, have 
interests in logging and other interests beyond just the 
restoration of a species, all of those interests are limited in 
their ability to work with the Endangered Species Act because 
of the response or the lack of adequate response, sometimes, 
from the Federal services, as well as those of us working in 
the actual implementation of restoration activities. When we go 
for permits, there is a time delay, and that delay needs to be 
eliminated for everyone involved.
    So an adequately funded Federal service is critically 
important and, again, the incentives issue is one that, of 
course, is a big piece of this puzzle, and I think that that is 
the carrot. But the stick cannot be put away. The stick has to 
be on the table and available when needed, and only as a last 
resort, of course.
    But it is, I believe, critically important to have a 
direct, continual oversight by the Federal Government in this 
process. I would be very hesitant to suggest otherwise, having 
been through this experience where the State of Maine attempted 
to do it on its own and create a cooperative project that 
everyone was intended to buy into, but on the surface that was 
the case. It looked good in writing, but when you look at what 
should have been happening on the ground and failed to happen, 
ultimately the ability to file a suit, to force delisting was 
what has made action begin to happen.
    Senator Clinton. There has to continue to be some 
triggering mechanism to get action is what you are saying.
    Mr. Shaw. Absolutely.
    Senator Clinton. Dr. Davison.
    Mr. Davison. Senator Clinton, Mr. Chairman, as Mr. Frank 
said earlier, I think one thing to keep in mind is that 
recovery is a process that is going to take many decades. So 
for those that look at the 30-year history of the Endangered 
Species Act and say that it has not recovered many species, I 
say that we are looking at processes that took hundreds of 
years, in some cases, to create, and it is going to take a long 
time to undo that.
    From my perspective, this perspective is relevant here 
because I think the only way we are going to get there and 
recover species, which is all of us have as our goal, is to 
have a combined Federal-State-local government-tribal effort on 
this, and I think that means maintaining the Federal Government 
involvement and increasing the ability of States, tribes, and 
local governments to participate in that effort.
    So in that sense I don't think that this is a role that 
should be shifted to the States, or that it should be primarily 
a local government responsibility. I think it needs to be the 
responsibility of governments at all levels. I think the 
Federal Government has a role in helping make that happen, both 
through funding assistance, but also through providing 
authorities.
    I think States are logical entities to be much more heavily 
involved in recovery activities, developing recovery plans, 
leading recovery efforts, monitoring the recovery plan 
activities and both States and local governments are really the 
entities best suited to carry out some of the Endangered 
Species Act provisions with respect to activities on private 
lands and non-Federal lands. They have seized the initiative 
there and are increasingly doing that, but they are limited by 
a lack of Federal matching funding to help them in that 
endeavor, and I think there is a great potential there.
    I think the question about delegation also comes down to 
what does one mean when one talks about delegation. Are we 
talking about State implementation of Federal programs or are 
we talking about a delegation of the States to carry out some 
program that might look quite different than the current 
Endangered Species Act; a program that only meets some kind of 
fairly vague standard of consistency with the law? That is a 
quite different proposition, from my perspective, than State 
involvement and State lead in carrying out the program under 
the Endangered Species Act.
    Senator Clinton. Thank you.
    Thank you, Mr. Chairman.
    Senator Chafee. Thank you, Senator Clinton.
    Senator Clinton. Mr. Chairman, could I ask consent to have 
a report, the ESA Section 6, The Role of the States, admitted 
to the record?
    Senator Chafee. Without objection.
    [The referenced document was not received at time of 
print.]
    Senator Chafee. Thank you for your testimony, gentlemen, 
our first panel and second panel, both. Many of your 
recommendations are in your submitted testimony, beyond what 
your oral testimony was.
    We are very grateful and also extend the offer to please 
stay in touch with Senator Clinton or myself as different 
legislation comes forward. Criticisms or positive comments are 
both welcome. Thank you once again for traveling here and 
giving us the benefit of your thoughts.
    The hearing is concluded.
    [Whereupon, at 11:05 a.m., the subcommittee was adjourned.]
    [Additional statements submitted for the record follow:]
Statement of Hon. Barack Obama, U.S. Senator from the State of Illinois
    Mr. Chairman, I want to thank you for holding this hearing. This is 
an important issue to me and the people in my State.
    First, I'd like to give a special welcome to Michael Pasteris, the 
executive director of the Forest Preserve District of Will County, IL. 
For those of you not from Illinois, Will County is the fastest growing 
county in the State. So, I'm very interested in hearing from Mr. 
Pasteris as to how a developing county balances the competing demands 
of economic growth and protection of the environment. Mr. Pasteris, I 
also want to thank you for your service to the National Association of 
Counties. It's a great organization, and I always value the input I get 
from its members.
    As we move towards improving the Endangered Species Act, it's 
important to keep in mind that we don't have all the answers here in 
Washington. Our local partners are our eyes and ears in the affected 
community. They can provide insight into the human piece of the puzzle. 
Over time we have learned that if people perceive their interests are 
being compromised in order to protect a particular species, it is a 
much harder and longer process.
    That's when our local partners can really make a difference. Often 
they know who the community leaders are, both elected and nonelected, 
and they have a finger on the pulse of the community. As Mr. Pasteris 
says in his written testimony, collaboration with affected public and 
private stakeholders can go a long way towards developing conservation 
plans that protect endangered species without causing financial 
detriment to localities.
    I apologize that I will not be able to stay long at this hearing, 
but I look forward to reading the transcript and written testimony. I 
also want to express my thanks to Chairman Chafee and Senator Clinton 
for their leadership on this issue here in the Senate.
                               __________
       Statement of Billy Frank Jr., Chairman, Northwest Indian 
                          Fisheries Commission

    Chairman Chafee and honorable members of the Senate Subcommittee on 
Fisheries, Wildlife and Water, I am Billy Frank, Jr., Chairman of the 
Northwest Indian Fisheries Commission. The Commission has served the 
Treaty Indian Tribes in western Washington since 1975 in natural 
resource management, supporting their fisheries, hatchery management 
and environmental protection programs. The tribes co-manage natural 
resources in our region with the State pursuant to the United States 
vs. Washington (Boldt) Decision of 1974. We retain treaty-protected 
rights to harvest and the Federal Government has an ongoing trust 
responsibility to the tribes to support this right through the 
protection of indigenous fish, wildlife and plant resources, and their 
habitat. The resources the tribes co-manage provide far-reaching 
economic and cultural benefits to all who live in the Northwest. These 
are critical issues to us, and we appreciate being invited to speak to 
you regarding the Endangered Species Act.
    The goals and objectives of the Endangered Species Act of 1973 are 
more essential today than they have ever been. Worldwide, nearly 16,000 
species face extinction, including 800 species of fish. In the Pacific 
Northwest, 26 species of fish and wildlife have been protected by this 
law over the years. In our area, Puget Sound Chinook, Hood Canal/Strait 
of Juan de Fuca Summer Chum and Lake Ozette Sockeye were listed as 
``threatened'' under ESA in 1999.
    To some, such listings are abstract names in the Federal Register. 
To us, they are signs of a decaying environment and of an eco-system 
faltering under the pressures of an ever-growing and expanding 
population and short-sighted exploitation of the Earth. The rapid 
decline of these resources is directly related to habitat destruction, 
which should remind us all to conserve land and water resources, so our 
descendants can have the fish and wildlife abundance we have enjoyed in 
past generations. The ESA has been an important tool in the ongoing 
effort to protect and restore species the tribes have depended on 
culturally and economically for thousands of years. It has helped 
return the mighty eagle and the grey whale from the brink of 
extinction. It has helped bring attention to the plight of the salmon 
and it has helped bring some badly needed funding to the effort to turn 
the tide on salmon decline. It is important for you to know that salmon 
are keystone species in the Northwest. If they are healthy, it is a 
sign that other life is healthy, including humans. If they are not 
healthy, it does not bode well for any of us.
    Many resources in the Pacific Northwest are in trouble because of 
growing human populations, urban sprawl, pollution, over-allocation of 
water, climate change and lack of wisdom and vision by non-tribal 
governments. Sadly, the Federal Government has done a poor job, 
overall, of implementing ESA with respect to the listed salmon species 
in the Northwest. Emphasis placed on harvest and hatcheries in the 
response has been largely misdirected while the major cause of resource 
decline--habitat degradation--has been largely ignored. The tribes have 
grown hoarse trying to get Federal officials to understand these 
things, and yet these officials continue to hammer on harvest that has 
been severely curtailed for two decades, and hatcheries that are 
already being reformed. To them, it is low hanging fruit. To us, the 
approach has been shortsighted and misdirected. The reason for this is 
apparent. Using long-term vision and providing the leadership needed to 
deal with habitat challenges means taking a strong stand for modifying 
the way major industries such as agriculture and development, do 
business--something that should have been done long ago. But lobbyists 
for short-term economic interests are strong and well-financed, and 
have been highly resistant to meaningful change. When such lobbies can 
sway the Federal Government from the path of fair and reasonable 
implementation of the law it is sad to behold. And when the Federal 
Government fails to provide rightful leadership, it is tragic.
    It is also tragic when Federal agencies fail to comprehend and 
respect treaty law. Treaties are the supreme law of the land, according 
to the U.S. Constitution. They are sacred contracts between sovereigns. 
Yet they have often been disregarded in the implementation of ESA. The 
tribes have a treaty-protected right to harvestable levels of fish. It 
is our culture, our tradition and our lifeblood. The Federal Government 
has a trust responsibility to assure that the tribes have meaningful 
harvest opportunities. We have voluntarily embraced the principles of 
government-to-government relations and co-management with the Federal 
and State Governments, as well as the comprehensive allocation process 
that was born out of the Boldt Decision of 1974 and the 1978 U.S. 
Supreme Court confirmation of that decision. Treaty law supercedes the 
ESA, and it calls for harvestable levels of fish. Yet the Federal 
agencies have not been able to implement ESA with any degree of 
adequacy--a ``last resort'' law actually intended to prevent species 
from going extinct.
    The restoration of fisheries in the Northwest will benefit the 
overall economy. It will help spur the rejuvenation of communities on 
the coast, the Puget Sound and other inland waters. It will help 
enhance the tourism industry and inspire greater comprehension of 
stewardship throughout our region. It will improve the health of our 
rivers, marine waters and our overall eco-system. I have always spoken 
for the salmon, in the hearing rooms of Congress and the courtrooms of 
this nation, in the council chambers of the tribes and in public 
statements. My fellow tribal members and I have worked hard to protect 
the resource, and the habitat that sustains it, because we have always 
known that salmon are the keystone species of the Northwest. They are 
our miners' canary, the measuring stick of the overall physical, 
economic and spiritual well-being of our region. If salmon runs return 
to our rivers in great numbers, it means we have cool, clean waters and 
healthy bays, rivers and streams. That means healthy people. There is a 
critical need for Congress and for people throughout the nation to 
understand the value of stewardship and ecosystem management, the 
unbreakable link between vibrant natural resources and healthy people. 
When I talk about managing salmon, that is what I am talking about.
    Tribal governments take salmon management very seriously, just as 
we have taken co-management with the State and Federal Governments very 
seriously. The path to recovery is one we must travel together, and 
it's one that must be traveled for the benefit of future generations. 
That is why it is critical for Federal investments in Northwest salmon 
recovery programs to continue, and increase, rather than decrease, 
funding levels as program needs continue to be identified.
    Those who make the mistake of blaming the demise of wild stocks on 
harvest in our region are thinking of a different era. Today, Indian 
and non-Indian fisheries are governed by management principles that are 
truly responsive to all harvest impacts and total fishery impacts are 
constrained to sustainable levels for all stocks. Still, wild salmon 
populations continue to decline. Why? Because the primary cause for the 
decline of wild salmon is loss and degradation of spawning and rearing 
habitat. And eco-system-level habitat needs have not been adequately 
respected.
    Those who think this issue is a matter of choosing between salmon 
and people are sadly mistaken. Healthy Northwest communities are 
connected with healthy runs of salmon. It has always been that way, and 
it always will. As a species that swims through both fresh and salt 
water throughout the region, the salmon is a living gauge of our 
overall quality of life. In addition to harvest and habitat, we must 
look at other factors affecting the health of wild salmon populations. 
Take salmon hatcheries, for example.
    Once viewed by many simply as factories for producing salmon, now 
we are reforming hatchery practices to help recover and conserve wild 
salmon populations while providing limited fisheries for Indian and 
non-Indian fishermen.
    Tribes have made efforts over the past decade to reduce impacts of 
hatcheries on wild salmon stocks--such as carefully timing releases of 
young hatchery salmon into rivers to avoid competition for food and 
habitat with young wild salmon. Funding challenges have at times 
hindered efforts to apply a comprehensive, systematic approach to 
hatchery reform, although funding has been provided in the last few 
years to conduct much-needed research, monitoring and evaluation of 
hatchery practices at the approximately 150 tribal, State and Federal 
hatchery facilities in western Washington. Continued funding for this 
effort will be critical to its overall success. Yet this Congress has 
chosen to zero the tribes out in funding for hatchery reform. It makes 
no sense for that to be the case. Tribal natural resource managers have 
consistently proved their metal and their ability to be cost-effective. 
Tribal natural resource managers are on the rivers, and they know 
better than anyone, anywhere, what is needed to save the salmon in 
their respective watersheds. Tribes need funding for hatchery reform. 
Cutting our natural resource funding is a giant step backward in 
tribal/Federal relations.
    Federal legislation has created an independent Hatchery Scientific 
Review Group to provide scientific oversight for tribal, State and 
Federal hatchery practices and to provide recommendations for 
implementation of hatchery reform strategies. A top priority of the 
tribal and State co-managers under the hatchery reform initiative has 
been to complete Hatchery Genetic Management plans for each specie at 
each hatchery on Puget Sound. The plans provide a picture of how stocks 
and hatcheries should be managed, and will serve as a tool for 
implementing hatchery reform. The plans are especially important in 
light of efforts to respond to ESA listings of salmon species in 
western Washington. Already, some salmon enhancement facilities have 
been switched from producing hatchery fish solely for harvest to 
restoring wild fish through broodstocking and supplementation. Such 
efforts help preserve and rebuild wild salmon runs that might otherwise 
disappear.
    Hatchery reform has just been one part of an integrated strategy 
for salmon recovery we have pursued. The tribal and State co-managers 
have also responded to declining wild salmon populations by developing 
highly conservative harvest management plans. The goal has been to 
restore the productivity and diversity of wild salmon stocks from Puget 
Sound and the Washington coast to levels that can support treaty and 
non-treaty fisheries.
    As I've pointed out, the tribes conduct extremely conservative 
fisheries to protect weak wild salmon stocks. Tribal fishermen are 
literally at the end of the line when it comes to most salmon 
fisheries. Under treaties with the U.S. Government, tribes are required 
to take their share of the salmon in traditional harvest areas, mainly 
in bays and at river mouths. This allows tribal fishermen to target 
only healthy runs that can support harvest.
    With all the efforts expended so far, and in spite of the ESA 
listings, native salmon continue to be in danger, a fact that 
jeopardizes the overall economy of our region as well as the cultural 
identity of the tribes and the health of everyone who lives in the 
Northwest. Why? Again, the answer is habitat. There is a desperate need 
for habitat protection and restoration. Healthy estuaries are needed, 
as well as natural riparian areas, spawning grounds and rearing 
habitat--if salmon are to survive. These things take care, and require 
long-term vision.
    Habitat protection and restoration projects, hatchery reform and 
improved salmon management planning are just some of the ways that the 
treaty Indian tribes in western Washington are working to protect, 
enhance and restore wild salmon populations.
    Wild salmon recovery in western Washington is a biologically 
simple, but politically difficult task. All the fish need is clean, 
cool water, adequate spawning and rearing habitat, and adequate numbers 
of returning adult salmon to spawn, and they will take care of the 
rest.
    Providing for those needs is the hard part.
    The treaty tribes and State have been working on salmon restoration 
efforts for decades. These efforts won't conclude until there are 
healthy wild salmon populations that can support harvest by both Indian 
and non-Indian fishermen, and until there is real restoration of 
ecosystem functions with clean water, good habitat and salmon stocks 
capable of providing ongoing economic and cultural benefits to tribal 
and non-tribal communities. Any other measure of success should be 
unacceptable to everyone.
    As an example of current efforts, tribes in the Puget Sound region 
have been working hard with others to develop a comprehensive recovery 
plan for Puget Sound Chinook. The Shared Strategy process delivered an 
unprecedented plan for 14 watersheds and the Sound to the Federal 
agencies on June 30. To create this plan, the tribes have worked with 
Federal, State and local governments, landowners, business interests, 
and environmental groups. As part of this effort, recovery goals and 
comprehensive recovery plans have been developed for all listed Chinook 
salmon stocks in the Puget Sound region. Specific recovery plans have 
been developed for each watershed to guide how harvest, habitat and 
hatcheries will be managed. It will require such collective efforts and 
good will to achieve recovery.

                               CONCLUSION

    Tribes are ``on the line'' full time when it comes to managing 
salmon. Our biologists and managers don't just visit the rivers, the 
Puget Sound and the coast on occasion. They are there are all the time. 
Tribes are also the co-managers of the resource. We have managed, and 
depended on the salmon resource from time immemorial. For thousands 
upon thousands of years, our elders have taught us how to care for this 
great resource of the Pacific Northwest. For all of these reasons, it 
is critical for the Federal Government to invest more salmon 
restoration and management funding directly to the tribes. A strong 
tribal fisheries management infrastructure is by far the most 
productive investment the Federal Government can make in this regard, 
and ESA is a vital tool to help achieve this.
    There is a responsibility for leadership in salmon restoration at 
the local level. It must include effective collaboration between 
tribal, local, State and Federal Governments. There is also a need for 
improved leadership in Congress and the Administration. Federal 
legislation should serve as both and carrot and a stick. On one hand it 
should provide effective incentives for ``good behavior'' and support 
the process of recovery administratively. On the other hand, it should 
provide effective mechanisms to discourage ``bad behavior.''
    However, restoration of the Pacific Northwest salmon resource must 
involve more than protecting what currently exists. It must bring 
increases in the numbers of fish, so our harvests can be restored. 
Salmon is a gift we always respect, one that sustains us--in every 
sense of the word. If there are modifications in the Endangered Species 
Act, it is critical for the Federal Government to acknowledge and 
fulfill its trust responsibility to the tribes, and to stand up for the 
implementation of treaty law.
    Thank you.
                                 ______
                                 
  Responses by Billy Frank, Jr., to Additional Questions from Senator 
                                 Chafee

    Question 1. With regard to the Pacific Northwest salmon resource, 
what are the Federal Government's trust responsibilities to the Tribes? 
What treaties govern the tribes' access to the wild salmon stocks in 
Puget Sound and along the Washington coast?
    Response. The following treaties were established between the 
United States and Western Washington Tribes:
    Treaty of Medicine Creek, 1854; Treaty of Neah Bay, 1855; Treaty of 
Olympia, 1855; Treaty of Point Elliott, 1855; Treaty of Point-No-Point, 
1855.
    These treaties were required for Washington to become a state. 
Without exception, they reserved fishing harvest and management rights 
to the tribes. The U.S. v. Washington Decision of 1974 in Federal 
District Court (confirmed by the U.S. Supreme Court in 1979) defined 
the tribal harvest right as 50 percent of the harvestable resource of 
both wild and hatchery stocks of salmon, confirmed Treaty Tribes as co-
managers of the resource, and stated that the treaties are to 
interpreted as the tribes understood them. By entering into these 
treaties, the Federal Government has accepted the trust responsibility 
to protect the Tribes rights of access to their fisheries and the 
obligation to protect and restore Tribal fisheries. The Tribes believe 
that the harvest right goes hand-in-hand with a requirement for there 
to be harvestable numbers of salmon available and thus the Federal 
Government has a trust responsibility to protect and restore the 
habitat salmon need to survive and perpetuate.

    Question 2. In your testimony, you note that loss of habitat is 
driving the continued decline of native salmon in the Northwest river 
systems. What efforts are underway to restore habitat and provide the 
necessary estuary and riparian spawning grounds that salmon require to 
survive?
    Response. As co-managers of the resource, Tribes work with State 
and Federal agencies, as well as local governments, in every watershed. 
In harvest management, these efforts operate under international 
agreements, such as the U.S.-Canada Pacific Salmon Treaty. In habitat, 
the efforts have resulted in such processes as the Timber-Fish-
Wildlife/Forests and Fish Agreement and Shared Strategy (which lays out 
goals and objectives linking habitat restoration to specific salmon 
returns). Tribes have been real leaders in habitat protection and 
restoration efforts, in part because they are located on the rivers and 
are directly dependent on salmon for cultural and economic survival. 
Watershed plans exist on every river. Water quality is monitored and 
habitat restoration projects (ranging from the placement of woody 
debris to replanting of riparian areas) have taken place and are taking 
place wherever funding is available to support them. Tribes make every 
effort to manage rivers holistically and to work cooperatively with the 
State and other entities. Such processes and projects are critical to 
the restoration of critical habitat. However, with the expansive 
population growth and development taking place in Washington, it is an 
uphill battle for such efforts to keep pace with habitat destruction. 
That is why it is very important for the Federal Government to live up 
to its trust responsibility to the Tribes and keep meaningful and well-
enforced habitat protection regulation in place, as well as continue to 
fund Tribal programs.

    Question 3. What are the economic benefits that would ensue from a 
stable population of salmon in the Northwest?
    Response. Salmon are the measuring stick of the economic and 
cultural health of the Northwest. If they are wiped out due to habitat 
destruction, other natural resources upon which the economy of the 
entire region depends would also collapse. Communities all along the 
coast and Puget Sound (Tribal and non-tribal) feel the crunch of 
diminished runs. The economic benefits of having salmon in the rivers 
runs the gambit. The fishing industry itself benefits when it can 
harvest, of course. But so does tourism, one of the State's largest 
industries. People want to be able to go to the Northwest to go 
fishing. Also, because the needs of salmon are so connected with the 
needs of all other life here (e.g., clean, flowing water in the rivers 
and streams, as well as natural and healthy upland forests, etc.), the 
well-being of the salmon also equates to boating, hunting, hiking, 
camping and numerous other such activities. Salmon continue to be the 
economic as well as cultural backbone of the Tribes. With so much of 
the Tribal fleet in drydock, Indian people do go hungry and are 
unemployed at levels far surpassing other communities. Healthy runs of 
salmon in the rivers mean good health in so many ways. One must link 
good health with economic benefits for both Tribal and non-tribal 
communities. Salmon are our miner's canary.

    Question 4. We have heard a great deal about conflicts between 
hatchery-raised salmon and wild salmon populations in your region. How 
do the inherent conflicts between hatchery and wild stocks affect 
Tribes in your region? How are the Tribes addressing these conflicts?
    Response. There is an amazing amount of misinformation about 
hatcheries and their impacts on wild stocks. The Hatchery Reform 
Process in place over the past several years has done a great deal to 
mitigate the effects of hatcheries on wild stocks, but the challenges 
they pose have been blown way out of proportion. The State and Federal 
Governments introduced major hatchery facilities in an effort to 
mitigate the effects of dams and other development. As time has passed, 
and development/urban sprawl has continued to take its toll on our 
water and other resources, the need to supplement runs has been 
apparent. In earlier years, there were major impacts on fish health due 
to genetic hybridization, competition for feed, etc. But there was also 
a need for supplementation if certain runs were to survive, if there 
were to be a source of broodstock for outplanting and for re-
establishment of natural stocks (not to mention an adequate supply of 
fish for harvest management), there would have to be hatcheries and 
other enhancement facilities and efforts.
    While the Tribes have made efforts over the past decade to reduce 
impacts of hatcheries on wild salmon stocks--such as carefully timing 
releases of young hatchery salmon into rivers to avoid competition for 
food and habitat with young wild salmon--a lack of funding has 
prevented the Tribes from applying a comprehensive, systematic approach 
to hatchery reform. In the most recent Congressional budget, Tribes 
were zeroed out of hatchery reform. Yet, Tribal efforts have already 
been integral in switching some salmon enhancement facilities from 
producing hatchery fish to restoring wild fish through broodstocking 
and supplementation. Through these programs, wild salmon are captured 
and spawned at a hatchery. Their offspring are then reared in the 
facility and later released in various locations within the watershed 
to increase their chances for survival. Such efforts help preserve and 
rebuild wild salmon runs that might otherwise disappear. Hatchery 
reform has been a major factor in the restoration of runs on some 
rivers. It is clearly part of an integrated strategy for salmon 
recovery.
                                 ______
                                 
        Responses by Billy Frank, Jr., to Additional Questions 
                         from Senator Jeffords

    Question 1. Your testimony states the need for a strong tribal 
fisheries management infrastructure using the Endangered Species Act as 
a tool. Could you elaborate on how you see this infrastructure, the 
role of the Endangered Species Act would play, and the level of funding 
that would be required?
    Response. The Treaty Indian Tribes of the Northwest are co-managers 
of the salmon resource. As such, they have developed natural resource 
management ``infrastructures'' or programs to work with the State and 
Federal Governments to manage the resource, ranging from harvest 
management (an international, national and state/tribal process), catch 
accounting, enforcement, enhancement, habitat protection and 
restoration, etc. The policy people, technicians and scientists, etc. 
comprise the ``infrastructure'' I spoke about. Tribes maintain their 
own infrastructure on the reservations, and they created the Northwest 
Indian Fisheries Commission, which I chair, in 1975 to help them 
achieve the various tasks required in natural resource management, 
including technical support and a forum for coordinating their efforts.
    When I speak of the Endangered Species Act, I speak of the Federal 
Trust responsibility to the tribes to implement the terms of the 
treaties we have with you. One of these responsibilities is to protect 
and restore the habitat needed by salmon and other natural resources. 
There have been many problems with the Federal implementation of ESA, 
due largely to the pressures of the development industry, etc. Yet it 
is a ``bottom line'' law--one intended to keep species from going 
extinct. As described in the Secretarial Order issued by the Department 
of Interior, the Federal Government is responsible for assuring that 
there are levels of salmon sufficient to sustain Tribal harvest. That 
bar has not been achieved, and yet implementation of ESA as regards 
listed salmon in the Northwest has focused on harvest and hatcheries, 
and failed to adequately address the fact that most salmon are killed 
by habitat destruction. If a ``bottom line'' law, such as ESA, cannot 
be adequately enforced, we are left to wonder how the Federal 
Government intends to keep its word regarding harvest.
    Tribes are on the front line in the effort to protect and restore 
salmon, and they have done an exceptional job. But we are overwhelmed 
by the continued onslaught of habitat destruction. So are the salmon.
    The level of funding required? That is a question with many 
variables. If co-management works as it should, and if the Federal 
Government protects the natural heritage of this country, it would have 
a bearing on the response. Either way, Federal appropriations to the 
Tribes in Salmon Recovery Funding (currently at $80 million for Tribes 
in 5 states) falls short of the funding needed to sustain, and continue 
to develop, an adequate Tribal natural resource management 
infrastructure. Any increase will be helpful, but the SRF should at 
least be returned to the $100 million level next year, and the Federal 
Government should take a strong stand to support coordinated 
government-to-government efforts to support habitat restoration (and 
protection) to enable salmon to return to the rivers of the Northwest 
at harvestable levels. A strong statement should also be issued that 
Congress does not concur with efforts to deter attention from habitat-
protection and restoration responsibilities by pointing at harvest, 
which has already been cut by 80-90 percent, if not totally.

    Question 2. What role has the ESA played in helping develop the 
``Shared Strategy'' salmon recovery plan in Puget Sound?
    Response. ESA has provided an opportunity to secure some 
desperately needed funding to support the development and pending 
implementation of this process. Just as important, the listing and 
pending implementation of the law has helped the region focus on the 
problem. Salmon recovery efforts in the Northwest is being played out 
against the backdrop of ESA, including Shared Strategy. It should come 
as no surprise that those who feel threatened by the challenges 
associated with good stewardship are barking most loudly about the law. 
But the simple fact is that over-exploitation of habitat must be 
addressed if there are to be natural resources to sustain future 
generations. The envelope is being pushed by developers and others who 
wish to keep an open path to riches and uncontrolled expansion. Shared 
Strategy is a process to help restore good science and common sense to 
the way we do business, and ESA had a lot to do with it.

    Question 3. Please describe current ESA enforcement with respect to 
Puget Sound salmon recovery and has it allowed for a flexible, 
voluntary approach to recovering these fish?
    Response. There are good aspects to ESA enforcement. The law can be 
credited with helping return the Bald Eagle to our watersheds, and the 
Gray Whale to our marine waters. There are occasional instances of ESA-
driven fines for incidents of mass polluting, etc. ESA has also helped 
protect thousands of acres of spotted owl forest habitat, on Federal 
lands. However, the current Administration has undone much of this 
protection, essentially prioritizing the needs of the timber industry 
over the need to protect habitat that is critical for the owls as well 
as thousands of other species. Implementation of ESA has been done in a 
manner that enhances communication between communities and provides 
opportunities for voluntary compliance. However, again, implementation 
of ESA listings of Northwest salmon has focused far too heavily on just 
two of the four H's (Hatcheries and Harvest) while virtually ignoring 
Hydro and kowtowing to the continued exploitation of Habitat. For our 
part, Tribes have made consistent efforts to be at the table in 
voluntary efforts to recover salmon, and we will continue to do so, 
because we see great value in voluntary stewardship. But it is 
absolutely essential for the Federal Government to have a well-enforced 
regulatory approach at the same time. There are simply too many 
pressures to wipe out wetlands, estuaries, riparian areas and other 
critical habitats to legitimize exclusive protection through voluntary 
means.
                               __________
         Statement Cory Gardner, Colorado State Representative

    This morning's hearing is a critical part of an ongoing national 
discussion that, I hope, will lead to modernization of the Endangered 
Species Act, one of this country's most powerful and far reaching laws.
    As a member of the Colorado General Assembly, I represent House 
District 63, which encompasses the majority of eastern Colorado--an 
area larger than the States of Massachusetts and Connecticut combined. 
My constituents depend, directly or indirectly, on farming and ranching 
for their livelihoods. Because of the district's agrarian nature, 
property rights and land use is of paramount importance, and the role 
of the Endangered Species Act in their lives has grown dramatically. 
Over the 32 years since the Act's passage, it has, more often than not, 
instilled fear rather than trust and cooperation. Fear about the use 
and value of private land. Fear over litigation and boutique lawsuits. 
Indeed, the fear of conservation by litigation has driven a wedge 
between resource users and many in the environmental community.
    The goal of recovering threatened and endangered species is a noble 
one. Witness after witness has testified before this committee 
concerning the intent of the Endangered Species Act and expressed their 
belief that the principal goals of the Endangered Species Act are truly 
laudable. It is the Act's implementation that stirs debate; advocacy 
for complete elimination is rare. Unfortunately, the Act as currently 
written fails to provide the tools and means necessary to recover and 
delist species, and instead results in permanent listing. The numbers 
speak for themselves. Of the 1,827 listed species, only 16 have been 
delisted as a result of recovery.\1\
---------------------------------------------------------------------------
    \1\ As of March 30, 2005, a total of 1,078 species of animals and 
749 species of plants had been listed as either endangered or 
threatened, of which the majority (518 species of animals and 746 
species of plants) occur in the United States and its territories and 
the remainder only in other countries. Sixteen species have been 
delisted due to recovery, to date. Nine species have become extinct 
since their listing, and 15 have been delisted due to improved data. 
Numbers compiled using data from the Congressional Research Service.
---------------------------------------------------------------------------
    Perhaps nothing demonstrates this point better than a cartoon I 
came across last week while reading a local newspaper (attached). The 
cartoon shows two hippopotamus-like animals, one saying to the other, 
``The good news is that we've been removed from the Endangered Species 
list. The bad news is that we've been removed from the Endangered 
Species list.'' The cartoon illustrates the policy tug of war, pitting 
those who would rather see a perpetual state of listing than changes to 
the law of that actually result in the recovery and delisting of 
species. I believe that Congress has an obligation to remove the fear, 
to update the Endangered Species Act and begin the process of recovery. 
And it must do so while respecting private property rights and giving 
equal statutory standing to the States.
    Modernization of the Endangered Species Act must start by making 
the State a true partner and coequal. The State is not just another 
voice, but must statutorily be made an equal partner of Federal 
Government.
    While Colorado has enjoyed some tremendous successes in working 
cooperatively with the U.S. Fish and Wildlife Service, we 
wholeheartedly support greater flexibility in the administration of 
section 6 of the Endangered Species Act.
    Through section 6, the roles of the State and Federal agencies can 
be clarified and delineated. A revamped section 6 should give greater 
flexibility to States, allowing them, should they choose to do so, to 
take over pre-listing conservation, recovery planning and 
implementation oversight, habitat agreements and Habitat Conservation 
Plan administration, delisting responsibilities, and post-delisting 
monitoring. Even when States do not take the lead, their involvement 
should be co-equal with the Federal agencies. States, along with 
landowners, must also be given more say in the section 7 consultation 
process. Stronger emphasis should be placed on pilot programs that 
delegate section 7 and section 9 authority to the States.
    Further efficiencies can be gained by coordinating joint rulemaking 
and decisionmaking processes between the wildlife agencies and Federal 
Government for administrative and regulatory actions. Disagreements and 
stalemates could be resolved by the respective Secretaries of Interior 
or Commerce.
    Even though Colorado has had the foresight to put forward modest 
funding for species conservation and recovery, States should be given 
the financial resources to assume an expanded role in ESA 
administration and implementation. The cost States incur as a result of 
assuming greater responsibilities could be offset by passing back the 
Federal savings achieved as a result of ESA updates and program 
delegation.
    With the State as a coequal, the Secretary should give a 
presumption in favor of State information and recommendations on 
listing. And, in accordance with the views of the International 
Association of Fish and Wildlife Agencies, the Secretary should be 
required to refute the State's information through independent peer 
review if the Secretary disagrees with the State recommendation.
    The State has a far better understanding of its species' needs than 
the Federal Government. In-State employee expertise should be embraced 
by the Endangered Species Act, not rejected or downplayed. Federal 
biologists may not have the specific expertise that a State specialist 
can offer. For example, in 2003, the Fish and Wildlife Service made an 
effort to list the black-tailed range rodent (also known as the black-
tailed prairie dog). Listing of the range rodent would have resulted in 
a significant portion of the eastern plains being designated as 
critical habitat. However, the Fish and Wildlife Service's preliminary 
habitat acreage estimates were refuted by the State of Colorado, which 
carried out its own study--based on years of work within the State by 
employees familiar with the issue--that showed range rodent habitat 
acreage was actually seven times greater than that estimated by the 
Fish and Wildlife Service.
    Taxonomic and genetic uncertainties should be studied and 
independently peer reviewed prior to listing of a species, and the 
information threshold in listing petitions should be raised. Perhaps 
nothing illustrates this better than the Preble's Meadow Jumping Mouse. 
In 1998, Federal officials based their decision to list the mouse as 
threatened on a 50-year-old study. The 1950's study--based on test 
results from 3 mice and the skins of 11 others--was the best science 
that had been done up until the listing of the Preble's mouse. The 
Endangered Species Act only requires that species protection be based 
on the best available science--not the best possible science.
    Businesses and governments spent over $100 million to cope with the 
Preble's Meadow Jumping Mouse. Nearly 31,000 acres along streams in 
Colorado and Wyoming were designated critical mouse habitat, triggering 
rigorous land use restrictions. Ranchers were prohibited from clearing 
weeds out of their irrigation canals. Grazing was restricted and 
regulated. Reservoir construction was halted in the middle of the worst 
drought in 300 years. Counties spent millions of dollars to build 
``mouse tunnels'' under roads and reservoirs. A $5 million bridge was 
built in order to avoid Preble's habitat.
    As the cost of living with the Preble's Meadow Jumping Mouse 
increased, a Denver scientist completed a modern genetic study 
revealing that the Preble's Meadow Jumping Mouse was actually identical 
to the Bear Lodge Meadow Jumping Mouse. In other words, the study 
revealed that the mouse did not exist.
    To avoid mistakes like the Preble's Meadow Jumping Mouse, the 
scientific bar must be raised to embrace modern scientific techniques 
and independent peer review. While the Fish and Wildlife Service has 
submitted the mouse for delisting, there remains concern that the 
Service will try to delay the delisting. I urge the members on this 
Committee to make sure the delisting process proceeds in a timely 
fashion.
    State agency expertise should also be recognized through greater 
flexibility to not list a certain area or State if it is receiving 
adequate management within that portion of its range. Last year, the 
Fish and Wildlife Service entertained the listing of the Mountain 
Plover, a shorebird that inhabits portions of the Colorado High Plains 
(in fact, the Plover's habitat is primarily in the district I 
represent). The decision to list was being made, in part, on the 
mistaken assumption that agricultural practices negatively impacted the 
survival of the bird. Working with local farmers, ranchers, Federal 
agencies and nongovernmental organizations, the State has forged a new 
partnership to conserve the Mountain Plover. The ultimate product of 
this partnership included agreements between individual landowners and 
the Department of Interior, wherein landowners agreed to put into place 
conservation measures to stave off the listing of the bird. (The 
centerpiece of this project included the provision of an 800 number, 
which landowners could call to request nest flagging on their property 
before plowing their fields). Had the Mountain Plover been listed, this 
solution would not have been available--section 9 taking prohibitions 
and section 7 consultation requirements would have imposed restrictions 
that would have stopped the agreement in its tracks. The experience 
also enabled the State to gain a much greater scientific understanding 
of the plover that could guide in its recovery.
    Significant changes should also be made to Critical Habitat 
designation. The State and individual landowners should be equal 
partners with the Federal Government during the designation process for 
Critical Habitat. Statutory timelines on Critical Habitat designations 
should be eliminated, thereby providing State and Federal Governments 
with greater flexibility to enter into private contracts and 
cooperative agreements. Changes to Critical Habitat mesh well with the 
suggested changes to section 6, section 7, and section 9.
    In terms of recovery, the Fish and Wildlife Service should be 
statutorily required to develop a quantifiable recovery plan at the 
time of the species listing. In Colorado, it took fourteen years to 
establish recovery goals for the Upper Colorado River Fish Recovery 
Program. Under the Act as it stands today, recovery plans are not 
binding but instead act more like general guidelines, adding little to 
the actual recovery of the species. Delays and unclear recovery goals 
are not acceptable. The recovery plan should identify key bench marks 
and measurable scientific data points that will ultimately lead to the 
delisting of the species. The State should play a major role in the 
development of the recovery plan and should have the option of leading 
recovery planning.
    This statement has highlighted several of the problems surrounding 
the Endangered Species Act, along with some important suggestions to 
improve it. Colorado has also had some successes in spite of the 
current form of the ESA.
    In 1999, Governor Bill Owens created an Office of Species 
Conservation and Recovery within the Executive Director's Office of the 
State Department of Natural Resources. The Governor's motivation was 
simple: common sense dictated that the most efficient means of dealing 
with threatened and endangered species issues was through that level of 
government which is closet to the problem, wherein we could channel the 
necessary biological expertise and the dollars to effect recovery to 
at-risk species and species already listed. The Office is geared toward 
working to restore the health of at-risk species to preclude listing, 
and promote recovery for those already on the list with an eye toward 
enhancing the possibilities of expediting delisting whenever possible.
    At the same time, my predecessors in the Colorado General Assembly 
created a funding mechanism to allow Colorado's participation in 
interstate species recovery efforts and to promote conservation and 
recovery within our own borders. This mechanism is known as the Native 
Species Conservation Trust Fund, and the General Assembly capitalized 
the Fund with $15 million over 2 years. Today the Fund is allowing 
Colorado to achieve it's cost-share obligations for recovery of the 
four ``big river'' fishes in the Upper Colorado and San Juan Rivers and 
gives the State the opportunity to put resources on the ground to 
enhance recovery efforts for terrestrial and bird species.
    Finally, Colorado has taken advantage of those portions of the 
Endangered Species Act which give States the flexibility and the lead 
in species protection and recovery. Section 6 of the Act, which allows 
States to undertake State-directed conservation agreements, has given 
the State the ability to take up projects with our own recovery 
priorities and capabilities in the forefront.
    So far, the results are dramatic. Colorado has taken up numerous 
species conservation projects with this new-found administrative and 
budgetary flexibility. The following examples tell the story best:
     The State has used section 6 of the Act to put together a 
comprehensive conservation plan directed by the State to continue the 
Canada Lynx reintroduction in Colorado while accommodating agricultural 
production interests. Furthermore, the State is taking the lead on much 
of the science being generated which will ultimately cause lynx to be 
recovered throughout the United States.
     Currently the State Division of Wildlife is working with 
the U.S. Fish and Wildlife Service to implement a Candidate 
Conservation Agreement with Assurances (CCAA) for landowners who have 
Gunnison Sage Grouse habitat on their properties. Once implemented, 
this will be the largest CCAA of its kind, including hundreds of 
landowners.
    We have spent the last 32 years living under an Endangered Species 
Act that falls short of accomplishing its goals. We know what works, 
what does not, and what protections must be made for the people 
impacted by the Act and the species we are trying to recover. It is 
time to put aside the mistaken perception that any changes made to the 
Endangered Species Act will result in a complete rollback of ESA 
protection. It is time instead to begin the work of recovering species. 
The protection offered by the Endangered Species Act should not be 
status quo, but instead, a tool of last resort. Earnest modernization 
will make this a reality.
    Thank you, Mr. Chairman and committee, for accepting this statement 
for the record. Please know that I stand ready to assist you as your 
work on the Endangered Species Act proceeds.

                               Attachment

[GRAPHIC] [TIFF OMITTED] T7445.001

    10-Journal-Advocate, Sterling, Colorado, Wednesday, September 14, 
2005

                                 ______
                                 
 Responses by Cory Gardner to Additional Questions from Senator Chafee
    Question 1. The Upper Colorado Endangered Fish Recovery Program has 
been pointed to as a collaborative partnership where a broad range of 
stakeholders have come together to resolve problems associated with 
fish species recovery on the Colorado River. What lessons have been 
learned from this endeavor? Have the State of Colorado's experiences 
from this Recovery Program been easily translatable to other recovery 
programs such as the Canadian lynx or reintroduction of wolves into the 
state?
    Response. Perhaps the greatest lesson learned from this endeavor is 
the extraordinary amount of time and patience which has been put forth 
to make these programs a success. Numerous partners, operating by 
consensus, spend long hours negotiating policy and management of the 
programs. According to program leaders, the consensus element is 
extremely important--they believe that it drives the parties to work 
together to develop solutions to problems where each party needs to 
ultimately give a little to reach a solution. The following provides 
further detail into what I believe, and some of the program leaders 
believe, helped the most with the success of the Upper Colorado 
Endangered Fish Recovery Program.

                               A. SCIENCE

    i. The Upper Colorado Endangered Fish Recovery Program provided 
many valuable lessons, none more important than the realization that 
sounds science is an essential element of success under the act. 
Without reliable scientific data and analysis, we would not have been 
able to achieve the results that we have seen. Unfortunately, I do not 
believe that the same ``sound science'' mantra has been met across the 
country. Some treat sound science as an event--I believe it is just the 
opposite. It is a process of discovery and revelation.
    ii. It is also important to highlight the essential need for peer 
review of most program activities. Peer review provides the scientific 
``footpath'' necessary to provide certainty under the act. Debates over 
science can occur, and are healthy, but a consensus needs to be reached 
by scientists representing diverse interests in the Program. The issue 
is always, ``How to move forward.''

                     B. LEADERSHIP AND PARTNERSHIP

    i. Parties to the program are partners in the program. While this 
seems obvious, it can often be overlooked in planning and forgotten (or 
trampled upon) in execution. On program issues, all of the partners in 
the program have an equal voice.
    ii. It is important to note that no one gave up legal rights by 
joining the program.
    iii. All Interests critical to the success of the program are at 
the table, including Federal agencies, states, water users, power 
users, environmentalists, and in the case of the San Juan River basin, 
the tribes. Without this type of ``inclusion'' programs would have a 
difficult time meeting with success. While there are competing 
interests, as is evident, all of the interests have a strong, invested 
interest in the success of the program. All recognize that they cannot 
have everything they want, and are willing to cooperate and compromise 
in order to ensure the success of the program. The values of all 
parties are respected, though not necessarily shared; no one should 
expect anything more or less.
    iv. Inclusion and partnership also means that we had open 
communication on all technical, management and financial issues.

                              C. FINANCIAL

    i. All parties contributing to the program have met their financial 
obligations to the program, including the Federal Government, states, 
power users and water users.
    ii. Program cost sharing has been worked out on a mutually 
agreeable basis.
    iii. The application of financial resources emphasizes and 
maximizes putting measures on-the-ground that benefit the species at 
the earliest possible date.

            D. IMPLEMENTATION OF THE ENDANGERED SPECIES ACT

    i. Section 7 consultations cannot contribute materially to the 
recovery of species, and therefore, fall short of the primary goal of 
recovering species. If recovery is to be achieved, it must be through 
collaborative efforts involving Federal agencies, states, tribes, and 
resource interests, including landowners and water users. The state's 
statutory role must also be expanded.
    ii. Innovative methods of Endangered Species Act compliance can be 
achieved through collaborative programs. The Upper Basin and San Juan 
programs provide Endangered Species Act compliance for more than 800 
water projects while pursuing recovery of the species. The Endangered 
Species Act compliance vehicle is a substantial incentive for states 
and resource users to participate in and support the program.
    iii. Success depends on resolution of conflicts with State water 
law and State wildlife law. Conflict must be avoided. State water law 
and State wildlife law can be used to support recovery and provide 
water for endangered species and to control non-native predators, a 
threat to endangered fish, with the cooperation of the states. Going 
outside of State law and resorting to Federal supremacy thwarts the 
effort to draw collaborative relationships.
    iv. Once threats to property rights, including water rights are 
removed, cooperation by a wide variety of water users is feasible to 
enhance conditions for endangered species.
    v. Findings by the Fish and Wildlife Serve that program actions can 
provide Endangered Species Act compliance (reasonable and prudent 
alternatives and measures) for water projects must be legally 
defensible. No litigation has been filed on Endangered Species Act 
consultations on water projects in the Upper Colorado and San Juan 
River basins on more than 800 consultations.
    vi. The program also shows that innovative approaches to Endangered 
Species Act compliance can work. These approaches provide far more 
benefits to endangered species than can be achieved under normal 
section 7 consultation processes.
    vii. Through collaboration, program implementation is consistent 
with other Federal laws and State laws, avoiding litigation, and with 
no taking of property.
    The process which can be attributed to the Upper Colorado Program 
is similar to ongoing meetings with stakeholders affected by the lynx 
reintroduction. Colorado meets often with agricultural operators in 
order to assure that the lynx reintroduction program does not cause 
undue burden on their legitimate predator control activity. Colorado 
also maintains close contact with the ski industry to assure 
appropriate data-sharing on lynx usage on the landscape. Finally, 
Colorado maintains a close working relationship with the U.S. Forest 
Service to assure they can use appropriate lynx data for management 
decisions. Colorado, in fact, was a cooperating agency with the Forest 
Service drafting the lynx amendments to all Federal forests in the 
Southern Rockies region.
    The Colorado Division of Wildlife engaged the Meridian Institute to 
facilitate the wolf working group which met through a good portion of 
2004. The group was charged with producing a wolf management plan to 
accommodate wolves migrating south from Wyoming. Once again, this was a 
group which struggled with the competing interests represented by 
ranchers, sportsmen, wolf advocates, and biologists to achieve a 
comprehensive strategy for wolf management once the species start 
arriving in Colorado. The working group process was comprehensive and 
thorough in its process, debating and fighting over some very deeply 
held values by members of the group. All members ultimately seemed 
satisfied as to the slow and deliberate process which ultimately 
yielded a plan which all parties could live with and abide by.

    Question 2. What is the capacity of the Colorado Division of 
Wildlife in terms of staffing and budget for federally listed species 
conservation?
    Response. See attached chart for breakdown by species.

    [GRAPHIC] [TIFF OMITTED] T7445.002
    
    [GRAPHIC] [TIFF OMITTED] T7445.003
    
    Question 3. Of the state-listed species in Colorado, how many have 
been recovered and withdrawn from the State threatened and endangered 
lists?
    Response. Delisted: White Pelican (1985); Greater Prairie Chicken 
(late 1990's); Peregrine Falcon; Wood Frog; and Greater Sandhill Crane. 
(These last three species have been delisted recently, although we are 
not sure if the delisting occurred within the last 10 years).
    Downlisted: River Otter (2004).

    Question 4. What has the State of Colorado's commitment been to 
habitat protection efforts for fish, wildlife and plant species, 
particularly in as State such as your where one of the leading reasons 
for species decline is loss of habitat?
    Response. Extensive documentation regarding habitat protection has 
been gathered by the Colorado Division of Wildlife, and is compiled 
herewith.
    Specific, funded projects and associated species:
    California Park: Joint venture for boreal toad conservation with 
the U.S. Forest Service.
    Gunnison Basin: Wetland restoration to benefit the Gunnison Sage 
Grouse.
    Carpenter Ranch: Bald eagle habitat enhancement (In conjunction 
with The Nature Conservancy).
    Fox Ranch and Arickaree River: General habitat improvements, 
benefiting the brassy minnow and darters. (In conjunction with The 
Nature Conservancy).
    Park County: Various conservation easements, benefiting the 
mountain plover.
    San Luis Valley: Conservation easements and wetland restoration 
projects benefiting the southwestern willow flycatcher, the whooping 
crane and the long-billed curlew.
    San Miguel River: Wetland restoration and tamarisk control 
benefiting the peregrine falcon and bald eagle. (Conducted in 
conjunction with The Nature Conservancy).
                                 ______
                                 
 Responses by Cory Gardner to Additional Questions from Senator Inhofe

    Question 1. In Colorado's experience with the ESA, what have been 
the most effective and the least effective parts of the Act?
    Response. In terms of the focus of the committee hearing--the 
Endangered Species Act and the States--I believe that section 6 of the 
Act is far and away the most effective part of the Act inasmuch as it 
gives us a fair amount of latitude in directing conservation programs. 
Colorado has been able to obtain small amounts of incidental take 
authority in connection with the conservation measures we undertake 
through this section. In my testimony I stressed the importance of 
further delegation to the states through section 6. I would stress this 
idea once again.
    It is my opinion that designation of critical habitat is not 
effective for Colorado because it does little to enhance the 
conservation value to any particular species other than serving as an 
additional trigger for section 7 consultation. Colorado has tried to 
bypass critical habitat by putting in effectively managed habitat 
conservation plans which really serve as a substitute to critical 
habitat. Of course, much more than anything else, critical habitat is a 
drain on the Fish and Wildlife Service because it is a section of the 
Act which is fraught with litigation.
    States should look to some of the opportunities afforded them in 
the rules and regulations promulgated by the Fish and Wildlife Service. 
In particular, the ``PECE'' Policy (Policy to Evaluate Conservation 
Efforts) gives a State the ability to influence a listing decision 
simply by putting conservation projects and expenditures in place and 
presenting those projects to the Service in catalogue form. Having such 
a document in hand is an enormous help to the Service as they evaluate 
the health of a species and the work being done on the species' behalf.
    Candidate Conservation Agreements with Assurances (``CCAA'') are an 
effective tool, promulgated by regulation, which give landowners an 
opportunity to participate in self-initiated conservation efforts while 
being held harmless from future regulatory restriction on their land 
should the particular candidate species be listed. Colorado is 
currently putting together the largest CCAA in Western Colorado to 
conserve the Gunnison Sage Grouse, a Federal candidate species.

    Question 2. How could more State involvement decrease the chances 
of repeating the ``Prebles Meadow Jumping Mouse'' situation?
    Response. If nothing else is done to improve the Endangered Species 
Act, the one factor which should be statutorily reviewed because of the 
Preble's situation is the Endangered Species Act standard of ``best 
available scientific and commercial data''. A listing decision based on 
50-year-old science is unacceptable. It is the ``best'' and it is also 
``available'' and those two factors often do not lead to the best 
result. A review of the listing decision renders too much latitude for 
non-scientific speculation (i.e.--although rapid growth and development 
was occurring in the range of the Preble's, we now know that there was 
no definitive threat to the species based on the expansion of the range 
due to subsequent trapping and the sheer numbers of mice trapped in new 
areas.)
    Leaders in both government and business in Colorado had not ``given 
in'' to listing of the Preble's as an inevitability. Still, there was 
intense frustration that challenges based on ongoing conservation 
efforts and biology would go unheard due to the strictness of the ESA 
and the applicable case law. This frustration can best be summarized as 
follows: after eight years and enormous expenditure of money and labor, 
not one regional habitat conservation plan is yet in place. Douglas 
County, just south of Denver, has spent over $1 million on consultants 
and lawyers to write and qualify their HCP, and not one shred of 
conservation has been put on the ground since the mouse was listed in 
1998. Imagine the good which could have been done with that $1 million 
if it had been left up to this very conservation-minded county 
commission to pay for habitat, open space, and parks, which would go a 
long way toward preserving and revitalizing the mouse.
    One individual who has worked on a Preble's HCP for the last eight 
years stated the frustration clearly, ``The mentality of the ESA is 
that it does not encourage conservation unless you get credit for it.'' 
The ESA seems to bypass a very strong conservation ethic we have in 
Colorado and the west, and the species suffer for it. More than 
anything else, those who have been involved with Preble's conservation 
cannot comprehend why the Service does not acknowledge work which is 
already happening on the ground.
    The State could provide its own ``peer review'' of data from the 
Fish and Wildlife, serving as a check on that agencies information 
gathering and scientific processes. As I mentioned in my testimony, the 
state's data should be given a presumption of credibility. With the 
State as a coequal, the Secretary should give a presumption in favor of 
State information and recommendations on listing. And, in accordance 
with the views of the International Association of Fish and Wildlife 
Agencies, the Secretary should be required to refute the State's 
information through independent peer review if the Secretary disagrees 
with the State recommendation.
    The State has a far better understanding of its species' needs than 
the Federal Government. In-State employee expertise should be embraced 
by the Endangered Species Act, not rejected or downplayed. Federal 
biologists may not have the specific expertise that a State specialist 
can offer. For example, in 2003, the Fish and Wildlife Service made an 
effort to list the black-tailed range rodent (also known as the black-
tailed prairie dog). Listing of the range rodent would have resulted in 
a significant portion of the eastern plains being designated as 
critical habitat. However, the Fish and Wildlife Service's preliminary 
habitat acreage estimates were refuted by the State of Colorado, which 
carried out its own study--based on years of work within the State by 
employees familiar with the issue--that showed range rodent habitat 
acreage was actually seven times greater than that estimated by the 
Fish and Wildlife Service.

    Question 3. What is preventing states from doing more pre-listing 
conservation, such as with the mountain plover; and, is there anything 
hindering more large scale Candidate Conservation Agreements with 
Assurances (CCAA) like the one Colorado is working on right now?
    Response. There is some skepticism as to how much effort should be 
expended on pre-listing conservation efforts and/or CCAA if listing is 
ultimately inevitable, and perhaps a hesitation on the part of State 
and local governments based on the perception that the Fish and 
Wildlife Service will not ultimately believe in the local and State 
efforts or that local and State agencies can indeed do conservation 
``right''. This also relates to the need for statutory presumption of 
State information.
    Regarding Candidate Conservation Agreements with Assurances, 
Colorado's greatest hindrance is the CCAA's lack of predictability and 
how much faith landowners can put in those ``assurances''. Without 
sounding like we promote litigation, the problem with CCAAs is that 
they are not court-tested, and landowners are loath to place their 
faith in such a relatively new mechanism that has not been ``court 
approved''.
    Colorado has acknowledged this skepticism but has also acknowledged 
that the Fish and Wildlife Service is daily more consumed with lawsuits 
which take their staff away from their mission of species conservation 
and recovery. The Fish and Wildlife Service regional and State offices 
have welcomed Colorado's participation as a full partner in 
conservation. Colorado has worked hard to cultivate relationships in 
the Department of Interior, and with the Senate and the House, to 
assure support for this effort. The Colorado Division of Wildlife and 
Department of Natural Resources also work tirelessly with the State 
General Assembly to accomplish species conservation and recovery goals.
                                 ______
                                 
Responses by Cory Gardner to Additional Questions from Senator Jeffords

    Question 1. With successful section 6 projects for the Canada lynx 
and Gunnison sage grouse, does Colorado have plans for additional 
cooperative agreements?
    Response. Actually, the Gunnison Sage Grouse is not currently under 
a section 6 agreement, but conservation measures are being conducted 
under a rangewide plan which Colorado and Utah entered together and the 
master Candidate Conservation Agreement with Assurances, which is being 
entered into by the Colorado Division of Wildlife; landowners take part 
by certificates of participation.
    Colorado is trying to find a way to use section 6 to accomplish 
defensible space projects on State forestland and adjacent private 
lands.
    We are intrigued by Arizona's comprehensive multi-species section 6 
agreement, which they have with the U.S. Fish, and Wildlife Service and 
we may pursue a similar model.

    Question 2. Your testimony states that Colorado has established an 
Office of Species Conservation and Recovery. What is the relationship 
of this agency to other Federal, State and local stakeholders and can 
you elaborate on some of its successes?
    Response. Governor Bill Owens by Executive Order created the Office 
in 1999 to do exactly what its' title suggests: conserve and recover 
species. The mission is simple: to marshal State resources toward 
recovery of candidate species so there is no need for those species to 
go on the Federal list, and to marshal those same resources to assist 
in the recovery and delisting of federally listed species. The Office 
is housed in the Executive Director's Office of the Department of 
Natural Resources and is staffed by one of the Department's Assistant 
Directors to focus exclusively on threatened and endangered species 
recovery.
    The Office's Director has established strong relationships with 
other Federal, State and local stakeholders and joins those other 
stakeholders as members of various recovery teams and similar such 
undertakings. The Office serves as a clearinghouse for all stakeholders 
to gain information, influence conservation decisions and assist with 
recovery efforts. The Office and staff are empowered to work across 
agency lines in State government to assure that agencies at all levels 
are talking to one another and working together.
    Some of the successes of the Office are as follows:
     Negotiated recovery goals with the U.S. Fish and Wildlife 
Service for the Upper Colorado and San Juan Endangered Fish Recovery 
Programs (2002). This served as a milestone for these two programs, 
which had functioned without recovery goals since 1988 and 1992 
respectively.
     Worked with the Colorado Division of Wildlife to develop 
the best available scientific data to determine acreage of Black-tailed 
Prairie Dog species in eastern Colorado, accomplished by flying 
transects across the entire eastern plains of the State. New acreage 
figures caused the U.S. Fish and Wildlife Service to remove the species 
from the status of a ``warranted but precluded'' candidate for listing. 
(2004)
     Assisted in setting up peer-review panel through the 
Colorado Division of Wildlife to review genetic data which ultimately 
lead the U.S. Fish and Wildlife Service to promulgate a preliminary 
rule to de-list the Preble's Meadow Jumping Mouse. (2004)
     Assisted with negotiations of an ESA section 6 state-
directed conservation agreement to provide for conservation measures 
for the Canada Lynx, which allowed Colorado to re-initiate its program 
to release lynx into the wild. (2002). Since this agreement went into 
place, almost 100 lynx kittens have been born in the wild (2003-2005).
     In cooperation with the Colorado Division of Wildlife, 
joined in with 10 other western States to develop a comprehensive 
status assessment of the Greater Sage Grouse through the Western Area 
Fish and Wildlife Association and the Western Governor's Association. 
The U.S. Fish and Wildlife Service analyzed the assessment under its 
``PECE'' Policy (Policy to Evaluate Conservation Efforts) and 
determined that the Greater Sage Grouse did not warrant listing. 
(2004).
     Assisted with reintroduction efforts of the Black-footed 
Ferret in Northwestern Colorado. This species has been brought back 
from the brink of extinction since the last population was found in 
Wyoming in the late 1970's.
     Conservation efforts for the Mountain Plover were well 
underway when the Office was established in 1999. The Colorado 
Department of Natural Resources joined in with providing funding and 
assisting with the collaboration between numerous parties to help 
effect the Service's decision not to list the species. (2003).
     The Office is taking the lead in preparing a catalogue of 
conservation efforts underway on the Gunnison Sage Grouse to provide to 
the Service as they conduct their analysis on the Grouse in a potential 
listing decision. (2005).
     The Office, with the direct involvement of Governor Bill 
Owens, assisted in urging the Service to substitute the draft Habitat 
Conservation Plan for the Southwestern Willow Flycatcher for critical 
habitat in southern Colorado's San Luis Valley. The Service determined 
that the draft Plan was a sufficient substitute and designated no 
critical habitat in the State. (2005).
                               __________
 Statement of Michael A. Pasteris, Executive Director, Forest Preserve 
     District of Will County, IL, National Association of Counties

    Chairman Chafee, Senator Clinton and distinguished members of the 
Subcommittee, I thank you for holding today's hearing on the roles of 
states, tribes and local governments in implementing the Endangered 
Species Act (ESA).
    I am the Executive Director of the Forest Preserve District of Will 
County, Illinois. In that capacity I represent the National Association 
of County Parks and Recreation Officials on the Board of Directors of 
the National Association of Counties (NACo), on whose behalf I am 
appearing today.
    Will County is located in northeastern Illinois, south of Cook 
County. The county seat is in Joliet, which is located approximately 40 
miles southwest of Chicago on the Des Plaines River. Forest Preserve 
Districts are special units of county government in Illinois. Our 
statutory mandate is to preserve natural and cultural resources within 
the county for the education and recreation of the public. The Forest 
Preserve District of Will County currently owns or leases approximately 
18,000 acres--7,000 of which are actively managed to conserve natural 
resources. These include the habitats of--or known populations of--7 
threatened and 13 endangered species listed under the ESA. We also 
provide habitat for dozens of species listed as threatened or 
endangered under Illinois law.
    As you know, the ESA was enacted in 1973 with the promise that we 
can do a better job of protecting and conserving our nation's resident 
species and the ecosystems that support them. Today, over thirty years 
later, on behalf of the Nation's 3,066 counties, I bring that same 
message back to this 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 endangered and threatened species and it is time to 
update and improve the ESA to reflect those lessons.
    NACo has identified several key elements that should be considered 
as Congress considers legislation to update and improve the ESA:
    First, counties should be full partners in all aspects of 
implementing the ESA. Our experience in Will County bears this out. For 
the last several years we have been actively engaged in efforts to 
preserve the habitat of the endangered Hines Emerald Dragonfly which is 
found in only two counties nationwide--one of which is Will County. In 
our county its habitat is the thin soil on top of bedrock supported by 
groundwater seeps along the bluffs of the Des Plaines River. County 
Forest Preserve staff were part of the team formed to develop the Hines 
Emerald Dragonfly recovery plan. Because of our close connection to the 
local communities we have been able to facilitate effective 
communication strategies with adjacent private landowners and 
municipalities about the habitat needs of the dragonfly. Our efforts 
have led a number of them to reduce their groundwater use voluntarily 
and to adopt ``best management practices'' for storm water management 
within the watershed. Similarly, we have been invited to serve on the 
team developing a recovery plan for the Eastern Massasauga Rattlesnake, 
a species listed as threatened under the ESA and which is in decline. 
In Will County the rattlesnake is found in the open wet woodlands along 
Plum Creek, on Forest Preserve District land. Even while the recovery 
plan is in development the District has been acting to improve the 
rattlesnake's habitat using section 6 funds from Illinois Department of 
Natural Resources and discretionary funds from the Fish and Wildlife 
Service. This model of cooperative conservation partnership is an 
important key, we believe, to setting threatened and endangered species 
on the path to recovery. Unfortunately, it is a model that is not 
always emulated. We believe that the ESA's provisions for Federal, 
State and local communication, cooperation and collaboration could be 
strengthened so that the positive partnerships currently benefiting the 
Hines Emerald Dragonfly, the Eastern Massasauga Rattlesnake and the 
citizens of Will County can be reproduced around the country.
    Sonoma County, California provides another example of how local 
participation in ESA decision making has aided efforts to recover 
threatened and endangered species. With the final listing of the 
California tiger salamander in March 2003, Sonoma County was jolted by 
the realization that, given the location of salamander habitat, much of 
the county's entire economic future was in serious jeopardy. This is 
because much of the salamander habitat is within a voter approved urban 
growth boundary. The listing had the potential to affect affordable 
housing, critical transportation infrastructure, expansion of one of 
the city's main sewage lines which already was approaching capacity, 
and the sub regional water recycling system.
    Because the U.S. Fish and Wildlife Service was short of personnel, 
consultation on individual projects, as well as field survey 
requirements were lengthy and, at times, inconsistent. The Service 
recognized that, in order to deal with Sonoma County's unique 
challenges relating to the salamander, a different and more 
collaborative approach was required. This led to the creation of the 
Santa Rosa Plain Conservation Strategy Team in March 2004.
    In 17 months, this collaborative team made up of affected public 
and private stakeholders has developed a cooperative conservation plan 
that will lead to conservation and recovery of the California tiger 
salamander and at the same time a consistent process for the approval 
of projects that are important to the economy of Sonoma County. It 
provides identified mitigation requirements that will address the 
biology of the species, and provides certainty for stakeholders to move 
forward with their projects.
    The willingness of the Fish and Wildlife Service to engage in a 
cooperative conservation plan that supports the President's Executive 
Order on cooperative conservation issued in August of 2004 has resulted 
in a successful partnership that is directly benefiting the welfare of 
the salamander while preventing serious financial detriment to Sonoma 
County.
    Both Will and Sonoma Counties' experience demonstrates the great 
potential for a new collaborative locally-driven approach to the 
conservation of endangered species. We believe that provisions for to 
encourage it--and to remove barriers to it--should be built into the 
ESA.
    Second, NACo believes that science must be used more effectively in 
all aspects of implementing the ESA. I recounted for you the initial 
success of our effort to encourage Will County private property owners 
and municipalities to reduce their pumping of groundwater in order to 
improve the Hines Emerald Dragonfly's habitat along the Des Plaines 
River. This effort was made possible by the fact that we had in our 
hands the results of a unique hydrological study which traced the map 
of the aquifer which feeds the habitat. This information enabled us to 
persuade groundwater users to voluntarily reduce pumping in ways that 
will improve the habitat. However, we were only able to afford the 
study because the U.S. Army Corps of Engineers happened to have money 
available from penalties paid by a local party in violation of section 
404 of the Clean Water Act. Obviously, essential information should not 
be available only to those communities ``lucky'' enough to have large 
Clean Water Act violations in the neighborhood. We know, by our own 
experience, that local governments and their citizens want to do the 
right thing to protect threatened and endangered species, but we need 
to take action based on good information. Too often, actions are 
prescribed by the Federal Government on the basis of a scientific 
record that is incomplete and unpersuasive to all the stakeholders. We 
believe that a major investment needs to be made in gathering and 
interpreting data in a way that is open and transparent so that it can 
withstand the scrutiny of both the scientific community and can command 
the respect of the public.
    Third, NACo believes that the ESA could be strengthened and 
improved by creating more opportunities for states and local 
governments to encourage and facilitate conservation measures. Again, 
we believe that local people want to do the right thing, but more often 
than not they lack the tools to get the work done on the ground. There 
is so much more that Will County could do to protect and enhance the 
habitat, and thereby the populations, of threatened and endangered 
species and species of concern, if we only had funding available. If 
the goals of the ESA are indeed a national priority then the burden of 
meeting them rests with Congress. Counties stand ready to implement 
sensible strategies at the ground level, but it is simply unjust to 
expect all the costs to be borne by our local property tax payers.
    Ultimately NACo believes that environmental values must be balanced 
with socioeconomic values to achieve a policy which results in a high 
degree of environmental protection while also preserving and enhancing 
local community sustainability. County officials and their constituents 
are as keenly aware of the historical, economic and aesthetic values of 
their local environment as they are certain of the need to prepare for 
a sustainable future to assure the viability of their communities. We 
look forward to being your partners ``on the ground'' as we work toward 
these common goals.
                                 ______
                                 
       Responses by Michael A. Pasteris to Additional Questions 
                          from Senator Chafee

    Question 1. What areas of the ESA could be strengthened to improve 
collaboration and communication between local governments and State and 
Federal agencies?
    Response. Recovery actions are identified as part of recovery 
plans. Stakeholders (public, private and not-for-profit) are identified 
that could have a potential role in implementing recovery actions, 
however, there is no formal buy-in to that implementation so key 
recovery actions may never be realized. Once recovery plans are 
completed, there is no communication or follow-up between the Fish & 
Wildlife Service (FWS) and local agencies or other stakeholders to 
determine if actions have been undertaken or if so, determine their 
status. Here is what can improve the ESA.
    Expand section 4 of the ESA to allow stakeholders the opportunity 
to participate in recovery planning. Local agencies can provide good 
technical information about the local threats to species or habitats, 
and potentially could be involved in identifying critical habitat. A 
more open and transparent process could result in more active 
participation by all stakeholders in recovery actions.
    A formal mechanism should be included in section 6 of the ESA that 
empowers the FWS to enter into formal agreements with individual 
stakeholders, for example cooperative conservation or management 
agreements, at the time of the recovery plan adoption or shortly 
thereafter. The agreement can identify roles and responsibilities, 
management actions and schedules, monitoring and reporting on the 
status of the listed species populations, and could be the venue 
through which Federal financial and/or technical assistance is made 
available to stakeholders. This would allow State and Federal agencies 
to better track and modify management actions as appropriate to benefit 
the listed species.
    A formal mechanism should be included in section 6 of the ESA that 
allows the FWS to enter into agreements with local government agencies, 
not just with State agencies, allowing funding to become available for 
specific initiatives such as scientific research or land acquisition by 
the local agency.
    Expand section 7 of the ESA to allow for more formal collaboration 
with local agencies in endangered species consultations, specifically 
in identifying mitigating actions in instances of takings or loss of 
critical habitat. Local agencies can provide technical input, and in 
our case as a conservation agency, offer opportunities for public land 
to be used as mitigation for recovery or restoration work.
    Expand section 7 of the ESA to formalize and allow the FWS a more 
active role in facilitating and funding Habitat Conservation Planning. 
This can involve a variety of stakeholders (public, private, and not-
for-profit) working collaboratively to effect conservation initiatives 
for listed species and their habitat.

    Question 2. How have the efforts to protect and recover listed 
species in your Forest Preserve District been primarily funded? Have 
significant amounts of State and local funds gone into the effort?
    Response. With some minor exceptions through the local Chicago 
Office of the FWS, nearly all the funding is provided by the Forest 
Preserve District (FPD). The FPD is a special unit of county government 
funded through local real estate taxes. Large capital projects such as 
land acquisition and land management/restoration have been funded 
through voter approval of special referenda. In our case, Will County 
voters approved a $70 million referendum in 1999, of which $50 million 
was for land acquisition and approximately $5 million for restoration/
land management. In April 2005 Will County voters approved a $95 
million referendum, of which $82 million is for land acquisition.
    These funding initiatives address a wide spectrum of FPD goals and 
priorities, of which endangered and threatened species gain indirect 
not direct benefits; for example, we may protect suitable habitat or 
land that can be restored to suitable habitat, but very little FPD 
funding is going toward species specific management actions that 
directly relate to recovery actions.

    Question 3. How do local land use decisions and planning laws come 
into play as your District works to recover endangered and threatened 
species?
    Response. The FPD is not a regulatory agency with respect to land 
use/zoning laws or planning decisions. Some local agencies or 
municipalities provide the FPD an opportunity to review proposals, most 
do not except when the proposal is immediately adjacent to FPD land. In 
this case our role is reactive rather than proactive by providing 
information to other local agencies that do have that authority. In 
most cases local economic interests take precedent over species or 
habitat protection but in some cases the FPD may influence local 
agencies or the developer to agree to re-design to minimize impacts.
    The sole exception is in regard to the development and 
implementation of the county's Land Resource Plan. FPD assisted the 
County of Will in development of this plan by identifying and 
quantifying unique remnant natural resources with the county. The plan 
is used by the county to regulate growth in unincorporated parts of the 
county. However, even in this case the FPD is only advisory and we have 
no regular authority.

    Question 4. What has been your experience in working with the 
Federal Government in cooperative conservation partnerships for species 
conservation and recovery in your region?
    Response. The FPD has a very good working relationship with the 
Chicago Office of the FWS. They have been responsive, provide technical 
expertise and want to partner with us to affect conservation 
initiatives. Efforts, however, are very limited. Much more could be 
accomplished at the local level if more funding were made available to 
local agencies like the FPD.
                                 ______
                                 
       Response by Michael A. Pasteris to an Additional Question 
                          from Senator Inhofe

    Question. What steps can Congress take to ensure that consideration 
of local conditions is paramount during the ESA process? Should 
Congress consider ways to encourage or require the FWS to actively 
solicit the input of local governments and landowners in the regulatory 
process? Where should this occur? In data gathering? At listing? During 
the critical habitat consideration?
    Response. I believe the ESA process should be balanced, open and 
transparent. It should consider local interests and conditions on par 
with other regional or national interests, along with the best 
scientific data available. The FWS should be required to actively 
solicit potential stakeholders, including local governments and 
landowners, to participate in the recovery planning process. This 
participation should occur when data are gathered, at the time of 
listing, and in the identification of critical habitat. Local 
government conservation agencies like the FPD can play a key role by 
providing technical information about species distribution, status, 
critical habitat and recovery actions needed; knowledge of local 
threats and issues; and can identify other local stakeholders and 
contacts that the FWS should include in the ESA process.
                                 ______
                                 
       Responses by Michael A. Pasteris to Additional Questions 
                         from Senator Jeffords

    Question 1. Please describe the specific tools that you feel State 
and local governments need to encourage private individuals to protect 
listed species?
    Response. Maintain or expand fiscal support to the Private Land 
Stewardship and to the Safe Harbor Agreement Programs. These provide 
the opportunities for the FWS to partner with landowners that want to 
implement listed species and habitat conservation initiatives. 
Additional financial support to these programs could be provided to 
landowners participating in formal agreements with the FWS that achieve 
identified recovery actions--such as tax incentives or incentives for 
entering into conservation easements that in turn have tax benefits. 
Easements can be flexible and structured to allow the landowner to 
continue with a variety of sustainable uses of their property.
    Also formalize and expand the FWS role in habitat conservation 
planning (see responses to questions from Senators Chafee and Inhofe 
for more detail).

    Question 2. What changes are needed under the ESA to improve 
partnerships between Federal, State and local participants?
    Response. Expand sections of the ESA that allow for a more formal 
partnership between local governments and the FWS for recovery 
planning, implementation of recovery actions or assessment of 
reasonable prudent alternatives or mitigating actions for takings or 
loss of critical habitat (sections 4, 6 and 7 of the ESA, see responses 
to questions from Senators Chafee and Inhofe for more detail).
    Partnerships can be formalized though written agreements, such as 
cooperative conservation or management agreements, which allow for 
funding to flow to local units of government to acquire land or 
implement other actions directly addressing species recovery efforts.

     Statement of Dwayne Shaw, Executive Director, Downeast Salmon 
                 Federation/Downeast Rivers Land Trust

    Dear Senators and Senate Staff Members, I welcome the opportunity 
to stand before you this morning and I appreciate the tremendous 
commitment you have made to bring forth information to your colleagues 
in Congress regarding the status of the fisheries, wildlife and waters 
of the United States and beyond.
    The tremendous bounty and natural beauty of our environment is a 
gift that has been bestowed upon us and has co-evolved with us over 
many millennia. Stewardship of and respect for our fellow inhabitants 
on this planet is a responsibility which was delivered to each of us by 
previous generations and which we have a responsibility to pass on to 
the next generations. In this regard, the Endangered Species Act is 
perhaps our most enlightened of all laws and exemplifies our commitment 
to protect and restore the most vulnerable of all creatures and their 
habitats.
    After 32 years, the Act remains among the most popular and 
effective environmental laws of our country. I believe the public 
support for this law exists because it is viewed as a strong response 
to an unacceptable and most often an entirely avoidable loss of a 
species.
    I come to you from the Northeastern most hinterlands of our 
country, Washington County, ``The Sunrise County'' of Maine. This is a 
hardscrabble Yankee region now, most known for lobsters, lumber and 
leisure (for the tourists and summer people ``from away'')--but is also 
known as the home to five of the eight remaining rivers in the United 
States with wild populations of Endangered Atlantic salmon.
    Three other wild Atlantic salmon rivers in the United States 
designated under the ESA are also in Maine, though historically the 
Atlantic salmon ranged throughout most of New England in numbers 
plentiful enough to have been, at one time, a source of fertilizer for 
farmers fields and even up until very recently a great recreational and 
economic resource in our very poor region.
    The wild Atlantic salmon is often referred to as ``the King of 
Freshwater Game fish'' and its loss to our region has meant the loss of 
millions of dollars in tourist and fisheries revenues. The Atlantic 
salmon is a fabled species that the European settlers were pleased to 
find in abundance upon arriving on this continent. In fact the earliest 
documented stone pictographs found throughout the British Isles are 
ornate carvings of Atlantic salmon. It is clear that both the Europeans 
and First Nation peoples of this continent possessed great reverence 
and placed high value upon salmon as a food source and symbol of life, 
vitality, abundance and perseverance. This reverence and symbolism 
persists, despite the atrocities dealt by our ignorance upon our 
fisheries and waters. The ESA and it's implications for the restoration 
of this species--and many, many other species--illustrates that current 
generations understand the need to protect our heritage and our 
interconnectedness with the environment of our ancestors and of 
generations yet unborn.
    And is the ESA protecting salmon? From direct experience on the 
ground working to protect and restore Atlantic salmon in Washington 
County and beyond for the past 22 years, I can tell you that the 
positive implications under the ESA for our salmon have been the 
difference between night and day in Sunrise County.
    In 2000 the Atlantic Salmon ``Distinct Population Segment'', 
encompassing at first seven and later eight rivers in Maine was granted 
emergency Endangered Status under the ESA. Unfortunately, this 
designation was granted only after a lawsuit was threatened by several 
conservation organizations including Trout Unlimited and the Atlantic 
Salmon Federation--with whom my organization is affiliated. The bottom 
line at that time was that the State of Maine, under then Independent 
Governor Angus King, sought to circumvent the listing via 
implementation of a ``State Recovery Plan'' sanctioned and approved 
under the ESA 4-D rules. This approach was widely encouraged and 
endorsed by industry and economic development forces in the state. Many 
angler groups and other conservationists were drawn into the ``state 
plan'' because it promised a much greater level of industry cooperation 
and government interest and investment than the preceding decades--
during which very little attention was paid to serious population 
enhancement efforts and habitat protection. However, when it became 
apparent that Governor King and his Salmon Task Force were more 
interested in maintaining the status quo than seriously retooling and 
applying needed resources to the situation, it was very fortunate that 
the Federal services were standing by to pick up the pieces.
    Provisions under ESA allowing for the states to manage species 
recovery under the 4-D rules should be examined very closely by your 
committee, particularly within the context of the Maine Atlantic salmon 
case study. Many believe that valuable time was lost for the Atlantic 
salmon while the State reacted to the interests of a few influential 
user groups.
    Over two decades ago, our organization--the Downeast Salmon 
Federation--was formed by five separate ``salmon clubs'' in the eastern 
region now encompassed under the ESA salmon plan. In 1982 these clubs, 
representing several hundred members, recognized the problems facing 
the populations at risk and, in part, created the Federation to 
advocate for better management. Despite the fact that fishing for 
salmon is no longer allowed and to the surprise of many, our total 
number of supporters remains nearly the same or greater--even though it 
is no longer possible to buy a salmon license or to find a well stocked 
fly shop in our small towns.
    The listing of the species and the greater attention drawn to the 
situation has, in the end, brought together the community and helped to 
build new local partnerships. This, combined with the additional funds 
and resources provided under the moderately heightened Federal salmon 
programs, gives new hope that a dire situation will improve. This hope 
and optimism is what draws the private sector into the greater effort--
again, despite the fact that fishing was ended several years ago.
    Federal funds directed toward salmon recovery through ``challenge 
grants'' issued by the National Fish and Wildlife Foundation are 
particularly effective in sustaining public investment and interest. In 
just the past three years, our organization has brought in an estimated 
2 million dollars worth of private investment into salmon recovery in 
the poorest county in our State and one of the poorest in the nation. 
These numbers are phenomenal and have been largely attributable to 
small Federal ``seed'' investments in our outreach efforts and all made 
possible because of the listing. While the numbers themselves are 
impressive, what is more impressive is the impact that a well 
orchestrated education and outreach effort can have on the ``hearts and 
minds'' of the communities in which an endangered species lives. Again, 
as in most situations, prevention is the most cost effective method of 
dealing with environmental degradation. By working closely with 
landowners and communities we have, at the very least, helped to 
prevent many habitat impacts and in reality also restored many sites 
that had been neglected or remained unidentified.
    So are all things rosy with the implementation of the ESA in ME? 
Not quite. Let's look at a few of the obstacles starting with the 
hearts and minds issue.
    Any effort of the scale and magnitude of prevention of loss of a 
species--even one as widely charismatic as the salmon--requires a solid 
understanding on behalf of the public of the issues (preventable 
problems) affecting the declines of the species and a greater patience 
and compassion for the overall effort.
    In my experience outreach to stakeholders requires a consistent 
message or series of messages delivered face to face, neighbor to 
neighbor or peer to peer at the local level. This can be best achieved 
by a local group, with a passion for the effort and with a true 
connection to the community(ies) involved. This cannot however, always 
be accomplished without Federal investment. In the case of Atlantic 
salmon, Federal dollars in the form of challenge grants or direct 
dedicated funding remains the single greatest source of support for our 
watershed councils and other local efforts. The community must be 
involved in a true partnership or ``co-management'' sense. In Maine, as 
in the Pacific Northwest, a local ``watershed council'' approach to 
achieving ``buy in'' for salmon restoration projects remains an 
enlightened and successful method of protecting and beginning recovery 
of endangered fisheries. Federal investments in local outreach 
initiatives must be an integral--and not an optional--part of the Act 
in years to come.
    And finally, if I am to avoid being brined for lobster bait by my 
friends and colleagues back home, I will end with two points of common 
concern to so many involved in the Atlantic salmon restoration program:
    First, of course, is the need for additional Federal resources. A 
more equitable and consistent funding mechanism needs to be developed 
for all ESA listed species. The discrepancy between funding levels 
between Atlantic salmon and Pacific salmon should be addressed. The 
delays and uncertainties that developers struggle with under the ESA 
are the same conditions that stall our recovery actions. A well funded 
program will float all boats.
    Lastly, in Maine, the Atlantic salmon listing has been a ``Joint 
Listing'' with USF&WS and NOAA both equally responsible. While there 
may be advantages in bringing the resources of the two agencies to bear 
upon the situation, this dual leadership can mean that action planning 
moves slowly with poor coordination. An examination of the provisions 
under the ESA that allow for this situation should be reviewed with a 
mind toward streamlining the bureaucracy without creating a net loss of 
Federal resources.
    I appreciate the time provided to me before you today and I thank 
you for your invitation.
                                 ______
                                 
  Responses by Dwayne Shaw to Additional Questions from Senator Chafee

    Question 1. Your testimony refers to the problems associated with 
the initial push for a ``State Recovery Plan'' for listed Atlantic 
salmon populations in Maine. For what reason would this plan have been 
detrimental to salmon populations in your state.
    Response. The State of Maine initiated a State conservation plan 
for Atlantic salmon after a citizen petition to list the species was 
filed. The State plan was initially accepted by the Federal services 
and as a result delayed the full protection of the species and it's 
habitat for approximately three years--until such time as a lawsuit was 
threatened by several environmental groups including Trout Unlimited 
and the Atlantic Salmon Federation. So, the provisions under which a 
``state plan'' was allowed--even when it had been previously determined 
that the species deserved Federal protection--assured that industry and 
State government interests in maintaining status quo efforts and 
protections would prevail. The period of time when the ``state plan'' 
was supposedly being implemented saw threats to salmon populations 
actually increase. These threats included irrigation, cranberry 
development in wetlands with resulting siltation of spawning beds, 
clearing of riparian forests for expansion of blueberry irrigation, 
increased use of pesticides in the riparian zone and very likely an 
increased drift of those chemicals to the rivers in question, increased 
logging ``liquidation harvesting'' resulting in the lowest standing 
stock of forested areas within these watersheds in history. The 
bureaucratic smoke screen the State created to try to prevent the 
listing ultimately resulted in a State lawsuit against the Federal 
Government that claimed the genetic information used to support listing 
was flawed.

    Question 2. What resources has the State of Maine invested in 
Atlantic salmon recovery efforts? Is there a Recovery Plan in place for 
Atlantic salmon in Maine?
    Response. It is my estimate that the greatest single financial 
investment made by the State of Maine with regards to endangered salmon 
in recent years were paying the attorney fees and staff time associated 
with suing the Federal Government to prevent the listing and adequate 
protection of the species.
    While some of this may sound pessimistic or cynical I feel that 
this is a fair and accurate account of the situation. I have been very 
close to the whole process during the past decade and it is with some 
regret that I feel compelled to tell it as I see it.
    I do not want to leave the impression that all state/industry 
recovery efforts are hollow, but in the case of Atlantic salmon and the 
Maine experience there were--and continue to be significant problems. 
Currently there is a draft Federal recovery plan in place and the 
species is listed as endangered. As was stated many times during the 
pre-listing and State plan era, industry cooperation and investment did 
diminish, post listing. The reality however is that the industries 
involved in developing the State plan had little intention of actually 
implementing the plan and the State largely followed their lead.

    Question 3. I enjoyed the line in your statement that AA well 
funded program will float all boats. What are the current difficulties 
with existing funding streams for Atlantic salmon conservation and 
recovery efforts?
    Response. I can say the greatest difficulty with existing funding 
streams for salmon (and other threatened fishes/eries) is that we do 
not have a powerful ``champion'' in Congress who can assure adequate 
investment of Federal dollars. This is a major problem or vacuum that 
perhaps Senator Chafee could help to resolve. We need a champion and 
this is evidenced by the vast differences in investment being made in 
the Pacific NW vs. New England--particularly with regards to salmon.
    On the State side of things, we have a State that is largely 
controlled by timber and business interests who are threatened by the 
science that supports adequate protection of water quality. As a result 
very, very little State money is available for protection of the last 
American stocks of the ``King of Freshwater Gamefish''. Many of our 
State financial problems stem from over exploitation of natural 
resource wealth such as in our fisheries and timber lands. The fox is 
often not a good ``team player'' when it comes to protecting the 
chickens.
    Our State agencies and Federal fisheries agencies as so far behind 
in their ability to adequately manage migratory fisheries such as 
salmon, eel, alewives and shad, that reports and plans from the 1800's 
are still yet to be implemented. I say this with a straight face and 
with evidence in hand.
    Our tiny conservation group located here in one of the poorest 
counties in the Eastern United States has worked for years to document 
fisheries declines and in doing so have unearthed a number of 
interesting findings. Take for instance the 1870 era State fisheries 
report that highlighted the technical breakthrough of fish ladders. The 
first fish ladders were being demonstrated on the East Machias and 
Orange Rivers at the time. They were a resounding success and were 
supposed to have harkened in a new era. The Orange R has been dammed up 
without a fishway in place for the last twenty years because no State 
or Federal agency has had the resources to really pay attention, so a 
demonstrated fisheries success in the 1800's is now a major impediment 
to fisheries in the year 2005. This is just one example, but 
illustrates the backward movement that we are facing in some 
circumstances. This is absolutely horrible and inexcusable in this day 
and age.
    My statement that adequate funding would float all boats is I think 
a truism. Whether seeking permits for development or restoration the 
current level of staffing and staff expertise in State and Federal 
fisheries and resource agencies is lacking. Likewise, funds are lacking 
for the implementation of a successful recovery program thereby 
ensuring that the salmon will remain endangered or move further toward 
extinction. All ``boaters'' would like to see the salmon moved off the 
list and viable populations recovered. This will cost money, but the 
investment made will save money (and maybe the species) in the long 
run.
                                 ______
                                 
 Responses by Dwayne Shaw to Additional Questions from Senator Jeffords

    Question 1. Please describe how you would like the 4-D rules 
dealing with states management of species recovery to be implemented?
    Response. The 4-D rules need to be strictly implemented under full 
ESA obligations to recovery. The experience in Maine with Atlantic 
salmon suggests to me that states--under pressure from industry--can 
abuse the ``freedoms'' allowed under 4-D. The State of Maine Atlantic 
Salmon Conservation Plan did affect a very slight incremental upward 
emphasis on salmon protection, but the positive effects were greatly 
surpassed by additive development pressures and resource exploitation 
during that same period.

    Question 2. Your testimony states that prevention is the most cost-
effective method of dealing with environmental degradation. How can the 
Endangered Species Act be improved to increase the incentives for 
prevention?
    Response. I believe that the ESA can be improved to prevent species 
declines through very serious investments in outreach and education as 
soon as a species is known to be imperiled or becomes what is referred 
to as a ``candidate species''. The ESA should also not be viewed as a 
stand alone law. There are many other environmental laws that need to 
be better enforced as a means of preventing habitat and species loss. 
For instance, my organization monitors water quality. The storms this 
fall have brought the pH in the Pleasant River (one of the listed 
salmon rivers) down to pH 4.4! At this rate, we will end up with salmon 
extinction and endangered populations of other aquatic species. The 
Clean Air Act needs to be implemented better. We are now looking at 
liming our rivers--as the Nova Scotians are beginning to do at 
exorbitant cost--in order to prevent further declines. This is a pay 
now or pay even more, later scenario. Liming rivers is expensive. We 
must only ask the Norwegians what they expend each year to lime their 
rivers.
    Prevention costs money, but it is the cheapest alternative. The 
health of our ecosystems is like the health of our bodies--everyone 
knows that prevention of problems is best. We are not implementing what 
we know will prevent problems for us in the future. Please see my 
response above to Senator Chafee regarding implementation of government 
fisheries recommendations from the 1800's that are still common and 
recurring problems today (i.e., dam on Orange R.).

    Question 3. Please give your perspective on the cultural and 
historical importance of the salmon economy to your people and the 
region?
    Response. The salmon are a cultural icon for the people of this 
region--representing all that is good about the vitality of our 
environment. The salmon embody the determination to succeed that is so 
much a part of the psyche of the Yankee and native spirit. The loss of 
the salmon erodes the heritage and the historical as well as economic 
ties to yet another important wild fishery. Maine, New England and 
America cannot afford to lose another thread from the cloth of which we 
are made.
    From a strictly economic perspective, salmon were an important 
commercial species up until the mid 1940's. They have also long been an 
important gamefish species that attracted many thousands of tourist 
anglers annually to ME. In the case of our particular situation in 
Washington County where five of the eight ESA listed salmon rivers 
occur, a fishable population of salmon would bring in hundreds of 
thousands of dollars annually to a region that is among the poorest in 
the United States. Fisheries are serious business here and there is 
great resentment that yet another fishery is moving closer and closer 
toward it's final chapter. Many of the people of this region stand 
ready to help in whatever way possible, but there needs to be solid 
leadership and support from the powers that be.
                               __________
     Statement of Robert P. Davison, Wildlife Management Institute

    Mr. Chairman, Members of the Subcommittee, I am Robert P. Davison, 
Field Representative in the Northwest office of the Wildlife Management 
Institute (WMI), Corvallis, Oregon. WMI was established in 1911 and is 
staffed by professional wildlife scientists and managers. Its purpose 
is to promote the restoration and improved management of wildlife in 
North America. I appreciate this opportunity to provide the views of 
WMI on the role of States, Tribes, and local governments in 
implementation of the Endangered Species Act (ESA).
    In addition, as the Chair of The Wildlife Society's Technical 
Review Committee on the ESA, I will present those portions of the 
Committee's report, ``Practical Solutions To Improve The Effectiveness 
Of The Endangered Species Act For Wildlife Conservation,'' that address 
the issues before the Subcommittee today. The Wildlife Society is an 
international, non-profit scientific and educational organization 
serving and representing wildlife professionals in all areas of 
wildlife conservation and resource management. The ESA Technical Review 
Committee was appointed by the President of The Wildlife Society to 
``identify problems limiting the successful implementation of the 
Endangered Species Act and recommend practical solutions for improving 
its effectiveness for wildlife conservation.'' Unlike other Wildlife 
Society technical reviews of scientific literature, the committee was 
charged specifically with identifying policy problems and potential 
solutions for the following aspects of the ESA: (1) listing, (2) 
critical habitat designation, (3) conservation on private land, (4) 
involving State fish and wildlife agencies, (5) species recovery, (6) 
interagency section 7 consultation, (7) consideration of distinct 
population segments, and (8) ensuring sound decisions. The role of 
States and Tribes is addressed in each of these aspects of the ESA. The 
technical review paper presents the views of the appointed committee 
members, but not necessarily the views of their employers or The 
Wildlife Society. If the Society decides to develop a position 
statement based on the review paper, a preliminary version of that 
statement will be published for comment by Society members. Following 
the comment period, revision, and Council's approval, the statements 
are published as official positions of The Wildlife Society.

                    SECTION 6 COOPERATIVE AGREEMENTS

    Under the ESA, States and the U.S. Fish and Wildlife Service and 
NOAA-Fisheries (Services) share jurisdictional authority for listed 
species. When the ESA was passed in 1973, Congress stated, ``the 
successful development of an endangered species program will ultimately 
depend upon a good working arrangement between the Federal agencies, 
which have broad policy perspective and authority, and the State 
agencies, which have the physical facilities and the personnel to see 
that State and Federal endangered species policies are properly 
executed.'' Section 6 requires the Services to cooperate to the maximum 
extent practicable with the States in carrying out the program 
authorized by the ESA.
    Cooperative agreements between the Services and the States under 
section 6 of the ESA are the means by which the Services certify that 
States have established and maintain adequate and active programs for 
the conservation of listed species. Currently, States and Territories 
have entered into 89 section 6(c) cooperative agreements with the 
Interior Department. Eight States and two Territories have entered into 
cooperative agreements with the Commerce Department that encompass 15 
listed species under the jurisdiction of NOAA Fisheries. All States and 
six Territories have at least one cooperative agreement for some 
species of fish and wildlife or plants. Many States have multiple 
agreements. The State of Oregon, for example, has three cooperative 
agreements that cover vertebrate fish and wildlife, plants, and 
invertebrate species. For those States that have entered into 
cooperative agreements, the grant program established under section 6 
provides funds to State fish and wildlife agencies to cooperate in 
efforts to maintain and recover listed species and to monitor the 
status of candidate species and recently recovered, delisted species.
Issues of Concern
    1. Implementation of the ESA would be improved by greater 
partnerships with State fish and wildlife agencies in carrying out the 
ESA.
    2. State fish and wildlife agencies are not being provided adequate 
and stable funding from the section 6 Cooperative Endangered Species 
Conservation Fund to fulfill State roles in the conservation of 
endangered and threatened species. Eighteen years ago, the Senate 
Environment and Public Works Committee expressed the concern that 
``current Federal/State cooperative efforts to protect endangered 
species also are inadequate and are in danger of disintegrating 
altogether.'' The Committee noted that the amount of money appropriated 
in fiscal year 1988 for matching grants to States under section 6 was 
roughly the same as it was in 1977, yet there were four times as many 
cooperative agreements in 1987 as there were a decade earlier. Matters 
only have gotten worse. By the start of fiscal year 2006, there are 
1,264 listed U.S. species--more than 6 times the 194 U.S. species 
listed in 1977--yet the $9.9 million appropriated in State grants under 
section 6 for this coming fiscal year has only somewhat more than one-
third as much buying power as the $4.3 million provided in 1977.
    3. State expertise, data, personnel, and working relationships with 
others still are not sufficiently utilized in ESA decisions and 
actions.
    4. Too often, too little is done too late to make listing 
unnecessary. To a significant extent, a factor contributing to this 
problem is that there are insufficient financial incentives and 
regulatory assurances to facilitate actions by States that would make 
listing unnecessary.
    5. Day-to-day cooperation between the State fish and wildlife 
agencies and the Services in administration of the ESA continues to be 
hindered by the Federal Advisory Committee Act (FACA).
Potential Solutions
            Funding Options
    The Administration should request and the Congress should 
appropriate adequate funding under section 6(i) of the ESA to assist 
States in building a strong partnership for conservation of candidate, 
threatened, and endangered species and monitoring of recovered, 
delisted species.
            Administrative or Legislative Options
    1. The States, where they have the fiscal resources, expertise, 
staff, and political support to do so, should play a much greater role 
in administration of the ESA.
    2. State fish and wildlife agencies should have a clearer and more 
significant role in efforts to prevent species from becoming candidates 
and in listing decisions, critical habitat designations, development of 
recovery strategies, and management and recovery of listed species.
    3. The section 6 cooperative agreement provisions should be 
redesigned to function as a true partnership agreement requiring close 
collaboration and coordination between and among the States and the 
Services. The section 6 agreement can be the vehicle to identify the 
respective roles of the States and the Services. It should provide the 
flexibility to allow States that so choose to assume the lead for 
prelisting conservation, recovery planning and implementation 
oversight, administration of safe harbor agreements (SHA) and habitat 
conservation plans (HCP), and post-delisting monitoring.
    4. The section 6 Cooperative Endangered Species Conservation Fund 
should be restored to its original intended purpose of providing 
adequate and stable funding to State fish and wildlife agencies to 
fulfill State responsibilities under the ESA. Grants related to HCP 
planning assistance and HCP and recovery land acquisitions, which 
currently are inappropriately utilizing the authorization provided by 
the Fund, should be authorized separately under section 15 of the ESA.
    5. Amounts deposited to the Cooperative Endangered Species 
Conservation Fund should be made available to the States without 
further appropriation to make it possible for State fish and wildlife 
agencies to assume the lead for prelisting conservation, recovery 
planning and implementation oversight, SHA and HCP administration, and 
post-delisting monitoring.
    A recent agreement between the Arizona Game and Fish Department 
(AZGFD) and USFWS Region 2, entitled ``State Wildlife Agency 
Participation in Implementing the Endangered Species Act: State of 
Arizona,'' is one example of a new direction for States in ESA 
administration that has promise if accompanied by sufficient funding 
support (which can be downloaded from http://www.fws.gov/arizonaes/
threatened.htm). The agreement describes the roles and responsibilities 
of AZGFD and USFWS for candidate species assessments, prelisting 
recovery activities, petition management, listing (including 
reclassification), critical habitat designation, special rules for 
candidate and listed wildlife, 5-year status reviews, recovery plan 
development and implementation, monitoring of de-listed wildlife 
species, land and water acquisition and management, section 7 
consultation, law enforcement, habitat conservation planning, and 
experimental populations. The AZGFD and USFWS mutually agree that the 
ESA and section 6(c) cooperative agreement language stating that the 
Secretary ``shall cooperate to the maximum extent practicable'' with 
the States, ``shall be taken to mean that Region 2 of the Service has 
offered the Department an opportunity to participate in developing and 
implementing each recommendation formulated and each action undertaken 
within this Region pursuant to the authorities of the [ESA].'' As part 
of its section 6(c) requirement to maintain an adequate and active 
program for conservation of endangered and threatened wildlife, the 
AZGFD agrees to develop ``species-specific or ecosystem-specific 
conservation strategies for all species of wildlife that are listed, 
proposed for listing, candidates for listing, or which may benefit from 
proactive efforts to preclude the need for listing pursuant to the 
Act.'' Thus, the agreement between the AZGFD and USFWS brings much 
greater specificity and sense of partnership to relative Federal and 
State roles and responsibilities than previously forged section 6(c) 
cooperative agreements or the 1994 USFWS national policy on the 
subject. Lack of funding to support the agreement, however, has limited 
its effectiveness and the likelihood that it will be replicated by 
other States.

                LISTING AND CRITICAL HABITAT DESIGNATION

    The ESA's section 4 requires consideration of efforts by States in 
making listing or critical habitat determinations. Actual notice of 
proposals must be given to conservation agencies in affected States. If 
a final regulation is issued that conflicts with State agency comments, 
or a regulation is not adopted in response to a State-petitioned 
action, a written justification must be provided for ``failure to adopt 
regulations consistent with the agency's comments or petition.'' These 
requirements generally were incorporated into regulations in 1984 (50 
CFR 424). Some of the current issues concerning listing and critical 
habitat designation are related to this quite limited role for States 
under section 4.
Issues of Concern
    1. Implementation of the ESA would be improved by greater 
partnerships with State fish and wildlife agencies in the efforts to 
prevent the need to list species.
    2. Too often, too little is done too late to make listing 
unnecessary. To a significant extent, a factor contributing to this 
problem is that there are insufficient financial incentives and 
regulatory assurances to facilitate actions by States that would make 
listing unnecessary.
    3. The ESA does not require explicitly soliciting information held 
by States, sharing information with States, or involving States in 
listing and critical habitat designation decisions. While not required 
explicitly by the ESA, the Services have a policy to carry out this 
kind of coordination. In some instances, however, information from 
State wildlife agencies may not be sufficiently sought, used, or 
considered in listing decisions.
    4. State expertise, data, personnel, and working relationships with 
others still are not sufficiently utilized in ESA listing and critical 
habitat decisions and actions.
Potential Solutions
            Funding Options
    Federal funding should be provided to the States to conduct 
monitoring and evaluation of species at risk (e.g., species on the 
candidate list, and those on each State's heritage program list of C1 
and C2 species, sensitive species list or the equivalent).
            Administrative or Legislative Options
    1. State fish and wildlife agencies should have a clearer and more 
significant role in efforts to prevent species from becoming candidates 
and in listing decisions, critical habitat designations, development of 
recovery strategies, and management and recovery of listed species.
    2. State fish and wildlife agencies should be more involved early 
and throughout the listing process, including in down-listing 
decisions. This involvement will facilitate States providing necessary 
information and help States formulate management decisions and 
communicate with the public. Similar efforts should be made with Native 
American Tribes.
    3. Encourage the Services to work with interested State fish and 
wildlife agencies in development of a memorandum of agreement (MOA) 
under section 6 of the ESA to provide greater certainty and specificity 
with regard to coordination and collaboration on activities under 
section 4 of the ESA. The AZGFD-USFWS agreement may serve as a good 
template.
    4. Encourage the Services to utilize State fish and wildlife agency 
and Native American Tribal expertise in conducting population status 
inventories and geographic distribution surveys by contracting with the 
States or Native American Tribes for data collection, review, and 
analyses.
    5. Involve State fish and wildlife agencies in development of 
guidance on how to identify, quantify, and map critical habitat, assess 
the economic and other impacts of designation, and balance the benefits 
of designating any specific area in comparison to the benefits of not 
designating.
    6. Involve State fish and wildlife agencies in identifying and 
designating critical habitat.
    7. Categorically exempt State fish and wildlife agencies from FACA 
restrictions so that these agencies are able to participate as equal 
conservation partners, not as public stakeholders, in freely sharing 
information and contributing expertise to the listing and critical 
habitat designation processes. This exemption would help ensure that 
the Services have the best available information; the States would not 
have to react to Service proposals at public hearings where it would be 
a greater advantage to have State and Federal agencies in agreement 
about resources within their authorities; and the States could help 
their publics know the reasons and impacts of listing decisions.

                                RECOVERY

    The purpose of the ESA is to prevent species extinctions and then 
provide measures to help bring species back to the point at which the 
measures provided by the law are no longer necessary. Recovery of 
species is one metric by which the success of the ESA may be evaluated, 
but it must be used with care because halting or reversing declines 
that in some instances have developed over 200 years requires long 
periods of time and a strong commitment to fund and implement actions 
that will lead to recovery. Currently, recovery efforts are inadequate 
for most, if not for nearly all, listed species. More effective efforts 
to recover species requires not only increased spending, but also 
coordinated undertakings by a broad array of landowners, public 
agencies, and stakeholders. These efforts also require better and user-
friendlier incentives to private landowners who often are willing to 
undertake efforts to protect and recover endangered and threatened 
species.
    Once species have been recovered and delisted, section 4(g) 
requires the Secretary to ``implement a system in cooperation with the 
States to monitor effectively for not less than five years the status'' 
of those species. The USFWS has addressed this requirement through 
adoption of species-specific monitoring plans developed in cooperation 
with States, recovery teams, and public input.
Issues of Concern
    1. Recovery is established under the ESA as the responsibility of 
all agencies, in partnership with the States. In reality, given the 
importance of non-Federal lands to conservation of listed species, 
partnerships with Native American Tribes, local governments, NGOs, and 
private parties also are essential to recovery of many listed species. 
However, recovery, unlike listing or consultation, has not evolved as a 
mandatory duty of any party. It is largely a voluntary endeavor driven 
by enlightened self-interest. As a result, there has been great 
disparity among species receiving recovery attention, and many species 
do not have sufficient funding or attention devoted to them to achieve 
significant recovery progress. (The most recent report to Congress on 
State and government expenditures for implementing the ESA, covering 
fiscal year 2002, showed that 50 percent of the funding was focused on 
only 17 species [1.3 percent of all those listed under the ESA]. While 
general [i.e., non-land acquisition-related] expenditures were $1 
million for 87 species, the median expenditure for all species was only 
$14,100.)
    2. Recovery plans are needed to establish a roadmap for recovery 
activities, but the Services have been hard pressed to produce in 
timely fashion recovery plans that reflect a good understanding of 
species recovery needs and a reasonable consensus among species experts 
and affected publics. There is inherent tension between the competing 
demands for appropriate scientific certainty about threats and the 
effectiveness of conservation measures, the involvement of stakeholders 
in the recovery planning process, and rapid production of a recovery 
plan with reasonable consensus of the recovery team. As a result, 
recovery plans often take significant time and firnding to produce, are 
not revised and updated as frequently as they should be, and are not 
sufficiently integrated with other, regional, State, and local efforts.
    3. Recovery plan implementation usually involves commitment of 
staff time or funding, both of which are often in short supply. Much 
has been accomplished in the last 30 years through altruistic action 
and cooperation, but the overall need for recovery action far exceeds 
the level of effort that has been applied to date.
    4. Implementation of the ESA would be improved by greater 
partnerships with State fish and wildlife agencies and Tribes in 
efforts to recover species.
    5. The Services lack comprehensive policy and procedural guidance 
on how to comply with the statutory requirement to monitor the status 
of species that have recovered and been removed from the lists of 
threatened or endangered species. Such guidance needs to be developed 
in conjunction with State fish and wildlife agencies to ensure that 
effective post-delisting monitoring plans are produced in timely 
fashion and in cooperation with the States that will be assuming 
management responsibility for the species post-delisting.
Potential Solutions
            Administrative Options
    1. Recovery plans should:

          (i) assess risk and focus on amelioration of threats to 
        species;
          (ii) be developed by teams that are of manageable size and 
        sufficiently diverse so as to include needed expertise and 
        representation of entities responsible for management of the 
        species or its habitats, including State fish and wildlife 
        agencies, Federal land management agencies, and others 
        essential to recovery implementation; and
          (iii) include provisions for regular monitoring and reporting 
        to make possible evaluation of plan effectiveness.

    2. The Service should develop, in cooperation with the States, 
comprehensive policy, and procedural guidance on preparation of post-
delisting monitoring plans.
    3. State fish and wildlife agencies and Native American Tribes 
should be provided with the opportunity to be involved in development, 
implementation, and monitoring of recovery plans and plan activities.
    4. Native American Tribes should participate in the recovery 
planning process to assist in developing measures and monitoring 
capable of being adopted in Tribal land-use plans.

                         SECTION 7 CONSULTATION

    Section 7(a)(2) of the ESA reiterates the provisions of section 4 
by emphasizing that critical habitat may be designated by the Secretary 
only ``after consultation as appropriated with the affected States,'' 
but otherwise makes no reference to cooperation with States in the 
interagency consultation process. The section 7 regulations similarly 
are silent on cooperation with States (50 CFR 402.01-402.48).
Issues of Concern
    1. In recent years there have been approximately 70,000 actions/
year that have triggered some form of consultation. On average, >95 
percent are resolved through informal consultation procedures, but even 
informal consultations can take time and involve substantial project 
modifications. Thirty years after passage of the ESA, and despite the 
variety of other environmental laws that require consideration of fish 
and wildlife conservation (e.g., Clean Water Act, FIFRA, National 
Environmental Policy Act, Federal Power Act, National Forest Management 
Act, and Federal Land Policy and Management Act), Federal agencies do 
not often incorporate effective measures to avoid or minimize the 
impacts of their actions on listed species until ``forced to'' by a 
section 7 consultation.
    2. There is rarely perfect information available to establish the 
effects of an action on listed species. Once consultation is initiated, 
the Services must proceed with issuing a biological opinion based on 
the best available information, even when that information leaves many 
relevant questions unanswered. The Services do an admirable job of 
producing scientifically sound and defensible opinions in the face of 
such uncertainty. The National Research Council review of the 
biological opinions issued by the Services for the Klamath Irrigation 
Project has led some to question the adequacy of the existing 
consultation process in the face of a high level of uncertainty.
    3. The funding and staffing of the Services to carry out their 
consultation responsibilities have not kept pace with the growth in 
consultation workload As a result, Federal agencies and affected third 
parties are faced with project delays and increased transaction costs. 
Funding for the BLM, Forest Service, and other agencies has been 
inadequate to complete consultation and monitoring work.
Potential Solutions
            Administrative Options
    1. Federal agencies should be required to work with the Services, 
State fish and wildlife agencies, and other experts from the scientific 
community to resolve areas of scientific disagreement or uncertainty, 
to the extent that they can be resolved, during development of the 
biological assessments, and then to design their action conservatively 
when faced with scientific uncertainty about project impacts or the 
adequacy of offsetting measures.
    2. In order to produce timely delivery of section 7 products and 
decisions and to minimise transaction costs, the Services should 
continue and expand their efforts to work cooperatively with State fish 
and wildlife agencies during consultations.
    3. The Services, in cooperation with State fish and wildlife 
agencies and other Federal agencies, should develop methodologies to 
reduce the times required to comply with section 7 for actions 
involving incidental take that would have low impacts or produce net 
benefits to listed species.
    4. Interagency support should be provided and interagency 
guidelines established to encourage greater collaborative efforts among 
State and Federal agency scientists and managers.

             CONSERVATION ON PRIVATE LANDS UNDER SECTION 10

    Section 10 of the ESA makes no mention of cooperation with States. 
In particular, both the provisions of the law and the associated 
regulations provide no explicit role for States in habitat conservation 
planning. There is a certain irony to this silence given the 
increasingly large role played by States and local governments in 
carrying out HCPs and other agreements for listed and candidate species 
under section 10.
State Involvement in Habitat Conservation Planning
    During the 1990s, administration of the ESA extended its reach at a 
great rate into incidental take activities that previously had received 
relatively little attention. From 1982 when section 10 of the ESA was 
amended to authorize HCPs as a means of permitting, minimizing, and 
mitigating incidental take of listed species caused by non-Federal 
activities until 1992, only 14 HCPs had been approved. By the end of 
2004, however, the USFWS had approved 472 HCPs covering approximately 
30 million acres of non-Federal lands and protecting 200 endangered or 
threatened species. As the number of HCPs has grown, there also has 
been an increase in the complexity of the plans, the number of covered 
species, and the size of the areas. In the evolution of habitat 
conservation planning from a process adopted primarily to address 
single projects to broad-based, landscape-level planning, the role of 
States and local governments has become far more prominent. For 
example, the HCP approved in 2003 for western Riverside County, 
California resulted from an application by the County of Riverside, 
Riverside County Flood Control and Water Conservation District, 
Riverside County Transportation Commission, Riverside County Parks and 
Open Space District, Riverside County Waste Department, California 
Department of Transportation, California Department of Parks and 
Recreation, and 14 western Riverside County cities. It was developed as 
both a HCP and a sub regional plan under the State Natural Community 
Conservation Planning Act (NCCP), which is administered by the 
California Department of Fish and Game. It covers 146 species and more 
than 1.2 million acres. In 2002, a HCP Land Acquisition Grant provided 
$9 million from the section 6 Cooperative Endangered Species 
Conservation Fund to acquire key core habitats for the threatened 
coastal California gnatcatcher and endangered least Bell's vireo and 
Stephens' kangaroo rat.
    As the USFWS greatly expanded the use of HCPs in the last decade, 
State and local governments increasingly drove their development. 
Approximately 30 percent of all approved HCPs resulted from 
applications by local governments or State agencies or both. The 
statewide HCP developed for the Karner blue butterfly by the Wisconsin 
Department of Natural Resources (WDNR) provides an interesting model 
for States to regain primary management responsibility for listed 
species. The WDNR is responsible for compliance with the conditions of 
the Federal incidental take permit and HCP implementation. The State 
HCP and permit serve as an umbrella that provides incidental take 
authority to 26 other partner entities that have developed individual 
conservation agreements with the WDNR. Under this arrangement, the 
resident ESA-listed species remain under the jurisdiction of the State 
fish and wildlife agency, which is most knowledgeable about the 
species, its status, and its existence in the State. Unfortunately, 
this promising approach so far has not been replicated by other States.
State Involvement in Safe Harbor and Candidate Conservation Agreements
    State agencies and local governments have played a larger role in 
the innovative use of authority under section 10 of the ESA to enhance 
the survival of endangered, threatened and candidate species through 
use of SHAs and candidate conservation agreements. State wildlife 
agencies in Georgia, Alabama, Texas, Louisiana, and South Carolina all 
have received Federal funding through section 6 to develop statewide 
programmatic SHAs for red-cockaded woodpeckers. The States of Texas, 
South Carolina, and Georgia entered into early SHAs and received 
incidental take permits under the HCP authority of section 10(a)(1)(B) 
to promote recovery of red-cockaded woodpeckers. More recently, States 
such as Louisiana have entered into these agreements under section 
10(a)(1)(A) and received enhancement of survival permits. In either 
case, the USFWS issues an umbrella permit to the State wildlife agency, 
as opposed to individual permits to each participating landowner. Once 
overall baseline responsibilities are identified in the umbrella 
permits, private landowners, with assistance if necessary by State 
agencies, are able to fill out a relatively simple evaluation form that 
documents background information, the baseline, habitat maintenance and 
enhancement activities, expected net conservation benefits and 
implementation schedule. Having the State wildlife agency as the 
delivery system for statewide red-cockaded woodpecker safe harbor 
programs reportedly has worked very efficiently and has been well 
received by landowners. The lead State role under SHA umbrella permits 
is a successful model because it minimizes regulatory agency 
transaction costs and bureaucratic burdens to landowners. One-third of 
all approved SHAs are with States or local governments.
    In 1999, in conjunction with establishment of SHAs, the USFWS 
further enlarged the role of section 10(a)(1)(A) of the ESA to enhance 
the survival of candidate species. Candidate Conservation Agreements 
with Assurances (CCAAs) offer regulatory assurances as an incentive for 
private and other non-Federal property owners to implement conservation 
measures. States more actively participate in section 10 candidate 
conservation agreements and CCAAs and than they do in SHAs or HCPs, 
which is not surprising given the primacy of State jurisdiction over 
most of these un-listed species. To date, eight CCAAs have been 
approved by the USFWS. Of these, four are agreements with State 
wildlife or natural resource agency partners. A similarly large State 
involvement exists in candidate conservation agreements approved by the 
USFWS without any regulatory assurances under section 10 of the ESA. 
More than half (61) of these 112 approved agreements are with State 
agencies. A recent example demonstrating the likely future role of 
States in candidate species conservation is the CCAA obtained by the 
Montana Department of Fish, Wildlife and Parks in May 2004. The CCAA is 
an umbrella style agreement under which voluntary conservation 
activities will be implemented to benefit Westslope cutthroat trout. In 
conjunction with the CCAA, a permit has been issued for the future take 
of the species in conjunction with its recovery in Montana.
Issues of Concern
    1. Too many private landowners continue to distrust and fear any 
application of the ESA to their lands or activities. These private 
landowners may actively work to ensure that listed or candidate species 
are not attracted to their lands or that those species already present 
do not remain. At the very least, they may be unwilling or reluctant to 
undertake actions that would benefit listed or candidate species.
    2. The various landowner incentive programs now available (e.g., 
financial, regulatory) have not been sufficient to allay fears 
completely, build trust, and encourage landowners to conserve listed or 
candidate species.
    3. Conservation of listed species on private lands would be 
improved by greater involvement of State fish and wildlife agencies in 
carrying out the provisions of section 10 of the ESA concerning HCPs 
and enhancement of survival permits (SHAs and CCAAs).
    4. Implementation of the ESA would be improved by greater 
partnerships with State fish and wildlife agencies and Tribes in 
carrying out conservation efforts on private and other non-Federal 
lands.
Potential Solutions
            Administrative Options
    1. State and Federal land-management financial and technical 
assistance should be expanded to assist landowners who undertake 
actions that contribute to recovery, and Farm bill conservation 
programs should be targeted to support landowner actions contributing 
to recovery of listed species or conservation of species that are 
candidates for listing.
    2. State fish and wildlife agencies and the Services should 
establish mechanisms that make HCPs, SHAs, and CCAAs more accessible to 
small landowners.
    3. Through expanded use of section 6 agreements and other 
mechanisms, State fish and wildlife agencies should be allowed and 
encouraged to assume the lead for administration of SHA, CCAA, and HCP 
administration.

                              CONCLUSIONS

    The ESA has been successful in achieving its primary goal of 
preventing extinction, and the firm statutory duties and strong 
substantive standards imposed by the current law to prevent extinctions 
and recover species should be maintained. However, the effectiveness of 
threatened and endangered species conservation should be increased 
through improvements to the statute and its funding and implementation. 
Greater resources and effort need to be committed to the purposes of 
the ESA, particularly to the recovery of listed species. Federal 
spending in support of State programs over the history of the ESA has 
been extremely low and in decline relative to spending for Federal 
efforts. Support and encouragement of complementary State, Tribal, and 
private conservation efforts through funding, policies, and statutory 
provisions are essential to establish and maintain the partnerships 
that are required to prevent extinction and recover imperiled species. 
Existing State and Federal resources should be utilized more 
efficiently by amending the ESA to lower transaction costs in listing 
decisions and critical habitat designations. Federal decisionmakers 
should solicit and use the expertise of State fish and wildlife 
agencies and others in a consistent and open manner. Decisions under 
the ESA should be transparent, replicable, and based on robust 
scientific analyses of the best available information.
    Although the ESA provides clear direction to Federal agencies to 
work cooperatively with the States to administer the ESA to the 
``maximum extent practicable,'' States are not included as full 
partners by Federal agencies. Recent attempts by the USFWS to establish 
management and cooperative agreements with individual States have met 
with some success but the great majority of States have but minimal 
working relationships with the USFWS with respect to threatened or 
endangered species.
    Federal agencies should coordinate with State fish and wildlife 
agencies to address landscape conservation issues related to candidate, 
threatened, or endangered species. The increasing number of instances 
in which States have sought and obtained umbrella-style ESA section 10 
permits to effectively assume responsibility for minimizing and 
mitigating non-Federal incidental take activities and promoting non-
Federal habitat conservation are innovations that should receive 
greater support. In similar fashion, with adequate funding, the 
innovation of the AZGFD and USFWS agreement regarding State 
participation in administration of the ESA serves as a possible model 
for a new type of agreement. Revised, funded agreements could either 
augment or replace existing section 6(c) cooperative agreements with 
ones in which State and Federal roles are more clearly delineated and 
directed toward building a more effective partnership on behalf of 
imperiled species.
    Comprehensive State wildlife conservation strategies and the State 
wildlife grants are an excellent starting point for cooperative efforts 
and promise a new era of State involvement in conservation of at-risk 
species that will continue to shape and enlarge the role of States in 
administration of the ESA. At a minimum, the resulting increased 
ability of States to collect, synthesize, and easily retrieve data on 
species and their habitats will increasingly make them key sources of 
information and expertise in virtually every ESA decision. Increasingly 
common efforts by States to work together to address rangewide 
conservation of at-risk species, such as the efforts in behalf of 
black-tailed prairie dogs and greater sage-grouse, also portend far 
greater State roles in this arena in the future. However, if the 
Federal Government expects State agencies to work cooperatively on 
these efforts, the Federal Government must provide substantial funding 
for capacity development, operations, and maintenance at the Federal 
and, most particularly, State agency level.

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        Responses by Robert P. Davison to Additional Questions 
                          from Senator Chafee
    Question 1. In order to improve implementation of the ESA, you 
focus on the need to provide adequate and stable funding for section 6 
Cooperative Agreements with the States. Do you have a recommendation 
for where Congress should look to provide more funding for the section 
6 programs?
    Response. I don't have specific recommendations on sources of 
funding. Additional funding to States is needed to improve 
implementation of the ESA. If more effective endangered and threatened 
species conservation is a high priority for Congress, then funding 
State programs to carry out the ESA must be an equally high priority. I 
recognize that Congress has to determine how to allocate funds among 
the many, many worthwhile programs competing for limited funding. 
Whether that funding should come from other programs within the 
Departments of the Interior and Commerce or from other Federal 
agencies, I leave to Congress to resolve. The issue is important 
enough, however, that consideration should be given to allocating a 
percentage of increased total ESA funding to State wildlife agency 
programs in support of the Act.

    Question 2. The State of Arizona recently signed a Memorandum of 
Understanding with Region 2 of the U.S. Fish and Wildlife Service based 
on section 6 authority. Will the Arizona model be easily translatable 
to other states interested in developing MOU's with the Service?
    Response. As I understand it, the Arizona MOU is based on a model 
developed by the International Association of Fish and Wildlife 
Agencies. It reflects the particular abilities and needs of the Arizona 
Game and Fish Department and Region 2 of the U.S. Fish and Wildlife 
Service. I believe that the MOU is easily translatable. However, to my 
knowledge, no other State wildlife agency has entered into such a MOU 
with the Service. So, it would seem that other States either have not 
been interested in developing such an MOU or they have not found the 
model to be easily translatable. My sense is that the former 
explanation is the correct one, and that the lack of interest is due in 
large part to the absence of supporting Federal matching funds.

    Question 3. With regard to providing an increased role for State 
fish and wildlife agencies and Tribal governments in listing decisions, 
as well as activities that keep species from becoming candidates in the 
first place, how much of this could be accomplished through 
Administrative regulatory and policy changes rather than specifically 
making statutory changes to the ESA?
    Response. Much, if not all, of the measures to increase the role 
for State fish and wildlife agencies and Tribal governments in listing 
decisions and in efforts to keep species from becoming candidates for 
listing could and should be accomplished by regulatory and policy 
changes.
                                 ______
                                 
        Responses by Robert P. Davison to Additional Questions 
                         from Senator Jeffords

    Question 1. You have a long history of involvement with the 
Endangered Species Act, not only were you at the Department of the 
Interior in the Clinton administration, but also as a staff member of 
the Environment and Public Works Committee for Senator George Mitchell. 
What is your opinion of how section 6 was envisioned to be implemented? 
Was it expected to be funding for projects or for State programs?
    Response. I believe that section 6 has been implemented more 
narrowly than the Congress envisioned. State agency programs with 
authority for listed species within a State should be allowed to assume 
responsibility for enforcement of take prohibitions if the Secretary of 
the Interior or Commerce has determined that the State authority is as 
restrictive and comprehensive (e.g., includes incidental take due to 
habitat modification) as the ESA. In my judgment, section 6 was 
intended to fund development and implementation of such State programs 
for conservation of threatened and endangered species. As it evolved, 
however, section 6 instead became a tool to fund specific, federally 
approved State projects, much like the manner in which projects are 
approved and funded under the Federal Aid in Wildlife and Sport Fish 
Restoration Acts. In addition, Federal spending in support of State 
projects over the history of the ESA has been extremely low and in 
sharp decline relative to spending for Federal efforts.

    Question 2. In your discussion of Habitat Conservation Plans, you 
note that approximately 30 percent of all approved HCPs resulted from 
applications by local governments or State agencies or both, and you 
cite the Karner blue butterfly HCP in Wisconsin as a model of state-led 
management of listed species. What factors have driven the development 
of HCPs from the State level and how is the Wisconsin HCP monitored to 
ensure that gains are made towards recovery and de-listing?
    Response. It's my understanding that development of the Karner blue 
butterfly HCP was driven by a Wisconsin Department of Natural Resources 
(WDNR) desire to conserve this resident species and by an understanding 
that successful conservation of the species depended on the involvement 
of many public and private landowners. The State agency recognized, I 
believe, that it had the most thorough knowledge of the status of this 
resident species and its conservation needs. In addition, the entities 
supporting a conservation initiative for this species made a special 
point of expressing its desire to work with and through the WDNR, 
rather than the Fish and Wildlife Service. They expressed a lack of 
confidence and trust in Federal agencies in addressing endangered and 
threatened species issues, and wanted to work with a State agency.

    Question 3. How would administration of Habitat Conservation Plans, 
Safe Harbor Agreements and Candidate Conservation Agreements at the 
State-level help to encourage land owners to cooperate in the 
conservation of listed or candidate species?
    Response. State agency personnel often are more familiar to 
landowners and more trusted by them than Federal agency personnel. In 
addition, the State agency often is in a position to view the issues 
from both the perspective of the Federal agency and the landowner 
conservation partners. The State agency may be perceived by plan and 
agreement participants as more of a facilitator than regulator, which 
further encourages landowner cooperation. The State agency also can 
serve as a buffer between the Federal regulatory agency and the 
landowners or users engaged in the conservation plan. State-level 
administration of HCPs, Safe Harbor Agreements, and CCAAs can encourage 
landowner cooperation by minimizing transaction costs and bureaucratic 
burdens to the landowners. Finally, many of these plans and agreements 
require involvement, decisions, and actions by local governments, and 
State agencies have well-developed working and legal relationships with 
these governments that are important to successful conservation.
                               __________
        Statement of Bill Burnham, President, The Peregrine Fund

    The Peregrine Fund is among the most experienced nongovernmental 
organizations in hands-on restoration of endangered vertebrate species 
in the United States. Our group began working toward restoration of the 
peregrine falcon a few years before the enactment of the Endangered 
Species Act of 1973 (ESA) and has since played an important role in 
progress toward recovery of the endangered northern aplomado falcon, 
California condor, many endemic avian Hawaiian species, and several 
foreign species that are listed as endangered under the ESA, in 
particular the Mauritius kestrel and harpy eagle. We have also been 
involved in using section 10(j) experimental populations for releases 
of California condors in Arizona and Safe Harbor permits with the 
northern aplomado falcon restoration in Texas.
    We have cooperated with private citizens and organizations, 
particularly private landowners, at all levels of government including 
local communities and counties, 31 State wildlife agencies, Tribes, 
most Federal land management agencies, and the U.S. Fish and Wildlife 
Service (FWS). Given the breadth of our experience, we feel that we are 
well situated to comment on the ESA and enhancing the roles of states, 
Tribes, and local governments. We believe, however, for these comments 
to be understood and the most useful, they need to be placed within the 
context of our broader recommendations for the ESA. We begin by briefly 
reviewing the recovery programs in which The Peregrine Fund has 
participated.
    Peregrine Falcon.--The peregrine restoration effort was the largest 
species recovery program ever accomplished, extending throughout much 
of North America, lasting more than three decades, and even including 
collaboration with Europeans. The primary cause for the peregrine 
decline was DDT/DDE-induced eggshell thinning and reproductive failure 
(Cade et al. 1971). The use of DDT was banned in Canada in 1969 and in 
the United States in 1972 (Cade and Burnham 2003a). With the ban of DDT 
and the resultant decrease in environmental levels of the DDT-type 
compounds, where adequate populations of peregrines continued to exist 
numbers increased without assistance. Where the peregrine had been 
completely extirpated or greatly reduced (80-90 percent), release of 
captive-raised falcons re-established populations throughout most of 
its former range. The American peregrine falcon was removed from the 
endangered species list in 1999.
    The Peregrine Fund expended an estimated $13.4 million toward 
peregrine restoration with about half from public and half from private 
sources. At the height of the restoration effort we annually expended 
about $800,000.
    Why did Peregrine restoration succeed? First and foremost, the 
cause of decline of the species (DDT) was greatly reduced in the 
environment. Second, about 7,000 falcons were released to the wild 
where peregrine populations were extirpated or greatly reduced (Burnham 
and Cade 2003b). This was facilitated by widespread cooperation and 
support led by a core group of dedicated peregrine enthusiasts, mostly 
falconers, who possessed considerable knowledge about the species. 
Peregrine restoration was largely a privately led enterprise. Third, 
State wildlife departments and Federal land management agencies 
contributed importantly to the recovery program (Burnham and Cade 
2003a). Species restoration became local initiatives.
    Fourth, although restoration of the peregrine would have occurred 
even if the ESA had not existed, it is unlikely to have achieved the 
same level of success. The ESA provided a platform for cooperation, 
particularly among government agencies, and added a new source of 
funding, although much of it was consumed by government bureaucracy and 
not used for actual recovery implementation. The section 6 funding to 
the states may have been the most important financial aspect for 
overall recovery. An annual appropriation earmarked by Congress for The 
Peregrine Fund for a number of years was also very important and 
enhanced our level of participation (Cade 2003). Finally, despite the 
FWS having the authority for implementing the ESA, and a number of 
their biologists contributing importantly to the recovery program, as 
an agency the FWS had a limited role, and its law enforcement division, 
which was in charge of issuing permits as well as enforcing 
regulations, was regularly an obstacle to recovery actions (Burnham and 
Cade 2003b). Peregrine restoration could not just happen because of a 
Federal Government mandate.
    Northern Aplomado Falcon.--The FWS listed the northern aplomado 
falcon as endangered in 1986. The species had been lost from the United 
States as a breeding species by the early 1950s. It had previously 
occurred in the southwestern states of Texas, New Mexico, and Arizona. 
Although present in portions of southern Mexico, the aplomado falcon 
had declined throughout much of its range in northern Mexico. The 
disappearance of the aplomado falcon was likely the result of changing 
land management practices which reduced both the quantity and quality 
of the favored grassland habitat. The widespread use of DDT and other 
persistent pesticides may have prevented re-colonization. Improved land 
management and re-emergence of suitable habitat created a potential 
opportunity for species restoration.
    The Peregrine Fund began to experiment with captive breeding of 
this species in 1978 patterned after the successful peregrine 
propagation effort. In cooperation with the Mexican government, 25 
nestling aplomado falcons were collected from the wild and a captive-
breeding population was established. This program has produced 1,269 
young, of which 1,142 have been released to the wild (Jenny et al. 
2004). Following an experimental release project (1984-1989), a full-
scale restoration program began in 1990. The first breeding pair 
resulting from these releases was discovered in 1995, and in 2005 at 
least 44 territorial pairs had become established. Based on 
observations of unbanded birds and the difficulty of locating nests, 
many undiscovered pairs must exist. This new population is known to 
have successfully fledged more than 242 young. The recovery plan 
suggests that the aplomado falcon be downlisted to ``threatened'' 
status when 60 breeding pairs have been established (USFWS 1990). We 
are also monitoring and conducting research on small extant populations 
in Chihuahua, Mexico (Montoya et al. 1997).
    Safe Harbors have been critical to our success in Texas where more 
than 97 percent of the land is privately owned. This conservation tool 
represents the ``carrot,'' rather than the ``stick'' approach to 
species recovery. Most landowners value wildlife but are concerned 
about land-use restrictions that could arise as a result of the ESA. 
The Safe Harbor program for this falcon now includes 57 counties in 
Texas and has more than 1.8 million acres of habitat enrolled. It has 
provided access to suitable habitat for the recovery of the aplomado 
falcon while protecting landowners from restrictions associated with 
the ESA through an incidental take permit (Jenny 2003).
    The mechanics of a Safe Harbor are, however, difficult to explain 
to landowners, and agreements are primarily negotiated as a result of 
personal trust developed between the landowner and field personnel of 
The Peregrine Fund. Key to the success of this effort is that The 
Peregrine Fund, rather than the government, is the broker for these 
agreements.
    Efforts are also underway to establish an aplomado falcon 
restoration program in New Mexico and Arizona. Unlike Texas, these 
states have large areas of public lands on which the Safe Harbor cannot 
be legally applied. A proposal to allow for the establishment of a 
``nonessential experimental population'' designation (see explanation 
below) is being processed to facilitate development of a restoration 
program in those states. Both State wildlife agencies and the FWS 
support the concept, but some environmental groups oppose the proposed 
designation and are threatening litigation to stop its potential use. 
As an ESA-listed species, the falcon is seen by some as a convenient 
tool to restrict activities such as grazing, energy development, and 
recreation on public land through a ``critical habitat designation'' 
for the falcon.
    The Peregrine Fund has accomplished all aspects of this hands-on 
recovery, and our involvement has been 91 percent privately funded. We 
anticipate having raised and expended more than $9.8 million on this 
project through fiscal year 2005 with annual expenditures now over $1.2 
million. In addition, $700,000 of privately funded facilities have been 
constructed.
    Why is this program succeeding in Texas? First, the probable causes 
of the aplomado falcon's decline may no longer exist and suitable 
habitat is again present, e.g., a well managed cattle ranch provides 
excellent aplomado falcon habitat. Like the successful peregrine 
restoration, there has been almost universal cooperation. The program 
is largely a privately led endeavor implemented by a highly motivated 
and dedicated core group of people, the State wildlife agency is 
supportive, considerable private funding is being contributed, and 
private and public land managers are engaged. Lastly, the Safe Harbor 
program allows for the vital participation of private landowners by 
reducing concerns associated with the ESA. The recovery is a local, 
county by country, community by community, landowner by landowner, 
person to person project.
    California Condor.--Only 27 condors existed in 1987 when all wild 
condors were brought into captivity. In November 2003, the first 
successful reproduction occurred in the wild when condors released by 
The Peregrine Fund in Arizona bred and fledged a chick, the first 
California condor flying in nature untouched by human hands in over two 
decades.
    The probable causes for the condor decline were a reduced food base 
(loss of the large mammals during the Pleistocene compressing their 
range to the Pacific Coast from southern Canada to Baja California, 
Mexico), human persecution, probable DDT/DDE-caused eggshell thinning 
during the 1950s and 1960s, and lead poisoning (Kiff et al. 1979; 
Pattee et al. 1990). Lead poisoning remains an unresolved problem (Cade 
et al. 2004).
    At the request of the FWS and California Condor Recovery Team, The 
Peregrine Fund agreed in 1993 to develop a captive-breeding facility 
and a release program in northern Arizona. In August 2005, we hold 60 
condors (20 nestlings and 40 adults and subadults) in the captive flock 
and manage 65 condors in Arizona, of which 50 are free flying; two 
wild-hatched nestlings have not yet fledged and the remaining 13 are in 
holding facilities awaiting release. These birds represented 45 percent 
of the total world population.
    The release of condors in Arizona was made possible through use of 
section 10(j) of the ESA as a ``nonessential experimental population.'' 
This allows for the establishment of a population of a listed species 
with fewer ESA restrictions than would otherwise be imposed on land use 
and other human activities in the area. By using this exemption, and 
after the FWS signed an agreement saying the condors would be removed 
if the special status was changed, many of the fears expressed by the 
local communities and landowners were reduced. Meetings with The 
Peregrine Fund (see below) provided further assurances to the point 
communities agreed to support, or at least not to oppose, condor 
releases. Since then we have enjoyed excellent local government and 
private sector support and cooperation. Federal land management 
agencies, Tribes, State agencies, and other cooperators have developed 
a further agreement to further enhance cooperation.
    The Peregrine Fund's participation in the condor program is funded 
by a mixture of public and private funding. We anticipate expending 
$9.4 million (55 percent private donations) from fiscal year 1993 
through fiscal year 2005 with annual expenditures now exceeding $1.3 
million. There has also been $1.75 million in facility construction 
costs.
    Why is the program succeeding in Arizona? With the exception of 
mortality from ingesting animals shot with lead pellets and bullets, 
the natural environment in northern Arizona and southern Utah is well 
suited for condors (Cade et al. 2004). By using the 10(j) exemption 
within the ESA, the local people and communities are supportive, as are 
the Arizona and Utah State wildlife departments. The Arizona Game and 
Fish Department has even implemented a program where sportsmen drawing 
deer hunting permits for northern Arizona are offered, free of charge, 
non-lead ammunition by the department, which hunters are overwhelmingly 
accepting. Condor recovery is a local, highly cooperative project.
    Endangered Hawaiian Birds.--Hawaii has more threatened and 
endangered species than the total of the other states. The causes of 
decline of avian species and extinctions are attributed primarily to 
three factors--loss of habitat, introduced disease (malaria and pox) 
and their vectors, and introduced predators (rats, cats, and mongoose). 
At the request of the FWS, in 1993 The Peregrine Fund agreed to 
establish a release program for the endangered `alala or Hawaiian crow 
on the island of Hawaii. This followed litigation by environmental 
groups against the FWS and the landowner upon whose land the last wild 
crows persisted. The landowner kept people out, believing proposed 
government actions would result in the extinction of the crow. The 
legal settlement resulted in (1) the landowner allowing access to the 
property and (2) the implementation of a FWS-managed restoration 
program for the crow.
    Following the initial successful release in the wild of captive-
raised crows (Kuehler et al. 1994, 1995), FWS requested The Peregrine 
Fund assume a larger role in the recovery effort for endangered 
Hawaiian birds. Working with FWS, the State of Hawaii, the Hawaiian 
Congressional delegation, and others, Federal funding was secured, and 
we constructed a captive-breeding facility near Hawaii Volcanoes 
National Park on the Big Island, assumed management of and renovated a 
state-owned facility on Maui (Olinda), and began working with the other 
endangered Hawaiian birds. From 1993 to 2003, the program hatched and 
raised 518 chicks of 14 endemic taxa, eight of which are listed as 
endangered (Kuehler et al. 1996, 2001). Three endangered species have 
been released to the wild, totaling 97 individuals--60 puaiohi (Kuehler 
et al. 2000), 27 `alala (Kuehler et al. 1995), and 10 palila (Lieberman 
and Hayes 2004). Released individuals of the puaiohi are confirmed 
breeding in the wild (Tweed et al. 2003). We transferred the entire 
program (facilities, staff, etc.) to the Zoological Society of San 
Diego (ZSSD) after completing the construction and renovation of the 
propagation facilities, developing technology for management, breeding, 
and release of a host of species, and having developed a competent 
staff.
    The Peregrine Fund expended approximately $3.5 million for 
construction during its involvement, of which most were public funds. 
Annual operating expenses are now approximately $920,000 less overhead 
costs which are not charged by the ZSSD (pers. comm. Alan Lieberman).
    Despite continued successes at the captive-breeding facilities, 
many of the released Hawaiian crows have died. All of the released 
crows that survived have been brought back into captivity to protect 
the remaining genetic diversity. The continued survival of the last two 
known wild crows remains in doubt, and as a species the Hawaiian crow 
is possibly extinct in the wild. In 2004 the last known individual died 
of the po`ouli, a short-tailed, stocky ``creeper.'' That was the only 
known living individual of the entire genus of Melamprosops.
    Why has avian species restoration in Hawaii not experienced the 
success of the other programs? First and foremost, the reasons for 
decline and extinction of species have not been successfully reduced or 
eliminated. Captive flocks and breeding may prolong the existence of 
these species but do nothing for their preservation in nature. Although 
there has been some progress on several fronts (Division of Forestry 
and Wildlife 2004), not enough progress has been made in Hawaii to 
change significantly the long-term prognosis for most native Hawaiian 
avifauna. There must be a serious commitment to landscape-wide habitat 
management measures if success is to be achieved (Scott et al. 2002). 
Species can be saved and success is possible, but only with a 
commitment of effective action commensurate in scope and effort to the 
reasons for the declines and extinctions.
    Although there is interest in Hawaii to save species, cooperation 
and agreement among individuals and organizations as to what and how 
this should be done is generally insufficient to result in meaningful 
effective population-level actions. Litigation through the ESA, or at 
least its threat, is prevalent, and private landowners are reluctant to 
participate or even allow biologists access to their properties on the 
off-chance they may discover a threatened or endangered species. During 
our involvement certain FWS staff were combative to the point of 
discouraging participation and cooperation of others. The Federal 
Government, much more than the state, is responsible for species 
recovery projects, to include implementation.

                               DISCUSSION

    Most people agree with the importance of saving species from 
extinction. Problems arise in defining what that means and how to 
achieve that objective. This is particularly true when legal 
requirements for preserving threatened and endangered species are in 
conflict or competition with human needs and desires for resources. We 
have been fortunate in our ability to limit the conflict associated 
with our recovery efforts. An important reason is we work 
cooperatively, collaboratively, and locally to prevent extinction and 
restore viable wild populations for those species on which we are 
focused (Burnham 1997).
    Most endangered species depend significantly on habitats found on 
private lands; and some only occur on such lands (Bean and Wilcove 
1997). Hawaii (225 listed species) and Texas (70 listed species) have 
only 16 percent and 1 percent, respectively, of Federal land (Wilcove 
et al. 1996). Use of Safe Harbor and experimental non-essential 
population status reduce concerns of private landowners and users of 
Federal lands, thus making it easier to work on ESA-listed species. 
Creating private landowner incentives is critical to endangered species 
recovery in many cases (Brook et al. 2003). Although this can be 
implemented at State and local levels, the authority and funding must 
come from the Congress and Federal Government.
    The designation of critical habitat may be most useful and 
justified when it is applied to special, localized habitats that are 
critical to species survival, such as nest sites that limit the number 
of breeders (e.g., peregrine falcons) or springs that serve as the 
entire distribution area for a species (e.g., Bruneau hot springs 
snail). However, when it is applied to major habitat units on a wide 
scale encompassing millions of acres (e.g., old growth forest for the 
spotted owl or the proposed designation of major reaches of the 
Chihuahuan Desert in southern New Mexico for the largely non-existent 
aplomado falcon), then its use becomes questionable, even though 
protection of such large areas may be justified in a broader, more 
inclusive environmental context. Critical habitat conveys little 
additional protection to a listed species that is not covered under 
other provisions of the ESA. Considering the high costs involved in 
designating critical habitat and defending against lawsuits associated 
with it, the benefits of designating critical habitat for the 
conservation of listed species appear to be problematic, even 
unjustified.

                                LESSONS

    What can be learned from our experience about species restoration 
and the ESA? Of primary importance is that successful species 
restoration cannot occur unless the initial reasons for population 
declines and extinctions are significantly reduced or mitigated. For 
those species with which we have had experience, conservation actions 
under the ESA have NOT importantly affected the causes of population 
declines. Use of DDT was banned prior to the ESA of 1973 and the 
peregrine was otherwise already protected by State and Federal law. 
Before passage of the ESA, the California condor was protected against 
human persecution by the State of California and the Migratory Bird 
Treaty Act (MBTA); habitat protection was never an important issue, but 
no actions to reduce the presence of lead have been taken. Changes in 
ranching and land management practices allowing for possible aplomado 
falcon restoration in Texas occurred before the falcon was listed under 
the ESA. There have yet to be any measurable effects on the causes for 
declines and extinctions of endemic Hawaiian species resulting from the 
ESA. Therefore, the additional direct and indirect (habitat) protection 
provided by the ESA has not enhanced recovery of those species with 
which we have worked, although in Hawaii it may yet have a positive 
effect if the right corrective actions are taken to improve habitats at 
biologically significant scales (removal of exotic herbivores and 
predators).
    Has listing a species as endangered benefited restoration? For the 
peregrine it probably did by attracting attention, accelerating and 
enhancing its restoration, although the eventual recovery was likely to 
have occurred irrespective of the ESA (Burnham and Cade 2003a). Having 
the peregrine falcon listed as an endangered species increased support.
    The role of the ESA in the recovery of other species with which we 
have worked is less certain. Restoration actions for the California 
condor in Arizona and aplomado falcon in Texas are being accomplished 
using tools that essentially remove most protective restrictions 
imposed by the ESA. Without these tools it is unlikely that either 
program would have been possible--certainly not at the current level. 
The successful expansion of the aplomado falcon restoration program 
into New Mexico and Arizona will also be aided by the nonessential 
experimental population designation being applied there.
    In species restoration efforts in Hawaii, the ESA has facilitated 
the expansion of funding from the FWS to build facilities for the 
captive propagation, as well as transferring funds to the State via 
section 6 allocation, but it has done little to correct the root causes 
of species endangerment.
    Just the threat of listing can cause both benefits and problems for 
a species. Prior to the anticipated passage of the ESA in 1973, several 
private individuals took peregrines from the wild; they later became 
the foundation for the captive population and restoration program. 
People knew such taking would become impossible after the ESA was 
passed and the peregrine became listed (Burnham 2003). The threat of 
listing has caused State wildlife departments and Federal land 
management agencies to develop plans to address concerns and benefit 
species such as the greater sage-grouse. Even without the ESA and 
listing, however, people concerned about the peregrine and grouse would 
have worked for their conservation. On the negative side, it is common 
knowledge that the petition for listing the black-tailed prairie dog 
resulted in large-scale poisoning of their colonies by landowners who 
feared intrusion on their property by the FWS. Other examples included 
the Preble's meadow jumping mouse and red-cockaded woodpecker (Brook et 
al. 2003, Pickrell 2003). Brook et al. (2003) found that listing did 
not enhance the prospect of survival for listed species on private 
property.
    Once a species is listed, its delisting from the ESA is far more 
difficult, even when it no longer meets the criteria for ``threatened'' 
or ``endangered.'' So few species have been delisted as a result of the 
ESA that procedures are largely unfamiliar. To delist the Arctic 
peregrine from threatened status took about 3\1/2\ years from the 
publication of the delisting proposal to the final Federal Register 
notice. The American peregrine falcon delisting process required 4 
years and 3 months. First was a Federal Register notice considering 
delisting, then 3 years later a notice of the proposed delisting, and a 
year later the actual delisting (Burnham and Cade 2003b). Opposition to 
delisting of the American peregrine falcon occurred largely from 
organizations that commonly use litigation to further their 
environmental agenda and individuals who had made a career working on 
peregrine restoration. Still to be delisted is the bald eagle which has 
not met the ESA criteria for ``threatened'' or ``endangered'' for many 
years. Originally proposed by FWS for delisting over 10 years ago, 
action has been held up by those who are concerned about the adequacy 
of habitat protection after the eagle is removed from the list--a 
misapplied application of the ``precautionary principle.'' The Hawaiian 
Hawk is another example. In 1997 a FWS established panel of raptor 
experts reviewed the species' status and recommending delisting, but 
nothing has happened. The review was accomplished because of hawk 
predation on the truly endangered Hawaiian crow.
    Do recovery teams contribute to species restoration? Following 
enactment of the ESA four regional recovery teams were established for 
the peregrine falcon to write (and update) recovery plans and to advise 
the FWS. Although there were multiple recovery teams for the peregrine, 
they were of manageable size and were largely made up of peregrine 
experts and others appointed to expedite recovery within agencies. They 
advised only on strategic programmatic issues as requested by the FWS. 
In large part they did the jobs requested of them and their 
contributions facilitated restoration. They functioned under the 1974 
guidelines developed by the head of the FWS Office of Endangered 
Species, Keith Schreiner, ``What a recovery team is and is not--What a 
recovery team does and does not.''
    The FWS contracted to have a recovery plan written for the aplomado 
falcon (USFWS 1990) but no recovery team was created, nor was one 
needed. Effective coordination has been accomplished through regular 
communication among municipal, State, Federal, and private cooperators 
and most aplomado falcon experts are actively involved in recovery 
actions. Also, the recovery program is fairly straightforward.
    The function and composition of the California condor recovery team 
has changed over time from a small group of experts focusing on 
strategic issues to a large group of stakeholders attempting to micro 
manage restoration actions. The value of the team to implementation of 
restoration program diminished with those changes. In Hawaii, where the 
conservation issues are nearly overwhelming, recovery teams required 
over 10 years of discussion just to update and draft two recovery plan 
revisions (`alala and Hawaiian forest birds) that are still not 
finalized.
    A secondary, and many times more important level of organization 
than recovery teams, are what have come to be called ``working 
groups.'' Largely through the leadership of State wildlife departments, 
working groups were formed in many states to coordinate and expedite 
peregrine recovery actions (Burnham and Cade 2003b). These were largely 
informal groups of cooperators, usually within a single state, that 
gathered as needed to make plans to facilitate and help fund recovery 
actions. Participants were from State wildlife departments, who usually 
helped organize the meetings with The Peregrine Fund or other leading 
private organizations, Federal land agencies, and private property 
owners where peregrines were to be or were being released. These were 
congenial gatherings frequently followed by everyone adjourning to a 
local bar to have a few beers together. This arrangement still largely 
applies to the aplomado falcon. In the case of the California condor in 
Arizona, the working group was formalized by the FWS and went from a 
small group of cooperators to a large, formal, growing body of mostly 
agency people led by the FWS. As with the condor recovery team its 
function then transformed from program facilitation to micro-
management. Fortunately, recognizing the problem the FWS transferred 
leadership to the State wildlife agencies and a functional balance was 
restored.
    Recovery plans written for the peregrine by the teams comprised 
four different original documents and later a couple of updated 
revisions, one of which was never finalized before the falcon was 
delisted. The four documents varied in length and detail, as did their 
ultimate value to the recovery efforts (for more detail see Cade and 
Burnham 2003b). The recovery plan for the aplomado falcon, written by a 
single author, provides a good review of the falcon's biology and 
explicit suggestions for recovery along with criteria for downlisting. 
A recovery plan for the California condor program was first approved in 
1975 and revised, then re-approved in 1996. The revised California 
condor plan provides a list of potential recovery actions but was 
written prior to when condor releases began and is now outdated. There 
is no apparent value for revision.
    Who has been involved in species restoration programs? A currently 
popular term is ``stakeholder.'' We interpret this term to mean those 
individuals and organizations that have a stake in, or could be 
affected by, restoration actions. Although national and even 
international cooperation and coordination have been needed to 
implement restoration programs, working with stakeholders, including 
local people, landowners, and communities where actions are to occur, 
has been critical to the successful projects in which we have been 
involved. Species restoration programs require trust to succeed. Having 
the buy-in and trust of those people and communities was critical to 
implementation and the long-term success of the program. People often 
do not trust governments; they do tend to trust other people. Trust 
cannot be legislated; it only develops over time and through 
experiences with others.
    In Arizona, early opposition to California condor releases resulted 
largely from restrictions imposed on timber harvest and resultant job 
losses after petitions for listing the northern goshawk were filed, 
even though the goshawk was never listed. An early public hearing on 
the proposed condor release had uniformed, armed law enforcement 
officers present. After a private meeting between the Arizona governor 
and The Peregrine Fund, arranged by a supportive local rancher, and a 
final public meeting in which we stated we would not participate in 
this project without the support of the local communities, public trust 
developed, agreements were prepared and endorsed, and the project moved 
forward.
    Involvement of State wildlife agencies in species restoration has 
been important. Even if the states did not have hands-on roles, their 
involvement was important to facilitate and support recovery efforts. 
With the peregrine program the roles of states varied greatly, but, 
where a successful program existed, the State wildlife department was 
supportive and involved (Oakleaf and Craig 2003). This remains true for 
the current efforts with the aplomado falcon in Texas, the California 
condor in Arizona and California, and the forest birds in Hawaii.
    Successful restoration programs with which we have been involved 
have also enjoyed extensive participation by the private sector. The 
private sector had the leadership role in peregrine restoration, but 
State wildlife departments and Federal land management agencies were 
also integral. A similar situation exists for the aplomado falcon in 
Texas and California condor in Arizona. In Hawaii, in addition to the 
participation by ZSSD, leaders in restoration programs within the 
private sector have been The Nature Conservancy, Kamehameha Schools, 
the Silversword Foundation, and public-private partnerships such as the 
Olaa-Kilauea Partnership (pers. comm. Alan Lieberman).
    What biological knowledge and type of science is needed for 
recovery? Knowledge of species in jeopardy is very important, including 
information on basic biology and ecology and, in particular, knowing 
why populations have declined and what are the primary limiting factors 
(e.g., winter habitat, food during breeding, etc.). Fortunately for the 
peregrine falcon, before populations declined considerable knowledge 
existed about the species from research and publication and through 
centuries of its use in falconry. Further research was then 
accomplished documenting the level of population declines and trends 
and to determine the cause (Newton 2003). All of this information 
ultimately benefited recovery. Also accomplished, but at considerable 
expense and of no useful value for recovery, were habitat evaluations 
and other ``research,'' mostly funded by Federal land management 
agencies and many times accomplished by individuals with limited 
knowledge and experience about raptors in general and peregrines in 
particular. Resulting reports were rarely used or even opened by 
biologists accomplishing actual recovery actions. Much of this work 
consisted of due-diligence studies agencies believed necessary to 
comply with requirements of the ESA and the National Environmental 
Policy Act. Agencies also expended funds to accomplish surveys of 
peregrines in areas where they were known not to exist and in some 
cases never had existed. A similar situation has developed with 
aplomado falcon restoration in New Mexico. Prioritizing expenditure of 
the limited ESA funds for information gathering is very important but 
has often been done without careful consideration.
    Use of ``the best available science'' to guide species recovery is 
touted, but although the scientific method is pure, scientists, 
lawyers, other professionals are subjective humans. Common sense and 
honesty cannot be legislated, and one cannot remove personal opinions, 
bias, conflicts of interest, and agendas from endangered species 
issues. Particularly for scientists, the public values and appreciates 
honesty (including admitting errors), accuracy (stating clearly what is 
known and not known), and integrity (not allowing results to be 
misrepresented or used in an unprofessional manner) (Burnham and Cade 
1995). The need to keep objective, unbiased science, however relevant 
to societal problems, free from political alliances is critical 
(Brussard et al. 1994). Unfortunately many times this is not the case 
(White and Kiff 1998).
    How much funding is needed for species recovery? We provide 
approximate dollar amounts expended for U.S. restoration projects in 
which we have been involved. The amounts reflect only those aspects of 
a restoration program which we accomplished and not the total amount 
expended by all involved. For hands-on restoration in the United 
States, The Peregrine Fund probably expended over half of all moneys 
for the peregrine and nearly all spent so far for the aplomado falcon. 
Hands-on restoration programs are expensive and every effort should be 
made to prevent species from declining to a level requiring such action 
to cause recovery or to prevent extinction. Expense for recovery 
increases 10,000-fold when one moves from management where the species 
exists as part of functional ecosystem maintenance to highly focused 
hands-on restoration (Conway 1986).
    Hands-on restoration can also require long-term actions. 
Restoration of the peregrine took about three decades, aplomado falcon 
restoration will likely require two decades, California condor 
restoration may extend a half century or more, and Hawaiian bird 
restoration many not have an end point. Obtaining sufficiently long-
term funding for such projects is very difficult as the private sector 
and government both tire in their support of such projects.
    Annually the FWS expresses a need for additional dollars for 
endangered species, and most years the Congress responds favorably, 
although they are criticized by many environmental organizations for 
not doing enough. Annual appropriations have never approached the 
limits authorized by Congress, in particular endangered species funding 
has to compete with other overall budgets set by the Office of 
Management and Budget. Increases provided to the FWS do not necessarily 
mean more dollars for actual recovery actions, as developing and 
maintaining the bureaucracy for implementing the complex regulations 
associated with the ESA are expensive. Although public funds are 
critical and appropriate for species recovery programs, we believe that 
programs in which individuals and private organizations are willing to 
assist financially, demonstrating their support, are more likely to 
succeed than if they are supported only by government funding. Dollars 
contributed in support of restoration actions for a species reflect the 
buy-in and commitment of the public, and even the nation. Obviously, 
some species are more appealing than others and less difficult for 
which to find support, but it should be possible to develop a 
constituency for most species with enhanced private sector goodwill and 
involvement.
    How does permitting action affect species recovery? The ESA and its 
implementing regulations are extensive and complex, especially in 
regard to ESA permits (Burnham and Cade 1995). Permits and the 
permitting process have discouraged species conservation actions and 
hindered research and recovery actions. Although the FWS is trying to 
simplify the permitting process, the existing regulations and other 
related acts (MBTA, Wild Bird Conservation Act, etc.) limit what can be 
accomplished without legislative changes.

                             RECOMMENDATION

    Although the actual changes to the ESA over the years have been 
few, through litigation, regulation, and the attitude of some FWS 
staff, it has evolved from having the appearance of an incentive-based 
to a punitive-based law. In recent years, there has been an attempt to 
change the appearance to one of incentive by development of the 10(j) 
and Safe Harbor programs, although their effectiveness is diminished 
through increased bureaucratic complexities being imposed by FWS staff 
(Bean et al. 2001). Reversing this trend through simplification and 
modification of associated regulations, if not changing the ESA itself, 
is necessary. The attitude and approach of FWS staff, by and large, 
must also change.
    We provide the following specific recommendations relative to the 
ESA. With each, as appropriate, we provide specific reference to 
applicability for involvement of state, Tribes, and local governments. 
Our general overriding recommendation is refocusing the act on 
incentives versus punitive actions related to endangered species 
conservation and restoration. This should be emphasized in relation to 
private property, State authority, and to greatly reduced litigation.
    Listing and Delisting Species Under the ESA.--Petitions for listing 
should only be accepted from established experts on the species under 
consideration. The emphasis by the FWS has been on listing species 
under the ESA. Although we understand the importance of listing species 
that are truly in jeopardy, delisting should also be a priority, even 
if for no other reason than proof of results and success; but 
delistings are often held up for a variety of reasons. The bald eagle 
and Hawaiian hawk are examples (see above). It would be better to 
transfer all ESA decision making about species status, listing, and 
delisting to an independent panel of experts on each species, appointed 
by the National Research Council of the National Academy of Sciences 
(see Cade 1998). This is not an authority that should be transferred to 
states, Tribes, or local communities although their comment and 
recommendations would be appropriate based on individual and collective 
factual knowledge and information.
    Recovery Teams.--Recovery teams should NOT be implementing bodies 
for species recovery, and members should understand they serve at the 
pleasure of the FWS and are only advisory. Teams should be comprised of 
a small group of biologists, no more than seven to nine individuals 
selected on the basis of their scientific understanding of the species 
and its threats. State, tribal, and community biologists should be 
included only if they are experts. When individuals are included to 
represent agencies, etc., all organizations (particularly governmental) 
wish representation on the team, resulting in very large teams that 
become inefficient, expensive, and difficult to manage. Teams should 
not be led by or have FWS participation unless a FWS staff person 
happens to be a leading expert on the species. When FWS staff are 
placed in leadership roles with recovery teams they can attempt to 
dictate policy and make unilateral decisions, circumventing the team's 
value and purpose. FWS staff affiliation with teams should be only for 
facilitation of team activities.
    Recovery team membership should be carefully screened to avoid 
conflicts of interest. This precaution is especially important when 
recovery team recommendations could result in the awarding of contracts 
to recovery team members or their organizations. Also, teams should 
have the choice to meet privately (without FWS) or to invite others, 
including the general public, to meetings. If all meetings are public, 
however, meaningful discussion by team members can be impaired. The 
primary function of a recovery team is to write a recovery plan and 
submit it to the FWS for approval. After that it may be disbanded, or 
at the discretion of FWS it may continue to serve in an advisory 
capacity, annually reviewing overall strategic issues.
    Recovery Plans.--The recovery planning process has the greatest 
value when there has been limited consideration for a species' 
recovery. The process tends to help organize thoughts and actions and 
set goals. The actual plan, we believe, should be brief--only a few 
pages stating the problem and providing general recommendations and 
direction to reach stated recovery goals for downlisting and delisting. 
Long detailed documents requiring years to write with a long approval 
process usually result in plans that are outdated even before they are 
finished and of limited value (Burnham and Cade 2003b). Shorter plans 
help simplify revision and updating based on new and better information 
as recovery programs progress. They are also easier to understand. 
Plans should not be detailed budgetary documents with dollar amounts, 
as their projections may be unrealistic, and no one active in the 
recovery pays any attention to them.
    Implementation Agreement.--We recommend that after the above-
described species recovery plan is developed by the biological experts 
of the recovery team, stakeholders should meet and discuss the 
implementation for a species' recovery. This provides an excellent 
opportunity to include and engage states, Tribes, and local 
communities. Public meetings should occur much as they do for 
implementation of a ``nonessential experimental population'' and Safe 
Harbor. It should be at this level that input, needs, recommendations, 
and involvement of stakeholders occur. From these discussions an 
implementation agreement can be developed between the FWS, local 
communities, and other interested parties, much as habitat conservation 
plans are accomplished. These meetings and the agreement should result 
in stakeholder buy-in. Although total agreement among all involved may 
not be possible, if people know where they stand and what is to happen 
the potential for collaboration is much more likely. For both the 
California condor releases in Arizona and aplomado falcon restoration 
in Texas, agreements were developed for implementation of recovery 
actions as part of the 10(j) and Safe Harbor. By allowing the 
biological experts (recovery team) and the recovery plan to focus on 
what is necessary for species recovery and not to become entangled in 
the desires, political interests, etc., of stakeholders, a better plan 
would result and a more functional recovery team would exist to advise 
on strategic biological recovery issues. Working groups should then 
help facilitate recovery implementation, to be accomplished by the most 
qualified and appropriate individuals and organizations.
    Working Groups.--The working group is a useful organization to 
facilitate recovery if participants are limited to those actually 
contributing to the restoration effort. Working groups function best 
when led by the organizations/individuals actually accomplishing most 
of the recovery action and in cooperation with appropriate State 
wildlife agencies. FWS leadership is unnecessary unless its staff are 
actually involved in the restoration project. For many projects, tribal 
and local community participation may also be appropriate.
    Federal Agencies.--The role of the FWS should strictly be oversight 
and facilitation, not implementation of restoration projects/programs. 
The attitude of FWS administrators should change from that of ESA 
enforcers to endangered species recovery facilitators. They should try 
to find ways to make species recovery possible rather than using the 
ESA as a vehicle to control actions of other agencies and the private 
sector. Land-holding agencies should be primarily engaged in support of 
recovery implementation. The ESA states that all departments and 
agencies should use their authorization in furtherance of the ESA.
    States.--State governments and wildlife agencies should be given an 
increased responsibility for ESA species recovery implementation. In 
the long term, much of what the FWS is attempting to accomplish should 
be transferred to qualified State agencies, along with related funding. 
Conservation of endangered species needs to become a local desire and 
project. Local people are more likely to trust State wildlife agencies 
and governments which are usually more readily accessible and sensitive 
to their concerns than the Federal Government. States better understand 
local situations and are more likely to work locally and to cooperate 
with the private sector.
    Restoration Implementation.--Actual implementation of recovery 
actions should be accomplished by those best qualified in the private 
sector, State wildlife agencies, and Federal agencies. Depending upon 
the needed actions, Tribes and even local community participation may 
be appropriate. As much as possible, private landowners should also be 
included and compensated for their participation in actual recovery 
efforts.
    Research and Recovery.--Having the best possible information is 
important to guide recovery actions for species, but research should 
not usurp or be perceived as recovery action. The primary value of 
research is to (1) define the reason(s) for the species' decline, (2) 
determine the factors limiting populations, and (3) help support and 
guide restoration, as appropriate. A part of recovery should be to 
monitor recovering populations to help evaluate the success or failure 
of restoration actions. Monitoring should primarily be focused on the 
actual species, not habitat or other factors. Federal land management 
agencies should carefully evaluate use of ESA funding and support 
actual recovery actions first and research secondarily. Research should 
be left to those whose function is research.
    Regulations and Permitting.--Regulations related to the ESA are 
extensive and complex and overlap with those for other laws and 
treaties. This is especially true for permitting (Burnham and Cade 
1995). Regulations should be reduced, streamlined, and simplified. 
Included in this should be removal of all extra-limital species from 
the ESA. A comprehensive permit (inclusive of all applicable laws) for 
qualified organizations should be developed eliminating the need for 
multiple permits, applications, and reports. Individuals outside of 
government should be engaged to help find solutions and promote change. 
Every effort should be made to increase the flexibility, efficiency, 
and effectiveness of the ESA.
    Funding.--Future increases in ESA funding appropriated for the FWS 
and other Federal agencies should be focused primarily on 
implementation of recovery actions and be designated to qualified State 
wildlife agencies and for private sector initiatives. An audit of how 
current funding has been and is being used by the FWS and other Federal 
Government agencies should be accomplished as a first step to find ways 
to reduce bureaucracy and move more dollars to accomplish effective 
action for species restoration.
    Biome Conservation.--Unless the ESA is modified or until the nation 
has a law focused on habitat and biome conservation, endangered species 
will continue to suffer from lack of private sector, land owner 
support, resulting from conflicts over designation of ``critical 
habitat,'' ``take,'' and other punitive measures, and litigation will 
continue to stymie recovery and consume dollars critically needed for 
recovery actions. The Administration and Congress should consider 
passage of a new law dealing with habitat and biome conservation. A 
first step would be to inventory all public lands, non-profit 
conservation holdings, and private land with conservation easements to 
determine the potential to conserve the various ecoregions and 
associated species. Key to this inventory would be use of Gap Analysis 
where habitats and the known and potential distribution of species are 
mapped (Scott et al. 1988).
    To achieve ecoregion conservation and management we must realize 
that although sustainable multiple use of public lands is possible, it 
is frequently not practical in situations where economic uses conflict 
with non-consumptive uses. Identifying a priority use or uses is 
important. It is unrealistic to think that one area of land can be 
managed to benefit equally every potential use or user. Some land is 
better suited for livestock grazing or more important for mineral 
development, while other areas may be most important for the winter 
range of deer or elk. Activities do not necessarily have to be mutually 
exclusive, but prioritization is needed most of the time. A law focused 
on ecoregion conservation and management where habitat debate and 
resolution could occur would make it possible to re-focus the ESA on 
endangered species, which was its original intent.
    ESA.--Consideration should be given to altering and to creating 
objective definitions for ``endangered'' species to emphasize their 
level of jeopardy and urgency (Cade 1998). Many species listed as 
endangered or threatened have different levels of threat and need for 
immediate action to prevent extinctions. The ``threatened'' category is 
too vaguely defined and should be eliminated.
    The Safe Harbor is not specifically permitted by the ESA now; it is 
a concept of policy largely based on the 10(j). The Safe Harbor should 
be included as an integral part of the ESA and the 10(j) should be 
amplified and clarified by including the ``open-minded'' Safe Harbor 
concept for application in a mixed land status of Federal, State, 
tribal, and private properties. Section 10(j) rules may be too rigid to 
really engender cooperation by private, tribal, community, and even 
some Federal (Department of Defense) landowners for restoration 
projects.
    The overlapping meanings and functions of ``harm'' and ``critical 
habitat'' need to be reexamined. Presently the definition for ``take'' 
varies among FWS offices. At one office an endangered species permit is 
required to conduct even a ``hands off'' survey for aplomado falcons. 
We recommend that the definition and provision of ``critical habitat'' 
established by the 1978 Congressional amendment be rescinded and that 
the definition of ``take'' and ``harm'' be suitably modified to 
encompass all needs for protection of essential habitat of listed 
species. Where essential habitat needs protection on private lands, 
owners should be compensated through a system of purchase, leasing, 
easements, or other economic incentives.
    The ESA addresses cooperation between the Federal Government and 
the states. It would be a better law if it included local communities, 
conservation and research organizations, universities, and private 
landowners as cooperators. We believe the ultimate success or failure 
for conservation of all species will not be dictated or accomplished by 
government alone. The participation of State governments and local 
communities are critical. Opportunities for Tribes may exist depending 
upon species range. Private sector involvement, commitment, 
cooperation, and leadership are crucial and will ultimately determine 
the success or failure of saving many endangered species (Burnham and 
Cade 2003b).

                            LITERATURE CITED

    Bean, M.J., J.P. Jenny, and B. van Eerden. 2001. Safe Harbor 
agreements: carving out a new role for NGOs. Conser. Biol. in Prac. 
2(2):9-16.
    Bean, M.J. and D.S. Wilcove. 1997. The private-land problem. Cons. 
Biol. 11:1-2.
    Brook, A., M. Zint, and R.D. Young. 2003. Landowners' responses to 
an Endangered Species Act listing and implications for encouraging 
conservation. Cons. Biol. 17:1638-1649.
    Brussard, P.F., D.D. Murphy, and C.R. Tracy. 1994. Cattle and 
conservation biology--another view. Conserv. Biol. 8:919-921.
    Burnham, W.A. 1997. A fascination with falcons. Hancock House, 
Blaine, WA.
    Burnham, W. 2003. Peregrine falcon restoration in the Rocky 
Mountains/Northwest. Pages 127-154 in Return of the peregrine, a North 
American saga of tenacity and teamwork (T. J. Cade and W. Burnham, 
Eds). The Peregrine Fund, Boise, ID.
    Burnham, W.A. and T.J. Cade. 1995. Raptor populations: the basis 
for their management. Transactions of the 60th North American Wildlife 
and Natural Resources Conference. 60:115-130.
    Burnham, W. and T.J. Cade. 2003a. Conclusions. Pages 261-278 in 
Return of the peregrine, a North American saga of tenacity and 
teamwork. (T.J. Cade and W. Burnham, Eds). The Peregrine Fund, Boise, 
ID.
    Burnham, W. and T.J. Cade. 2003b. The Endangered Species Act, the 
U.S. Fish and Wildlife Service, and peregrine falcon restoration. Pages 
261-278 in Return of the peregrine, a North American saga of tenacity 
and teamwork (T.J. Cade and W. Burnham, Eds). The Peregrine Fund, 
Boise, ID.
    Cade, T.J. 1998. Delisting the peregrine falcon: management and 
mismanagement under the Endangered Species Act. Trans. 63rd North Amer. 
Wildl. And Natur. Resourc. Conf. 63:475-485.
    Cade, T.J. 2003. Starting The Peregrine Fund at Cornell University 
and eastern reintroduction. Pages 73-104 in Return of the peregrine, a 
North American saga of tenacity and teamwork (T.J. Cade and W. Burnham, 
Eds). The Peregrine Fund, Boise, ID.
    Cade, T.J. and W. Burnham. 2003a. Introduction: the Madison 
Peregrine Conference and the struggle to ban DDT. Pages 13-22 in Return 
of the peregrine, a North American saga of tenacity and teamwork. (T.J. 
Cade and W. Burnham, Eds). The Peregrine Fund, Boise, ID.
    Cade, T.J. and W. Burnham, eds. 2003b. Return of the peregrine, a 
North American saga of tenacity and teamwork. The Peregrine Fund, 
Boise, ID.
    Cade, T.J., J.L. Lincer, C.M. White, D.G. Roseneau, and L.G. 
Swartz. 1971. DDE residues and eggshell changes in Alaska falcons and 
hawks. Science. 172:955-957.
    Cade, T.J., S.A.H. Osborn, W.R. Hunt, and C.P. Woods. 2004. 
Commentary on released California condors in Arizona. Pp--in Worldwide 
Raptors edited by R.D. Chancellor & B.U. Meyburg (eds.), Proceedings 
Conference VI of the World Working Group on Birds of Prey and Owls, 
Budapest, Hungary, May 2003.
    Conway, W. 1986. The practical difficulties and financial 
implications of endangered species breeding programs. Intl. Zoo 
Yearbook. 24/25:210-219.
    Division of Forestry and Wildlife, 2004. Draft implementation plans 
for `akiapola`au, puaiohi, poouli, Oahu `elepaio, Maui parrotbill. 
http://www.dofaw.net/fbrp/projects.php?id=00060.
    Jenny, J.P. 2003. Turning away from extinction. Privatization 
Watch. 319:4-5.
    Jenny, J.P., W. Heinrich, A. Montoya, B. Mutch, C. Sandfort, and G. 
Hunt. 2004. Progress in restoring the aplomado falcon to southern 
Texas. Wildl. Soc. Bull. 32(1):276-285.
    Kiff, L.F., D.B. Peakall, and S.R. Wilbur. 1979. Recent changes in 
California condor eggshells. Condor. 81:166-172.
    Kuehler, C., M. Kuhn, B. McIlraith, and G. Campbell. 1994. 
Artificial incubation and hand-rearing of `alala (Corvus hawaiiensis) 
eggs removed from the wild. Zoo Biology. 13:3.
    Kuehler, C., P. Harrity, A. Lieberman, and M. Kuhn. 1995 
Reintroduction of hand-reared `alala (Corvus hawaiiensis) in Hawaii. 
Oryx. 29(4):261-255.
    Kuehler, C., M. Kuhn, J. Kuhn, A. Lieberman, N. Harvey, and B. 
Rideout. 1996. Artificial incubation, hand-rearing, behavior and 
release of common amakihi (Hemignathus virens virens): Surrogate 
research for restoration of endangered Hawaiian forest birds. Zoo 
Biology. 15:541-553.
    Kuehler, C., A. Lieberman, P. Oesterle, T. Powers, M. Kuhn, J. 
Kuhn, J.Y. Nelson, T. Snetsinger, C. Herrman, P. Harrity, E. Tweed, S. 
Fancy, B. Woodworth, and T. Telfer. 2000. Development of restoration 
techniques for Hawaiian thrushes: collection of wild eggs, artificial 
incubation, hand-rearing, captive-breeding and reintroduction to the 
wild. Zoo Biology. 19:263-277.
    Kuehler, C., A. Lieberman, P. Harrity, M. Kuhn, J. Kuhn, B. 
McIlraith, and J. Turner. 2001. Restoration techniques for Hawaiian 
forest birds: collection of eggs, artificial incubation and hand-
rearing of chicks, and release to the wild. Studies in Avian Biology. 
22:354-358.
    Lieberman, A. and B. Hayes. 2004. The palila: honeycreeper of 
Hawaiian highlands. Zoonooz. 77(6):16-19.
    Montoya, A.B., P.J. Zwank, and M. Cardenas. 1997. Breeding biology 
of aplomado falcons in desert grasslands of Chihuahua, Mexico. J. Field 
Ornith. 68:135-143.
    Newton, I. 2003. The contribution of Peregrine research and 
restoration to a better understanding of peregrines and other raptors. 
Pages 335-348 in Return of the peregrine, a North American saga of 
tenacity and teamwork (T.J. Cade and W. Burnham, Eds). The Peregrine 
Fund, Boise, ID.
    Oakleaf, R. and G.R. Craig. 2003. Peregrine falcon restoration from 
a State biologist's perspective. Pages 297-312 in Return of the 
peregrine, a North American saga of tenacity and teamwork (T.J. Cade 
and W. Burnham, Eds). The Peregrine Fund, Boise, ID.
    Pattee, O.H., P.H. Bloom, J.M. Scott, and M.R. Smith. 1990. Lead 
hazards within the range of the California condor. Condor. 1990. 
92:931-937.
    Pickrell, J. 2003. Are U.S. landowners killing rare species to 
avoid regulation? Natl. Geo. News. http://news.nationalgeopgraphic.com/
news/2003/12/1224--031229--jumpingmouse.html.
    Scott, J.M., B. Csuti, J.D. Jacobi, and J.E. Estes. 1988. Species 
richness: a geographic approach to protecting future biological 
diversity. Bioscience 37:782-788.
    Scott, J.M., S. Conant, and C. van Riper. 2002. Evolutions, 
ecology, conservation, and management of Hawaiian birds: a vanishing 
avifauna. Studies in Avian Biology No. 22. Cooper Ornithological 
Society.
    Tweed, E.J., J.T. Foster, B.L. Woodworth, P. Oesterle, C. Kuehler, 
A.A. Lieberman, A.T. Powers, K. Whitaker, W.B. Monacan, J. Kellerman, 
and T. Telfer. 2003. Survival, dispersal and home-range establishment 
of reintroduced captive-bred puaiohi, Myadestes palmeri. Biol. Cons. 
111: 1-9.
    U.S. Fish and Wildlife Service. 1990. Northern aplomado falcon 
recovery plan. U.S. Fish and Wildlife Service. Albuquerque, New Mexico.
    White, C.M. and L.F. Kiff. 1998. Language use and misapplied, 
selective science; their roles in swaying public opinion and policy as 
shown with two North American raptors. Pages 547-560 in Holarctic birds 
of prey (R.D. Chancellor, B.U. Meyburg, and J.J. Ferreo, Eds), World 
Working Group on Birds of Prey and Owls, Berlin.
    Wilcove, D.S., M.J. Bean, R. Bonnie, and M. McMillan. 1996. 
Rebuilding the ark: toward a more effective Endangered Species Act for 
private land. Environmental Defense Fund, Washington, D.C.
                                 ______
                                 
 Responses by Bill Burnham to Additional Questions from Senator Chafee

    Question 1. What are the benefits of establishing a nonessential 
experimental population for species such as the aplomado falcon and the 
peregrine?
    Response. The benefit of establishing a nonessential experimental 
(NEP) population designation for a species as allowed by section 10(j) 
of the ESA is species recovery can occur where otherwise it would be 
extremely difficult. Most of the ESA is designed to prevent harm; 10(j) 
is one of the few provisions intended to promote benefits. With a 10(j) 
the restrictions imposed by the ESA are removed, such as designating 
critical habitat, section 7 consultations, etc. By removing the 
restrictions the private sector (including landowners), local 
communities, State governments, and even Federal land management 
agencies are far more supportive of species recovery actions. In short, 
by removing the additional protection offered by the ESA for a species, 
recovery actions can occur. A further benefit from an NEP designation 
is added flexibility for recovery actions and species management. The 
10(j) authorizes custom regulations composed specifically to restore 
the population.
    California Condor.--The Peregrine Fund worked with the USFWS and 
State of Arizona to establish an NEP designation for the California 
condor releases/recovery in northern Arizona. Without this special 
status the support would not have existed to allow for introduction of 
condors. The restoration program is by far the most successful for this 
species and offers the best chance of establishing a large self-
sustaining wild condor population.
    Aplomado Falcon.--The Peregrine Fund is working with the USFWS and 
the states of New Mexico and Arizona to establish an NEP designation 
for this species throughout New Mexico and Arizona. Public hearings 
occurred last week and a decision should be reached by the USFWS in the 
next few weeks. Supporting the designation are States, Federal land 
management agencies, the Department of Defense, agro-business 
organizations, private landowners, and many more. Against the 
designation are those groups who wish to use the endangered aplomado 
falcon to stop energy development, grazing, and other activities, 
particularly on public land. Without the NEP designation it is very 
unlikely recovery and delisting of the aplomado falcon will occur in 
our lifetime or our even that of our children.
    Peregrine Falcon.--Although the peregrine falcon would have been a 
suitable species to have been designated an NEP throughout much of its 
range, particularly the Eastern United States, it was unnecessary for 
restoration to occur because it was largely accomplished prior to the 
spotted owl/old growth forest controversy and litigation. Peregrine 
recovery was a highly cooperative endeavor where all involved worked 
toward a mutually agreed upon objective--recovery and delisting.

    Question 2a. In order to recover the peregrine falcon, four 
regional recovery teams were established to develop and update a 
recovery plan and advise the U.S. Fish and Wildlife Service. In your 
opinion, are recovery teams an integral part of restoring species?
    Response. The value of a recovery team to species recovery depends 
upon (1) the cause for jeopardy of the species, (2) the species' 
biological needs, (3) needed actions/guidance, if any, to cause a 
recovery, (4) the team's direction from USFWS, composition, size, and 
leadership, and (5) whether the USFWS pays any attention to the team's 
recommendations and if there is follow-up.
    For the peregrine, the recovery teams were formed to write recovery 
plans and otherwise advise the USFWS as requested and each functioned 
somewhat differently and only once met as a group. The team for the 
Eastern United States annually met until the species was delisted, 
while the Rocky Mountain Northwestern team wrote a long, detailed plan 
(which was outdated before it was approved), then seldom met again.
    Every endangered species does not need a recovery team to write a 
plan or advise the USFWS. For example, the USFWS contracted with a 
single individual to write a recovery plan for the aplomado falcon. The 
plan was then reviewed by others and eventually approved. No recovery 
team was ever formed or has one been needed. The species' recovery is 
progressing well without a team.
    Toward the other extreme, and as presented in my written testimony, 
in Hawaii, to merely update the recovery plans for the Hawaiian crow 
and endangered Hawaiian forest birds it has taken the two different 
recovery teams over 10 years and as far as I know the plans are still 
not approved and under review. In the meantime, the Hawaiian crow has 
become extinct in the wild (although a captive population remains) and 
the last known individual of one species/genus of forest birds, the 
Po`ouli, has died and most likely the species/genus is now extinct. 
What value have the teams or plans so far provided?
    A further example is the endangered `Io or Hawaiian hawk. In 1997 
the USFWS appointed an `Io Working Group to review the status of that 
species. In their report they recommended the USFWS immediately delist 
the species. A year later, out of frustration one of the team members 
wrote, ``The leadership in FWS should read the report and act to delist 
the bird without delay. More studies and more meetings will not change 
things--someone will have to take the responsibility to see the hawk 
gets delisted.'' Still today the Hawaiian hawk remains on the list of 
endangered species. Of what value was this team if their 
recommendations were ignored?

    Question 2b. What would an ideal recovery team look like?
    Response. A recovery team should be comprised of fewer than ten 
biologists and selected on their scientific understanding of the 
species and its threats. They should NOT be implementing bodies for 
recovery and the members should clearly understand their role. Unless a 
USFWS employee happens to be an expert he or she should not be a team 
member and should function only to facilitate the team's activities and 
may be excluded from meetings, depending upon the team's desires. The 
recovery team is NOT the body or place for input and representation of 
stakeholders. Stakeholders' participation should occur as part of a 
separate implementation agreement process I recommended in my written 
testimony (Implementation Agreement). Such agreements are already being 
developed in association with Safe Harbors and nonessential 
experimental populations. The recovery team should develop a brief, 
few-page long plan stating the problem and providing general 
recommendations and direction to reach stated recovery goals for 
downlisting and delisting. Long detailed recovery plans benefit no one 
or the species about which they are written.

    Question 3a. We have heard a great deal about the importance of a 
robust scientific process and peer review for threatened and endangered 
species conservation. What has the role of science been in the recovery 
efforts for the peregrine falcon and other bird species of focus for 
your organization?
    Response. It is difficult to know what people mean when they speak 
of science related to species recovery, and the definitions may 
considerably vary. As someone trained in the use of the scientific 
method, research, scientific writing and publishing, etc., my 
interpretation may be much different from other people who have a 
different background. Equally, when peer review is mentioned I think of 
scientists at similar levels of education, accomplishment, and 
knowledge commenting on a subject as might occur when a legal question 
is referred to several judges of equal rank. In other words, not all 
individuals with a background in science are equal when it comes to 
providing review and comment. Also, opinions of scientists, like other 
professionals and non-professionals, can vary greatly. Only the 
scientific method is pure. The best chance of obtaining a non-biased 
scientific opinion is if an organization like the National Research 
Council of the National Academy of Science appoints an independent 
panel of experts to provide a review and offer an opinion. I have 
witnessed the USFWS staff choose a panel of peer reviewers with known 
uniform biases toward a particular issue/question. I cannot say whether 
it was by chance or intentional.
    The use of the scientific method and comment and discussion among 
scientific peers was employed throughout the peregrine falcon recovery 
program. Prior to the existence of the ESA of 1973 scientific research 
was accomplished to determine the cause for the species' decline in 
North America and Europe. A National Science Foundation grant then 
helped begin the research to determine how to propagate peregrines. 
Various issues related to the recovery, e.g., subspecies use for 
restoration in the Eastern United States, were debated among and 
commented on by scientists (see Return of the Peregrine, a North 
American Saga of Tenacity and Teamwork, 2003). Throughout the life of 
the recovery program many advanced degrees were obtained focusing on 
different aspects of the recovery, and probably hundreds of technical 
papers were published. Still today, even after delisting of the species 
has occurred, review and comment by scientists help guide decisions 
being made by the USFWS related to peregrines.
    Scientific research is also integral to both the aplomado falcon 
and California condor restoration projects in which we are involved. We 
use a scientific approach to monitor the established wild population 
and to help guide recovery actions. Certainly some recovery processes 
and procedures are based on trial and error but even for those the 
information gained is evaluated using a scientific approach and most 
results are regularly published in peer-reviewed journals.

    Question 3b. Have models and other non-empirical data been used to 
determine future ranges and appropriate habitat types for these 
species?
    Response. During the peregrine recovery probably millions of 
dollars were spent, by land management agencies in particular, to study 
habitat in the absence of peregrines. Similar studies have been 
conducted associated with the aplomado falcon recovery. Based on our 
experience, the information from these studies were seldom, if ever, 
used and provided no obvious value and certainly nowhere near what they 
cost to accomplish. On the other hand, research on habitat 
(precipitation, vegetation, and prey) occupied by aplomado falcons in 
Mexico has provided insight for aplomado falcon recovery in the United 
States (see Auk 121:1081-1093). In summary, research and monitoring 
should primarily focus on the actual species, not habitat or other 
factors.

    Question 3c. What scientific research is needed for recovery? (I 
added this question here.)
    Response. Research should not usurp or be perceived as recovery 
action. The primary value of research is to (1) define the reason(s) 
for the species' decline, (2) determine the factors limiting 
populations, and (3) help support and guide restoration. A part of 
research should be to monitor the recovering populations to help 
evaluate success or failure of restoration actions.

    Question 4a. You recommend that the definition and provision of a 
``critical habitat'' established by the 1978 Amendments to the 
Endangered Species Act be rescinded, and the definitions of a take and 
a harm appropriately modified to account for all essential habitat 
needs of listed species.
    Response. The 1978 provision for designating critical habitat has 
been one of the more contentious aspects of administering the ESA. Both 
the USFWS administrators and outside environmental groups have often 
interpreted this provision in ways that lead to disruptive and costly 
litigation against the USFWS by those who support and those who oppose 
specific critical habitat designations.
    The definition of ``take'' in the ESA includes the word ``harm.'' 
Harm has been defined by USFWS rule-making to ``include significant 
habitat modification or degradation when it actually kills or injures 
wildlife by significantly impairing essential behavioral patterns, 
including breeding, feeding, or sheltering.'' Thus, upon listing a 
species its entire habitat effectively becomes protected whether it has 
been officially designated as ``critical habitat'' or not. As long as 
the definition of ``harm'' remains operative, the designation of 
critical habitat is largely duplicative and unnecessary.
    Further, designation of critical habitat has fundamental flaws 
associated with long-term habitat preservation. Once a species is 
delisted, any critical habitat associated with it is declassified and 
no longer protected under the ESA. Thus, for those activist groups that 
choose to use endangered species as pawns for protecting habitat from 
deleterious human activities, there is a strong disincentive to support 
actions that would recover species and lead to their removal from the 
list of endangered species. Some commentators have concluded that 
recovery of species will never be the primary function of the ESA; 
instead, its main utility is to prevent the extinction of species by 
holding them in a state of perpetual endangerment and thereby 
preserving critical habitat.
    An alternative to critical habitat is the ``Integrated Natural 
Resource Management Plan'' that is being fostered on military 
reservations. It is an attempt to manage the resources of an 
installation in a manner that conserves all the species present as a 
functional ecosystem while allowing for necessary military operations, 
some of which are quite obtrusive on the landscape. It is too soon to 
know how successful this concept will be for nature preservation. There 
is more experience with Habitat Conservation Plans. Expansion of this 
approach should also be considered.
    Certainly a more holistic approach to habitat conservation is 
needed. Something like an Endangered Habitat and Ecoregion Act 
indicates the needed scale of attention to this problem. Such an act 
should provide for a system of protection and restoration for habitat 
units ranging up to and including ecoregions and biomes that have been 
critically reduced in size or severely degraded as a result of human 
actions. The ESA could then focus more on the specific needs of 
survival and recovery of critically endangered species.

    Question 4b. Further, you recommend that owners should be 
compensated through a system of purchase, leasing, easements, or other 
economic activities for habitat protection on private lands. What types 
of funding streams should be utilized for providing incentives for 
private landowners for restoration projects?
    Response. Although the ESA asserts that one of its purposes is to 
provide a means whereby the ecosystems upon which endangered species 
and threatened species depend may be conserved, it is poorly designed 
to accomplish that purpose. Section 5 of the Act does address land 
acquisition for endangered species, directing the Secretary of the 
Interior to utilize authorizations under other statutes for that 
purpose, but this potentially important provision has not been used to 
any significant extent to preserve habitat for listed species. This may 
be one opportunity for funding.
    It is impossible to determine the cost to the Federal Government 
for litigation associated with the ESA (cost of litigation, attorney's 
fees to litigants, and cost of compliance with settlement agreements 
and court orders). Direct inquires to the Department of the Interior's 
Office of the Solicitor, the USFWS, and the General Accounting Office 
revealed that this cost has never been calculated by these agencies. 
However, the current litigation load requires the time of three 
attorneys for section 4 litigation, two for section 7 cases, another 
for Habitat Conservation issues, and the assistance of several others 
wherever needed. Across the county, perhaps another 100 people in 
regional offices of the Solicitor of the Department of the Interior 
work on ESA-related litigation. In the USFWS, three full-time 
coordinators do nothing but litigation focused on listing of species, 
and many other USFWS staff in the national and regional offices do ESA 
litigation support work. Over the past few years, the litigation focus 
has shifted from mostly species listing cases to Critical Habitat 
designation. Legal defense cost associated with the ESA litigation 
continues to grow (Ellen Paul, pers. comm. following personal 
interviews/survey I requested). Substantially reducing ESA-associated 
litigation should provide funds to support actual recovery, including 
funding incentives to private landowners.
                                 ______
                                 
 Response by Bill Burnham to an Additional Question from Senator Inhofe

    Question. You suggest that State input would be beneficial to the 
section 7 consultation process and you note that the statute does not 
specifically require solicitation of State input. Do you have specific 
recommendations for how to formally incorporate the states into the 
section 7 process and generally across the ESA regulatory structure?
    Response. As stated in my testimony, I do not believe endangered 
species recovery will be successful just because of a Congressional or 
Federal Agency mandate to make it so. We have found that accomplishment 
of successful recovery actions must be at local levels and be based on 
trust. That can be very difficult to achieve at the Federal Government 
level. Many Federal employees involved with the ESA seem to see 
themselves as ESA enforcers, not recovery facilitators. Incorporating 
State government and the private sector more is very important. I would 
recommend the Congress try to incorporate the participation of State 
governments wherever possible in future potential revisions to the ESA.
                                 ______
                                 
Responses by Bill Burnham to Additional Questions from Senator Jeffords

    Question 1. Your testimony states that recovery plans should be 
brief to help simplify revision and updating. Is there an example of 
such an existing plan?
    Response. Unfortunately, that I am aware, there are no existing 
recovery plans as per my recommendation. Existing plans are long 
documents taking many months and years to prepare which are outdated 
before they are approved. The Northern Rockies Wolf Recovery Plan comes 
closer than most to being concise. Species recovery is not a static, 
but rather a dynamic process with continually changing needs based on 
new information and results or lack of them. The long detailed recovery 
plans do not meaningfully contribute, but hinder species recovery by 
usurping ESA money, wasting time, and potentially slowing or even 
preventing needed recovery actions. Plans should state the problem(s) 
facing the species and provide general recommendations and direction to 
reach stated recovery goals for downlisting and delisting. The details 
for recovery actions can then be resolved and modified as necessary in 
working groups.

    Question 2. Your testimony states that restoration actions for the 
California condor in Arizona and the aplomado falcon in Texas are being 
accomplished using tools that essentially remove most protective 
restrictions imposed by the ESA and that without these tools it is 
unlikely that either program would have been possible. Yet, you are 
using the nonessential experimental population designation of the 
Endangered Species Act in these programs. Can you please explain the 
statement?'
    Response. Section 10(j) of the ESA allows species recovery to occur 
where otherwise it would be extremely difficult. Most of the ESA is 
designed to prevent harm; 10(j) is one of the few provisions intended 
to promote benefits. For establishment of experimental populations of 
endangered species as authorized under section 10(j) they must be 
within a defined geographic area. For this to occur a naturally 
occurring population cannot already exist there and the establishment 
of the experimental population must benefit the listed species. The 
experimental populations can be designated as essential or 
nonessential. The nonessential experimental population (NEP) 
designation means the population to be established is not essential for 
the survival of the listed species. Except on National Parks and 
Recreation Areas where the NEP is managed as a threatened species, 
elsewhere within the defined geographic area section 7 consultation is 
not required or other ESA-related constraints placed on government and 
the private sector. Punitive measures under the ESA would only be 
applied if individuals of the NEP are intentionally injured or killed. 
The California condor is being released/recovered in northern Arizona 
and southern Utah as an NEP. As I stated in my testimony, it is my 
opinion, and that of many others, that the release of condors would 
have been impossible there without this special status authorizing 
custom regulations composed specifically to restore the population. We 
are recommending, as are the states of New Mexico and Arizona, the same 
NEP status be given to the aplomado falcons we hope to establish as 
breeding populations in those states.
    In Texas, for recovery of the aplomado falcon we are using a Safe 
Harbor permit. The Safe Harbor is not specifically permitted by the ESA 
now; it is a concept in policy largely based on section 10(j) of the 
ESA. The Safe Harbor is only useful on private property and does not 
apply to public lands, nor is it useful where a mixture of private and 
public property exists. Texas has very little public property and is 
therefore a suitable geographic area for use of Safe Harbor. A total of 
58 counties in Texas have been designated for use of Safe Harbor for 
aplomado falcon recovery. Within that geographic area The Peregrine 
Fund, which has a 99-year permit, can enroll private property owners as 
subpermittees.
    Before we began release of aplomado falcons there, no naturally 
occurring wild population existed. Therefore, when we surveyed the 
private property for aplomado falcons prior to recovery actions we 
established the number of existing pairs (base) for which the 
landowners have responsibility. Since there were no aplomado falcons 
the property owners' responsibility for aplomado falcons is zero. 
Because of recovery actions/releases all aplomado falcons established 
represent a net gain to the species. By the private landowners 
participating they gave up no legal rights nor gained added 
restrictions from government by cooperating in establishment of an ESA-
listed species on their property. Participating landowners, and their 
neighbors who are protected even if they are not a permittee, continue 
to manage their property as if the species did not exist. We presently 
have almost 1.9 million acres enrolled in Texas for aplomado falcon 
recovery.
                               __________
  Statement of John Baughman, Executive Vice President, International 
               Association of Fish and Wildlife Agencies

    Thank you, Mr. Chairman, for the opportunity to appear before you 
today to share the perspectives of the International Association of 
Fish and Wildlife Agencies (IAFWA) on the Endangered Species Act, 
particularly the role of the State fish and wildlife agencies in 
implementing the Act. I am John Baughman, Executive Vice President of 
the Association and a former Director of the Wyoming Game and Fish 
Department, which gives me a personal perspective on ESA issues in the 
Western United States.
    The International Association of Fish and Wildlife Agencies was 
founded in 1902 as a quasi-governmental organization of public agencies 
charged with the protection and management of North America's fish and 
wildlife resources. The Association's governmental members include the 
fish and wildlife agencies of the states, provinces, and the Federal 
Governments of the United States, Canada, and Mexico. All 50 States are 
members. The Association has been a key organization in promoting sound 
resource management and strengthening Federal, State, and private 
cooperation in protecting and managing fish and wildlife and their 
habitat in the public interest. Implementation and improvement of the 
ESA has been a priority issue of ours for the past 15 years.
    The Association affirms that the Endangered Species Act has been 
and must continue to be a vital conservation tool for protecting and 
restoring threatened and endangered species and their habitats. 
However, the Association recognizes that improvements are needed in the 
design and statutory basis of the Act, in its implementation and 
administration. Since passage of the ESA, the State Fish and Wildlife 
agencies have identified what works and what does not work in meeting 
the goals of the Act, and have through extensive discussion and 
dialogue, arrived at a set of recommendations for necessary statutory 
amendment or reform through policy or regulation. These recommendations 
(``IAFWA Reauthorization and Reform of the Endangered Species Act: 
General Principles September 30, 2004'') are included as an appendix to 
my testimony. Simply stated, the ESA must be streamlined for 
efficiency, amended to ensure increased authority and responsibility 
for States, and reformed to provide increased certainty and technical 
assistance for landowners and water users.
    The State fish and wildlife agencies' objectives are very 
straightforward: (1) to successfully carry out our public trust 
responsibilities to ensure the vitality of our fish and wildlife 
resources for present and future generations; and (2) to encourage, 
facilitate and enhance the opportunities, means and methods available 
to all citizens and especially landowners in our states to contribute 
to meeting this conservation objective in cooperation with our agencies 
and our Federal counterparts. Much of this involves solving problems 
and reconciling differences, and we believe that any ESA bill should 
provide new and useful tools, opportunities and direction to achieve 
both of these objectives.
    Before I share with you a summary of our ESA reauthorization 
principles, let me describe for you our engagement in this issue over 
the last 15 years. Starting in the early 1990s, IAFWA worked closely 
with the Western Governors Association (WGA) to coordinate a dialogue 
with interests on all sides of the endangered species issue that we 
hoped would result in a set of broad principles for reauthorization 
that could engender wide support. The dialogue was the basis for both 
our principles (first adopted in 1993) and WGA policy, both of which 
have been appropriately revised over time. The IAFWA general principles 
and WGA policy always were and continue to be very consistent and 
compatible.
    From the IAFWA General Principles and WGA policy, our respective 
staffs over the next 2-3 years worked with interest groups, the 
Administration, and bipartisan staff of Congress to arrive at a set of 
WGA legislative recommendations which were sent to the Hill in 1996. 
Many of these recommendations became the foundation for S. 1180, a 
comprehensive reauthorization bill in the 105th Congress from Senator 
Chafee (RI), Senator Kempthorne (ID), Senator Baucus (MT) and Senator 
Reid (NV). IAFWA strongly supported this bill, which was successfully 
reported out of the Environmental and Public Works Committee in 1997 
but never brought up on the Senate floor for consideration. This was 
the last major ESA reauthorization effort by Congress and even bills 
subsequently introduced that treated incremental changes and/or a 
discrete part of ESA, such as designation of critical habitat, failed 
to make significant legislative progress.
    Let me now briefly summarize our five specific recommendations that 
we believe any ESA bill should embrace:
    1. Restore Congressional intent that reflects and respects the 
authorities, role and responsibilities of the State fish and wildlife 
agencies in fish and wildlife conservation in general, and listed 
species in particular, through the section 6 language which says that 
``In carrying out the program authorized by this Act, the Secretary 
shall cooperate to the maximum extent practicable with the States''. We 
firmly believe that reaffirming the role of the State fish and wildlife 
agencies in all aspects of the ESA reflecting our concurrent 
jurisdiction over listed species sets the stage for more efficient and 
effective administration of endangered species programs. The State fish 
and wildlife agencies have broad statutory responsibility for the 
conservation of fish and wildlife resources within their border, 
including on most Federal public lands. The states are thus legal 
trustees of these public resources with a responsibility to ensure 
their vitality and sustainability for present and future citizens of 
their States. State authority for fish and resident wildlife remains 
the comprehensive backdrop applicable in the absence of specific, 
overriding Federal law. State fish and wildlife agencies must be given 
the opportunities to be fully involved in every aspect of the Act, from 
consideration of listing petitions to de-listing through meaningful 
recovery plans. With appropriate and adequate funding, states are in 
the best position, exercising their expertise and relationships with 
landowners, other governments, etc., to more fully engage in 
implementation of the Act.
    2. Make Recovery Plans meaningful and non-discretionary, with both 
incentives and obligations for all parties to the plan. Meaningful 
recovery plans that are appropriately funded and implemented should be 
the blueprint for conservation of listed species, i.e., delivering on 
the ground what is necessary to bring those species to a point where 
the provisions under the ESA are no longer necessary. The quid pro quo 
for the commitment to conservation by government agencies, the 
regulated community and private landowners should be certainty 
regarding the fate and future of their management actions and 
minimization of ESA process allowing those actions as long as they are 
consistent with the approved recovery plan. We strongly believe 
recovery plans must have a trigger to initiate the down or de-listing 
process once population/habitat recovery objective are met, and 
further, the process to down or de-list needs to be expedited, which 
requires a statutory change. The post de-listing monitoring 
obligations/process also needs revision--it is too onerous and subject 
to too much Federal agency discretion. The states believe that 
biological recovery objectives for grizzly bear have long been 
satisfied but the USFWS has never settled on a post de-listing 
monitoring plan and thus until very recently, held up a delisting 
proposal for this species. That is simply unacceptable and needs to be 
changed.
    Creating and implementing meaningful recovery plans will require 
both Congressional action in amending the ESA and as importantly, in 
appropriating adequate funding. We also recognize that it will require 
a significant shift in the program focus and workload of the USFWS and 
NOAA Fisheries in implementing the recovery plans, and changing their 
budget focus from listing species and designating critical habitat to 
recovery emphasis. State Fish and Wildlife agencies are expected to 
play a significant role in drafting and implementing recovery plans, 
and adequate funds will need to be made available for that purpose to 
the States.
    3. Restore Congressional intent in creating the statutory 
distinction between ``threatened'' and ``endangered'' status. The 
Executive branch agencies have blurred this distinction to a point 
where there is de facto no difference. Congress intended the 
distinction, prescribed different statutory obligations and liberties, 
and the flexibility of this distinction needs to be restored as a tool 
for appropriate use by the resource agencies. A careful reading of 
section 6 of the ESA and its legislative history will conclude, we 
believe, that Congress originally intended the states to be the lead in 
threatened species recovery, as long as they qualified under an 
approved section 6 cooperative agreement. However, an ill advised USDI 
Solicitor's opinion regarding section 6, combined with a blanket rule 
(50 CFR17.31) promulgated by the FWS that presumptively extends the 
take prohibition to threatened species unless a less restrictive 
specific 4(d) rule is developed, minimizes the utility of the 
threatened status and the potential for State lead in threatened 
species conservation. The originally intended distinction between 
endangered and threatened status needs to be restored.
    4. A full portfolio of incentives for private landowners and also 
other government agencies and industry needs to be statutorily 
institutionalized. Monetary incentives, technical assistance, and 
regulatory certainty all need to be included. Actions contributing to 
conservation of the fish and wildlife species is the quid pro quo for 
the incentives. Since the subcommittee has already held a hearing on 
the issue of landowners incentives, I won't address this in detail. 
However, I would refer you to both our treatment of incentives in the 
General Principles appended to this statement, and ``State Conservation 
Agreements: Creating Effective Partnerships for Proactive 
Conservation'' available on our website at (www.iafwa.org). This latter 
document is a product of a 2-year national dialogue with interested 
parties on this issue.
    5. Congressional recognition of the need for preventative 
conservation, including assured and dedicated funding, to preclude the 
need to list species through conservation actions that protect and 
restore declining species and their habitats before they reach a point 
where listing is compelled. The State fish and wildlife agencies are in 
the best position to lead in the implementation of these efforts when 
funding is made available. The effort initiated in 1995 by our western 
State fish and wildlife agencies to address the decline of the sage 
grouse and sage brush habitat is a great illustration of what can be 
accomplished. This effort brought Federal agencies, private landowners, 
industry and others together at the local level in every sage grouse 
range State to discuss and conclude actions that were necessary to 
sustain this species. Although on the ground efforts in implementing 
action plans need to be intensified, the USFWS earlier this year 
concluded that a petition to list the sage grouse was ``not 
warranted''. Proactive conservation, we believe, is better for both the 
species and for our citizens.
    Finally, the Association reemphasizes that it is vitally important 
to secure funding (separate from ESA) for the States to provide 
conservation for all species and their habitats in order to prevent 
species from becoming threatened or endangered. This preventive 
management makes good biological and economic sense.
    The Association's Teaming With Wildlife initiative, and other 
wildlife diversity funding programs that build on the tremendously 
successful Pittman-Robertson and Wallop-Breaux user pay-user benefit 
program for wildlife and sportfish, would provide new reliable sources 
of funding for State programs. These funds should be allocated to the 
States for conservation, recreation and education programs relating to 
fish and wildlife and their habitats. If we can address the limiting 
factors causing a species decline before they reach a stage where the 
ESA is the only protection against extinction, we can employ a series 
of voluntary, non-regulatory approaches that provide more flexibility 
and creativity for conservation programs with private landowners and 
other jurisdictional entities.
    We continue to urge Congress to look favorably on the dedication of 
funds from various potential sources (Outer Continental Shelf gas and 
oil royalties and leases; gas and oil royalties and leases from 
exploration and development on Federal public lands; or other sources) 
to fund these state-based preventative conservation programs.
    It is only through dedicated and assured Federal funding combined 
with State and private dollars that we can get out ahead of the curve 
of endangered species listing.
    Thank you for the opportunity to share our perspectives and I would 
be pleased to answer any questions.
                                 ______
                                 
        International Association of Fish and Wildlife Agencies
   Reauthorization and Reform of the Endangered Species Act: General 
                               Principles
                         September 30, 2004\1\
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    \1\ Adopted by the Association at the March 1993 meeting in 
Washington, D.C.; revised, modernized and approved at the September 
1995 meeting in Branson, MO; and updated and adopted at the September 
2004 meeting in Atlantic City, New Jersey. This position paper is an 
evolving work, reflecting the best information available at the time of 
adoption, but subject to change as new issues and information arise. 
Although adopted by the International Association of Fish and Wildlife 
Agencies, and endorsed by Regional Associations, each State reserves 
the prerogative to take its own position on issues of concern.
---------------------------------------------------------------------------
                              INTRODUCTION

    The Association affirms that the Endangered Species Act (ESA or 
Act) has been and must continue to be a vital conservation tool for 
protecting threatened and endangered species and their habitats. 
However, the Association recognizes that improvements are needed in the 
design and statutory basis of the Act, and in implementation and 
administration of the ESA.
    In 30 plus years of experience with the ESA, the State Fish and 
Wildlife agencies have identified what works and what does not work in 
meeting the goals of the Act, and herein provide recommendations for 
necessary amendment or other reform through policy or regulation. 
Significant reform could free up human and financial resources to serve 
more species, put more money on the ground, and allow more people to 
interact positively with rare or declining species. The ESA must be 
streamlined for efficiency, amended to ensure increased authority and 
responsibility for the States, and reformed to provide increased 
certainty and technical assistance for landowners and water users, for 
example:
    a. The Association concludes, from member agency involvement in the 
application of the Act, that the Act provides some degree of 
discretionary flexibility. However, administration of the Act often 
results in regulatory approaches and judicial challenges that are 
forced upon the Federal agencies by special interest groups and which 
alienate local communities and result in the courts deciding how the 
Act is applied.
    b. The Association opines that this era of ``conservation through 
conflict'' has been beneficial to neither the health of the species and 
habitats the Act seeks to protect, nor the Act itself. In fact, it 
erodes rather than builds public support essential to achieving the 
admirable goals of the Act. Recent Federal agency movement toward 
increased State and public participation in recovery planning should be 
enhanced, but must recognize and respect State authorities and 
responsibilities for planning on-the-ground delivery of collaborative 
conservation programs. The States are not just another voice to be 
heard in the public process; they have a primary responsibility for 
wildlife conservation.
    c. The Association opines that Federal agencies have not recognized 
or applied the statutory distinction provided for between the 
classifications of ``threatened'' and ``endangered'' or fully embraced 
the role of the states in threatened and endangered species recovery. 
This has compromised effectiveness of the Act.
    d. Similarly, the lack of consistent definitions of recovery (e.g. 
in terms of population size and distribution), ``significant portion'' 
of a species range, and what constitutes historical range and 
constituent elements of critical habitat has lead also to compromised 
effectiveness of the Act, and unnecessarily prolonged debate as to 
which conservation actions will be given priority for funding and 
implementation.
    e. The Association advocates and supports efforts to take ecosystem 
and broader (e.g. regional) approaches to management and recovery, and 
to apply the Act to ``clusters'' or ``guilds'' of species, as already 
allowed for under the Act. These approaches greatly enhance the utility 
of the Act, and improve both the efficiency and efficacy of the 
listing, critical habitat designation, and recovery processes. Listed 
and imperiled species sharing a common habitat often require compatible 
protection and recovery actions. Therefore, the agencies should, where 
appropriate, more frequently employ this means of conservation.
    f. The Association appreciates recent changes by the Administration 
to provide incentives to State and private landowners through new 
funding programs; to provide regulatory protections for landowners that 
voluntarily do good deeds to aid endangered species under safe harbor, 
candidate conservation and State conservation agreements; and to 
provide certainty of protections under the ``no surprises'' and 
``PECE'' policies and enhancement of survival permits. These changes 
improve the effectiveness of the Act, and the Association advocates 
that, along with the changes recommended in this document, these 
policies be established in law.

           GUIDING PRINCIPLES AND RECOMMENDATIONS FOR REFORM

I. Preventive and Restorative Management
    The Association reaffirms its commitment to prudent, proactive 
conservation of fish, wildlife, and the natural communities on which 
they depend, so the need to impose the rigors of the ESA for common 
species is minimized and to ensure that species in greatest 
conservation need are restored. We do not advocate avoiding application 
of the Act; rather, we advocate addressing species and habitat declines 
by cooperative prevention strategies before a crisis situation is 
reached, and benefiting multiple species by taking a coordinated, 
comprehensive, management approach once species are listed. Federal and 
State agencies and their partners must, where possible, anticipate 
impacts on species and habitats, and address those factors 
comprehensively (where feasible) and proactively, rather than by 
reacting to them. We must design remedies that restore the few, and 
benefit the many.
    The ESA should and does play a crucial role as the necessary tool 
of last resort for protecting against extinction, but it also must work 
in concert with, and not against, other management actions. In concert 
with preventive management actions, the ESA could not only restore 
species undergoing precipitous declines, but also ensure that they 
persist and never need the protections of the Act again.
    Federal and State conservation agencies must cooperate fully in 
coordinating application of the many existing Federal statutes relating 
to public lands management (NFMA, FLPMA, etc.), habitat conservation 
(HCPs, SHAs, CCAAs, SCAs, Critical Habitat), and project impact review 
(ESA section 7, NEPA, etc.); comparable State laws (nongame and 
endangered species laws; habitat protection laws; and environmental 
review statutes and programs); and county and local land-use planning 
ordinances and programs. A more comprehensive integration of the 
relevant statutes at all levels would enhance their utility for 
conservation of fish and wildlife and their habitats, ensure 
sustainability of ecological communities, restoration of species at 
risk, and preclude the need to list other species.
    Further, there needs to be a major thrust to adequately fund 
endangered species recovery efforts and (distinct from ESA 
reauthorization) to fund broader State/Federal programs for 
conservation of the vast majority of non-game fish and wildlife species 
that are currently receiving far less than adequate attention, and 
thereby providing the means to prevent species from becoming 
endangered. Based programmatically on the highly successful Sportfish 
and Wildlife Restoration Programs under the Wallop-Breaux and Pittman-
Robertson Acts, the fish and wildlife diversity funding initiatives of 
the past several years, which have been supported by IAFWA, all 56 fish 
and wildlife agencies among the States, and by a large and still-
growing grass-roots coalition across the country, are intended to 
secure permanent, dedicated funding to provide among other things, for 
prevention of species imperilment, through development of comprehensive 
wildlife conservation strategies and provision of routine fish and 
wildlife management practices by the States and their conservation 
partners.
    Finally, the Association encourages use of both legally binding 
State Conservation Agreements and inter- and intra-governmental 
agreements for candidate species and species of concern in lieu of 
listing them as candidate, threatened or endangered, where management 
actions specified under such Agreements can remove the threat(s) to the 
species. Broad, non-regulatory, landscape scale, comprehensive habitat-
based agreements must also be encouraged. Clarification of the 
Endangered Species Act to recognize and support such cooperative 
agreements is required. Affirmation of State authority for non-listed 
species must be legislatively assured and the role of the State fish 
and wildlife agencies in this process must be institutionalized. By 
requiring the Secretary to concur with State-led conservation 
agreements involving affected jurisdictional entities and private 
landowners (where appropriate) that are determined by the Secretary to 
be adequate to address the needs of and recovery of declining or at-
risk species, the Secretary will be legally shielded from a requirement 
to impose certain regulatory implications through suspension of the 
consequences of listing. Private landowners should be given legal 
assurances that, once they commit to certain responsibilities under 
such agreements, no additional liabilities will be imposed on them, 
unless by mutual agreement. The incentive for Federal agencies to 
participate is that they would incur no liability under section 7 if 
actions to recover declining species were taken prior to listing.
II. The Role of State Fish and Wildlife Agencies
    The Association advocates legislative assurance of the co-equal 
role of the State fish and wildlife agencies under the Act. Under the 
ESA, States share jurisdictional authority for listed species, which is 
executed through a cooperative agreement (ESA section 6) with the U.S. 
Fish and Wildlife Service (USFWS) or the National Oceanic and 
Atmospheric Administration Fisheries (NOAA Fisheries). And yet, the 
State fish and wildlife agencies are often not adequately included in 
the implementation of the Act. The States, where they have the fiscal 
resources, expertise, staff, and political support to do so, should 
play a much greater role in administration of the Act with the USFWS 
and NOAA Fisheries. The section 6 Cooperative Agreement should be 
redesigned to function as a true partnership agreement between and 
among the States, USFWS, and NOAA Fisheries, requiring close 
collaboration, coordination, and mutual agreement on implementation of 
all aspects of the Act. The section 6 agreement can be the vehicle to 
identify the respective roles of the States and Federal agencies. It 
should provide the flexibility to allow States that so chose to assume 
the lead for, or total assumption of, aspects such as pre-listing 
conservation, recovery planning and implementation oversight, SHA and 
HCP administration, delisting responsibilities, and post-delisting 
monitoring. Even when States do not take the lead, their involvement 
should be co-equal with the Federal agencies. States should also be 
given the financial resources to assume an expanded role in ESA 
administration and implementation.
    There should be coordinated joint rulemaking and decisionmaking 
processes between and among the USFWS, NOAA Fisheries, and the State 
fish and wildlife agencies for administrative and regulatory actions. 
In the rare cases where the States, USFWS, and NOAA Fisheries cannot 
reach agreement on administrative, regulatory, and implementation 
actions, the respective Secretaries of Interior or Commerce should have 
the final decision to resolve disagreements.
    The role of the State fish and wildlife agencies in coordination/
co-administration of the Act with the Federal agencies must not be 
subject to the Federal Advisory Committee Act (FACA), since the States 
share jurisdictional authority with USFWS and NOAA Fisheries for listed 
species. It is simply not appropriate for the day-to-day cooperation 
between the States and Federal agencies to be subject to FACA. Thus, 
the ESA must be amended to ensure that FACA does not apply to any 
aspect of State participation in all aspects of the ESA.
III. Listing
    The Association contends that other features of the Act, such as 
the recovery plan process, should provide sufficient latitude for 
balancing or harmonizing the needs (socio-economic) of mankind, without 
changing the listing process itself to embrace those issues. Listing 
should be decided based solely on biology, and States should be equal 
partners with the Federal agencies in petition evaluation, data review, 
rule-making and decisionmaking for all listing, downlisting and 
delisting actions.
    The State fish and wildlife agencies can and should be fully 
empowered and authorized to facilitate the listing process. Areas of 
reform include:
    a. Prelisting Data Collection and Reviews: State agencies have 
expertise in conducting population status inventories and geographic 
distribution surveys to facilitate review of which species should be 
advanced to the official proposed stage for listing consideration. The 
USFWS and NOAA Fisheries can and should avail themselves of this 
expertise by contracting with (or by use of other means) the States to 
provide these data and analyses.
    b. Reliance on Sound Science: The threshold of what constitutes 
substantial information provided in a listing petition to warrant 
further consideration must be raised. The petitioner should be required 
to provide the data on which they are relying in the petition. The 
Services need broad flexibility to reject petitions lacking scientific 
basis.
    c. Adequate Time Frames for Listing Decisions: The statutory time 
frames allowed for listing decisions are too short to provide for 
adequate information to be collected and analyzed. This causes a flawed 
decision making process precipitated by legal action. The Services 
should have flexibility to delay decisions, especially on species where 
there is little information with which to make a decision or in cases 
where major scientific studies are underway that will provide 
information for decision making.
    d. Presumption for State Information: If a determination is made 
that substantial information is submitted with a listing petition, the 
Secretary should be required to provide all listing petitions to the 
appropriate State fish and wildlife agency or agencies for review. 
There should be a rebuttable presumption in favor of State information 
and recommendations on listing, which the Secretary should be required 
to refute through peer review if the Secretary disagreed with the State 
recommendation.
    e. Exclusions of a State or Geographic Area in the Listing Process: 
The Act should provide greater flexibility to not list a distinct 
geographic area or State within the range of a species if it is 
receiving adequate management within that portion of its range. 
Providing geographic exclusions will ensure that States that have 
adequate management programs for rare species are not penalized for 
lack of effort or result elsewhere, and would provide an incentive for 
States to provide adequate management. Similarly, there should be 
greater flexibility to delist a distinct geographic area or State 
within the range of a species where ESA protections are no longer 
needed.
    f. Joint Rule-Making and Decision Making Between the USFWS, NOAA 
Fisheries and the State Fish and Wildlife Agencies: State agencies have 
jurisdictional authority for species prior to listing, and share 
jurisdiction for species when listed and during post-delisting 
monitoring stage. Because of this co-equal role with the Federal 
agencies, State agencies should be given the choice to participate 
fully in petition evaluation, data review and rule-making processes, 
and be given an equal say in listing decisions. Decisions should be 
made on a consensus basis, whenever possible, by the State agencies, 
USFWS, and NOAA Fisheries. If the partners cannot agree on a listing 
decision, the respective Secretary of Interior and Commerce should make 
the final decision.
IV. De-Listing
    Efforts to recover listed species must receive enhanced attention, 
at least concomitant with the attention given to listing. The 
Association suggests that additional focus and attention on recovery 
planning and achievement will lead to species population status 
commensurate with down- or de-listing. Legislative criteria linking the 
process to initiate down- or de-listing action to meeting objectives in 
approved recovery plans should be mandated. Incremental down- or de-
listing by State or geographic population should proceed with much 
greater priority than it now receives. De-listing must be maintained 
and activated based solely on biology. To emphasize the importance of 
the de-listing process, funding for de-listing actions should be 
increased and receive a specific-line item within the appropriations 
provided for listing actions. Until the USFWS catches up with the 
backlog of listing proposals, de-listing actions too often get 
relegated to a low priority because of the process pressures and legal 
challenges with many listing petitions. This approach does not 
recognize the importance of acknowledging and rewarding accomplishments 
under the Act to building public support for the Act and the 
conservation programs carried out under it.
    The Association advocates that the States be authorized to design 
and develop monitoring programs on de-listed species, with recognized 
(by the Federal agencies) full legal responsibility for species 
conservation, and report annually to the Secretary during the 5-year 
period on the status of the monitored species. Funds must also be 
provided to the States to conduct these monitoring and evaluation 
efforts.
V. Critical Habitat Designation
    The Association advocates that critical habitat designation should 
occur concurrently with recovery planning, except when there is an 
urgent eminent threat to a significant amount of occupied habitat that 
would warrant designation at the time of listing. The Secretary should 
retain discretionary authority over when and whether or not to 
designate critical habitat, and not be under a statutory mandate to 
always designate critical habitat. State agencies should be equal 
partners with the Federal agencies in evaluating the need, planning, 
identifying areas, rule-making, and decision making processes for all 
critical habitat designations.
    State fish and wildlife agencies have expertise, knowledge and data 
regarding a species extant and historic ranges, where it may now be 
extirpated, and which habitats might have the potential to facilitate 
species recovery. Habitats for recovery may include those that were 
historically occupied, if they are still capable of supporting the 
species; in the absence of such areas, non-occupied but potential 
habitat should be identified for recovery. Whether either or both kinds 
should be identified as ``critical habitat'' must be decided on a 
species-by-species basis. The Association recommends clarifying the 
regulatory implications of what constitutes ``adverse modification of 
critical habitat'' (discussed in the section on Prohibited Acts).
    The Association recognizes the value of voluntary non-regulatory 
efforts of many landowners to protect, manage and restore habitats 
needed for recovery. Many landowners have implemented or are willing to 
commit to implement management programs that equal the biological 
protections of critical habitat. Providing these conscientious 
landowners with protections from the regulatory implications of 
critical habitat designations rewards their good acts and provides 
incentive for other landowners to do likewise. The Act provides that 
the Secretary has discretion to exclude areas for critical habitat 
designation, if the benefits of exclusion outweigh the benefits of 
designation. The Association recommends expanding the types and use of 
exclusions and institutionalizing them in policy and statute, 
including:
    a. exclusion of all lands covered by a HCP, SCA, SHA, or other 
approved conservation plan from critical habitat designations;
    b. exclusion of State lands that have protection equivalent to that 
provided by designation of critical habitat; which provide a net 
benefit to the species through protection and management of the land; 
and which have an effective management program;
    c. exclusion of county and private lands under a cooperative 
management agreement between the State and the Service, another Federal 
agency, or private conservation organization or partnership that has 
protection equivalent to that provided by designation of critical 
habitat; provides a net benefit to the species through protection and 
management of the land; and which provides an effective management 
program;
    d. exclusion for important Military training areas that have 
adequate Integrated Natural Resource Management Plans;
    e. provide a stewardship incentive exclusion for state, county and 
private lands that would be voluntarily entered into conservation 
partnerships or some other form of management agreement;
    f. automatic removal of critical habitat designations for all 
future HCPs, SCAs, and SHAs when approved by the Service according to 
standards that the plans or agreements achieve a net conservation 
benefit and have undergone public review.
VI. Recovery Plans/Recovery Teams
    Once a species is listed, States must make every effort to address 
the factors that will result in recovery of the species and its 
ultimate delisting. The intent of the Act is to recover species, not 
just list them. The States can and must play a major role in recovery 
planning and implementation. State fish and wildlife agencies should 
always be given the opportunity to take the lead on recovery planning, 
or in the absence of an appointed recovery team or appropriate 
surrogate, to provide professional review of draft recovery plans 
prepared by a FWS or NOAA Fisheries staff or contractor. The utility of 
a team approach not only provides for application of a broad base of 
knowledge and perspectives, but also better intergovernmental 
coordination regarding biological, social, economic and environmental 
factors. State fish and wildlife agency participation brings management 
expertise, practicality, and experience in working with both private 
landowners and local land use regulatory agencies (county Planning & 
Zoning agencies, for example), both of which are vital to success of 
recovery programs.
    Recovery plans should present a number of recovery options that are 
technically feasible and will lead to species recovery and delisting. 
Different recovery options may have significantly different social, 
economic and environmental consequences. Statutory deadlines should be 
imposed on the agencies to produce a draft recovery plan no later than 
2 years after listing, a final recovery plan not later than 3 years 
after listing, and a revision every 10 years. Recovery plans should:
    a. identify jurisdictional responsibilities through implementation 
agreements;
    b. provide multiple recovery approaches that are technically 
feasible, as options for agencies to use to best meet social, economic, 
and environmental needs;
    c. have the flexibility to provide short-term interim management 
strategies for those species for which there is little information with 
which to develop a full recovery plan or when interim recovery 
strategies are the best approach to stabilize populations;
    d. identify specific (i.e. quantified, measurable) population and 
habitat objectives that, when attained, trigger down or delisting;
    e. include appropriately documented and credible justification for 
all goals, objectives, and implementation approaches;
    f. identify habitat important for recovery of the species, 
designate (if appropriate) critical habitat for regulatory purposes; 
and provide an indication of important habitat factors necessary for 
the species--i.e., simple protection may not be the best course of 
action--recovery and maintenance may require habitat changes such as 
openings, diversity, early successional stages, etc.;
    g. provide pro forma section 7 approval for Federal agency and 
State agency actions that are consistent with recovery plans;
    h. provide ``short form'' HCPs for private landowners for certain 
activities, and (where appropriate) exemption from section 9 and 10 
restrictions for others;
    i. provide certainty to cooperating landowners regarding their fate 
under the ESA;
    j. be exempt from NEPA, if comparable State process is satisfied; 
and
    k. satisfy plan amendment requirements for ESA under NFMA, FLMPA 
and other Federal land management acts, if the proposed actions are 
consistent with the appropriate recovery plan.
VII. Distinction between Threatened and Endangered
    The ESA distinguishes between ``threatened'' and ``endangered'' 
species, with the status of ``endangered'' being subject to more 
protective regimes than ``threatened''. Clearly, two separate 
categories were legislatively provided for in the Act for very definite 
and distinct purposes. Although threatened species are imperiled and at 
risk of becoming endangered, there is greater leeway for management 
flexibility and protections provided. The USFWS and NOAA Fisheries 
apply rules for protecting endangered species to threatened species as 
well, regardless of whether additional protections are warranted. The 
agencies or Congress must reassert the distinction between these 
classifications in the Act, including greater application and 
involvement by the States in development of section 4(d) rules allowing 
for management flexibility.
VIII. State Conservation Agreements, Candidate Conservation Agreements, 
        Safe Harbor Agreements and Habitat Conservation Plans
    The Association supports the use of State conservation agreements, 
candidate conservation agreements, safe harbor agreements, and habitat 
conservation plans. The State fish and wildlife agencies can provide 
contacts, expertise, and knowledge to contribute toward successful use 
of these tools in conserving listed species and their habitats. The use 
and applications of these tools should be more fully clarified and 
understood by all agencies. State Conservation Agreements, Candidate 
Conservation Agreements, and Safe Harbor Agreements provide incentives 
to states and private landowners to invest in conserving rare species 
and in recovering species that are listed. They can remove the threat 
of future regulatory restrictions that are too often associated with 
listed species. Habitat Conservation Plans, in their limited 
application thus far, have already been used effectively to bring 
together affected and interested parties, to examine and agree on 
short-term objectives and long-term goals, and provide certainty to the 
recovery process while minimizing impacts on private lands and meeting 
the recovery needs of affected species. The Act should be amended to 
specifically include these as recovery tools.
IX. Certainty and Incentives for Private Landowners
    Private landowners can play a major positive role in species 
recovery, if they are involved in the process early, given appropriate 
information on what they can and cannot do, and have certainty about 
the fate of their own land management practices under ESA. Most 
landowners want to be good stewards of their land. Most will work with 
fish and wildlife resources agencies, if they are approached with 
courtesy and respect, and sensitivity to their interests and plans. 
Federal agencies and States must do a better job of matching existing 
incentives (under several programs at all government levels, such as 
Farm bill programs, the Landowner Incentives Program, and Private Lands 
Stewardship Program, etc.) with landowners who are interested in 
conservation. In return, Federal and State agencies need to assure 
landowners that, if they agree to certain habitat conservation 
measures, we will not require any more of them. This certainty must be 
assured for prelisting State Conservation Agreements, Safe Harbor 
Agreements, and Habitat Conservation Plans.
    Several areas are ripe for providing additional monetary 
conservation incentives for private landowners including changes to 
inheritance tax law to remove the disincentive that forces the breaking 
up of large tracts of land to pay taxes; and establishment of a 
permanent statutory basis for the Landowner Incentive Program for fish 
and wildlife habitat conservation on private lands.
X. Prohibited Acts
    The Association advocates that the USFWS and NOAA Fisheries clarify 
the standards they will apply in making a determination if alteration 
to habitat constitutes harm, and thus a ``take'' under section 9 of the 
Act. Not all habitat actions lead to species decline; some disturbance, 
in fact, may be vital to recovery of species dependent on early 
successional stages.
    The Act should be amended to affirm the current regulatory standard 
for prohibiting ``destruction or adverse modification of critical 
habitat'' for Federal actions under the section 7 process. The 
prohibition now applies if the ``destruction or adverse modification of 
critical habitat'' would jeopardize the continued existence of a listed 
or proposed species. The Association is concerned that a more 
restrictive standard, i.e. one that would prohibit any minor loss or 
adverse modification of critical habitat, would establish quasi-
sanctuaries on State and private land and create regulatory grid-lock 
for many Federal actions including those funding State programs. The 
Act needs to provide both adequate protection and flexibility to manage 
the quantity, quality and location of critical habitat for species 
recovery. The Association believes that as long as adequate mitigation 
is required in the section 7 process to offset any minor loss or 
adverse modification of critical habitat, than the current ``jeopardy'' 
regulatory standard is appropriate.
XI. Funding
    The Association supports enhanced appropriated funding for all 
aspects of the ESA. We realize the challenges faced by Congress in 
meeting all national needs. However, we strongly urge a re-focus of 
appropriated dollars so that section 6 funding can be significantly 
increased, if necessary by reallocating non-traditional section 6 
granting funds. The amount available in recent fiscal years to States 
is both grossly inadequate, and not at all proportionate to the 
responsibility of the State fish and wildlife agencies for listed 
species. The amount of funding provided under the program has not grown 
in relation to increases in the number of listed species. In 1977, 
Congress provided $4.2 million for assistance to states to deal with 
194 listed species. In 2002, the number of listed species (1,263) was 
more than six times as large, yet Congress provided just $7.52 million 
for assistance to States. This represents a decline in real support for 
this program, when adjusted for inflation. We also suggest that as 
States assume a greater lead in administering the ESA, Congress should 
redirect other Federal appropriations now going to USFWS and NOAA 
Fisheries to the States for funding implementation of the Act.
    At the same time, we believe that existing funding must be more 
effectively spent, and alternative-funding sources should be fully 
explored. The Association suggests that continuing to spend substantial 
money on species that are essentially recovered, at least in part of 
their range (such as the bald eagle), should be from sources other than 
those available under the ESA. The USFWS, NOAA Fisheries, and State 
fish and wildlife agencies all need to explore processes for assigning 
funding to listed species to ensure that those in the most significant 
need of recovery attention (and not just those that are the most 
charismatic) are addressed first.
    Finally, the Association reemphasizes that it is vitally important 
to secure funding (separate from ESA) for the States to provide support 
for conservation programs for nongame fish, wildlife and their habitats 
in order to facilitate a conservation safety net before it is necessary 
to impose the ESA to prevent species extinction. This preventive 
management makes good biological and economic sense.
    The Association's Teaming With Wildlife initiative, and other 
wildlife diversity funding programs that build on the tremendously 
successful Pittman-Robertson and Wallop-Breaux user pay-user benefit 
programs for wildlife and sportfish, would provide new reliable sources 
of funding for State programs. These funds should be allocated to the 
States for conservation, recreation and education programs relating to 
fish and wildlife and their habitats. If we can address the limiting 
factors causing a species decline before they reach a stage where the 
ESA is the only protection against extinction, we can employ a series 
of voluntary, non-regulatory approaches that provide more flexibility 
and creativity for conservation programs with private landowners and 
other jurisdictional entities.
                                 ______
                                 
 Responses by John Baughman to Additional Questions from Senator Chafee

    Question 1. In order to receive Federal funds through the State 
Wildlife Grants program, Congress charged each State and territory with 
developing a State Comprehensive Wildlife Conservation Strategy due by 
October 2005. How will these State strategies be used to better 
coordinate species protection at the State level?
    Response. Under the State Wildlife Grants (SWG) program and 
Wildlife Conservation and Restoration Program (WCRP), every State and 
territory has prepared a Comprehensive Wildlife Conservation Strategy. 
These strategies are built to address the needs of those fish and 
wildlife species in each State that are in decline and need 
conservation attention. At the direction of Congress, the strategies 
identify declining fish and wildlife species, evaluate their habitat 
needs, assess the problems they face, and outline the actions that need 
to be taken to conserve them over the long term.
    The focus of the State Comprehensive Wildlife Conservation 
Strategies is on preventing wildlife from becoming endangered. The 
strategies identify conservation actions that need to be taken to help 
the hundreds of species of fish and wildlife that are in decline but 
are not yet subject to the Endangered Species Act. This preventive 
approach to conservation makes better sense from a biological 
standpoint, because it is much easier to take action to conserve and 
manage fish and wildlife before they reach critically imperiled 
populations. Early intervention also saves taxpayer dollars, gives 
managers greater flexibility to pursue innovative approaches, and 
reduces conflict over endangered species conservation and land use.
    Although the Comprehensive Wildlife Conservation Strategies were 
written in order to fulfill the requirements of SWG and WCRP, their 
full scope goes well beyond the use of funding from these programs. 
Early in the planning process, the State fish and wildlife agencies 
decided that the strategies would outline what needed to be done for 
all of the state's wildlife and not just what the agency intended to do 
with SWG or WCRP dollars. The strategies encompass a broad range of 
conservation actions, and they are already being integrated into 
broader conservation activities by State wildlife agencies and their 
conservation partners. The strategies were developed through extensive 
consultation with other agencies, conservation groups, and the public, 
in a process designed to draw together all the best thinking on 
wildlife conservation. As a result, the Comprehensive Wildlife 
Conservation Strategies provide, in many cases for the first time, a 
sweeping platform for comprehensive wildlife conservation in every 
state.
    While the Comprehensive Wildlife Conservation Strategies are 
focused on preventing wildlife from becoming endangered, they integrate 
the actions that need to be taken to address the needs of threatened 
and endangered species. Because the strategies include endangered 
species in the larger context of all declining wildlife species, they 
identify many opportunities for achieving conservation success for 
endangered species along with other fish and wildlife through habitat 
conservation and other broad-based approaches. This integrated, 
landscape scale approach to conservation ultimately means better 
outcomes for wildlife and taxpayers.

    Question 2a. To what extent have states shown the initiative and 
desire to take on the burden of recovering species?
    Response. Once a species is listed, States must make every effort 
to address the factors that will result in recovery of the species and 
its ultimate delisting. States can and must play a major role in 
recovery planning and implementation. States agencies should always be 
given the opportunity to take the lead on recovery planning. State 
agency participation brings management expertise, practicality, and 
experience in working with both private landowners and local land use 
regulatory agencies, which are vital to the success of any recovery 
programs.
    States have already played a significant role in the recovery of 
endangered species, such as bald eagles and peregrine falcons. The 
States ability to do so is limited largely to funding.

    Question 2b. Do states have the resources necessary to implement 
recovery plans for federally listed species?
    Response. States do not have the resources necessary to implement 
recovery plans for federally listed species. If State wildlife agency 
responsibilities for ESA implementation were increased as a result of 
reauthorization, whether on the regulatory side or on the proactive 
conservation side, the resultant financial burden would cause even 
worse regulatory gridlock than occurs now due to USFWS inability to 
move compliance and recovery issues forward at the pace they require. 
Additional State funding for implementing ESA is critical.
    Furthermore, there needs to be a major thrust to adequately fund 
endangered species recovery efforts (distinct from ESA reauthorization) 
and to fund broader State/Federal programs for conservation of the vast 
majority of non-game fish and wildlife species that are currently 
receiving far less than adequate attention, and thereby providing the 
means to prevent species from becoming endangered.

    Question 3. In your testimony, you focus on the original intent of 
Congress for states to be the lead in threatened species recovery, as 
long as an approved section 6 cooperative agreement exists. How should 
Congress go about restoring this original intent to pass authority on 
to the States? At what point, if a State threatened species recovery 
plan is failing, should the Federal agencies step in to address the 
situation?
    Response. The USFWS has effectively precluded a greater role for 
the states in threatened species conservation by passing a regulation 
which preemptively applies the same section 9 take prohibitions to 
threatened species as the law applies to endangered species, unless FWS 
promulgates a less restrictive 4(d) rule for that species. Congress 
could express further its intent that those are decisions to be left to 
those states that have an approved section 6 ``full authorities'' 
cooperative agreement by adding at the end of section 4(d) the 
following language: ``When such a cooperative agreement exists, the 
State may issue regulations for regulated takings of threatened species 
within their borders.''
    The FWS is mandated to annually review section 6 cooperative 
agreements for sufficiency and compliance with the law's standards. If 
the state's conservation program for a threatened species is 
insufficient or out of compliance, the FWS can direct corrective action 
or take over the program.

    Question 4. The Sage Grouse Conservation Plan in the 11 Western 
States with sage grouse populations has been a testament to the 
important role of partnerships between the Federal Government, the 
State and local governments, private landowners, businesses and non-
profit organizations. How can the Sage Grouse plan be used as a model 
for other species conservation efforts across the country?
    Response. Now that all 50 State Comprehensive Wildlife Conservation 
Strategies have been completed and submitted to the FWS, the next step 
is for the states to look collectively at species of greatest 
conservation need across the several states and identify those of the 
highest regional or ecosystem priority so that a concerted effort can 
be directed to conservation of those species. Then, using collaboration 
affected between State-Federal-local governments on information 
regarding species, habitat and land use, engage private landowners, 
industry and public land managers in solutions to conserve the habitats 
necessary to support the species. The Sage Grouse effort success is 
predicated on collegial information sharing, and engendering 
conservation action from the ground up.

    Question 5. The State of Arizona has signed a Memorandum of 
Understanding with the U.S. Fish and Wildlife Service to spell out more 
clearly the duties and responsibilities of the State and the Federal 
Government with regard to protection and recovery of listed species 
within Arizona. What lessons can be learned from the successes of the 
MOU?
    Response. The ``success'' of the Arizona MOU with USFWS is 
restricted to Arizona. No other State has chosen to enter into a 
similar MOU even though they are all aware of the model. Arizona 
through the MOU is assuming a great deal of the Secretary of the 
Interior's responsibilities for ESA implementation without receiving 
Federal funds to carry out those responsibilities. Arizona has done 
that because they believe it advances species conservation on the 
ground. The lesson here is that Federal funding will be absolutely 
necessary to facilitate greater State engagement in ESA implementation.
                                 ______
                                 
          Responses by John Baughman to Additional Questions 
                          from Senator Inhofe

    Question 1. You provided an example, the grizzly bear, about how 
the lack of a Federal de-listing monitoring plan has held up the 
species' removal from the endangered species list. Is the monitoring 
plan something that the states could develop and implement and would 
that delegation of responsibility speed up the de-listing process? What 
are other ways to speed up this process?
    Response. The ESA envisioned cooperation and collaboration between 
the states and the Federal Government in recovery and management of 
threatened and endangered species. While the Secretary cannot legally 
delegate ``responsibility'' for many facets of ESA administration, she 
can delegate ``authority'' to the states for review of listing 
decisions, recovery planning, development of management and monitoring 
protocols, and on-the-ground management and monitoring of threatened 
and endangered species. The Secretary would still retain oversight and 
approval without the need for duplication of effort and redundancy of 
resources. The states already have scientific expertise, dedicated 
personnel and resources, and, and in many cases, established programs 
to accomplish these functions. ESA administration would be well served 
to examine and build upon the successful model of state-Federal 
cooperation found between the EPA and State departments of 
environmental quality in administration of water quality discharge 
permits. Another way to speed up the process would be to automatically 
de-list when recovery goals are met, rather than having to wait for an 
under-funded, bureaucratic process to be completed.

    Question 2. In your testimony, you state that ``State fish and 
wildlife agencies must be given the opportunities to be fully involved 
in every aspect of the Act, from consideration of listing petitions to 
de-listing through meaningful recovery plans.'' Could you provide us 
some specifics about where in the regulatory process you think the 
State should play a role and how strong a role they should play?
    Response. As agencies sharing jurisdictional authority over listed 
species, the State fish and wildlife agencies should have a meaningful 
role in the construct of regulatory application of the ESA. However, we 
acknowledge that the final decision making authority should, under 
Federal law, remain with the Secretary. We suggest some sort of a 
``collaborative rule making'' role for the states with the Secretary 
where the Secretary would give great weight to the states' 
recommendations but the Secretary would retain final decision-making 
authority.

    Question 3. You mentioned the State agencies expertise in both pre-
listing conservation and ability to gather data on listing petitions, 
what makes the states more efficient than the feds at this process and 
how could states be more effective at pre-listing conservation, in 
hopes of preventing listing.
    Response. The efficiency of using the states on species that are 
being considered for listing, or that have been petitioned for listing, 
lies in the fact that states often possess the best, and sometimes 
only, information on the species. Thus, the states are in the best 
position to assess the merits of listing considerations based on the 
data they have collected and interpreted.
    States can be more effective in conservation efforts to preclude 
the need to list species by having the funds necessary to address the 
life needs and habitat requirements of those species before they 
decline to a point where listing is compelled under ESA.
                                 ______
                                 
          Responses by John Baughman to Additional Questions 
                         from Senator Jeffords

    Question 1. Your testimony states that your association would 
support using funding outside of the Endangered Species Act, such as 
Outer Continental Shelf gas and oil royalties, to support State 
endangered Species efforts. Could you elaborate on how you think those 
funds could be used and suggest other innovative funding ideas?
    Response. A dedicated funding source for State endangered species 
efforts and preventative conservation efforts, such as from Outer 
Continental Shelf (OCS) gas and oil royalties, is critical to the 
success of any national recovery program for wildlife. State fish and 
wildlife agencies strongly believe the single most important thing you 
can do for endangered species is prevent them from becoming endangered. 
A preventive approach to wildlife conservation makes sense 
biologically, economically, and politically.
    Current annual appropriations for the State Wildlife Grants program 
have had substantial benefits for fish and wildlife. However, the 
variable nature of these funds impairs the ability of wildlife managers 
to implement the long-term, on-the-ground conservation programs that 
are truly needed to achieve large-scale results for wildlife. Unlike 
the infrastructure or equipment needs that characterize transportation, 
defense, or other policy areas, the restoration and management of 
degraded habitats and critically low wildlife populations requires 
sustained attention over time. The uncertainty inherent in the annual 
appropriations process limits the ability of wildlife agencies to take 
effective action.
    Congress recognized the need for dedicated funding for preventive 
conservation with the passage of the Fish and Wildlife Conservation Act 
in 1980, under the leadership of Senator John Chafee. Since that time, 
the State fish and wildlife agencies have worked steadily with Congress 
and the Administration to build support for wildlife conservation 
funding, especially in the 1990's with the efforts under the 
Conservation and Reinvestment Act. Title III of that bill proposed the 
creation of the Wildlife and Conservation Restoration Program (WCRP) as 
an account under the Pittman-Robertson Wildlife Restoration Act, aimed 
specifically at declining and nongame wildlife species. Although CARA 
did not pass, the WCRP was created through a separate measure in 2000. 
However, the WCRP is currently not funded. Securing a dedicated funding 
source for the WCRP would realize Congress' long deferred intent to 
fund preventive action to advance the national interest in keeping 
species from endangered.
    The Comprehensive Wildlife Conservation Strategies recently 
completed by every State and territory outline how additional Federal 
wildlife conservation funds could be used in partnership with State 
funds to conserve endangered species along with hundreds of other 
declining fish and wildlife species. This landscape-scale approach to 
conservation represents the most effective way to conserve fish and 
wildlife nationwide, and continues the very successful model of 
Federal-State partnership in wildlife conservation.
    Funds from OCS oil and gas receipts are appropriate sources of 
funding for wildlife conservation for several reasons. We have reviewed 
and considered many other sources of funds such as adding additional 
user fees through excise taxes on outdoor gear beyond hunting and 
fishing gear, cap and fence appropriations, damage fees from other 
extractive industries, or dedicating a portion of the existing coal 
reclamation fund. The dedication of a percent of off-shore receipts 
from oil and gas production is most appropriate due to the impact that 
these activities have on wildlife and habitat. These dollars can act in 
essence as ``mitigation funds'' for oil and gas development activities. 
As revenue to the Federal Treasury, it makes sense to dedicate these 
dollars to the pressing national interest in conserving fish and 
wildlife resources. Additionally, there is a precedent with the use of 
the off-shore oil receipts since it is used for the Land and Water 
Conservation Fund.
    In addition to off-shore oil and gas receipts, we believe that the 
royalties from on-shore receipts are a promising source of funds for 
preventive wildlife conservation. On-shore drilling royalties are now 
deposited into the general Treasury without any dedication to 
``mitigation'' purposes as is the case with off-shore royalties. 
Production in these areas is increasing dramatically and with it 
increased revenues coming into the Treasury. In addition to the value 
of using a portion of this revenue to advance the pressing national 
interest in wildlife conservation, on-shore production causes direct 
impacts to wildlife and habitat on the ground in each State that call 
for appropriate conservation actions. Our nation should have a 
``reinvestment'' fund based on on-shore production just as the off-
shore oil and gas does.
    State fish and wildlife agencies are strongly in favor of 
dedicating Federal funding for proactive State efforts to address the 
national interest in preventing wildlife from becoming endangered. We 
urge the Senate to consider such a program by including in any ESA or 
related legislation a dedicated funding source to fund the Wildlife and 
Conservation Restoration Program. This program outlines that the funds 
should be used for conservation, recreation and education. The State 
wildlife conservation strategies, now done for each State and territory 
in the nation, will guide this funding for the species and habitats in 
greatest conservation need ensuring the funds are directed towards 
preventing wildlife from becoming endangered.

    Question 2. Your testimony states that the distinction between 
threatened and endangered status for species needs to be restored. How 
do you think that can be done?
    Response. The USFWS has effectively precluded a greater role for 
the states in threatened species conservation by passing a regulation 
which preemptively applies the same section 9 take prohibitions to 
threatened species as the law applies to endangered species, unless FWS 
promulgates a less restrictive 4(d) rule for that species. Congress 
could express further its intent that those are decisions to be left to 
those states that have an approved section 6 ``full authorities'' 
cooperative agreement by adding at the end section 4(d) the following 
language: ``When such a cooperative agreement exists, the State may 
issue regulations for regulated takings of threatened species within 
their borders.''

    Question 3. Your testimony states that in the 1990s your 
association worked with the Western Governors' Association on 
Endangered Species Act legislative recommendations. Are you familiar 
with the goals the Western Governors have proposed this year? Does your 
association support these goals?
    Response. Yes, we are very familiar with WGA's proposed goals and 
are very supportive of those goals.

    Question 4. Do most State Fish and Wildlife Agencies have access to 
qualified personnel needed if states were to take on increased 
responsibility to carry out the Endangered Species Act?
    Response. Yes, but most states would need enhanced funding to 
support the staff necessary to more actively engage in ESA 
implementation.
                               __________
  Statement of Karen Scarborough, Undersecretary, State of California 
                            Resources Agency

    Good morning, Mr. Chairman and Members of the Subcommittee, I 
appreciate the opportunity to testify today regarding the Endangered 
Species Act (ESA). Since January 2004, I've had the honor of serving as 
Undersecretary of the California Resources Agency. Under the leadership 
of Governor Arnold Schwarzenegger, the State has made great progress to 
protect the environment and California's natural resources.
    California has a strong tradition of environmental protection. We 
have led the nation in adopting strict standards for air and water 
quality, supporting zero-emission technologies, and promoting renewable 
sources of energy.
    Governor Schwarzenegger is continuing this tradition through his 
bold Hydrogen Highway Initiative which calls for 250 hydrogen fueling 
stations and 20-thousand hydrogen vehicles on California's highways, 
his One-Million Solar Roof Initiative, and recently signing an 
executive order launching the Green Building Initiative to make State 
office buildings more energy efficient.
    In June, the Governor set new greenhouse gas emission targets that 
by 2050 will reduce emissions by 80 percent below 1990 levels. Already, 
many major California companies are voluntarily joining this effort.
    The Governor's natural resource management achievements are equally 
as bold. The preservation of more than 80,000 acres of open space and 
13 miles of the majestic central California coastline at the famed the 
Hearst Ranch is a new model of public-private cooperation. The creation 
of the 25-million-acre Sierra Nevada Conservancy also sets a new 
standard for multi-faceted resource stewardship planned and to be 
carried out cooperatively by more than a dozen Federal and State 
agencies, 22 counties and several hundred local government entities and 
districts. The Conservancy boundary encompasses an area approximately 
35-80 miles wide that if super-imposed on a map starting from the Dome 
of the U.S. Capitol would reach beyond Atlanta to the South, beyond 
Chicago to the West or beyond Boston to the North.
    At the Resources Agency, we work to find methods to simultaneously 
conserve California's unique natural resources and foster thoughtful/
sustainable development and economic growth. The Natural Community's 
Conservation Program and planning process accomplishes this efficiently 
and effectively. Implementation of the NCCP, which began in 1991, has 
been an unprecedented effort by the State of California to collaborate 
with numerous public agencies, utilities and private groups to craft a 
broad-based ecosystem approach to planning for the protection and 
perpetuation of biological diversity in the state, while accommodating 
compatible growth and appropriate economic development. This balance is 
the NCCPs greatest benefit as well as its greatest challenge.
    The NCCP was modeled after the Habitat Conservation Plan (HCP) 
process within section 10 of the Endangered Species Act (ESA). However, 
the NCCP was intended to promote more comprehensive actions to overcome 
perceived shortcomings of the Federal HCP program. In fact, the 
conservation standard in the NCCP Act goes beyond the mitigation 
standard of ESA. Each NCCP comprises a bundle of recovery actions. 
Notwithstanding the different standards, the NCCP Act and ESA can be 
blended together almost seamlessly. They complement each other so well 
that every NCCP permitted to date has also been an HCP. As a result, 
California's combined NCCP/HCP's have the highest standards for 
regional conservation plans in the nation.
    The NCCP initially targeted some of the highest-priced real estate 
in the world in southern California and its coastal sage scrub 
community, an area with more listed species than anywhere but Hawaii. 
California's Floristic Province, a zone of Mediterranean-type climate 
with a high amount of endemic plants, has been identified by several 
organizations as one of the world's top ``biological hot spots''. The 
first plan was completed in 1995, and since then, seven regional plans 
have been approved, protecting hundreds of thousands of acres of 
wildlife habitat in southern California counties alone. Statewide, 11 
counties and numerous cities are currently participating in NCCP 
planning and implementation, as well as electric, gas and water 
utilities and a private timber company. There are 31 active NCCP's of 
varying scope and complexity.
    San Diego's Multiple Species Conservation Plan (MSCP), is a 
recognized NCCP and HCP through a signed planning agreement. The MSCP 
started at the same time as the NCCP but from a different angle. A 
large scale mitigation plan was required by the U.S. Fish & Wildlife 
Service (USF&WS) to resolve a Federal lawsuit on San Diego's sewage 
treatment system. San Diego's plan was focused on 93 species and its' 
study area encompassed 585,000 acres in the southwest corner of the 
county.
    Political leadership was instrumental to the success of San Diego's 
MSCP. Then Mayor of San Diego, Susan Golding, championed the MSCP on 
behalf of the participating local governments and affected 
stakeholders. Her involvement in the process was essential to gaining 
broad-based support for the program and the engagement of other local 
governments and stakeholder groups. She also provided the foresight and 
strength to continue with the plan even after the Federal lawsuit that 
instigated the plan was settled.
    My involvement with this program started in 1991 as the appointed 
Chair of the MSCP Working Group, a 32-member group that met every third 
Wednesday for almost 7 years. I later joined Mayor Golding's staff, and 
helped move the plan to its ultimate passage at the City Council in 
1997. Setting a table at which all interested stakeholders are invited, 
at the outset of the process, is critical. Working Group discussions 
were predicated on ``win-win'' scenarios for all who sat around the 
table and participated in the plan development. Consensus was the 
principle used at all meetings. It enabled moving through the process 
to arrive at outcomes, from disputes to certainty.
    The MSCP was predicated on a partnership between Federal, State, 
local and private representatives. It linked Federal policy to local 
government (where most land use authority resides), to local needs 
(e.g., for open space, quality of life, and balanced development), and 
to local stakeholders (who could help with implementation and build 
political support). More was accomplished through these links than the 
ESA could have accomplished on its own. The MSCP shifted local planning 
from dysfunctional, piecemeal project-by-project mitigation and a 
single species focus to large scale, comprehensive, ecosystem plans.
    The main attributes/elements of the MSCP (and NCCP's in general) 
are that it:
     Sets up a partnership with the State and Federal wildlife 
agencies
     Requires the participation of affected stakeholders
     Provides a legitimate biological basis for assurances 
through the use of sound science from the outset and adaptive 
management throughout
     Approaches species planning at an ecosystem level
     Covers future as well as currently listed species
     Meets the conservation standard
     Provides a vehicle for eliminating critical habitat where 
the plan is in place
     Provides a one-stop-shop for local developments and is an 
off-the-shelf framework for mitigation required by State or local laws, 
e.g., CEQA
     Provided a template for other, even larger efforts, such 
as the Western Riverside County Multiple Species Habitat Conservation 
Plan
     Requires an ongoing funding stream
     Needs leadership by an elected official
    The MSCP planning process was an experience of trust building I 
will never forget. The lessons learned are now integral to the 
foundation upon which I have continued to pursue the same balance for 
the State and Governor. Many of the Working Group members remain my 
closest and dearest professional colleagues.
    Utility rights-of-way can be important backbone linkages in a 
preserve plan. The special needs of utilities are recognized in the 
state's NCCP legislation, thus encouraging their participation. 
Infrastructure providers face the same challenges raised by potentially 
severe endangered species listings constraints as do developers yet 85 
percent of their work is for maintenance and operations. Endangered 
species listings affect essential maintenance and operation activities 
as well as making planning for new facilities and transmission even 
more difficult. To maintain safe and reliable energy supply, as well as 
ensuring needed water for agriculture, homes and businesses, a new way 
of managing rare species is required. The NCCP program offers a 
solution. SDG&E, a large energy services company, saw the potential and 
crafted the first NCCP/HCP that has allowed for both new construction 
and operations and maintenance to proceed. Since 1995, SDG&E has used 
its permit over 2,500 times.
    Statewide, plan implementation has been underway for almost 10 
years. Local, state, and Federal Government have cooperated with 
environmental interests and landowners to ensure the plans are 
implemented as approved. In San Diego County alone, voters in 2004 
approved almost $900 million for wildlife protection and habitat 
acquisition. Since 1991, more than $24 million in Federal funds has 
been provided for NCCP planning in the five southern California 
counties. Those funds, plus matching investments from the state, have 
leveraged private preserve dedications valued in the billions of 
dollars. From 2001-2004, the Resources Agency's Department of Fish and 
Game (DFG) successfully competed for $5.6 million for regional 
conservation planning in the northern areas of the state. Even with 
these successes, funding remains a serious challenge to successful 
implementation, but with matching or assistance from USFWS/DFG, local 
government has been able to persuade voters to help pay for the costs 
of assembling and running the preserve.
    The original NCCP legislation has been updated and strengthened to 
increase public participation and improve the scientific underpinnings 
for future plans. The quality of the plans is uniformly high, but we 
continue to be vigilant to improve upon them.
    A large part of the success of the NCCP approach in California is 
our having had a strong Federal counterpart interested in similar 
conservation outcomes. The ESA and NCCP Act complement each other such 
that blending them together into a single conservation planning process 
makes an excellent case for robust conservation. Even so, we believe we 
can improve. Achieving ESA/NCCP consistency at the Federal level and 
policy consistency between Federal and State endangered species 
regulation and law is a worthy goal.
    After our nearly 10 years of experience working in this arena, we 
have a several observations and continuing challenges for your 
consideration:
    Assurances/Certainty.--The main reason we have been able to attract 
local jurisdictions, landowners, and utilities to participate in the 
NCCP process is the assurance that in the event steps need to be taken 
to correct a problem with a covered species, for whatever the reason, 
that those costs will not be passed on to the participating landowners. 
Utilizing the Congressional intent expressed in the Endangered Species 
legislative record of 25 years ago, a strong No Surprises policy is 
critical this need. This No Surprises policy has been a resounding 
success. To my knowledge, it has not been invoked to date and we 
continue to interest local government in habitat conservation. NCCP/
HCP's have contingency plans built into them, and adaptive management 
over time has always been a hallmark of a successful landscape level 
habitat conservation plan. Given the amount of confusion about what the 
policy means, a discussion about codifying No Surprises seems in order, 
and could possibly lead to changes that could remove a cloud of 
uncertainty over the long-term viability of NCCP/HCP's.
    Critical Habitat.--We have found that the designation of critical 
habitat remains controversial. It is not clear, especially given recent 
court decisions in different parts of the country, what the regulatory 
implications of critical habitat designation are. Litigation has 
increased the confusion. Our plans already meet a recovery standard 
because the NCCP Act requires a conservation standard, which entails 
recovery, and all NCCP/HCP's meet both State and Federal standards. 
Arguably, the time and money spent on critical habitat matters, 
including responding to litigation, might better be spent working on 
the actual species recovery effort. Looking at solutions which would 
reconcile sections 7 and 10 of the Act might be helpful. All the 
parties would benefit from this clarification.
    Off-Site Mitigation.--Since NCCP/HCP's cover vast swaths of natural 
lands, the ability for plan participants to offset impacts elsewhere 
within the planned preserve has been very useful in assembling the 
preserve. In some ways, these plans are like puzzles, with pieces being 
placed as they become available and according to the plan. In San 
Diego, some local governments have assembled almost their entire 
preserves, way ahead of schedule; offsite mitigation has been a crucial 
part of the success of the approach. Many of the participating 
landowners are also limited by factors such as topography, utility 
availability and cost when attempting to preserve essential habitat. 
Providing legislative clarity on the use of offsite mitigation land in 
HCP planning seems to be an important objective.
    Clarification of Public Utility Uses.--There is inadequate 
consideration in Federal law of the differences between their 
operations and traditional development. Any review of the law should 
consider policy differentiating between the very small impacts 
associated with repeated maintenance and operations activities and 
those of traditional land consumptive activities.
    Funding for Planning.--Local governments do not typically have the 
significant amounts of money necessary to complete an NCCP plan, 
estimated from $3-6 million depending on complexity and the length of 
time it takes. This problem is exacerbated in difficult State budget 
times, when State funds to local governments are often reduced. Grants 
for conservation planning are essential to maintaining momentum in 
NCCPs. The FWS' HCP Assistance grant program has enabled many 
jurisdictions to initiate and make significant progress on their plans.
    Implementation Commitments: Land Acquisition.--The higher 
conservation standard of NCCP includes the concept and Legislative 
intent that the public shares in the responsibility to pay for a 
portion of the conservation. In all NCCPs approved to date, the State 
and Federal Governments have agreed to contribute acres to the reserve 
system and assist with management and monitoring. For example, the 
State and Federal agencies agreed to contribute 13,500 acres to the San 
Diego MSCP reserve system, and 50,000 acres to the Western Riverside 
MSHCP reserve system. The demand for Federal HCP land acquisition 
grants is rising, yet the Federal funding has declined significantly 
[over the past 2 years (2002-$61.3M, 2004-$49.4M)]. It is hoped that 
the State and Federal funding streams for land acquisition (typically 
State bonds and Federal grants) will continue at levels sufficient to 
meet the needs of these and future plans to be approved in [northern] 
California.
    Implementation Commitments: Institutional Capacity.--Inherent in 
commitments, are the wildlife agency staff positions that will be 
needed for ongoing planning and implementation. Wildlife agency staff 
need to support the concept as well as continue to be involved in the 
land use planning process, coordination with local partners on plan 
implementation, monitoring program compliance, assessing land 
acquisition priorities, applying for grant funds, and participating in 
biological monitoring and adaptive management and do so constructively. 
There are currently no State bond funds or Federal grants that can 
provide the necessary monitoring and management funding for the 
wildlife agencies to carry out their commitments. New funding sources 
must be found that will allow the wildlife agencies to uphold their 
public trust responsibilities to these plans.
    In conclusion, proactive planning of our natural resources from a 
landscape level has been the way California has found to deal with the 
fact that we are both a ``biological hot spot'' and a great place to 
live. The technical products of this labor are only part of the reward. 
The relationships and trust that is generated through the process 
transcends the plans and is invaluable.
    Mr. Chairman, I thank you for the opportunity to share our 
experience with habitat planning. I would be pleased to respond to any 
questions you might have.

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        Responses by Karen Scarborough to Additional Questions 
                          from Senator Chafee

    Question 1. What ESA changes could help provide State and local 
governments with the tools necessary for assisting in species recovery?
    Response. For California to meet ESA's objectives without severe 
economic hardships, our best hope is to expand NCCP planning, which 
would benefit from the continuation of the local assistance grants that 
have helped fund the NCCP planning efforts over the last 10 years. 
These grants are a very efficient use of public money, based on the 
statistics provided by local government plan participants. State and 
Federal funding has been matched many times over by local government 
exactions and private land dedications. For example, in San Diego 
County, the Federal Government contributed $35 million to the NCCP from 
1997-2004. In the same period, that funding leveraged dedications of 
private land valued at $486 million, and the expenditure of $36 million 
in County general funds. State investment in the same period totaled 
$80 million. These grants have been administered under strict 
oversight, generally at the multi-jurisdictional level. All grants are 
requested yearly and progress reports required.
    We applaud the performance analysis the Office of Management and 
Budget has been preparing, because it will show that these large plans 
provide economies of scale. Cooperative planning agreements were signed 
between the United States Fish and Wildlife Service (USFWS), California 
Department of Fish and Game (CDFG) and local governments that spell out 
responsibilities and provide for funding assistance through the 
Cooperative Endangered Species Fund (Section 6) and other local 
assistance sources.
    Some additional suggested ways for ESA to better support NCCPs are 
provided in the answer to Senator Chafee's next question.

    Question 2. Are there aspects of the NCCP that could be 
incorporated into legislation to encourage HCP focus on both mitigation 
and recovery?
    Response. Acting under the assumption that the NCCP concept is the 
best path, there are several congressional actions that could be taken 
to improve the plans.
    First is to codify the ``No Surprises'' assurances policy. No 
Surprises was developed for the southern California NCCP pilot program, 
to motivate landowners and local jurisdictions to participate, and has 
been very effective. Many landowners have told us that without these 
assurances, they would not participate in the NCCP process and would 
pursue other remedies which frankly would not promote the large-scale 
solutions of the NCCPs.
    The second NCCP-based action would be to employ the California 
ESA's conservation standard for covered species, to ensure that 
recovery actions become integral to carrying out NCCPs.
    A third essential element of NCCP success is the ability to employ 
offsite mitigation for impacts to species. Since NCCPs are done at a 
landscape level, mitigation is often the only way to ``complete the 
puzzle'' of a preserve plan. We understand that for some regulated 
industries, offsite mitigation may be detrimental, so its use should be 
voluntary.
    Fourth, the State NCCP program provides a mechanism for utilities 
to obtain take authorizations for the rare instances when their 
operations and maintenance activities may lead to impacts to protected 
species. The Federal Government has an opportunity to improve on the 
way infrastructure providers can assure safe and reliable service by 
expanding and codifying a safe harbor policy for water, electric, and 
natural gas providers. It is likely this change could benefit Southern 
States recovering from recent hurricanes, and California's efforts to 
achieve levee stabilization.
    Fifth, the use of the low impact HCP approach should be expanded. 
These special HCPs provide a way for applicants such as local 
governments, water districts, flood control districts, utilities and 
Indian tribes to undertake necessary, ongoing maintenance activities. 
No one should have to mitigate for impacts more than once.
    Sixth, we support the elimination of the critical habitat 
provisions of the ESA in favor of a more useful approach The 
designation of critical habitat appears to provide no benefit to the 
NCCP process; in practice, the process diverts scarce USFWS staff and 
funding away from the much more productive NCCP conservation effort, 
and can be a disincentive to voluntary participation in NCCPs by 
private landowners. Since NCCPs inherently address recovery actions, 
critical habitat and the associated obligatory recovery plans become 
redundant in NCCP planning areas.

    Question 3. With ``No Surprises'' staying intact, would you support 
creating a fund to pay for monitoring and adaptive management?
    Response. Yes, but should the Senate consider such a fund, its 
members should realize that the fund could be matched by local or State 
funds and could apply only to NCCP-type HCPs. Many confuse the meaning 
of ``No Surprises.'' It is simply a tool that allows participants to 
bracket their financial exposure before committing to NCCPs long-term 
stewardship obligations. Even public utilities with low impact 
activities benefit from the business planning stability that the ``No 
Surprises'' policy provides. The ``Changed Circumstances'' provisions 
in today's NCCPs and HCPs protect the CDFG and USFWS from the costs 
associated with such predictable events like drought, fire, floods and 
even pestilence.
                                 ______
                                 
        Responses by Karen Scarborough to Additional Questions 
                          from Senator Inhofe

    Question 1. What steps can be taken to ensure HCPs are meaningful 
and binding management documents for both State and Federal entities?
    Response. Since NCCPs are prepared jointly by State and Federal 
Governments, they have the same Covered Species list, thereby 
eliminating the problem cited in the question. The plans are binding 
under the existing State and Federal legal frameworks and compliance 
and enforcement have not been an issue. California has a provision in 
its Fish and Game code that provides that a permit obtained from the 
U.S. Fish and Wildlife Service to take species also applies to the 
state. Each State should have a similar reciprocity provision in its 
regulations.

    Question 2. What additional steps can states take to ensure that 
the State or local entities are adequately involved in the process 
where any new listing, recovery or delisting decisions are made by the 
Federal Government? Should the Federal Government be required to seek 
local input when considering listing, recovery and delisting actions?
    Response. Because local governments are usually the holders of the 
take permits from the California Department of Fish and Game, their 
involvement is essential to the success of NCCPs. Landowners get their 
permits to take State or federally listed species as part of their 
local land use approvals: in effect, ``one-stop shopping'' is created.
    Federal listing, recovery and delisting decisions should always be 
made in the context of local and State actions that support, are 
neutral, or jeopardize rare species. The public review process for such 
actions can be a venue for input. As a result of our NCCPs, California 
has been able to prevent the listing of species that are already being 
treated and protected as if they were listed. These species benefit 
from the recovery actions that are inherent in the NCCPs.
    Your question did not specifically address public involvement, but 
it may be helpful to point out that California's NCCP Act mandates a 
public involvement process to allow all interested parties to provide 
input. Public input is also solicited for NCCP-mandated planning 
agreements, that bind the parties to a defined process. The public 
process and providing the basis for collaboration is the real secret of 
NCCP success--the parties start working together early in the planning 
process, so major issues can be addressed before they can threaten 
successful completion. For example, in San Diego, it became clear well 
before the mapping and preserve design process was finalized that an 
assurances policy was going to be needed to buttress landowner and 
local government cooperation. From that collaboration, a strong 
consensus of support emerged and helped lead to the formulation of ``No 
Surprises'' assurances.

    Question 3. What incentives are needed and how can the ESA be 
amended to engage small landowners in habitat protection?
    Response. This question should be expanded to include all parties 
affected by habitat protection issues. A number of incentives that lead 
to beneficial effects for species are available to improve landowner 
participation, including safe harbors and working landscape policies 
and, of course, NCCPs. The existing safe harbor policy and nascent 
working landscape policies should be expanded and better codified to 
provide assurances that ongoing activities, if conducted according to 
agreed-upon protocols, are not deleterious to rare species.
    As an example of how partnering with landowners can work, we have 
discovered that modest changes to work practices frequently can have 
significant beneficial results. For example, rice farmers in the 
Sacramento Delta, instead of burning chaff yearly, can leave the 
stubble in the fields, flood them, and thereby provide critical forage 
and stopover territory for migratory waterfowl. The waterfowl eat the 
chaff and their waste fertilizes the soil for next year's crop. Air 
pollution is cut and also water for the rice crop is put to wildlife 
use.
    We also have found that utility rights of way and access roads can 
serve as important linkages for wildlife preserve planning. By 
coordinating road grading, tree trimming and other maintenance 
practices, utilities can eliminate most of the potential negative 
effects on rare species: in fact, intermittent scheduled maintenance 
activities, such as on levees and other types of infrastructure, can 
have the effect of enhancing habitat for rare species like the Quino 
checkerspot butterfly that require periodic habitat disturbance.
    As a way to build support for regional habitat conservation 
planning, special treatment for low effect, albeit frequent, impacts 
from infrastructure providers should be included in the tools available 
to State and local governments. Not only can rights of way be valuable 
as preserve connections, many times, large capital projects provide 
opportunities for mitigation packages which can help establish a 
regional wildlife preserve. For example, the expansion of a water 
reservoir can lead to the set aside of compensatory habitat in large 
blocks elsewhere, while allowing jurisdictions to meet their 
obligations to provide a safe and reliable water supply.
    In NCCPs, a public participation process is required and can be 
used to engage small property owners. Many public meetings and mailers 
to landowners preceded the adoption of southern California's NCCPs. In 
those meetings, the benefits of the CDFG and USFWS delegation of 
permitting authorities were explained and the economies of scale 
demonstrated. In essence, by combining forces, local governments are 
able to leverage their land use authority to simplify the Federal and 
State permitting processes and incorporate the needs of species in 
local general plans.

    Question 4. What role do/should State and local governments have in 
the decision-making process for endangered species protection? Would it 
produce a better result if the Federal Government worked with local and 
State interests on a plan that benefits the species and the community 
while staying consistent with project goals? Should the ESA 
decisionmaking process be open to the public?
    Response. The Federal Government's expertise clearly is needed in 
ESA decisionmaking, but the NCCP program shows the benefits of Federal, 
State and local jurisdictions working together to achieve successful 
large-scale habitat conservation planning. To the extent ESA can be 
reformed to encourage this sort of cooperative effort, other states may 
benefit as California has.
    Using the best available scientific information should always be 
the standard. Unfortunately, it doesn't always happen, as the Klamath 
and other cases of abuse of discretion or scientific method have 
demonstrated. A more transparent scientific process that draws on State 
and local expertise can help improve the scientific process, as could 
the establishment by the Secretary of Interior of clear and enforceable 
standards for the scientific decisionmaking process to be used with 
ESA.
    The Federal Government can also assist State and local 
jurisdictions by supporting peer review efforts. When decisions are 
made without peer review, costly mistakes can occur. However, for the 
approved plans in southern California, a paid, locally-established 
scientific advisory panel provided a forum for careful scrutiny of the 
conservation planning principles under consideration. The scientists on 
the panel were drawn from regional universities and were known for 
their expertise. Having a panel of professional equals minimized the 
ability of anyone agenda to sway a discussion. The scientific bases of 
the NCCP in southern California have not been challenged.
    The scientific underpinning of NCCPs is ongoing. Monitoring 
programs are carried out under strict protocols that monitor habitat 
health, species populations and other factors, so management practices 
can be adjusted to improve outcomes. Local governments and arguably, 
State governments, do not have funding available for such rigorous 
scientific oversight. The Federal Government may wish to consider 
supporting a locally-generated scientific review process in return for 
a jurisdictions, participation in NCCP-type landscape level habitat 
conservation plans.
    Qualified local participants should have a say in listing decisions 
and all information used in making such decisions needs to be available 
for review by any and all interested parties. One reason the NCCPs are 
successful is the transparency of the program.
                               __________
  Statement of Bill Owens, Governor of Colorado and Dave Freudenthal, 
  Governor of Wyoming on Behalf of the Western Governors' Association

    Chairman Chafee, Senator Clinton, Members of the Subcommittee. We 
present this written testimony today on behalf of the Western 
Governors' Association (WGA). The Western Governors' Association is a 
bipartisan, independent, nonprofit organization representing the 
governors of 18 states and three U.S. Flag islands in the Pacific. 
Through our Association, the Western Governors identify and address key 
policy and governance issues in natural resources, the environment, 
human services, economic development, international relations and 
public management. We appreciate the opportunity to share with you the 
Western Governors' perspectives on the Endangered Species Act (ESA).
    Western Governors commend you for taking up this very important, 
but admittedly difficult issue. Our states and communities must deal 
with the impacts of proposals to list species and management decisions 
made under the ESA on a daily basis. That is why the Western Governors 
have long advocated that Congress review and update the Act as well as 
provide sustained levels of funding for the program. We strongly 
believe in the principles and goals of the ESA. The intent of the ESA 
remains a laudable goal. Yet the tools authorized by the current Act 
have become outdated and are incomplete. We, therefore, appreciate the 
opportunity to work with the Committee to help you build a bipartisan 
consensus for a few targeted, common-sense enhancements to the Act.
    Let us reiterate that last point--we strongly believe that the ESA 
can only be reauthorized through legislation developed in a consensus 
fashion that results in broad bipartisan support. Our predecessors, and 
in some cases our predecessors' predecessors recognized this simple 
fact in the early 1990s when the Western Governor's Association (WGA) 
and others embarked on a collaborative process to find common ground on 
this issue among a diverse set of stakeholders. The debate was so 
acrimonious in the beginning that it had to be temporarily called off. 
Soon however the parties were back at the table and negotiations began 
to bear fruit. Senators Dirk Kempthorne and John Chafee embraced this 
process and introduced comprehensive reauthorization legislation (S. 
1180) based upon these proposals. At the time, WGA strongly supported 
S. 1180 and actively sought its passage.
    Reauthorization of the ESA continues to be a high priority of the 
Western Governors. In continuation of the collaborative efforts of the 
past the WGA hosted an Endangered Species Act Summit in December 2004 
at which we brought together a very diverse set of stakeholders to 
discuss ways in which the Act could be improved. We quickly realized 
that finding common ground on a comprehensive reauthorization of the 
Act would be difficult and elusive. However, it also became fairly 
obvious that we had the beginnings of a consensus around four broad 
principles which, with some further discussion and effort, might form 
the basis of a deal to improve species conservation. We submitted these 
proposals in a letter to the Committee this past February. The four 
proposals were:
     Require recovery goals for listed species.--Western 
Governors believe that recovery and, ultimately delisting of species 
covered by the ESA should be the highest priority of the Act. Federal 
funding for ESA activities should be prioritized to reflect this 
priority. We believe that the best way to accomplish this goal is to 
require the Fish and Wildlife Service and NOAA-Fisheries to publish 
quantifiable recovery goals, in consultation with the affected 
state(s), for threatened or endangered species at the time of the 
listing decision to provide for objective recovery criteria that both 
State and Federal agencies may work toward in the recovery process. In 
cases where quantification of recovery goals is not initially feasible, 
the services should be required to publish a plan, including a 
timeline, describing the steps the Federal agencies will take in 
identifying measurable goals.
     Enhance the role of State governments in recovering 
species.--The Endangered Species Act can effectively be implemented 
only through a full partnership between the states and the Federal 
Government. One way to accomplish this partnership would be to 
authorize the delegation of authority for the development of 
conservation plans on a voluntary basis to states that choose to accept 
such delegation, and agree with the appropriate Secretary(s) to perform 
them in accordance with specified standards. Authority should also be 
given to the appropriate Secretary to provide grants for the additional 
administrative costs to the state.
     Ensure the use of good science in ESA decisions.--Given 
the broad implications that may arise when ESA actions are taken, 
significant decisions must be made using objective, peer-reviewed 
science. Peer review of listing, recovery and de-listing decisions by 
acknowledged independent experts is important to ensure the public that 
decisions are well-reasoned and scientifically based. Peer review 
committees should be agreed upon by the Fish and Wildlife Service, 
NOAA-Fisheries and the state. State agencies also have expertise and 
other institutional resources such. as mapping capabilities, biological 
inventories and other important data that should be employed in 
developing endangered species listing and recovery decisions.
     Incentives for conservation are essential.--Western 
Governors believe that providing economic incentives for landowners to 
participate in conservation efforts is likely to achieve more efficient 
and cost-effective results and may lead to more rapid conservation.
    These are, admittedly, limited and modest goals. Certainly, there 
are other potential improvements to the Act that Congress could and 
should consider. However, the Western Governors not only believe these 
four to be the most critical, but we also strongly believe them to be 
achievable. As a nation, we need to change the paradigm we are 
currently under and we need to do it soon. The Act has become too 
contentious; the parties too litigious; there is too little 
collaboration and trust between stakeholders; and conservation efforts 
have suffered as a result. Public confidence can be restored only 
through successful, constructive actions that result in the recovery of 
species. In other words we believe that, if adopted, these four 
principles could be the proverbial mustard seed that paves the way for 
possible future enhancements to the Act that build upon that success.

            ENHANCING THE STATE ROLE IN SPECIES CONSERVATION

    Preventative conservation is at the heart of our recommendations 
and that is why our states are actively engaged in developing State and 
multiple State conservation plans to restore declining species like the 
sage grouse before they need the protections of the Act. States have 
broad trustee and police powers over fish and wildlife, including those 
species found on Federal lands within their borders. States also have 
significant scientific expertise and resources at our disposal that 
could be better utilized to meet our common species conservation goals.
    The ESA is premised on a strong Federal-State partnership, but 
Congress and the agencies need to provide expanded and more meaningful 
opportunities for states to comment, participate, or take the lead on 
many of the decisions required under the Act. In addition, the Federal 
agencies responsible for enforcing the ESA are straining under the 
weight of an ever increasing number of listed species, and they are 
failing to recover species to the point at which they can be de-listed. 
Unless massive new resources are allocated to them, soon the Federal 
agencies will be so overwhelmed as to be completely ineffective (some 
might argue that we have already reached that point). Reaching out to 
states and other stakeholders in a collaborative and cooperative manner 
is possibly the only alternative to dramatically expanding the size and 
resources available to those agencies. It follows, therefore, that the 
Act can be effectively implemented only through a full partnership 
between the states and the Federal Government. We stand ready, willing 
and able to take on a greater role and responsibility for this effort. 
We are committed to success and expect to be held accountable, but we 
must be given the proper tools and resources to do the job.

                    FOCUS ON THE RECOVERY OF SPECIES

    We acknowledge that the Act has been relatively successful in 
keeping species from going extinct. That in itself is a laudable 
achievement. However, staving off total disaster is simply not enough. 
It may be, as Winston Churchill once remarked ``the end of the 
beginning'' but it is not nearly ``the beginning of the end.'' The 
central focus of the Act must be the recovery of species. We believe 
that the best way to achieve this goal is to require the Fish and 
Wildlife Service and NOAA-Fisheries to publish quantifiable recovery 
goals at the time of the listing decision. This would give the Federal 
agencies, states and other stakeholders objective recovery criteria 
that all may work towards during the recovery process. We fully 
appreciate the fact that our understanding of a particular species and 
its recovery needs may change over time. However, it is unrealistic to 
expect states and private entities to engage in good faith 
collaborative conservation efforts if the Federal agencies are 
continually and unexpectedly raising the bar on them. A trusting and 
mutually beneficial relationship must be established before 
collaborative conservation efforts can truly bear fruit. Therefore, we 
must give Federal agencies, states and private landowners a relatively 
hard recovery target in order to ensure their active participation and 
to focus their efforts.

                             USE OF SCIENCE

    Bad decisions undermine public confidence in, and support for the 
Act. They also direct resources away from other more urgent 
conservation efforts. That is why we support peer review of the most 
critical decisions required by the Act. Peer review is standard 
practice in academia, even before publication of a scholarly article in 
the most obscure journal. We fail to see why some oppose even a cursory 
attempt to seek peer review before major Federal decisions, which often 
have profound effects on land use and other economic activities, are 
made. We believe that peer review, undertaken in an expeditious and 
transparent manner, would help enhance public confidence in the process 
and will better ensure that resources are directed to those species 
that have the greatest need. However, we also understand that it may 
not be necessary to pass legislation requiring a formal peer review 
process. If this process can be enhanced through rulemaking or another 
administrative means we would be supportive of that effort.

                    LANDOWNER INCENTIVES AND FUNDING

    Lastly, we cannot overlook the importance of private landowners in 
the cause of species conservation and protection. The good news is that 
numerous private landowners across the country are already engaged in 
voluntary conservation activities. In exchange for their trust and 
commitment we must ensure that they receive the economic assistance and 
incentives they need to continue these important efforts. Congress can 
play an enormous role in this matter by properly funding the various 
conservation programs, like those contained in the Farm bill, for 
instance; and ensuring that these programs are administered smoothly 
and reliably. Other incentives Congress may want to address further is 
to encourage the use of conservation easements. Or, perhaps Congress 
may choose to examine ways to provide regulatory certainty to 
landowners who engage in voluntary conservation activities. While 
economic assistance is needed and greatly appreciated, the most 
important incentive that private landowners desire in exchange for 
willingly participating in conservation efforts is the removal of, or 
prevention of land use restrictions.

                               CONCLUSION

    In closing, Mr. Chairman and Ranking Member, the Western Governors 
appreciate having the opportunity to present this testimony. We firmly 
believe in the goals of the ESA, and appreciate the opportunity to work 
with the Committee to help you build a bipartisan consensus for a few 
targeted, common-sense enhancements to the Act.
                                 ______
                                 
       The State of Wyoming, Office of the Governor, State 
                                                   Capitol,
                                  Cheyenne, WY, September 20, 2005.
Senator Lincoln Chafee, Chairman,
Senator Hillary Rodham Clinton,
Senate Fisheries, Wildlife and Water Subcommittee,
Senate Environment and Public Works Committee,
Washington, DC.
    Dear Hon. Subcommittee: In addition to the support the State of 
Wyoming lends to the perspectives presented today by the Western 
Governor's Association regarding potential reform of the Endangered 
Species Act (ESA), I would like to take this opportunity to propose a 
separate and distinct approach to ESA reform.
    While I am generally supportive of the statutory reform efforts 
currently underway in Congress, together with those outlined in the 
Western Governor's Association testimony, I believe that there may be a 
solution that would not require Congress to tread on the very 
controversial ground of amending the ESA. To this end, I believe that 
the door is open to make some relatively simple regulatory and 
budgetary changes that could have a significant and immediate impact on 
the administration of the ESA.
    Following please find a descriptive list of what I feel are a few 
very attainable and practical regulatory and budgetary reforms. These 
reforms are focused on species security, local conservation, habitat 
preservation and rehabilitation, the need for adequate funding, 
impartial peer review and better cooperation between the parties in 
interest.

         LISTINGS MUST BE DRAWN IN SUCH A WAY SO AS TO ACCOUNT 
                         FOR LOCAL CONSERVATION

    Currently an endangered or threatened species listing can apply to 
a species, subspecies or a Distinct Population Segment (DPS). While 
species and subspecies are defined rather narrowly through science, the 
DPS is a regulatorily defined designation. To make the ESA operate more 
effectively, the DPS policy should be re-crafted to consider 
geopolitical lines in listing and de-listing decisions. Simply put, if 
a species is eligible for listing in most of its range, but Oregon for 
example, can show that the species is doing well and is secure in 
Oregon because of regulations, habitat conditions or otherwise, Oregon 
should not be looped into the listing. Similarly, and by way of another 
example, if Florida can show, through the de-listing process, that the 
species no longer qualifies as an endangered or threatened species in 
Florida, at a minimum, the Florida population should no longer be 
subject to ESA constraints, while the larger population might remain 
listed. Tautologically, if the entire population does not warrant ESA 
protection, the entire population should not receive Federal 
protection.
    As a possible procedural consideration during the comment period on 
listing and de-listing decisions, the states could be given the 
opportunity to request that the ESA listing factors be evaluated within 
each ``requesting state'' to determine the applicability of each factor 
to that population of the species residing within that state's 
boundaries (no smaller subdivision of land or government should be 
considered). If the listing factors are not met within a state's 
geopolitical border, the ESA's intent of preserving species is already 
being met in that state, and a listing in that State would be precluded 
or discontinued (in the case of an already listed population). 
Regardless, incentives should be built in to encourage states not part 
of the listing to conserve the species and its habitat.
    By finally recognizing that the ``species'' within each State are 
``distinct'' as a function of where they happen to be located on a map 
(different states have differing degrees of habitat functionality, 
regulatory protections, etc.), science, and for that matter reality, is 
ultimately served. In the end, the states are the laboratories of 
species management and they should be given every benefit, opportunity 
and incentive to demonstrate the effectiveness of their individual 
efforts--as it is their individual effort that will protect the 
species.

  HABITAT AND HABITAT FUNCTION ARE CRITICAL IN THE PROTECTION OF ANY 
                  SPECIES, NO LESS ENDANGERED SPECIES

    Habitat degradation is currently recognized as the leading cause of 
species loss in the world. With the importance of the vast expanses of 
Federal land to species viability, particularly in the West, and the 
current state of Federal lands and the notion that we could do more to 
bolster the quality of such lands, habitat improvement is a necessary 
consideration. Thus, a minute portion of Federal mineral royalties, 
collected from Federal lands within each state, should be set aside to 
conserve and improve habitats on Federal lands. In my view, the funds 
should be allocated roughly as follows: Thirty percent to the State 
where the royalty was generated, 40 percent to be divided--pro rata--
based on total Federal land ownership and 30 percent to be divided 
among all States evenly. While not purely regulatory, this effort would 
not require ESA statutory reform and would have a lasting impact on the 
landscape for all species.

  WITHOUT FUNDING, WE ESSENTIALLY ASK THE SERVICE TO DO MORE WITH LESS

    As states, we remain frustrated by the lack of action on petitions, 
the lack of science, the lack of response to our inquiries and the lack 
of true recovery efforts. We also rail against the lack of Federal 
dollars to help recover those species that the Federal Government lists 
within our boundaries. One simple catalyst to move the process along is 
money, as money is the main lever available to control the power of the 
agencies charged with enforcing the ESA.
    President Bush separated the Services' funding into particular 
streams. This separation has given some control to those that 
appropriate funds to define the course and priorities of the Services. 
In short, Congress can allocate different funds to each account to 
effectuate a particular end. Wyoming's view is that the bulk of funds 
should be allocated to the recovery and de-listing budgets. Certainly, 
the listing of truly endangered and threatened species should not be 
ignored. However, pressure must be brought to finally and effectively 
recover and de-list our existing listed species. The three decade 
history of grizzly bears and bald eagles indicates as much.
    Additionally, as our effort with sage grouse illustrated, states 
can help deal with species of concern prior to invoking the full 
authority of ESA. Truly, State involvement is the most efficient way of 
achieving the stated intent of ESA. The old wives tale of: ``an ounce 
of prevention is worth a pound of cure'' is instructive. Prevention is 
much cheaper, more effective, and an easier conservation path than the 
route of listing/delisting, as is evidenced by the difference between 
sage grouse and grizzlies in Wyoming. A mechanism for providing 
prevention funding is available under section 10 of ESA, and simply 
awaits proper funding and administration. Funding incentives can be 
used to entice private landowners (who own a great deal of the habitat) 
to affect proactive conservation, instead of the current method of 
listing and then trying to force them, through regulation, to do 
something beneficial, which only leads to backlash and distrust.

                              PEER REVIEW

    A very recent and stinging reminder of ESA difficulties is 
associated with scientific peer review. The problem with the Preble's 
meadow jumping mouse was not that the peer review was done, but that it 
was done by interested parties with a vested interest in the listing 
process. Current guidance strongly discourages interested persons from 
participating in peer review. Regardless, in the case of the Preble's, 
the Colorado Division of Wildlife, in conjunction with the Service, 
appointed a peer review panel that was by no means impartial to review 
the science that was ultimately relied upon to arrive at a decision to 
de-list the mouse.
    Peer review in the ESA is functionally a tiered system. There is 
the first line of Service-selected review and a second line which 
consists of a very expensive and time consuming National Academy of 
Sciences review. The problem with the first tier is that there is no 
sure way to safeguard it from conflicts of interest, bias, etc. The 
problem with the second is cost and time. Wyoming's view is that the 
initial peer review group be selected, two each, by (1) the FWS 
director; and (2) the Game and Fish Director(s) from the states 
affected by the decision. Regardless, the selection of peer reviewers 
should neither be absolutely discretionary nor, as is the case now, 
subject to a singular point of discretion.
    I would further suggest this peer review system be used for all 
major decisions for ESA (listings, delistings, 4(d) rules, recovery 
planning). This is only reasonable, as states and particularly State 
wildlife agencies have more management expertise and are relied on to 
implement the action items resulting from these decisions. It only 
makes sense that State managers should lend their expertise in planning 
those action items that they are expected to implement.

                           PERSONNEL CONCERNS

    A real ESA problem lies with the mid-level bureaucrat that, for all 
intents and purposes, can derail the process of listing or de-listing 
of a species. While this may be a necessary outcrop of specialization, 
the Services must ensure that careers are not perpetuated by a lack of 
action or movement that, in the end, has a negative effect on true 
species recovery. In a related area of concern, the Services must also 
guard against what essentially rises to the level of doctoring a record 
to meet individual missions, as opposed to that of the ESA--species 
recovery and preservation. To remedy this concern, the States should be 
given the opportunity to directly participate in and oversee the day-
to-day operations of the Services in achieving recovery, listings and 
de-listings, in a system akin to Cooperating Agency Status. Such could 
be accomplished with a Director's Order at this juncture. By opening 
the doors and files of the Services to the truth-checking of states, 
the record can be protected from undue insertions and the bureaucrat's 
motives can be checked.
    In my view, true movement and true reform of an issue occur in the 
margins. While certain laws are intrinsically flawed, I do not believe 
the ESA to be one of them. Each of us can honestly agree today, as 
Congress did in 1973, that protecting endangered and threatened plants 
and animals is a salutary public purpose. The ESA, in and of itself, 
does little to detract from this point of commonality, Unfortunately, 
the ESA has taken the singular form of a hammer, with only nails in 
sight. For sure, the ESA has become a hammer to control land use 
patterns, attract funding and propel egos. While harsh, reality must 
find our current discussion at some point. By recognizing that land use 
control, funding and egos motivate many ESA processes, we can start to 
get to the true heart of reform.
    Thank you for considering my thoughts. Please accept my best wishes 
in your endeavors to bring a reasoned dialogue, and hopefully reform, 
to a very important issue to the people of Wyoming and the United 
States.
            Best regards,
                                          Dave Freudenthal,
                                                          Governor.
  

                                  
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