[House Hearing, 113 Congress]
[From the U.S. Government Publishing Office]




 
COLLISION COURSE: OVERSIGHT OF THE OBAMA ADMINISTRATION'S ENFORCEMENT 
APPROACH FOR AMERICA'S WILDLIFE LAWS AND ITS IMPACT ON DOMESTIC ENERGY

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



                           OVERSIGHT HEARING

                               before the

                     COMMITTEE ON NATURAL RESOURCES
                     
                     U.S. HOUSE OF REPRESENTATIVES

                    ONE HUNDRED THIRTEENTH CONGRESS

                             SECOND SESSION

                               __________

                       Wednesday, March 26, 2014

                               __________

                           Serial No. 113-64

                               __________

       Printed for the use of the Committee on Natural Resources


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                     COMMITTEE ON NATURAL RESOURCES

                       DOC HASTINGS, WA, Chairman
            PETER A. DeFAZIO, OR, Ranking Democratic Member

Don Young, AK                        Eni F. H. Faleomavaega, AS
Louie Gohmert, TX                    Frank Pallone, Jr., NJ
Rob Bishop, UT                       Grace F. Napolitano, CA
Doug Lamborn, CO                     Rush Holt, NJ
Robert J. Wittman, VA                Rauul M. Grijalva, AZ
Paul C. Broun, GA                    Madeleine Z. Bordallo, GU
John Fleming, LA                     Jim Costa, CA
Tom McClintock, CA                   Gregorio Kilili Camacho Sablan, 
Glenn Thompson, PA                       CNMI
Cynthia M. Lummis, WY                Niki Tsongas, MA
Dan Benishek, MI                     Pedro R. Pierluisi, PR
Jeff Duncan, SC                      Colleen W. Hanabusa, HI
Scott R. Tipton, CO                  Tony Caardenas, CA
Paul A. Gosar, AZ                    Steven A. Horsford, NV
Rauul R. Labrador, ID                Jared Huffman, CA
Steve Southerland, II, FL            Raul Ruiz, CA
Bill Flores, TX                      Carol Shea-Porter, NH
Jon Runyan, NJ                       Alan S. Lowenthal, CA
Markwayne Mullin, OK                 Joe Garcia, FL
Steve Daines, MT                     Matt Cartwright, PA
Kevin Cramer, ND                     Katherine M. Clark, MA
Doug LaMalfa, CA
Jason T. Smith, MO
Vance M. McAllister, LA
Bradley Byrne, AL

                       Todd Young, Chief of Staff
                Lisa Pittman, Chief Legislative Counsel
                 Penny Dodge, Democratic Staff Director
                David Watkins, Democratic Chief Counsel
                                 ------                                

                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Wednesday, March 26, 2014........................     1

Statement of Members:
    DeFazio, Hon. Peter A., a Representative in Congress from the 
      State of Oregon............................................     4
        Prepared statement of....................................     5
    Hastings, Hon. Doc, a Representative in Congress from the 
      State of Washington........................................     1
        Prepared statement of....................................     3

Statement of Witnesses:
    Ashe, Hon. Daniel M., Director, U.S. Fish and Wildlife 
      Service, Department of the Interior........................     6
        Prepared statement of....................................     7
        Questions submitted for the record.......................    11

Additional Material Submitted for the Record:
    American Wind Energy Association, Prepared statement of......    49
    Cramer, Hon. Kevin, a Representative in Congress from the 
      State of North Dakota, Prepared statement of...............    49
                                     


     OVERSIGHT HEARING ON COLLISION COURSE: OVERSIGHT OF THE OBAMA 
 ADMINISTRATION'S ENFORCEMENT APPROACH FOR AMERICA'S WILDLIFE LAWS AND 
                     ITS IMPACT ON DOMESTIC ENERGY

                              ----------                              


                       Wednesday, March 26, 2014

                     U.S. House of Representatives

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The committee met, pursuant to notice, at 10:01 a.m., in 
room 1324, Longworth House Office Building, Hon. Doc Hastings 
[Chairman of the committee] presiding.
    Present: Representatives Hastings, Gohmert, Bishop, 
Lamborn, Fleming, McClintock, Tipton, Labrador, Southerland, 
Flores, Mullin, Cramer, LaMalfa, DeFazio, Tsongas, Hanabusa, 
Huffman, and Shea-Porter.
    The Chairman. The committee will come to order, and the 
Chair notes the presence of a quorum, which under rule 3(e) is 
two Members, and we have exceeded that.
    The Committee on Natural Resources is meeting today to hear 
testimony on an oversight hearing entitled, ``Collision Course: 
Oversight of the Obama Administration's Enforcement Approach 
for America's Wildlife Laws and Its Impact on Domestic 
Energy.''
    Under committee rule 4(f), opening statements are limited 
to the Chairman and the Ranking Member. However, I ask 
unanimous consent that any Member who wishes to have an opening 
statement as part of the record submit it to the clerk by close 
of business today.
    [No response.]
    The Chairman. And without objection, so ordered. I will now 
recognize myself for 5 minutes for my opening statement.

    STATEMENT OF THE HON. DOC HASTINGS, A REPRESENTATIVE IN 
             CONGRESS FROM THE STATE OF WASHINGTON

    The Chairman. For nearly 2 years, the Committee on Natural 
Resources has investigated the Obama administration's approach 
for enforcing wildlife laws, including the Migratory Bird 
Treaty Act, and the Bald and Golden Eagle Protection Act, as it 
relates to U.S. energy producers. Both of these laws are strict 
liability statutes that prohibit the taking of migratory birds 
and bald and golden eagles within the United States. As strict 
liability statutes, any authorized take that occurs, be it 
intentional or unintentional, violates the acts.
    However, despite the strict liability of these laws, the 
administration has developed specific guidance to assist the 
burgeoning wind industry, and has selectively prosecuted only a 
handful of violations. In November 2013, the Department of 
Justice announced a plea agreement involving the Duke Energy 
renewables in connection with the protected migratory birds and 
golden eagles at two wind energy projects in Wyoming. This is 
the only such enforcement case that has been brought to date 
involving the wind industry.
    Now, there are legitimate concerns that the administration 
is implementing these laws in an arbitrary fashion. The goal of 
this hearing and the committee's oversight efforts is to gain a 
better understanding of how and why the administration decides 
to enforce some violations and not others. We are also 
interested in learning more about what role cooperation between 
the administration and wind developer plays in making these 
enforcement decisions. Unfortunately, like so many issues, this 
administration has been less than transparent on this topic. 
The Department has engaged in a deliberate, 10-month slow roll 
in fulfilling the committee's request for documents and 
information.
    For example, it took the administration more than four 
months before it provided fewer than 70 pages of emails and 
meeting materials about the development of a secret bird 
mortality data base. The administration dragged its feet for 
six months before providing a two-page policy memo that was 
written a year earlier. The administration gave us copies of 
redacted documents that had previously been provided to the 
public under the Freedom of Information Act. The administration 
may be able to legally withhold certain information from the 
public when responding to a 4-year quest, but FOIA exemptions 
do not apply to Congress, and complete, unredacted copies 
should have been provided to us, instead.
    Now, this was not compliance. This is a deliberate slow-
rolling of documents and answers. And, frankly, I have had 
enough of that. Unfortunately, the lack of transparency by the 
Fish and Wildlife Service here is but one example, and is a 
part of a larger, broader pattern by the Department and the 
administration not to provide timely cooperation with 
congressional oversight requests.
    Although the administration may say it has provided 
thousands of pages in response to this and other requests, what 
it does not say is that the majority of the committee's 
original requests remain unanswered and unaddressed, months 
after they were sent, and the Department never explains what it 
is withholding. This left me with no choice but to issue a 
subpoena this month. It was an unfortunate, last resort which 
we shouldn't have had to take in our attempt to get answers 
from this administration.
    I also want to be very clear. This hearing is not an attack 
on the wind industry or wind energy. It is about how the 
administration is developing and implementing enforcement 
policies, and its lack of transparency with Congress and the 
American people on how those decisions are made. I strongly 
support an all-of-the-above approach to energy that includes 
renewables and alternate sources of energy, including wind, 
solar, hydropower, geothermal, and nuclear, along with oil, 
natural gas, and coal. In fact, in my Central Washington 
District, we have some of the highest number of windmills in 
the country.
    No matter the industry, all of these job creators deserve 
to have certainty, clarity, and transparency from the 
administration about how laws and regulations are enforced. 
Fish and Wildlife Director Dan Ashe is testifying before us 
today, and I hope we can get some answers about the 
administration's enforcement policies and the status of the 
committee's long-standing requests for information.
    [The prepared statement of Mr. Hastings follows:]
 Prepared Statement of The Honorable Doc Hastings, Chairman, Committee 
                          on Natural Resources
    For nearly 2 years the Committee on Natural Resources has 
investigated the Obama administration's approach for enforcing wildlife 
laws, including the Migratory Bird Treaty Act [MBTA] and the Bald and 
Golden Eagle Protection Act [BGEPA], as it relates to U.S. energy 
producers.
    Both of these laws are strict liability statutes that prohibit the 
taking of migratory birds and bald and golden eagles within the United 
States. As strict liability statutes, any unauthorized take that 
occurs--be it intentional or unintentional--violates the acts.
    However, despite the strict liability requirements of these laws, 
the administration has developed specific guidance to assist the 
burgeoning wind industry and has selectively prosecuted only a handful 
of violations. In November 2013, the Department of Justice announced a 
plea agreement involving Duke Energy Renewables in connection with the 
deaths of protected migratory birds and golden eagles at two wind 
energy projects in Wyoming. This is the only such enforcement case that 
has been brought to date involving the wind energy industry.
    There are legitimate concerns that the Obama administration is 
implementing these laws in an arbitrary fashion. The goal of this 
hearing, and the committee's oversight efforts, is to gain a better 
understanding of how and why the Obama administration decides to 
enforce some violations and not others. We're also interested in 
learning more about what role ``cooperation'' between the 
administration and wind developers plays in making enforcement 
decisions.
    Unfortunately, like with so many other issues, the Obama 
administration has been less than transparent on this topic. The 
Department has engaged in a deliberate, 10-month-long slow roll in 
fulfilling the committee's requests for documents and information.
    For example, it took the administration more than 4 months before 
it provided fewer than 70 pages of emails and meeting materials about 
the development of a secret bird mortality data base.
    The administration dragged its feet for 6 months before providing a 
copy of a 2-page policy memo that was written the year before.
    The administration gave us copies of redacted documents that had 
previously been provided to the public under the Freedom of Information 
Act. The administration may be able to legally withhold certain 
information from the public when responding to a FOIA request, but FOIA 
exemptions do not apply to Congress and complete, unredacted copies 
should have been provided instead.
    This is not compliance. This is the deliberate slow-rolling of 
documents and answers, and we've had enough. Unfortunately, the lack of 
transparency by the Fish and Wildlife Service here is but one example 
and is part of a broader pattern by the Department and administration 
to not provide timely cooperation with Congressional oversight 
requests.
    Although the administration may say it has provided thousands of 
pages in response to this and other requests, what it does not say is 
that the majority of the committee's original requests remain 
unanswered and unaddressed months after they are sent and the 
Department never explains what it is withholding. This left me with no 
choice but to issue a subpoena this month. It was an unfortunate last-
resort, which we shouldn't have had to take, in our attempt to get 
answers from this administration.
    I also want to be very clear; this hearing is not an attack on the 
wind industry or wind energy. It's about how the Obama administration 
is developing and implementing enforcement policies, and its lack of 
transparency with Congress and the American people on how decisions are 
made.
    I strongly support an all-of-the-above approach to energy that 
includes renewable and alternative sources of energy including wind, 
solar, hydropower, geothermal and nuclear, along with oil, natural gas 
and coal. In fact, my Central Washington District has some of the 
highest number of windmills in the country. No matter the industry, all 
of these job-creators deserve to have certainty, clarity, and 
transparency from the administration about how laws and regulations are 
enforced.
    Fish and Wildlife Service Director Dan Ashe is testifying before us 
today and I hope we can finally get some answers about the 
administration's enforcement policies and the status of the committee's 
long-standing requests for information.
                                 ______
                                 
    The Chairman. And, with that, I will yield back my time and 
recognize the Ranking Member.

  STATEMENT OF THE HON. PETER A. DeFAZIO, A REPRESENTATIVE IN 
               CONGRESS FROM THE STATE OF OREGON

    Mr. DeFazio. Mr. Chairman, this hearing is yet another 
hearing attempting to find intentional disregard by the 
administration in areas where no evidence has been uncovered.
    In this case there is no report at the hearing, because 
there is nothing to report, except a few things I will talk 
about, which are outrageous. There isn't a single directive, a 
single secretarial policy, a single email that shows there was 
any improper behavior or supposed favoritism toward the wind 
industry, or prejudice toward the fossil fuel industry in 
enforcement actions by this administration. It is yet another 
conspiracy that doesn't exist. And, really, we are wasting a 
lot of valuable time and taxpayer resources with these 
investigations.
    The subpoena, as I understand it, talking to the Director, 
resulted in him diverting a substantial number--and I am not 
exactly clear, I thought he told me 30, I am hearing today from 
staff 50--professional law enforcement agents and other staff 
to answer this mindless subpoena for the conspiracy that 
doesn't exist. They were diverted from catching people who were 
devastating elephant herds, rhinoceros, killing other 
endangered species around the world, engaged in organized crime 
and trafficking, and also real crimes that are being committed 
here, in the United States of America. They were diverted from 
those duties for 2 full weeks. Why? Because we wanted to send--
or you wanted to send a subpoena to uncover a conspiracy that 
doesn't exist.
    I mean enough is enough. We have been harassing the 
Secretary of the Interior, diverting staff from a whole host of 
things that need to be done, including what I need to do on a 
bill that passed out of this committee to deal with the O&C 
lands in Oregon, and developing a sustainable timber harvest on 
those lands. We are diverting professional employees from doing 
those things in these continuing quests to find some kind of 
conspiracy. We want to pretend we are the Issa Committee, I 
guess, on investigations and oversight, and act like Darrell 
Issa, which is, really, not something to be aspired to or 
replicated, so far as I am concerned, and this committee has 
conducted itself----
    Mr. Labrador. Mr. Chairman, I----
    Mr. DeFazio [continuing]. With more comedy than----
    Mr. Labrador. Mr. Chairman, I object.
    The Chairman. The gentleman will suspend. The gentleman, 
the Ranking Member, has a right to make this statement. 
Obviously, there are some things that I would disagree with in 
that, but the gentleman has every right to make his statement. 
He is recognized.
    Mr. DeFazio. Thank you, Mr. Chairman. I am pretty angry. 
And I have foregone a number of times here and sat through 
these hearings. I sat through last year, when I wasn't Ranking 
Member, and we dragged a woman in here, I think, three times 
for hours and hours and hours on end, to get at the meaning of 
one word, which didn't make any difference, in fact, on the 
Horizon spill report.
    Really, I mean, we are wasting millions and millions of 
dollars of taxpayer resources with these investigations. You 
know, there are things to investigate. There are things that 
need to be legislated. But that certainly isn't what is going 
on here today.
    And I don't have anything more to say about this. We will 
let the Director represent his views. You can grill him all you 
want, and you are not going to find anything here, except for 
people doing their job, and being diverted from doing real jobs 
that are much more important than shuffling paper and I don't 
even know where you keep all this stuff. You must have rented a 
giant storage locker somewhere.
    Thank you, Mr. Chairman.
    [The prepared statement of Mr. DeFazio follows:]
 Prepared Statement of The Honorable Peter A. DeFazio, Ranking Member, 
                     Committee on Natural Resources
    Thank you Mr. Chairman.

    Today's hearing marks the culmination of a long and fruitless 
crusade by the majority aimed at uncovering an Obama administration 
conspiracy to promote wind energy at the expense of fossil fuels. The 
majority has not produced a report to accompany this hearing, because 
they have nothing to report: the investigation found nothing. No White 
House directive, no Secretarial policy, not even a single email 
suggesting improper behavior, showed up in the thousands of pages of 
correspondence produced by the Department of the Interior at the 
Chairman's request. We are, yet again, wasting valuable time, 
resources, and energy on another political conspiracy theory conjured 
up in Republican imaginations.
    Earlier this month, DOI received another subpoena that demanded 
they produce even more documents. Attempting to comply with the demands 
of this subpoena has virtually crippled the Fish and Wildlife Service's 
Office of Law Enforcement, which has dedicated 73 employees--or one 
third of its workforce--to this project full time. So far this has cost 
an estimated $67,000 and 1,300 man hours, and fulfilling the request is 
expected to take months at this level of effort. Maybe this is by 
design: Committee Republicans do not seem to like it when the Service 
enforces the law and holds criminals who engage in illegal timber 
harvesting, or wildlife trafficking responsible for their actions.
    Transparency is one thing. Congress has a duty to hold Federal 
agencies accountable to the people. But this is something else. The 
nine subpoenas and nearly endless list of document request letters sent 
to Obama administration officials by this committee since 2011 have 
produced exactly zero results. They have uncovered no intentional 
wrongdoing or irresponsible actions whatsoever. In the last two 
Congresses, these frivolous requests and subpoenas--including three 
fixated on a years-old report that recommended a common sense ``time 
out'' on offshore drilling in the wake of Deepwater Horizon--have 
produced more than 50,000 pages of documents at a cost of $1.5 million 
to taxpayers. Agency staff has spent 19,000 hours responding to these 
requests, instead of doing the jobs we are paying them to do, like 
permitting responsible energy development and combating illegal trade 
in timber and endangered wildlife.
    As for today, the only things on a ``collision course'' are the 
Republican's far-fetched fantasies and reality. I find it laughable 
that the most radically anti-environment House majority in history is 
now trying to justify their contempt for this administration and for 
renewable energy by crying ``fowl'' over impacts to migratory birds. 
These same people are bottling up wilderness bills, undermining 
creation of national monuments and parks, and plotting to gut the 
Endangered Species Act.
    Ironically, Monday was the 25th anniversary of the Exxon Valdez oil 
spill. This preventable accident dumped 10.8 million gallons of crude 
into Alaska's Prince William Sound, killing thousands of sea otters--
populations of which have only this year recovered to pre-spill levels. 
Killer whales and harlequin ducks are still trying to bounce back, and 
Pacific herring and pigeon guillemots (GILL-a-mots) have not yet 
recovered from the effects of the spill. A recent study showed that oil 
from the spill is still there, and is still leaching into the 
environment. The spill also killed 900 bald eagles--orders of magnitude 
more than wind farms ever have.
    Over the weekend, an oil barge collided with a ship in Galveston 
Bay, spilling 170,000 gallons of oil and further threatening a marine 
ecosystem that is still reeling from the impacts of the 210 million 
gallon Deepwater Horizon spill just 4 years ago. Scientific evidence 
continues to show us that irresponsible fossil fuel development and 
transport pose enormous threats to fish and wildlife, and I am not 
aware of a ``wind spill'' ever blackening beaches or closing off 
traffic to shipping lanes. But instead of investigating progress on 
recovery in the Gulf of Mexico--and pushing much needed legislation to 
prevent future spills--the Chairman has decided that today's hearing is 
the best use of the committee's time. While I strongly disagree, I look 
forward to hearing from Director Ashe, and I yield back the balance of 
my time.
                                 ______
                                 
    The Chairman. I thank, I think, the gentleman's opening 
statement.
    Director Ashe, thank you very much for being here. You have 
been in front of this committee before. And, as a matter of 
fact, you worked on predecessors to this committee, so you know 
exactly how the timing lights work, and you have 5 minutes.
    Now, you submitted a statement to us last night; appreciate 
that. That will appear totally in the record. But I would like 
to keep, if you would, your oral remarks within the 5 minutes. 
With that, Director Ashe, you are recognized.

        STATEMENT OF THE HON. DANIEL M. ASHE, DIRECTOR, 
   U.S. FISH AND WILDLIFE SERVICE, DEPARTMENT OF THE INTERIOR

    Mr. Ashe. Thank you very much, Mr. Chairman, and good 
morning. It is always an opportunity, and I appreciate the 
opportunity, to testify before Congress, and particularly this 
committee.
    As you remarked, Mr. Chairman, I served for 13 years on the 
staff of the former House Committee on Merchant Marine and 
Fisheries, a predecessor of this committee. I fully understand 
and respect the critical role of congressional oversight, and 
the challenges sometimes faced in obtaining responsive 
information. I have worked now in the executive branch for 19 
years, nearly 3 years as Director of the United States Fish and 
Wildlife Service. So I also understand the many demands facing 
an organization which carries a mission and expectations that 
far exceed its budget and resources.
    Mr. Chairman, as I always have been, I am here today in 
response to your request, to answer your questions to the best 
of my abilities. I have, without exception, always made myself 
and the employees and the officers of my organization available 
to this committee and to its members, without exception. I will 
accept on the face of your March 11 subpoena for documents that 
you are not satisfied with our responsiveness.
    But I really believe that the subpoena was unnecessary, and 
it has been extraordinarily disruptive to agency mission, and 
expensive to the taxpayer, as Mr. DeFazio remarked. The staff 
work required to respond to the committee's multiple requests 
is massive, and the cost of compliance with this subpoena is 
illustrative. Since receiving the committee's subpoena about 2 
weeks ago, we estimate that 125 Fish and Wildlife Service 
employees have worked 2,600 hours at a taxpayer cost of about 
$150,000. Notably, of these 125 employees, 73 are Office of Law 
Enforcement employees, including 54 special agents, as Mr. 
DeFazio remarked. Fully one quarter, 25 percent of our total 
special agent force, are working full-time and over-time to 
respond to this subpoena. This is to the exclusion of all 
mission duties.
    These are the world's most highly trained wildlife law 
enforcement professionals, and right now they are sidelined 
while internationally syndicated criminal rings are decimating 
elephants, rhinos, and other iconic species. And to fully 
comply with the committee's subpoena, we estimate that it will 
likely need to sustain that level of effort for 3 months.
    In regard to implementation and enforcement of the 
Migratory Bird Treaty Act and the Bald and Golden Eagle 
Protection Act, I am here to better understand your concerns, 
address your questions, and hopefully find a productive course 
forward in responding to your needs for information.
    Our challenge has always been to implement these laws 
faithful to the original intent of Congress, while meeting the 
evolving needs of these species in the context of changing and 
expanding demands of human society. We develop collaborative 
solutions, we seek, first and foremost, to educate project 
proponents and operators, regardless of the nature of their 
business activity, about their obligations under the law.
    By supporting and encouraging voluntary adherence to best 
management practices, we focus our limited resources on those 
entities that choose to ignore the law, or who are having 
significant impacts on migratory birds. Criminal prosecution 
has always been and will always be our last resort.
    We have worked with the oil and gas industry to prevent 
migratory bird deaths in oil field waste pits. We have worked 
with the electric utility industry to understand how to 
retrofit power lines and transmission towers to reduce 
collisions and electrocutions of raptors and other birds. We 
have worked similarly with the radio and cell tower industries, 
the architectural and building trades communities, and the 
commercial fishing industry. And today, we are working in a 
similar fashion with the wind and the renewable energy 
industry.
    In taking enforcement actions, our agents go where the 
evidence takes them, period. When they determine it is 
necessary and appropriate to refer a case to the Justice 
Department, they do so. They neither need nor seek approval at 
political levels.
    Thank you, Mr. Chairman and committee members, for giving 
me the opportunity to testify today. I would be happy to answer 
your questions and explore with you a better way forward.
    [The prepared statement of Mr. Ashe follows:]
Prepared Statement of The Honorable Daniel M. Ashe, Director, U.S. Fish 
            and Wildlife Service, Department of the Interior
                              introduction
    Good morning Chairman Hastings, Ranking Member DeFazio, and members 
of the committee. I am Dan Ashe, Director of the U.S. Fish and Wildlife 
Service (Service). Thank you for inviting me to testify today on the 
Committee's oversight involving the Migratory Bird Treaty Act [MBTA] 
and the Bald and Golden Eagle Protection Act (Eagle Act).
    The Service's mission is working with others to conserve, protect, 
and enhance fish, wildlife, plants and their habitats for the 
continuing benefit of the American people. The Service's long track 
record of working with industries, agencies, and individuals to 
conserve migratory birds, including eagles, supports that mission. 
Today, impacts to migratory birds from anthropogenic activities are 
myriad and expanding. For decades, the Service has worked cooperatively 
with its partners to minimize these impacts and facilitate compliance 
with the MBTA and other Federal statutes, like the Eagle Act. Although 
many bird populations are currently in decline, there is much to be 
encouraged about. Bald eagle populations increased to the point that we 
removed them from the endangered and threatened species list. In some 
areas, like the Chesapeake Bay, bald eagle populations are increasing 
rapidly. Our management and conservation of migratory waterfowl with 
our State and international partners is one of history's great 
conservation success stories. Many decades ago the viability of 
waterfowl populations was in question, but sustained conservation and 
management actions with our partners, grounded in science, has produced 
robust populations that enable hunting activity along all four flyways 
in the United States.
    The MBTA prohibits the taking of migratory birds, including eagles, 
and the Eagle Act prohibits the taking of bald and golden eagles. The 
Service works with industries, agencies, and other stakeholders to 
develop best management practices to facilitate compliance with these 
laws. These guidelines are based on the best available science and 
employ practical, common-sense actions that allow individuals and 
organizations to carry out otherwise lawful activities in ways that 
reduce impacts on migratory birds.
    The Service focuses its resources on developing partnerships with 
industries and other stakeholders to identify actions that can be taken 
to minimize or eliminate take of migratory birds. After the Service 
identifies best management practices that are practicable and 
effective, our expectation is that people will use them. Examples of 
successful partnerships include the Avian Power Line Interaction 
Committee, which is a partnership with the electric transmission line 
industry; and guidelines for oil companies to cover open oil pits that 
attract birds. For the nascent wind industry, the Service convened the 
Wind Turbine Guidelines Advisory Committee to develop guidelines for 
siting and operating wind turbines. All of these are voluntary 
programs.
               committee oversight and document requests
    The Service recognizes and respects the committee's oversight role 
of the Federal agencies within its jurisdiction. The committee 
requested documents from the Service pertaining to the enforcement of 
the MBTA and the Eagle Act against energy companies, including: (1) 
copies of documents related to Service investigations, as well as 
referrals to the Department of Justice, created between January 2009 
and the present; (2) copies of communications between the Service and 
representatives from wind energy companies; (3) copies of policies, 
legal analysis, and emails related to enforcement discretion under the 
MBTA and Eagle Act; (4) communications between the Service and the 
American Wind Wildlife Institute; and (5) documents related to meetings 
concerning proposed revisions to the eagle take regulations.
    The Department of the Interior (Department) and the Service 
continue to cooperate with the committee to provide information that is 
responsive to its concerns about these issues. Since receiving the 
Chairman's original letter on May 16, 2013, the Department has provided 
approximately 5,000 pages of documents to the committee on September 
18, 2013, December 2, 2013, December 13, 2013, and February 28, 2014. 
To compile this information, Service staff spent thousands of hours 
reviewing years of records and files to comply with the committee's 
request.
    On December 17, 2013, committee staff met with Mr. William Woody, 
Chief of the Service's Office of Law Enforcement, who answered 
questions related to enforcement of the MBTA and the Eagle Act. At that 
meeting, Chief Woody discussed the Chief's Directive on ``Enforcement 
of the Migratory Bird Treaty Act as it Relates to Industry and 
Agriculture.'' The Chief's Directive is a responsible way to focus 
Service law enforcement efforts on entities that ignore best management 
practices that are well known to avoid and minimize takes of migratory 
birds, including bald eagles and golden eagles.
    In response to the subpoena issued on March 11, 2014, we have once 
again reached out to staff across the country to compile requested 
documents. We hope to provide these to the committee in the near 
future.
 background on the migratory bird treaty act and bald and golden eagle 
                             protection act
    When Congress passed the MBTA in 1918 it sought to put an end to 
the commercial trade in birds and their feathers that, by the early 
years of the 20th century, had wreaked havoc on the populations of many 
native bird species. The MBTA decrees that all migratory birds and 
their parts (including eggs, nests, and feathers) are protected under 
Federal law, and all migratory bird ``take'' is governed by the MBTA. 
Killing, possessing, transporting, and importing migratory birds is 
illegal except as authorized under a valid permit. Additionally, the 
MBTA authorizes and directs the Secretary of the Interior to determine 
if, and by what means, the take of migratory birds should be allowed 
and to adopt suitable regulations permitting and governing take, such 
as those embodied by hunting seasons and bag limits.
    Since the enactment of the MBTA, great strides have been made in 
conserving wild bird populations. Yet, the threats that human 
activities pose to these bird populations continue to increase. The 
United States population in 1915 reached 100 million people. Today it 
exceeds 300 million people. It continues to increase. Development of 
housing, electricity and communications, transportation systems and 
other infrastructure directly and indirectly affect migratory bird 
populations. The Service has adopted an approach to implementing the 
MBTA that allows us to focus our enforcement activities on individuals 
and organizations that disregard the law and repeatedly ignore best 
management practices that minimize impacts to migratory birds.
    When Congress passed the Bald Eagle Protection Act in 1940, it 
sought to protect bald eagles, our national symbol, from exploitation. 
In 1962, Congress added the same protections for golden eagles and 
changed the statute's title to the Bald and Golden Eagle Protection Act 
(Eagle Act). The Eagle Act protects the bald eagle and the golden eagle 
by prohibiting the take, possession, sale, purchase, barter, offer to 
sell, purchase or barter, transport, export or import, of any bald 
eagle or golden eagle, alive or dead, including any part, nest, or egg, 
unless allowed by permit. Additionally, the Eagle Act allows for 
members of federally recognized Native American Tribes to take a very 
limited number of eagles for their religious ceremonies, and it permits 
the take of eagles where they are a threat to human health and safety.
                         permitting eagle take
    The Eagle Act protects bald eagles and golden eagles, but it 
authorizes the Secretary of the Interior to issue regulations, 
consistent with the preservation of the species, permitting some take 
of eagles. The permitting process under the Eagle Act is a key 
mechanism to avoid and minimize the take of eagles from various 
industries and activities that can impact eagles. Permits may be issued 
for some limited take of eagles as a result of otherwise lawful 
activities. An applicant for such a permit must demonstrate he or she 
is doing everything possible to avoid and minimize risk to eagles, and 
if needed, to compensate in some way for any unavoidable deaths so that 
the eagle populations do not decline.
    Any entity, including wind energy facilities, developers building 
strip malls, utility companies constructing and operating power lines, 
and highway departments building roads, may apply for one of these 
permits. In December 2013, the Service finalized revisions to the 2009 
eagle incidental take regulations to extend the maximum duration of 
permits from 5 years to up to 30 years. Applicants can request permits 
of any length up to 30 years. Permits will be subject to annual 
reporting requirements and 5-year reviews, which allow for revisions to 
the permit requirements. Such permits provide a greater level of 
predictability to industry for ongoing projects, while providing much 
needed data on the effects of long-term projects on eagles and on the 
effectiveness of the mitigating measures and terms and conditions of 
the permits.
    Based on reported data, population data, and other information, at 
the 5-year review, the Service will determine whether changes to the 
terms and conditions of the permit are necessary to avoid and minimize 
take, and can prescribe such changes going forward.
    The Service is working closely with other Federal agencies, private 
landowners, and developers to minimize conflicts between the emerging 
wind energy industry and eagles. As with other industries, wind energy 
companies are not required to obtain an eagle take permit to operate; 
however, also as with other industries, they risk Federal penalties, 
including criminal prosecution, for any unauthorized take of eagles. 
Wind farms may adversely impact eagles, by disturbance of nesting 
areas, migratory and foraging habitat, and by taking individuals via 
collision with turbine blades. Therefore, we believe it is important 
that they apply the voluntary wind energy guidelines, apply for an 
Eagle Act permit where eagle take is anticipated, and implement the 
conservation measures required under these permits.
    The permit process provides the Service the opportunity to work 
closely with wind developers and other project proponents onsite 
selection, surveys and monitoring, and operational measures that will 
minimize impacts to eagles and other birds, as well as bats. These 
long-term permits will incorporate an adaptive management framework 
under which the Service will review the project and make adjustments to 
ensure the permitted activity does not unduly impact eagles. The 
Service has been working with a variety of stakeholders to develop 
guidelines and best management practices on siting and operations to 
avoid and minimize the take of eagles, other migratory birds, and bats. 
We are working to educate and communicate these guidelines to the 
industry so they are broadly implemented, and so that companies are 
aware of the potential enforcement consequences of not following these 
guidelines.
 eagle conservation plan guidance and land-based wind energy guidelines
    In 2003, the Service issued Interim Guidance on Avoiding and 
Minimizing Wildlife Impacts from Wind Turbines. This Guidance addressed 
the responsible development of wind energy projects and suggested best 
management practices in the selection, siting, and operation of wind 
farms that would earn the agency's forbearance of enforcement of 
unavoidable takings. The Interim Guidance was in place until 2012, when 
it was replaced by voluntary Land-based Wind Energy Guidelines, 
developed during several years of consultation between the agency, 
industry and other stakeholders. In 2013, the Service issued Eagle 
Conservation Plan Guidance for wind energy developers that complemented 
the voluntary Land-based Wind Energy Guidelines. Together, these two 
recent documents guide the process for wind energy development and 
provide information on how to prepare conservation plans for eagles and 
other species of concern. The process focuses on assessing project 
risks to eagles and other species and identifying modifications that 
would reduce those risks. These guidance documents benefited from input 
provided by the public, other agencies, nongovernmental organizations, 
and wind energy operators.
    The Service uses its voluntary Eagle Conservation Plan Guidance and 
Land-based Wind Energy Guidelines to assist project developers in 
minimizing impacts to avian and bat species and in developing permit 
applications for eagle take that cannot be avoided. The Service is also 
actively engaging numerous stakeholders (agency staff, States, wind 
energy companies, nongovernmental organizations, and other interested 
citizens) in wind energy training, which began with a major workshop 
held at the National Conservation Training Center in fall 2012, and 
continues with regularly scheduled national broadcasts that include a 
wide variety of wind energy issues, including the Wind Energy 
Guidelines, eagle conservation planning, facility siting and 
operations, and research and monitoring. In general, wind energy 
operators have been very receptive to these efforts and are 
collaborating with the Service to minimize the impacts of wind 
facilities on wildlife.
enforcement of the migratory bird treaty act and bald and golden eagle 
                             protection act
    As outlined in the Chief's Directive, the Service has long employed 
a policy of encouraging industry and agriculture to utilize best 
management practices aimed at minimizing and avoiding the unpermitted 
take of protected birds. To promote compliance with the law and protect 
migratory birds from ``take,'' the Service's Office of Law Enforcement 
will look for opportunities to foster relationships with, and provide 
guidance to, individuals, companies, and industries during the 
development and maintenance of their operational plans. We recognize 
that the take of migratory birds may occur even when individuals and 
companies consult with the Service, comply with best management 
practices, and follow the Service's recommendations. Our goal is to 
focus Office of Law Enforcement investigative efforts on bird take that 
is foreseeable, avoidable, and proximately caused by industry or 
agriculture.
    The Office of Law Enforcement pursues potential violations of the 
MBTA and the Eagle Act regardless of the industry, individual, or 
agency at issue. There is no preferential application of the statutes 
to the wind energy industry compared to traditional energy development. 
However, industrial-scale wind facilities are relatively new on the 
landscape. As we learn more about how to avoid and minimize the effects 
of these facilities on migratory birds and other wildlife, the Service 
will continue working with the wind energy industry to develop 
guidelines and best management practices on siting and operations. This 
effort will include education and communication components to ensure 
these guidelines are broadly implemented across the wind energy 
industry so that companies are aware of the potential law enforcement 
consequences of not following these guidelines and taking eagles and 
migratory birds.
    Additionally, the first prosecution under a law sets a precedent 
for future cases and is a cautionary example for other potential 
violators of the law. To strike a balance between energy production, 
conservation of migratory birds, and the effective use of limited law 
enforcement resources, it is important to work with industry to develop 
and communicate guidelines broadly and promote best management 
practices that minimize the accidental take of migratory birds and also 
avoid the necessity for law enforcement action. The Service took a 
similar approach decades ago with the oil and gas industry. Best 
management practices were developed for open oil pits that attracted 
and killed waterfowl. The practices were communicated to industry, and 
enforcement actions were taken against those who did not follow them 
and took migratory birds. The Service continues to follow this 
approach. We anticipate a similar future for the wind industry, where 
most entities are following the guidelines and those who are not are 
priority investigative targets and are prosecuted when take occurs.
    Currently, 17 wind energy cases are under investigation by the 
Service. Seven cases have been referred to the Department of Justice 
for future investigation and possible prosecution for violating either 
the Endangered Species Act, BGEBPA or the MBTA. The Service 
investigated golden eagle and other migratory bird fatalities at Duke 
Energy's ``Campbell Hill'' and ``Top of the World'' wind facilities in 
Wyoming. Despite prior warnings from the Service, Duke Energy failed to 
make all reasonable efforts to build its wind facilities in a way that 
would avoid the risk of avian deaths by collision with turbine blades. 
After lengthy discussions between the Service, the Department of 
Justice, and Duke Energy, the company pleaded guilty to violating the 
MBTA in connection with the deaths of protected birds, including golden 
eagles, at the two Wyoming projects. The settlement requires Duke 
Energy to: (1) develop eagle conservation plans and apply for eagle 
take permits at its facilities; (2) institute extensive monitoring 
programs; and (3) curtail operation of certain high-risk turbines 
during eagle migration seasons; and (4) support a variety of eagle 
conservation measures in Wyoming. This case is significant because it 
establishes a precedent for the prosecution of other violations; 
because eagle take will be reduced through implementation of best 
management practices; and because Duke Energy cooperated in getting to 
a speedy and effective solution.
                               conclusion
    In closing, the Service works diligently and effectively with 
industries, agencies, and other stakeholders to ensure fish and 
wildlife conservation and compliance with the law. We appreciate the 
committee's oversight role, and we look forward to continuing to 
cooperate with the committee to provide information that is responsive 
to your concerns and inquiries about the MBTA and the Eagle Act.
    Thank you for the opportunity to present testimony today. I will be 
pleased to answer any questions that you may have.
                                 ______
                                 
   Questions Submitted for the Record to The Honorable Daniel M. Ashe
    Questions Submitted for the Record by The Honorable Doc Hastings
    Question. The final 30-year Eagle Tenure Rule issued in December 
2013 and the earlier 2009 5-year Eagle Tenure Rule make clear that 
older wind farms, existing transmission infrastructure, and other 
industrial facilities are potentially liable--and in fact have been 
liable during the course of their operational lifetimes--for the 
unauthorized take of protected eagles. However it is also clear that 
the Service does not on a regular basis take enforcement actions 
against these older facilities, even though some of them are notorious 
for the number of eagles and other protected birds that they take. Do 
older wind facilities that went into operation prior to 2009 face the 
same potential legal liability as a facility that has gone into 
operation in 2009 or later? Please explain.
    Answer. Wind facilities that went into operation prior to 2009 face 
the same potential legal liability as do facilities that began 
operation in 2009 or later. The U.S. Fish and Wildlife Service 
(Service) Office of Law Enforcement [OLE] responds to and investigates 
reports of violations of laws that protect eagles without regard for 
the date that a facility has gone into operation.
    Question. Have any wind facilities that went into operation prior 
to 2009 applied for an eagle take permit? If yes, what is the status of 
any such applications?
    Answer. The Service has received eagle take permit applications for 
two wind facilities that were operational prior to 2009. One of the 
applications is under initial application review. For the other, the 
Service prepared a draft environmental assessment [DEA] of the effects 
of, and alternatives to, issuing the permit as required under the 
National Environmental Policy Act [NEPA]. The public comment period for 
the DEA closed in November 2013, and the Service is reviewing public 
comment and preparing a Final Environmental Assessment.
    Question. How many wind farms that went into operation in 2009 or 
later have applied for an eagle take permit? What is the status of any 
such applications?
    Answer. The Service has received eagle take permit applications for 
six wind facilities that went into operation in or after 2009. One of 
the sites is part of a joint application with a second facility already 
addressed in response to Question 2 and is under NEPA review. Four of 
the remaining five applications are in NEPA review (developing the 
Environmental Assessment) and one application is in the final stages of 
the NEPA process (final review of Environmental Assessment).
    Question. Would you agree that voluntary agreements by wind 
operators for mitigating their environmental impacts do not constitute 
take permits and as such do not immunize the companies from liability 
for unauthorized take?
    Answer. Voluntary agreements by wind operators for mitigating their 
environmental impacts do not constitute take permits and do not 
immunize the companies from liability for unauthorized take. However, 
the Service has long employed a policy of encouraging industry to 
utilize best practices aimed at minimizing and avoiding the unpermitted 
take of protected birds. We have examples of successful partnerships 
like the Avian Power Line Interaction Committee, which is a partnership 
with the electric transmission line industry. With regard to the wind 
industry, in 2007 the Secretary of the Interior chartered and the 
Service convened the Wind Turbine Guidelines Advisory Committee in 
accordance with the Federal Advisory Committee Act to develop 
guidelines for siting and operating wind turbines. The Service's Eagle 
Conservation Plan Guidance and Land-based Wind Energy Guidelines are 
intended to guide the process for development of conservation and 
implementation plans which significantly benefits eagles and other 
species.
    When the Service has identified and communicated best management 
practices that are effective we anticipate they will be used. The 
Service focuses a considerable amount of its limited resources on 
developing partnerships with industries and government agencies where 
the greatest benefit for migratory bird conservation can be 
accomplished.
    Question. For older, pre-2009 facilities seeking a permit, please 
describe the range of mitigation measures that could be implemented and 
explain whether they would be different from the ones for newer 
facilities?
    Answer. In 2009, the Service published sustainable take levels for 
both bald and golden eagles based on current population status and 
predicted ability of each species to withstand additional mortality. 
For bald eagles, we determined that most populations could withstand 
some additional mortality, and we established regional take thresholds 
(quotas) for permitting purposes. We determined that golden eagle 
populations were stable with existing survival rates, but might not be 
resilient to increased mortality levels. Accordingly, for golden eagles 
we determined that any added mortality over that already occurring 
would have to be offset by compensatory mitigation that reduced another 
existing source of mortality by a commensurate degree. Thus, post-2009 
activities seeking an eagle take permit for golden eagles are required 
to offset their take directly through compensatory mitigation aimed at 
reducing an ongoing form of mortality, whereas activities that were 
operational prior to 2009 are not required to offset their take because 
that mortality was accounted for in the determination that the 
populations were stable. The range of offsetting mitigation measures 
that can be implemented by a permittee for a post-2009 activity include 
any actions that have been demonstrated to reduce another existing 
source of golden eagle mortality, such as power pole retrofits to 
reduce ongoing electrocutions and highway road kill removal to reduce 
ongoing mortality due to vehicle collisions.
    Operating and planned facilities may differ in their ability to 
implement avoidance and minimization measures. Alternative siting 
considerations are generally not feasible for operating facilities. The 
Eagle Conservation Plan Guidance places great emphasis on appropriate 
siting as being one of the most effective ways to reduce risks to 
eagles, but for a facility that is already built, moving turbines is 
generally not feasible. We have no proven methods to reduce eagle take 
at operating facilities, but the range of experimental measures we have 
considered can be applied at both operating wind projects and those 
being planned for which siting does not remove all risk of eagle take. 
For example, curtailing operations of turbines that are identified as 
risky during periods of high eagle use is an experimental measure 
applicable to both pre-2009 operating and future planned wind 
facilities.
    Question. Please explain the circumstances under which such 
unpermitted, pre-2009 wind facilities would be ordered to discontinue 
operation in connection with their take of protected eagles, migratory 
birds, or endangered species?
    Answer. The Service does not issue permits for the operation of 
wind energy facilities; that authority lies with other permitting 
agencies. For this reason, the Service does not have the authority to 
order a facility to discontinue operation in connection with take of 
species protected under the Bald and Golden Eagle Protection Act 
[BGEPA], the Migratory Bird Treaty Act [MBTA], or the Endangered 
Species Act [ESA]. Instead, if the conditions of an eagle take permit 
or endangered species incidental take permit are not met, the permit 
may be suspended or revoked, and penalties for violations of the BGEPA, 
MBTA, and ESA may potentially include monetary fines and imprisonment.
    Question. What kind of economic considerations if any would be 
taken into account in developing a take permit and mitigation measures 
to ensure that the continued operation of the wind facility remains 
economically viable and not so onerous and burdensome that the only 
economically viable option would be to shut down?
    Answer. The Service considers the same factors with regard to 
economic viability when evaluating take permits for wind facilities as 
it does for other types of industries. With regard to eagle permits, 
the regulations at 50 CFR 22.26 require avoidance of take to the 
maximum extent practicable. The term ``practicable'' is defined as: 
``capable of being done after taking into consideration, relative to 
the magnitude of the impacts to eagles, the following three things: the 
cost of remedy compared to proponent resources; existing technology; 
and logistics in light of overall project purposes''.
    As noted in the response to the previous question, the Service 
believes the best course of action is to work with industry to develop 
conservation measures for wind projects and other activities as part of 
adaptive management associated with the permit process. The triggers 
that would initiate operational response will be described in each 
permit after being negotiated with project developers prior to permit 
issuance. Unless the Service determines that there is a reasonable 
scientific basis to implement conservation measures, potentially costly 
measures would be deferred until such time as a predefined trigger, 
such as a threshold of eagle use of a defined area or an eagle 
fatality, in the permit is reached. At that point, consistent with the 
adaptive management process, the permittee would be required to 
implement the additional conservation measures. The permit would also 
be amended at that time to allow the permittee to discontinue any 
ineffective conservation measures under the conditions of the 
programmatic eagle take permit. In this way, a project developer or 
operator will not be required to expend funds to implement measures 
shown to be ineffective.
    Question. The most recent version of the eagle conservation plan 
guidance released in April 2013 recommended that abandonment or 
modification measures be implemented for those wind sites that have a 
high probability of eagle take and are unable to maintain a 
preservation standard. Would this remedy be applicable to all sites, or 
only older sites without take permits?
    Answer. The Eagle Conservation Plan Guidance presents a tiered 
approach to applying for an eagle take permit. The Service considers 
many factors, including the status of projects when evaluating 
potential eagle take permits, and would consider whether a project is 
in the planning stage or operating. Based on the Eagle Conservation 
Plan Guidance, when evaluating potential eagle take permits for 
projects that are in the planning phase, the Service could recommend 
that a project be abandoned at a particular site or modified if the 
Service predicts that the likelihood of eagle take at that project is 
so high that it could not meet the BGEPA preservation standard. This is 
similar to what we recommend in the Service's Land-based Wind Energy 
Guidelines.
    When the Service works with potential applicants of currently 
operating projects, we have to consider the likelihood of eagle take at 
the project and ways to minimize that take to a level that is 
compatible with the BGEPA preservation standard. When we can agree to 
measures to meet that standard, we are likely to issue an eagle take 
permit. For operating projects for which the Service has issued an 
eagle take permit, the Eagle Conservation Plan Guidance speaks to the 
possibility that when take of eagles is at a higher rate than 
predicted, and the permittee cannot implement measures to reduce that 
eagle take, they risk having their eagle take permit rescinded. 
Rescinding a permit would be necessary if the take associated with a 
permitted activity would violate the preservation standard in the 
BGEPA, as interpreted by the Service in the 2009 Eagle Permit Rule. 
This applies to both any pre-2009 facility that has a permit, as well 
as any post 2009 facility with a permit. The Service has adopted 
conservative measures in the models we use to predict eagle take to 
minimize the possibility that eagle take rates are underestimated, 
therefore we do not expect this to be a common occurrence. Any take of 
eagles that is not authorized under an eagle take permit is potentially 
in violation of the BGEPA, regardless of when a facility was 
constructed.
    Question. Please explain what potential legal liability a company 
would face if it has an eagle take permit but takes other migratory 
birds for which it is not permitted to take?
    Answer. A company holding an eagle take permit that takes other 
migratory birds is violating the MBTA (16 U.S.C. 703 et seq.) The 
unauthorized take of migratory birds is a Class B misdemeanor with 
fines of not more than $15,000 or imprisonment of not more than 6 
months, or both.
    Question. On October 17, 2012, a two-page directive was issued by 
Chief William Woody of the Fish and Wildlife Service's Office of Law 
Enforcement. This directive states ``unpermitted takings of permitted 
birds outside of the hunting context . . . to be potential violations 
of the statute. Despite the MBTA's `strict liability' standard, the 
Service has long employed an unwritten policy of encouraging industry 
and agriculture to employ `best practices' aimed at minimizing and 
avoiding the unpermitted take of protected birds.'' The memo goes onto 
state: ``OLE will look for opportunities to foster relationships with, 
and provide guidance to, individuals, companies, and industries during 
the development and maintenance of their operational plans.'' What is 
meant by ``fostering relationships''?
    Answer. The OLE has a long history of attempting to work with 
industry to promote compliance with the Federal laws that protect 
wildlife, including those that protect eagles and other migratory 
birds. Most often this is done through personal face-to-face meetings 
to educate and inform individuals, companies, and industries about the 
laws and how best to comply. The Service strives to build partnerships 
with industry to conserve our Nation's fish and wildlife. However, if 
and when those attempts fail, we then seek to enforce the provisions of 
the law as efficiently and equitably as possible.
    Question. The enforcement policy suggests that the Service will 
take enforcement actions only against companies that do not try to 
cooperate with the Service. Is there a number threshold for the number 
of birds killed that would trigger enforcement?
    Answer. The MBTA prohibits unauthorized take of migratory birds. 
The take of a single migratory bird may trigger enforcement. However, 
the Service views the term ``enforcement'' to be expansive and to 
encompass outreach, education, and attempts to secure compliance.
    Question. If a company has engaged in communications and sought to 
cooperate with the FWS consistent with FWS guidance and this directive, 
then under what circumstances would it be subject to enforcement?
    Answer. A company may be subject to enforcement in the form of 
referral for prosecution when the company fails to comply with the law. 
Compliance is achieved by avoiding continued unauthorized take of 
eagles or by obtaining take authorization via permit for take that is 
unavoidable.
    Question. If a company does not have a take permit but has a 
demonstrated record of communicating with the FWS and has engaged in 
mitigation, would it be immune from enforcement for the unpermitted 
take of protected eagles?
    Answer. No. The plain language of 16 U.S.C. 668 et seq., commonly 
referred to as the Bald and Golden Eagle Protection Act [BGEPA], 
prohibits the take of eagles without a permit.
    Question. After the development of the 2009 eagle rule and its 
envisioned permitting system, the Service went about developing the 
eagle guidelines. Indeed, the guidelines seem to exempt two types of 
wind developers from obtaining eagle permits: those developing new wind 
farms that are deemed low-risk to eagles; and those with existing 
facilities regardless of the threat posed to eagles. What constitutes 
an existing facility is undefined, but it appears that a facility that 
went into operation before the 2009 rule was finalized would be 
considered one. If a company was in compliance with the guidelines but 
did not have a take permit, would it be immune from liability?
    Answer. As noted in response to a previous question, any activity 
that takes eagles, whether in operation prior to 2009 or since, needs 
to have an eagle take permit to cover that take or else it is a 
violation of the BGEPA. While the response to question 5 indicates that 
pre-2009 facilities are exempt from the requirement that they implement 
offsetting compensatory mitigation for any take of golden eagles, it 
does not imply they do not need a permit. In fact, the Eagle 
Conservation Plan Guidance provides information for operating 
facilities on how to develop an application for an eagle take permit. 
The only activities the Eagle Conservation Plan Guidance suggests may 
not need a permit are those for which conservative models predict that 
no eagle take will occur over the life of the project when adequate 
eagle exposure information is available. The Eagle Conservation Plan 
Guidance does not exempt or imply that any activity that might take 
eagles should not seek an eagle take permit.
    Question. The Service did not conduct a NEPA analysis on the 
environmental impacts of 30-year Eagle Tenure Rule pursuant to a 
categorical exclusion for rules involving technical or administrative 
amendments. The Service explained in its response to comments that NEPA 
analysis would instead need to be conducted for individual projects. 
However, the Service has provided a February 5, 2013 email from FWS 
employee Mike Johnson to FWS employees Sarah Mott and Brian Millsap 
that indicates Service staff were in fact considering conducting a full 
environmental impact statement in connection with an eagle program 
rulemaking but that the final EIS would not be completed until 2015 and 
policymakers in the Department were looking to complete the rulemaking 
in 2014. Please explain what rulemaking this email discussion refers to 
and what role time pressures played in the Service's decision to take 
advantage of a categorical exclusion for the 30-year Eagle Tenure Rule 
rather than to conduct an EIS.
    Answer. While the referenced email was not provided for review, it 
appears that the email exchange relates to developing an EIS for the 
revision of the 2009 Eagle Rule as contemplated in the Advanced Notice 
of Proposed Rulemaking published April 13, 2012 (77 FR 22278). The 
Service always planned to utilize a categorical exclusion rather than 
an EIS for the 30-year tenure rule, and time constraints did not play a 
role in this decision.
    Question. When the original Eagle Take rule was released in 2009, 
the Service wrote in its response to comments that ``there was not 
enough time to fully engage any tribes in formal government-to-
government consultation during the rulemaking period.'' Then, with the 
release of the 2013 rule, the Service again held no formal 
consultations with tribes, stating in the response to comments that the 
2013 rule was ``a technical amendment to [Service] regulations . . . 
[and] merely extend[ed] the approved duration of a permit from 5 to 30 
years.'' The Service also wrote that while some tribes ``may perceive 
further negative effects from these proposed changes,'' the Service 
determined ``eagles would be sufficiently protected under this rule.'' 
Is it appropriate under Executive Order 13175 and Service policy to 
``perceive'' what tribes think on significant matters, rather than 
actually ask their opinion in formal consultations? Please explain.
    Answer. In the case of the 2013 Permit Duration Rule amendment, the 
Service did not believe that the amendment to the rule was significant 
and the amendment provided the same level of assurance for protection 
of eagles that consecutive 5-year permits would provide. Thereby, the 
effect of the amendment on eagles remained the same as the effects of 
consecutive 5 year permits. The Service is now reviewing the entire 
rule for possible revision, and as part of that process we are 
conducting consultations with tribes on possible future changes to the 
regulation including revisiting the provision of the 2013 Permit 
Duration Rule.
    Question. Why was the Service unwilling to engage in formal 
consultations with the tribes, when it was available to meet with wind 
industry representatives and select environmental groups throughout the 
process for developing the Eagle Tenure Rule?
    Answer. As stated in the previous response, the Service did not 
believe the amendment to the 2009 Eagle Take rule was significant and 
did not therefore request formal consultation with tribes. Several wind 
industry representatives and environmental groups requested formal 
listening sessions with the Office of Management and Budget's [OMB's] 
Office of Information and Regulatory Affairs [OIRA] under Executive 
Order 12866 during and after the comment period and prior to the 
regulations being finalized. The Service attended but did not 
participate in these listening sessions. Additionally, the Service 
attended similar sessions requested by these groups with the office of 
the Deputy Secretary.
    Question. On August 22, 2012, a letter was sent to Secretary 
Salazar from representatives of the wind industry and environmental 
organizations--the so-called ``Group of 16'' seeking a meeting to 
discuss the development of the bald and golden eagle permit process and 
the revisions to the 2009 Tenure Rule. What role did the Department 
have in selecting groups and participants to attend these meetings?
    Answer. The Department of the Interior (Department) worked through 
the American Wind Energy Association [AWEA] contact and representatives 
of the environmental organizations that signed the letter to arrange 
the meetings.
    Question. Were any invites extended to groups and interests beyond 
those that signed the August 22 letter?
    Answer. No. The Department invited representatives of the 
environmental groups that had signed the August 22, 2012 letter to 
attend. The American Wind Energy Association coordinated participants 
representing wind industry.
    Question. Were all interested groups invited or allowed to 
participate? In other words, were there any groups that requested to 
participate that were not allowed to do so? If yes, please explain why.
    Answer. The meetings the Department held on February 11, 2013 and 
March 27, 2013 were not open, public meetings. They were meetings held 
at the request of signatories to the August 22, 2012 letter. The 
American Bird Conservancy [ABC] requested to attend the meeting. As ABC 
was not a signatory to the August 22, 2012 letter, the Department did 
not invite them to the meetings.
    Question. The Service has provided the committee with a November 
15, 2012 email from FWS employee Jerome Ford with the subject line 
``hotel (Holiday Inn)'' that discusses a request from the American Bird 
Conservancy to participate in these meetings, as well as tribal 
consultation requirements. The email states that if additional groups 
are allowed to participate then all interested groups will need to be 
invited. Please explain the concern with not allowing other interested 
groups, including tribes, to participate in these meetings.
    Answer. While the referenced email was not provided for review, it 
appears that the email chain expresses the concern that any meeting 
with outside parties needed to have a specific purpose. At the time, 
there was uncertainty about whether the purpose of the proposed meeting 
was to discuss the letter that had been sent by the 16 groups or to 
discuss revisions to the 2009 Eagle Rule. The concern was based upon 
the need to have all stakeholders present if the purpose was to discuss 
revisions to the 2009 Eagle Rule.
    Question. Please explain why these meetings were not publicly 
noticed and open to the public to attend.
    Answer. Representatives of the Department often meet with 
constituents and stakeholders. Some of those meetings are public, some 
are not. The meetings on February 11, 2013 and March 27, 2013, were 
with senior Departmental officials and representatives of organizations 
that signed a letter to the Secretary requesting such a meeting with 
Departmental officials. They were not public meetings. Accordingly, 
there was no need to publicly announce them.
    Question. The Department has provided the committee with a February 
20, 2013 email string from FWS employee Albert Manville with the 
subject line ``Letter to Hayes'' concerning a letter from the American 
Bird Conservancy to Deputy Secretary David Hayes concerning these 
meetings. The email states in part: ``Dan argued that the NGO's didn't 
have the economic resources to sue us so not to worry'' and that ``ex 
parte communication'' with the Gang of 16 was ``ostensibly violations 
of (the Federal Advisory Committee Act), (the Administrative Procedure 
Act) and DOI ethics rules.'' Please explain what is meant by the 
statement: ``the NGO's didn't have the economic resources to sue us so 
not to worry.''
    Answer. While the referenced email was not provided for review, it 
appears that the email relays second-hand information related to a 
discussion of possible legal concerns associated with ex parte 
communications.
    Question. Please explain whether these meetings were held in 
accordance with the Federal Advisory Committee Act, the Administrative 
Procedure Act, and DOI ethics rules.
    Answer. The meetings the Department held on February 11, 2013 and 
March 27, 2013, were with environmental organizations and the American 
Wind Energy Association who had gotten together to suggest ways the 
Department and the Service might alter the substance and process by 
which the Department and Service were implementing the BGEPA. The 
Department did not ask them to form a group or solicit recommendations 
from them. That group was committed to working constructively together 
to address those topics. It would not have been appropriate for the 
Department to tell them who or what organizations should have been part 
of their discussions.
    Question. Were these meetings planned in a way to prevent their 
triggering the public meeting process under the Federal Advisory 
Committee Act?
    Answer. As noted in response to the previous question, the 
Department did not establish the group, ask the organizations to form a 
group, or solicit recommendations from the group. Therefore Federal 
Advisory Committee Act requirements were not applicable to the 
meetings.
    Question. There was a recent study by the Administrative Conference 
of the United States that suggested certain high-profile, costly, or 
controversial rules were delayed because of a concern within the White 
House about the effect such rules would have on the President's 
reelection. A draft of the Eagle Conservation Plan Guidance was sent to 
the White House Office of Management and Budget for review in January 
2013 and the final version was released in April 2013. What role, if 
any, did the 2012 Presidential election have in the timing of the 
publication of the Eagle Conservation Plan Guidance, which was released 
in April 2013? In other words, was the timing of the guidance's release 
purposefully delayed until after the election?
    Answer. The Eagle Conservation Plan Guidance is not a regulation, 
and its issuance was not subject to any statutory or legal deadlines. 
Instead, the focus was on getting it right. As the country continued to 
increase its production of domestic energy through both conventional 
and renewable means, the Service, along with wind energy developers and 
other wildlife agencies, recognized a need for specific guidance to 
help make wind energy facilities compatible with eagle conservation and 
the laws and regulations that protect eagles.
    As a matter of agency discretion and good management, the bureau's 
technical experts were given the time necessary to work through and 
address complex issues raised during the public comment period and that 
are reflected in Version 2. Furthermore, there was a high degree of 
Federal interagency interest. Accordingly, we consulted and coordinated 
with other interested agencies. The Service also views this as an 
iterative process and plans to ensure that Module is updated as new 
information, such as population data, conservation strategies, and 
advanced conservation practices, becomes available.
    Question. Among the documents that have been provided to the 
committee were a couple of internal emails concerning OMB's review. For 
example, in a November 12, 2012 email, FWS employee David Cottingham 
wrote: ``Now that election is over, what should we expect for ECPG and 
West Butte permit?'' In a second email dated November 13, Mr. 
Cottingham wrote: ``Last I knew both of those documents [the West Butte 
permit and eagle guidance] had cleared us and ASFWP and were awaiting 
6th floor approval to send to OMB. When I inquired of Jerome last week 
if they were moving post-election, he had heard nothing.'' Please 
explain whether the Eagle Conservation Plan Guidance intentionally was 
not sent to OMB until after the 2012 election.
    Answer. The Service transmitted the Eagle Conservation Plan 
Guidance to OMB when it was ready for submission. The Service worked 
with Federal agencies and other stakeholders to inform the Guidelines. 
Given that the Eagle Conservation Plan Guidance is a non-binding 
guidance document, we were attentive to stakeholder concerns in the 
development of these Guidelines as their buy-in is critical to 
conserving bald and golden eagles in the course of siting, 
constructing, and operating wind energy facilities. The Service allowed 
the time for appropriate deliberation, coordination, collaboration, and 
scientific debate to ensure the development of reasoned and balanced 
Guidelines.
    Question. Was the Service or the Department instructed not to 
transmit the draft eagle guidance to OMB until after the election? If 
yes, who give this instruction?
    Answer. OMB established a process sometime before March 2012, that 
requires agencies to provide a pre-briefing to the EOP prior to 
transmitting a document for E.O. 12866 review. OMB then informs the 
agency when it is ready to accept the document for review.
    Question. The guidance was not identified as economically 
significant and as such would not ordinarily undergo interagency review 
under Executive Order 12866 as amended. Please explain why the Guidance 
was designated for interagency review.
    Answer. OMB frequently reviews actions for reasons other than 
significant economic impacts. In fact, of the 13 E.O. reviews of 
Service documents during fiscal year 2013, the only economically 
significant rule promulgated by the Service was the Migratory Game Bird 
Hunting regulations, which generate over $100 million annually.
    Under Executive Order 12866, OIRA is responsible for determining 
which agency actions are ``significant'' and, in turn, subject to 
interagency review. Significant actions are defined in the Executive 
order as those that:

    1.  Have an annual effect on the economy of $100 million or more or 
            adversely affect in a material way the economy, a sector of 
            the economy, productivity, competition, jobs, the 
            environment, public health or safety, or State, local, or 
            tribal governments or communities;
    2.  Create a serious inconsistency or otherwise interfere with an 
            action taken or planned by another agency;
    3.  Materially alter the budgetary impact of entitlements, grants, 
            user fees, or loan programs or the rights and obligations 
            of recipients thereof; or
    4.  Raise novel legal or policy issues arising out of legal 
            mandates, the President's priorities, or the principles set 
            forth in this Executive order.

    The E.O. requires that such significant actions be reviewed by OIRA 
before they are published in the Federal Register or otherwise issued 
to the public.
    Question. The draft of the 30-year Eagle Tenure Rule was sent to 
the White House Office of Management and Budget for review in April 
2013 and the final rule was released in December 2013. What role, if 
any, did the 2012 Presidential election have in timing of when the 
draft Eagle Tenure Rule was sent to OMB? In other words, was the timing 
of the Guidance's transmission to OMB purposefully delayed until after 
the election?
    Answer. The Eagle Tenure Rule and the Eagle Conservation Plan 
Guidance are different documents and were reviewed at different times. 
The Service transmitted the Eagle Tenure Rule to OMB when it was ready. 
The rulemaking process typically takes about 1 year from proposal to 
issuance of a final rule as agencies consider and address public 
comments. The public comment period for the April 13, 2012 proposed 
rule closed on July 12, 2012. The Service submitted the draft Final 
Rule to OIRA for E.O. 12866 review on April 18, 2013, roughly 1 year 
from publication of the proposed rule.
    Question. Was the Service or the Department instructed not to 
transmit the draft rule to OMB until after the election? If yes, who 
gave this instruction?
    Answer. As noted in response to a previous question, OMB 
established a process sometime before March 2012, that requires 
agencies to provide a pre-briefing to the EOP prior to transmitting a 
document for E.O. 12866 review. OMB then informs the agency when it is 
ready to accept the document for review.
    Question. Can you explain why the eagle guidelines were sent to the 
White House for review in the first place?
    Answer. As explained in the response to Question 29, OIRA has broad 
discretion to make a determination about what agency actions are 
significant and thus reviewed under E.O. 12866. For those matters 
determined by OIRA to be significant within the scope of section 
3(f)(1), the Service must then comply with section 6(a)(3)(B) and 
section 6(a)(3)(C).
    Question. Were these guidelines economically significant? If not, 
what interest did the White House have in the guidelines?
    Answer. As described more fully in previous responses, OMB 
frequently reviews actions that it has determined are significant for 
reasons other than economics. The Eagle Conservation Plan Guidance is 
non-binding. Any costs would be assumed voluntarily and might result in 
long-term savings as legal risk is minimized. OMB/White House interest 
can be understood via the stated objectives of E.O. 12866 and E.O. 
13563 (http://www.reginfo.gov/public/jsp/Utilities/faq.jsp).
    Question. Similarly, the 30-year Eagle Tenure Rule was not 
designated as economically significant under Executive Order 12866 as 
amended and the Service has described the rule as technical amendments 
not warranting environmental review under NEPA. Please explain why the 
rule was sent to the White House for review if it was not economically 
significant and was only a technical amendment that did not raise novel 
legal or policy issues.
    Answer. As described in previous responses, OMB frequently reviews 
actions that it has determined are significant for reasons other than 
economics. OIRA has broad discretion to make a determination about what 
agency actions are reviewed under E.O. 12866. OMB/White House interest 
can be understood via the stated objectives of E.O. 12866 and E.O. 
13563.
    Question. What role did the Secretary's Counselor Steve Black have 
in developing the 30-year Eagle Tenure Rule and the Eagle Conservation 
Plan Guidance?
    Answer. Mr. Black participated in meetings about the 30-year Eagle 
Tenure Rule and the Eagle Conservation Plan Guidance. He reviewed both 
documents as they went through routine internal departmental review and 
approval. The Service considered his review and comments.
    Question. Among the documents that have been provided by the 
Service to the committee were a couple of internal email exchanges 
among FWS senior staff and between the Secretary's Office:

    a.  A November 15, 2012 from FWS Chief of Staff Betsy Hildebrandt 
            to Associate Deputy Secretary Liz Klein states: ``Steve 
            [Black] has been very aggressive in wanting specific info 
            on FWS ops plan. I really feel like that is way outside his 
            lane and told him so. He then went on to ask Pam for the 
            same info. I will back off if told but this seems 
            problematic and Dan agrees.'' Please explain what this 
            email is referring to, specifically what Mr. Black was 
            ``very aggressive in wanting specific info on,'' why these 
            issues were ``way outside his lane,'' and how these 
            concerns were resolved.

    Answer. While the referenced email was not provided for review, it 
appears that it refers to inquiries from Mr. Black about the Service's 
fiscal year 2013 Operating Plan. Ms. Hildebrant's comment in the email 
was suggesting that she believed that inquiring about the specifics of 
the agency's Operating Plan that was under development was outside of 
the scope of Mr. Black's responsibilities as counselor to the 
Secretary. The concerns were resolved on their own when the Operating 
Plan became public.

    b. A November 26, 2012 from David Cottingham to Betsy Hildebrandt 
            states: ``Last week we talked about pressure Steve is 
            exerting on [Region 8] for [the Draft Renewable Energy 
            Conservation Plan]. . . . The attached edits from Steve 
            show the concerns he is raising.'' Please explain the 
            ``pressure'' Mr. Black was exerting on FWS, whether these 
            concerns were raised to Mr. Black or anyone else at the 
            Department, and how were they resolved.

    Answer. Throughout the fall of 2012, the Service and Bureau of Land 
Management staffs in California were working diligently with their 
counterparts in the California State government to develop a Desert 
Renewable Energy Conservation Plan [DRECP]. The DRECP is a 22 million 
acre habitat conservation plan [HCP] under the ESA (section 10) as well 
as a Natural Communities Conservation Plan [NCCP] under the California 
Endangered Species Act. Service regulations implementing the BGEPA 
allow the Service to authorize incidental take permits for eagles, even 
though they are not listed as threatened or endangered under the 
Federal ESA, through a HCP. Mr. Black was the co-chair of the inter-
agency Renewable Energy Policy Group. The Renewable Energy Policy Group 
had a goal to publicly release a DRECP plan in December 2012. Mr. Black 
was interested in the Service developing a process to authorize limited 
incidental take of eagles via the DRECP for that release.
                                 ______
                                 
 Questions Submitted for the Record by Paul C. Broun, a Representative 
                 in Congress From the State of Georgia
    Question. During the preparation of the biological opinion for the 
Cape Wind project, FWS recommended reasonable and prudent measures that 
would require the developer to shut down the turbines at certain times 
of high bird activity in order to reduce bird deaths. Cape Wind 
objected and submitted a letter which said that such a requirement 
would make it difficult to get financing. The U.S. Department of the 
Interior supported Cape Wind and pressured FWS to remove the 
requirement. FWS did not conduct its own economic review and instead, 
within days, accepted the Cape Wind/Interior position and withdrew the 
shutdown requirement.
    A Federal court has now ruled that FWS broke the law by failing to 
conduct an independent analysis and is now under a court order to 
conduct the independent review that should have already been performed.
    How will FWS conduct this economic analysis to ensure its 
independence and sufficiency given the complexity of offshore renewable 
energy economics?
    Answer. The Service completed its remand, concluding with 
correspondence to the Bureau of Ocean Energy Management, on June 27, 
2014. The U.S. Department of Justice filed a Notice of Completed 
Remands with the U.S. District Court for the District of Columbia on 
July 2, 2014. The Service has an economist on staff who reviewed the 
Cape Wind Associate's and the Bureau of Ocean Energy Management, 
Regulation and Enforcement (BOEM's) submission regarding the economic 
feasibility of the originally proposed reasonable and prudent measure 
[RPM]. The Service considered the economist's perspective as it 
conducted its independent analysis of the reasonableness and prudence 
of the RPMs associated with the 2008 Cape Wind Biological Opinion.
    Question. Does FWS have an in-house economic expert with the 
credentials to review energy project economics?
    Answer. The Service has in-house economics expertise and experience 
in addressing energy issues, including oil and gas, renewable energy 
and non-renewable and extractive energy issues. Staff includes two 
employees with Ph.D.s in economics with over 50 years of experience in 
resource economics issues and analysis. The Service economics staff 
also has access to energy economics expertise through interagency 
agreements with other Federal agencies and contracts with private 
economic consulting firms.
    Question. Does FWS plan to seek assistance from an outside expert? 
What will be done to ensure transparency through public review?
    Answer. Given that the Service has economic and biological 
expertise on staff, we did not seek assistance from an outside expert. 
While neither section 7 of the ESA nor its implementing regulations 
require the Service to solicit public input on its decisionmaking 
during consultation, in order to complete the remand the Service filed 
its independent determination with the Court and those documents are 
public record.
    Question. Please provide examples of any other instances where FWS 
has withdrawn reasonable and prudent measures at the request of a 
project applicant or the action agency.
    Answer. The Service does not maintain records pertaining to the 
withdrawal of reasonable and prudent measures. During consultation, our 
staff coordinates closely with project proponents and the action agency 
to develop reasonable and prudent measures that are compatible with the 
expected project outcomes and the conservation needs of the species. As 
a result of this coordination, the reasonable and prudent measures in a 
final biological opinion may differ from what was originally proposed 
in a draft shared with an action agency and applicant.
    Question. At any time during its review of the Cape Wind project, 
did FWS have communications from the Interior Secretary's Office, other 
agencies, or the White House on the need to take action favorable to 
this project?
    Answer. During formal consultation with BOEM, there were regular 
communications regarding the applicable regulatory timeframes and the 
need to complete the final biological opinion on a timely basis. We are 
not aware of any communications or directives from the Department, 
other agencies, or the White House about the substance or outcome of 
the Service's decisionmaking regarding Cape Wind.
    Question. Has FWS received any communication from any Federal 
official about the March 14, 2014, U.S. District Court's ruling? How 
about from Cape Wind officials?
    Answer. The Service has discussed the District Court's ruling 
internally, with the Department of Justice, and with the Department of 
the Interior's Solicitor's office. A Cape Wind official has contacted 
the Service by phone three times to inquire about how the Service plans 
to respond to the Court's ruling and the Service's expected timeline. 
The conversations were brief and the Service indicated to the Cape Wind 
official that we could not identify a timeframe to complete the remand 
nor reveal the approach or possible outcomes.
    Question. The environmental impact statement for Cape Wind 
estimated that thousands of migratory birds would be killed by this 
project, including endangered species. What steps will FWS take to 
enforce the take prohibition of the Migratory Bird Treaty Act [MBTA], 
and the Endangered Species Act [ESA], against this offshore wind 
project, especially considering the more aggressive stance that has 
been applied to oil and gas and power line facilities?
    Answer. The OLE strives to respond to all alleged instances of take 
in a similar manner regardless of industry. As noted in responses to 
previous questions, the Service has long employed a policy of 
encouraging industry to utilize best practices aimed at minimizing and 
avoiding the unpermitted take of protected birds. When these efforts at 
partnerships with industry fail, we then seek to enforce the provisions 
of the law as efficiently and equitably as possible. The OLE 
investigates suspected instances of take with available resources. If 
supportive evidence is discovered, the OLE refers the matter to either 
prosecutors with the Department of Justice (for violations of the 
MBTA), or to Solicitors of the Department of Interior (for some [i.e. 
non-criminal] violations of the ESA).
    Question. Why did FWS wait until years after the Cape Wind lease 
had been issued and the project operating plan had been approved, to 
specify an avian and bat monitoring plan?
    What is the value in developing those requirements after the 
project has already been approved?
    Answer. The requirement for an Avian and Bat Monitoring Plan [ABMP] 
is stipulated in the Service's Biological Opinion, the BOEM Final 
Environmental Impact Statement, its Record of Decision of its lease, 
and the Environmental Assessment for the Cape Wind Construction and 
Operations Plan. According to BOEM's decisionmaking documents, the ABMP 
must be completed prior to construction of the project. The project has 
not yet been constructed and BOEM approved Cape Wind's ABMP on November 
20, 2012. Though the greatest potential for avian impacts occurs from 
operations, completion of the ABMP prior to construction was necessary 
to ensure that any additional baseline data is collected in a timely 
manner.
    Question. What steps will FWS take to enforce the prohibition on 
taking migratory birds against this project?
    Answer. As noted in response to a previous question, the OLE 
strives to respond to all alleged instances of take in a similar manner 
regardless of industry. The OLE investigates suspected instances of 
take pursuant to the MBTA with available resources. If supportive 
evidence is discovered, the OLE refers the matter to prosecutors in the 
Department of Justice.
    Question. Will it require shut down when a prescribed level of 
mortality has occurred?
    Answer. BOEM's April 2011 Environmental Assessment [EA] for its 
approval of the Cape Wind Construction and Operations Plan details the 
strategy to address impacts to birds. In particular, the EA identifies 
an adaptive management strategy that contemplates new minimization or 
mitigation measures, such as operational changes. The ABMP is a 
monitoring plan and does not prescribe courses of action based on the 
data collected. Nevertheless, the ABMP is structured as an adaptive 
management tool. The parameters of the ABMP can be adjusted based on 
analyzed data to retarget monitoring, or make it more effective in the 
future.
    Question. FWS repeatedly asked for 3 years of radar studies to 
evaluate bird impacts, but Cape Wind continually refused and 
ultimately, then-Interior Secretary Salazar approved the project 
despite this refusal and signed a lease years before an avian 
monitoring and mitigation plan had been developed.
     Has the Secretary ever approved another project where the 
applicant refused to gather the information requested by FWS during the 
permitting phase?
    Answer. The Service commonly recommends to the Department and non-
DOI agencies ways to monitor for wildlife and practices to avoid and 
minimize impacts to migratory birds and other wildlife as part of those 
agencies' environmental review of projects subject to their permitting 
requirements. Those agencies often, but not always, follow the 
Service's recommendations.
    Question. Can you refer to any non-renewable energy company that 
will kill tens of thousands of protected species over the term of its 
existence that has been given similar treatment?
    Answer. A very clear example of this would be the transmission of 
electricity by the electric utility industry that is generated by both 
renewable and non-renewable electrical energy sources. The Service has 
worked with this industry since the early 1970s, formalized in 1989 as 
the Avian Power Line Interaction Committee in efforts to avoid and 
minimize the take of migratory birds. Cooperatively, we have developed 
best management practices that include guidelines for reducing 
electrocutions at distribution and transmission powerlines and 
infrastructure (most recently updated in 2006), guidelines for reducing 
powerline collisions (updated in 2012), and recommendations for siting 
of transmission corridors (updated in 2012).
    Even with these efforts to avoid or minimize take, it is estimated 
that the unpermitted take associated with this industry may still 
exceed 50 million birds each year in the United States due to 
collisions and electrocutions combined. We work closely with this 
industry, and when individual utility companies do not cooperate with 
Service staff, we may pursue and have pursued enforcement actions 
against them.
    Question. The 2010 DOI IG's report on Cape Wind contains statements 
that FWS felt political pressure to rush its review of Cape Wind.
    What steps are you taking to ensure that, on remand after the 
court's ruling against the project; FWS will not once again be subject 
to political pressure as it conducts its independent review?
    Answer. As noted in response to a previous answer, the Service 
completed its remand, concluding with correspondence to the Bureau of 
Ocean Energy Management, on June 27, 2014. The U.S. Department of 
Justice filed a Notice of Completed Remands with the U.S. District 
Court for the District of Columbia on July 2, 2014. The Service 
conducted this review independently and in full compliance with the 
District Court's ruling.
                                 ______
                                 
Questions Submitted for the Record by The Honorable Cynthia M. Lummis, 
         a Representative in Congress From the State of Wyoming
    Question. In December 2013, the State-Federal Interagency Grizzly 
Bear Committee recommended delisting the Grizzly Bear as it has 
exceeded recovery goals. When is the U.S. Fish and Wildlife Service 
[FWS] going to propose a grizzly bear delisting? If there is a 
timeline, even an aspiration of a timeline, please provide it. If not, 
please provide specific reasons why the Service is delaying a proposal 
to delist the grizzly bear.
    Answer. The Service is evaluating the biological status of the 
Greater Yellowstone Area [GYA] population in light of recent scientific 
analyses and legal considerations to determine whether this population 
is a distinct population segment that meets the definition of 
threatened or endangered. The ultimate legal status of this population 
under the ESA would be assessed in a proposed rule, which may include 
consideration of a proposal to remove the GYA population of grizzly 
bears from the List of Endangered and Threatened Wildlife. We currently 
anticipate such a rulemaking to be published in the Federal Register 
later this year.
    Question. The gray wolf first met Federal recovery goals in 2002. 
Eleven years and numerous lawsuits later, FWS proposed national 
delisting in June 2013. By law, the FWS is supposed to finalize the 
proposal within a year. Is the FWS going to meet this deadline, and if 
not, please explain why?
    Answer. To clarify, the 2002 recovery goals to which this question 
refers were specific to the population of gray wolves in the Northern 
Rocky Mountains [NRM]. Our June 13, 2013, proposal has no effect on any 
of these conservation successes. On June 13, 2013, the Service proposed 
to list the Mexican wolf as an endangered subspecies and delist gray 
wolves elsewhere. Anticipating significant public interest in this 
issue, the Service focused on ensuring that all interested parties had 
the opportunity to provide comments on the proposed rule. The Service 
has received over 1.5 million comments to date during the nearly 8 
month public comment period. The statutory deadline for the proposal 
was June 13, 2014, but due to the unprecedented number of comments 
received and administrative delays associated with the October 2013 
lapse in appropriations, the Service will likely issue a final 
determination on the proposal by the end of the 2014 calendar year.
    Question. Does the FWS intend to or otherwise anticipate that the 
FWS will miss any listing decision deadlines established in the 2011 
settlements with the Center for Biological Diversity and Wild Earth 
Guardians?
    Answer. No, the Service does not intend to miss any listing 
decision deadlines agreed upon under the multi-district litigation 
settlement agreements and corresponding work plans. The Service has in 
the past and may in the future seek to modify deadlines established in 
the original agreements.
    Question. The FWS's FY15 budget request includes a $4 million 
increase to Ecological Services for the Greater Sage Grouse [GSG]. The 
FWS is describing this request as part of its ``Sage Grouse 
Initiative'' [SGI]. It is intended to fund 38.75 full time employees. 
Please detail the specific activities denoted by ``ecological 
services.'' Please detail the specific activities that the 38.75 full 
time employees will perform, including whether or not any of their work 
will implement Wyoming's FWS-approved ``core area'' conservation plan 
for the GSG. In your response, please indicate clearly whether this 
work will be performed at a desk or out in the field on GSG 
conservation.
    Answer. The fiscal year 2015 budget request supports additional 
capacity across 3 regions of the Service and 11 States. The majority of 
these positions will be on-the-ground support to implement conservation 
on private lands and to provide technical assistance for State and 
Federal conservation planning and implementation. Currently, the 
Service has dedicated approximately 30 FTE to collaborating with the 
BLM, USDA Forest Service, NRCS, State and private land conservation 
efforts. We anticipate adding an additional 35 FTE over the next 6 
months to double these efforts. Staff will be working in the field with 
partners and landowners to develop conservation agreements, implement 
actions identified in those agreements, and restore sage steppe 
habitat. Staff in Wyoming will continue to work closely with Federal, 
State, and local partners, as we have over the last 7 years, to support 
the State of Wyoming's core area strategy for greater sage-grouse. The 
Wyoming staff will continue their efforts to implement Candidate 
Conservation Agreements [CCAs, CCAAs] that facilitate on-the-ground 
proactive, strategic conservation effort as well as provide the staff 
support to meet the administrative requirements associated with these 
efforts.
    Question. The FWS has a history of allowing the ecologically 
responsible acquisition of Golden Eagles for falconry, an activity 
explicitly recognized and allowed by the Bald and Golden Eagle 
Protection Act (Eagle Act). However, I have fielded concerns from my 
constituents engaged in the practice that the FWS has been refusing to 
grant permits for this activity. I would note that these permits are 
being sought in federally established depredation areas, where eagles 
have been injurious to wildlife, agriculture, personal property, or 
human health or safety. Moreover, the FWS's own 2008 Environmental 
Assessment [EA] found that removing a small number of eagles per year 
for falconry purposes was ecologically acceptable. Yet my constituents 
have reported that the FWS's recent amendments to 50 CFR 22.23/22.24 
have resulted in a de facto moratorium on the issuing of permits for 
Golden Eagle falconry. In light of these developments, please address 
the following items:
    How do you reconcile 50 CFR 22.23/22.24 and the de facto moratorium 
on falconry permits with the findings of the 2008 EA that Golden Eagle 
acquisitions for falconry purposes are ecology responsible?
    Answer. There has not been a moratorium on take of golden eagles by 
falconers. The BGEPA provides that ``only golden eagles which would be 
taken because of depredation on livestock or wildlife may be taken for 
the purposes of falconry'' (16 U.S.C. 668a). Pursuant to the BGEPA, the 
Service has established regulations to determine when it is ``necessary 
to permit the taking of such eagles for the protection of wildlife or 
of agricultural or other interests in any particular locality'' and to 
determine that such take ``is compatible with the preservation of the . 
. . golden eagle'' (16 U.S.C. 668a). Under 50 CFR 22.23, the Regional 
Office in Denver has permitted actions to address eagle depredation 
short of removing eagles from the wild, and in recent years has 
received no reports that these implemented actions have failed to 
resolve eagle depredation problems in Wyoming.
    We recognize that the Environmental Assessment finalized in 2009 
found that permitting take of depredating golden eagles by falconers, 
at the limited rate these permits were used from 2002-2007, would not 
result in national population-level effects. However, consistent with 
the BGEPA and its implementing regulations, the Service strives to 
resolve depredation issues while limiting the need to remove golden 
eagles from the wild. Consequently, no take of golden eagles from the 
wild has been permitted in recent years, because information reported 
to the Service has not indicated that such actions have been necessary 
to address eagle depredation.
    The Migratory Bird Office in Denver has been working with USDA--
Wildlife Services in Wyoming to better ensure that livestock producers 
are aware of what activities have been permitted, that reports of 
actions to address depredation as well as reports of any continued 
depredation problems are submitted, and that a process can be 
streamlined so that permits authorizing take of depredating eagles from 
the wild, if necessary, may be issued efficiently.
    Question. Are you willing to commit to a meeting with the falconry 
community, including the Wyoming Falconer's Association, in order to 
address their concerns about the revised 50 CFR 22.23/22.24?
    Answer. The Assistant Regional Director for Migratory Birds in 
Denver has committed to meet with members of the Wyoming Falconers' 
Association at their request.
    Question. More broadly, can you commit to working toward a 
resolution of these concerns about a de facto moratorium so as to 
ensure falconers are able to secure the small amount of permits they 
are seeking to perpetuate their historic and legally recognized 
practice?
    Answer. We commit to working to ensure that processes to address 
depredation are effective, understood, and consistent with the BGEPA. 
We cannot ensure that golden eagles will be available to falconers in 
any given year or in any given number. As described above, the BGEPA 
provides that falconers may take golden eagles for falconry, but that 
``only golden eagles which would be taken because of depredations on 
livestock or wildlife may be taken for purposes of falconry'' (16 
U.S.C. 668a). Falconers are not entitled to take golden eagles from the 
wild just because their falconry certification authorizes them to 
possess golden eagles. However, we continue to review opportunities to 
streamline responses to eagle depredation. In doing so, we intend that 
effective implementation will address both Congressional goals of 
addressing eagle depredation and--where depredation permits may be 
authorized--allowing eagles to be available to falconers so that they 
can practice their sport.
                                 ______
                                 
  Questions Submitted for the Record by The Honorable Niki Tsongas, a 
             Representative in Congress From Massachusetts
    I believe that we need a comprehensive strategy for American energy 
independence that decreases our reliance on fossil fuels and helps move 
us to a new energy future built on American manufacturing of clean, 
renewable energy. This, of course, includes wind energy.
    Thanks to the wind industry, my home State of Massachusetts has 
seen an influx of over $200 million in capital investment and is home 
to 9 wind-related manufacturing facilities. In the past 2 years, clean 
energy jobs in Massachusetts have grown by 24 percent, and are 
projected to grow another 11 percent in 2014. Last summer, 
Massachusetts and Rhode Island were proud to be part of the Bureau of 
Ocean Energy Management's first ever competitive lease sale for 
offshore wind development.
    We all know that no form of energy production has zero 
environmental impact, including wind energy production. However, the 
claim being made today by the Majority that Fish and Wildlife Service 
unfairly relaxes certain wildlife protection standards to promote wind 
energy development is unfounded. Documents submitted to the Committee 
by the Fish and Wildlife Service and the Department of Justice show 
that there is no biased enforcement policy of wildlife laws for the 
wind energy industry.
    Director Ashe, we all acknowledge that the Fish and Wildlife 
Service should monitor the impact of wind turbines on bird mortality 
and take action when appropriate.
    Question. What steps are you taking, in coordination with the wind 
industry, to reduce bird mortality?

        The FWS Land-Based Wind Energy Guidelines provide 82 pages of 
        detailed recommendations for safely developing a wind energy 
        project, including recommendations on communicating with the 
        Service early on the project development process, duration of 
        pre- and post-construction studies and monitoring, methods for 
        conducting such studies, and ways to avoid, minimize and 
        mitigate impacts.

    Answer. The Service works with the wind industry in a number of 
different ways in an effort to reduce bird impacts. The Service 
developed the voluntary Wind Energy Guidelines in 2012, which outlines 
an approach developers can use to reduce the impacts of construction, 
operation, maintenance, and decommissioning of wind facilities. 
Currently, the Service is providing technical assistance and training 
to wind energy proponents--specifically with recommendations for proper 
project siting and the implementation of conservation measures to 
reduce project-related impacts. Service biologists are involved with 
the National Wind Coordinating Cooperative and also work with some 
industry proponents on research aspects of wind turbines/wildlife 
interactions (especially collisions) primarily for Bald and Golden 
Eagles. The Service is developing tools that will allow better 
management of bird injury and mortality data from wind facilities and 
working with these facilities to implement sound monitoring programs to 
fully understand the impacts to birds and bats.
    Question. Has the Service issued similarly comprehensive guidance 
on avoiding wildlife impacts for oil and gas facilities?
    Answer. The Service has worked with the oil and gas industry to 
develop and implement best practices for avoiding bird mortalities. One 
example is the Service-developed best practices for avoiding bird 
``oiling'' at oil and wastewater pits through the use of pit netting. 
We have also developed guidance for the Management of Oil and Gas 
Activities on National Wildlife Refuge System Lands (2012).
    The Service has also provided technical assistance on a project-by-
project basis for the development of several pipeline projects 
including the recommendation of conservation measures that reduce the 
impacts of pipeline construction, operation, and maintenance to 
migratory birds and their habitats.
    The Wind Energy Guidelines and the Eagle Conservation Plan Guidance 
for Wind Energy both essentially require multiple years of pre- and 
post-construction wildlife monitoring to predict potential impacts, 
monitor the actual impacts, and impose mitigation to offset impacts if 
necessary.
    Question. How many years of pre-construction wildlife studies does 
the Service require or recommend for oil and gas facilities to study 
potential direct and indirect mortality impacts before they are 
constructed?
    Answer. There is no prescribed duration or frequency for pre-
construction surveys for oil and gas projects. The need for pre-
construction surveys should be determined in pre-siting planning and 
based on available data and identified risk of the project. In areas 
where risk of project-related impacts is high or uncertain, more 
rigorous surveys would be recommended. In areas where there is current 
resource data or where risks are determined to be low, few surveys 
could be recommended. Recognizing that each project site, project 
hazards, and species potentially affected varies, recommended project-
specific monitoring needs (e.g., < 1 year, 4 full seasons, 2 years, or 
> 2 years) will also vary. Like the Wind Energy Guidelines, these 
recommendations would be voluntary.
    Question. What are the penalties for companies that you find are 
not in compliance with wildlife laws, such as the Migratory Bird Treaty 
Act?
    Answer. By statute, the MBTA establishes the unauthorized take of 
migratory birds as a Class B misdemeanor with fines of not more than 
$15,000 or imprisonment of not more than 6 months, or both.
    Question. How does the number of cases brought against of wind 
energy companies compare to the number of cases brought against oil and 
natural gas companies?
    Answer. There have been fewer cases brought against wind energy 
companies compared to the number of cases brought against oil and 
natural gas companies. The emergence and growth of the wind energy 
industry is relatively recent compared to the oil and natural gas 
sectors. Accordingly, the opportunities to investigate have been fewer. 
Additionally, investigations that have been initiated and are ongoing 
have had less time to conclude.
    Question. How do the environmental impacts of wind energy 
production compare to those of oil and natural gas production?
    Answer. Regardless of the energy generation technology, energy 
production facilities will result in environmental impacts, including 
possible habitat loss, degradation, and fragmentation, and may also 
cause certain species to avoid areas or alter their behavior in ways 
detrimental to their survival. Wind energy facilities can also result 
in bird and bat fatalities via direct strikes with the turbines and 
associated infrastructure. Oil and gas facilities often use open pits 
filled with waste fluids that can attract and poison wildlife, 
including migratory birds. Waste fluids can leak from pipes, holding 
tanks and injection wells, contaminating local surface waters and 
aquifers. The use of fossil fuels results in air and water pollution 
and contributes to climate change, which all have large-scale, long 
term impacts on wildlife and their habitats. It should be noted that 
the number of oil and gas wells far outnumbers the number of wind 
turbines in the United States and therefore have a generally larger 
impact on the landscape.
                                 ______
                                 
    The Chairman. Thank you, Director Ashe, for your testimony. 
Let me, for the record, just so everybody knows, we started 
this process last year on May 16, when we first asked for 
documents. That is nearly a year ago. And while you said it is 
destructive, the Ranking Member talked about the extraordinary 
cost to comply, I just want all the members of the committee to 
know that the vast majority of what we are asking, as far as 
documents, were documents that you submitted to us that were 
redacted.
    I just want to emphasize that. It took a lot of effort to 
redact. We didn't ask for that. We didn't ask for them to be 
redacted within your agency, I don't know how much the cost was 
to redact all of the stuff that we are asking about. And so, 
the subpoena, largely, not exclusively, but the subpoena 
largely asked you to give us the unredacted information. That 
is what we are asking. Now, I don't know how that could be a 
huge, huge cost. The big cost was redacting.
    So, I just want everybody to understand that this argument 
that is costing all of this, and you are taking people out of 
the field, to do what? I have a hard time understanding that. 
So I just want to, Director Ashe, make that point.
    Let me ask one question here. Do you agree that the two 
laws, the two statutes that we are dealing with here, the 
migratory bird and the eagle statutes, are strict liability 
statutes?
    Mr. Ashe. They are strict liability----
    The Chairman. They are strict liability statutes. Now, you 
didn't mention this in your oral statement, but you alluded to 
it in your written statement, about how you had gone through 
with Duke Energy, and how because of Duke Energy, that 
hopefully would be a template for others that are in the 
industry. Did I read that correctly in your statement?
    Mr. Ashe. The template for the energy industry really is in 
the voluntary wind energy guidelines that we have developed, in 
cooperation with the industry. I think the settlement with Duke 
Power was reflective of the cooperative relationship that we 
are developing with the wind industry. Duke Energy brought to 
us the information concerning those eagle mortalities. And Duke 
Energy was cooperative in the settlement that we reached with 
the Justice Department.
    The Chairman. Well, see, that goes to the heart of the 
issue here. You acknowledge this is strict liability statutes 
that we are under, you admitted that there was an agreement, a 
settlement, if you will, with Duke Energy in Wyoming. All we 
are trying to find out, all we are trying to find out here, at 
this hearing, is the process that led to the guidelines that 
Duke Energy is following. That is all we are asking. It is 
nothing more complicated than that.
    And why, even with the subpoena for example, when we sent 
you the subpoena, you have not fully complied with that. Would 
you agree with that?
    Mr. Ashe. We have not complied with the subpoena.
    The Chairman. Let me ask what should be the obvious follow-
up question. When will you comply with all of that?
    Mr. Ashe. Mr. Chairman, I think that we are, as I said in 
my testimony, we have put forth extraordinary effort to try to 
comply with the subpoena, but----
    The Chairman. Well, let me be pretty specific. If we are 
asking for unredacted reports, how hard is that to respond to 
us?
    Mr. Ashe. Well, first, Mr. Chairman, the redactions that 
you refer to, the principal redactions, were made in a FOIA 
document. And so, the----
    The Chairman. Right.
    Mr. Ashe. The document that we provided to the committee 
with extensive redaction was a document that was created in a 
FOIA request from an external, non-congressional party.
    The Chairman. I understand that, I understand that. And you 
redacted it for the FOIA. FOIA does not apply to us.
    Mr. Ashe. And we provided it to the committee as a 
courtesy, because it was related to your earlier document 
request. We are now working on the process of going through 
that document and determining which unredacted documents we can 
give to the committee, and we have given you, in response to 
the subpoena, unredacted documents.
    The Chairman. Again, for the record, has executive 
privilege been asserted in any of this, not complying with us?
    Mr. Ashe. I am not a lawyer, and I am not familiar, and I 
am not here to, I guess, present you with any legal opinion or 
determination about the basis of redactions. All I can say to 
you, Mr. Chairman, is I do not make those decisions, 
personally----
    The Chairman. Who makes those decisions?
    Mr. Ashe. Those decisions are made in the process of review 
within----
    The Chairman. But who makes the decision, then?
    Mr. Ashe. I do not know.
    The Chairman. You don't know who? I don't know how to 
follow up with that. I mean we seem to have come to a--how do 
you have transparency in government, when I ask the head of a 
department who is responsible, and the response I get is, ``I 
don't know''?
    Mr. Ashe. Mr. Hastings----
    The Chairman. Am I misunderstanding something here?
    Mr. Ashe. Those decisions are made during a process of 
review within the Department of the Interior. There are many 
people who are involved in those decisions about reviewing 
documents and then determining, on the basis of--some of those 
documents contain personally identifiable information. Some of 
those documents contain confidential industry information. Some 
of those documents contained pre-decisional material. And so 
all of those decisions----
    The Chairman. My time is out. I just want to say, in your 
response to us, in all of the responses that we have had, at no 
place that I can remember, and if I am wrong, I will be 
corrected, have you said, ``This is why we have not provided 
this document, because of this.'' You have not given us that 
explanation, whatsoever. Not at all. So, how do we know how to 
respond to that, other than to say, ``We would like to have the 
documents?''
    My time is way over here, and I apologize to my colleagues 
for that, and I recognize the Ranking Member.
    Mr. DeFazio. Director Ashe, do you criminally prosecute 
each and every endangered species, let's say eagle death, or 
migratory bird death in the case of golden eagles, which are 
not endangered? Do you prosecute each and every one of those, 
criminally?
    Mr. Ashe. No, we do not.
    Mr. DeFazio. OK. Do you prosecute each and every one of 
those against the oil and gas industry?
    Mr. Ashe. No, we do not.
    Mr. DeFazio. OK. So there are incidental takes, or whatever 
you call them, that are occurring on a regular basis across the 
energy sector, which are not prosecuted.
    Mr. Ashe. That is correct. There are approximately 876,000 
oil wells in the Continental United States. It is estimated in 
the peer-reviewed literature that those wells take 
approximately 1 to 2 million birds per year, we are currently 
investigating 21 cases involving the oil and gas industry.
    Mr. DeFazio. OK. How about the wind industry?
    Mr. Ashe. We are currently investigating 17 cases involving 
the wind industry. There are about 48,000 wind turbines in the 
Continental United States.
    Mr. DeFazio. It seems that, in emphasizing that this is a 
strict liability statute, that the committee is urging that you 
should prosecute each and every one of those millions of 
takings against the oil and gas industry, and the tens of 
thousands, or whatever it is, against the wind industry.
    Mr. Ashe. And there is, from a practical standpoint, there 
is no way that we can do that. And, from a common sense 
standpoint, there is no way that we should do that. Any strict 
liability law has to involve the exercise of enforcement 
discretion.
    Much the same as you or I, if we are driving on the New 
Jersey Turnpike, and the speed limit is 55 miles an hour, that 
is a strict liability. We know the speed limit is 55 miles an 
hour. If we are driving 56 miles an hour, we are violating the 
law. But we don't expect a State Trooper to write us a ticket 
for 56 in a 55. Each mile per hour that we go faster than that, 
we increase the likelihood that a State Trooper would use their 
enforcement discretion. But we hope that our State Police, and 
they, our State Police do, in large measure, reasonably 
exercise their enforcement discretion. Likewise, our agents 
reasonably use their enforcement discretion in----
    Mr. DeFazio. OK. So, generally, you have, after you develop 
best practices, and we are still working on that with the wind 
industry and some of the early sitings were not well thought-
out, in terms of bird strikes, which I believe was the case 
with Duke, and then there is big problems down in California, 
with those turbines in the Altamont Pass, et cetera.
    But after you have developed best practices, or made, 
entered into agreements on how to avoid these, if the industry 
in question, whether it is oil and gas or wind, follows those 
best practices, and makes every attempt, but inadvertently 
birds are killed, you don't prosecute them, right?
    Mr. Ashe. That is correct.
    Mr. DeFazio. But when you do prosecute them, it would be 
like someone who didn't cover a spill pit and migratory birds 
landed in it. That sort of a thing, which was intentional or 
negligent, you would prosecute.
    Mr. Ashe. That is correct.
    Mr. DeFazio. And in the case of the wind industry, if they 
didn't follow guidance or best practices that has been 
developed, you would prosecute them.
    Mr. Ashe. That is correct.
    Mr. DeFazio. And, in the case of Duke, did you extend 
special favoritism? It seems like the committee here is kind of 
on a rampage to have millions of prosecutions against every 
kind of energy development in the United States, because that 
is the only conclusion I can come to here. Did Duke get some 
kind of special deal, here?
    Mr. Ashe. Not at all. With Duke Energy we had advised Duke, 
with their Campbell Hill and Top of the World facilities, we 
had advised them against construction on those sites, and we 
had advised them to take mitigation measures in construction of 
those sites because of our concern about bird take.
    And so, then, when they actually did take birds, again, 
they came to us with that information, and they sought a 
reasonable solution. And they committed to applying for an 
eagle take permit, they committed to remedial measures. And, in 
fact, in the first year after they reported the bird takes to 
us, they achieved no take of golden eagles, and they did that 
by implementing some relatively simple best management 
practices, but they were in violation of the law, and they had 
ignored our previous recommendations to them about both of 
those sites.
    Mr. DeFazio. And did they pay a fine?
    Mr. Ashe. They did. They paid a $1 million fine.
    Mr. DeFazio. OK, thank you. My time has expired.
    The Chairman. Will the gentleman yield real quickly?
    Mr. DeFazio. Certainly.
    The Chairman. I just want to make a point. The gentleman 
made an observation about best practices. You see, that is what 
we are trying to find out, is exactly how those best practices 
were developed by Fish and Wildlife. That is really what this 
whole hearing is about, is to find that out. And that is why we 
were looking for these documents. So I think the Ranking Member 
and I are, I don't want to put words in his mouth, but I think 
we are on the same page.
    We want to find out how those best practices were 
developed, and give them to us. That is what we are asking 
about with our requests going way back to last May. So I thank 
the gentleman----
    Mr. Ashe. Mr. Chairman, I am here to say I can tell you how 
those were developed, and I am happy to do that.
    The Chairman. Well, that is what we have been asking. I 
just want to make that point. That is what we have been asking. 
Maybe you are not getting information from people, I have no 
idea.
    My time has expired. I will recognize Mr. Fleming, Dr. 
Fleming is recognized.
    Dr. Fleming. Thank you, Mr. Chairman. I would ask the staff 
to bring up Exhibit No. 7 on the screen. And while we are 
waiting for that--ah, there it is.
    [Slide]
    Dr. Fleming. Yes, Dr. Ashe, on February 14, 2013, President 
Obama said, ``This is the most transparent administration in 
history. Every law we pass and every rule we implement, we put 
online for everyone to see.''
    Now, what is up there is a document that was provided as a 
result of our subpoena from your office. Can you interpret what 
that says?
    Mr. Ashe. What you are seeing is a redacted document 
covered by the subpoena. That was, again, I believe that was a 
document that was produced in response to a FOIA request, and 
not in response to the committee's subpoena.
    Dr. Fleming. OK. Either way, whether it is a FOIA request 
or a subpoena, what does that tell us?
    Mr. Ashe. [No response.]
    Dr. Fleming. You are not going to answer. Does it tell us 
anything?
    Mr. Ashe. What do you want to know, Congressman?
    Dr. Fleming. Well, we have provided numerous requests, both 
FOIA and subpoena. The subpoena was issued March 11, 10 months 
after the committee sent its initial document request. So we 
sent FOIA requests, then we sent, as I understand it, a 
subpoena. And again, this is the kind of non-information that 
we are receiving.
    Now, when the Chairman asked you, you said that, and 
correct me if I am wrong about this, but I am sensing that you 
said this was not your decision to be non-responsive. Was that 
decision above you, someone above you in the Interior 
Department?
    Mr. Ashe. My response was that I am not the one who is 
making determinations about redactions. The job of the Fish and 
Wildlife Service in the case of these all-document requests is 
to produce documents that we believe are responsive. And then 
that has to go through a process of review, and that involves--
--
    Dr. Fleming. But, as Director, you are obviously at the top 
of that bureaucracy, unless someone ahead of you is above you 
in the chain of command in the Department of the Interior.
    So, my question is, is that final decision made by someone 
above you?
    Mr. Ashe. The decisions about redactions are made through a 
process of review at many levels between the Fish and Wildlife 
Service----
    Dr. Fleming. But----
    Mr. Ashe [continuing]. And the Department of the Interior--
--
    Dr. Fleming. Mr. Ashe, somebody has to make the final 
decision. Someone has to make the final call. And so, we sent 
FOIA requests, it is non-responsive.
    Mr. Ashe. If----
    Dr. Fleming. You have already admitted that, even to the 
subpoena, you have been non-responsive. You say that it wasn't 
your decision. And you are diffusing it with this idea that it 
is a huge bureaucracy out there. Somebody has to finally, at 
the end of the day, make the call. All I am asking is, is that 
person above you in the Interior Department bureaucracy?
    Mr. Ashe. When I send the committee a document, and when I 
respond to a request from the committee, I am responsible for 
any redactions or exclusions that are in the documents.
    These redactions were not responsive to the committee. 
These redactions were responsive to a FOIA request that came 
from a non-congressional responder. We provided that to the 
committee as a courtesy.
    Dr. Fleming. Right. But let me correct you on something. 
That is right, this came as a FOIA request to the public. But 
then we requested in the subpoena to have this information, and 
we are still being refused----
    Mr. Ashe. And and as I said, Mr. Fleming, I think I have 
made superhuman efforts, as have my law enforcement agents and 
my agency in general, to respond to the subpoena. The time that 
you gave me to respond to that subpoena is completely 
unreasonable. We cannot physically respond----
    Dr. Fleming. Well, I am running out of time, so let me jump 
in here.
    So, really, what I am hearing today is that you are 
unresponsive to the questions about the unresponsiveness of 
both the subpoena and the FOIA requests. Are you claiming 
executive privilege?
    Mr. Ashe. I am not claiming anything.
    Dr. Fleming. You are not asserting executive privilege. 
Well then, can you explain to this committee why you should not 
be held in contempt?
    Mr. Ashe. Again----
    Dr. Fleming. Contempt of Congress.
    Mr. Ashe. Congressman, I am not a lawyer. And so, I guess 
contempt is an issue that the committee will have to judge 
based upon its own advice and interpretation. What I would say 
to you, again, is I have a personal record with this committee 
and with the Congress, as a whole.
    As I said in my opening statement, I make myself available. 
I have never refused a request from this committee. I have 
never refused a request from any member of this committee or 
this body to come up here and meet and provide information and 
be responsive, and----
    Dr. Fleming. Well, I am running out of time. But just to 
respond to that, yes, you have never refused to come up and 
speak with us. But you and your Department are obviously 
refusing to give the information that Congress and the American 
people are entitled to. And, with that, I yield back.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from California, Mr. Huffman.
    Mr. Huffman. Thank you, Mr. Chair. And thank you, Director 
Ashe, for being here. I want to just get my head around this 
controversy, this tempest that we are dealing with here today.
    My understanding is you provided an awful lot of documents 
to this committee by way of a FOIA request, as a courtesy. The 
Chair acknowledged in his letter to you that courtesy 
production of documents had occurred. Correct?
    Mr. Ashe. Correct.
    Mr. Huffman. There was redaction in those, as is 
appropriate in response to a FOIA request.
    And then, on March 11, the subpoena was issued. And there 
were all sorts of new materials requested in that subpoena that 
went beyond, well beyond, the scope of the FOIA request. 
Correct?
    Mr. Ashe. That is correct. And, in particular, the law 
enforcement documents that I mentioned in my oral statement 
were completely new. That was a completely new request, and a 
significant request by the committee.
    Mr. Huffman. So you had the task of not only determining 
which of the redactions in the appropriately redacted FOIA 
documents may or may not need to continue to be redacted, but 
you also had to assess these additional requests in the 
subpoena, and assess your ability to comply with those. And 
that was by way of a March 11 subpoena.
    The deadline for production was March 24. So you were given 
13 days to do all that. Is that correct?
    Mr. Ashe. That is correct.
    Mr. Huffman. Would you like to perhaps speak to the burden 
that imposed upon you and your agency?
    Mr. Ashe. Yes. As I said, I think that it is physically 
impossible for me to comply with the subpoena. So, the previous 
question about contempt, I feel like I have no way to meet the 
committee's expectations.
    What I would suggest is that we sit down with the committee 
and find a reasonable pathway forward. And rather than 
exchanging letters and subpoenas, that we sit down, eyeball to 
eyeball, as good public servants, and find a way forward to get 
the committee the information that it needs. But with this 
subpoena, and especially a subpoena that gives us 2 weeks and 
raises substantial new issues, we simply can't comply.
    Mr. Huffman. I will just say that manner of collaborative 
problem-solving and information sharing would be really 
refreshing, if it was reciprocated by the committee. And I hope 
your suggestion is accepted by the Chair, because I think that 
is the way this committee ought to do business. Unfortunately, 
it hasn't done business that way with this administration. 
There has never been any attempt to resolve these things 
informally. Fights are picked, show hearings are held, like 
this one, and that is what leaves us where we are today.
    I want to sort of go to the very premise of this particular 
show hearing, which is that you are giving some kind of special 
preference to the wind energy industry over fossil oil and gas. 
And it does seem to me that is rather preposterous, on its 
face. But let's just review some of the context of that.
    You have 825,000 oil and gas wells in the United States 
versus 48,000 wind turbines. Correct?
    Mr. Ashe. Correct.
    Mr. Huffman. And, given that overwhelming size advantage, 
magnitude difference, you are, nevertheless, investigating 17 
wind facilities versus 20 oil and gas operations. Correct?
    Mr. Ashe. Correct.
    Mr. Huffman. And of the 17 wind facilities you have 
investigated, you have referred 7 of those to DOJ. And that 
certainly would suggest, when those numbers are considered, 
that you are actually enforcing much more vigorously, relative 
to the size of the wind industry, than you are against the 
fossil fuel. Wouldn't that be a natural conclusion, just on the 
numbers alone?
    Mr. Ashe. That is a reasonable conclusion, sir.
    Mr. Huffman. All right. Well, thank you for your testimony, 
and I am sorry that it has to be in the manner of one of these 
gotcha hearings, instead of a----
    The Chairman. Would the gentleman yield?
    Mr. Huffman [continuing]. Want to do business with each 
other.
    The Chairman. Would the gentleman yield?
    Mr. Huffman. Certainly.
    The Chairman. For the record, the gentleman asserted that 
there hasn't been patience or cooperation from the committee 
standpoint. For the record, just want to say this. Everything 
that was in that subpoena that we asked for on March 11 has 
been asked for before. There is nothing new, regardless of what 
the Director has said. There is nothing new that has been 
asked.
    Second, I want to make this point. We started this process 
in May of 2013. May of 2013. The first response, the first 
response we got from the Fish and Wildlife was in September. 
Now, that does not suggest to me that is cooperation and trying 
to work in a collaborative way. I am willing to work in a 
collaborative way. But when I look at the evidence and see the 
slow rolling that is even acknowledged in the response to me, I 
get pretty frustrated.
    I thank the gentleman for yielding. I recognize Mr. Cramer, 
North Dakota.
    Mr. Cramer. Thank you, Mr. Ashe, for being here. Thank you, 
Mr. Chairman.
    Frankly, I don't find these investigations for truth to be 
``mindless,'' as depicted by the Ranking Member. Frankly, I 
find it quite offensive, the terminology that we ``dragged a 
woman in here last year.'' This has become the language of the 
angry left. And if you want comparisons, I find the Ranking 
Member's behavior today to be very similar to that of the 
Majority leader of the U.S. Senate lately.
    I want to get to the bottom of this line of questioning, 
and we just heard the Chairman's clarification. I would be 
interested in your clarification. Were there extra documents 
requested that were not previously requested? In other words, 
does the subpoena include documents that were not part of the 
original redacted information that was provided?
    Mr. Ashe. From my standpoint, Congressman, it certainly 
does. I mean we were not asked for case files in the previous 
document request. The subpoena requests all of our law 
enforcement case files, going back to 2009. Those are hundreds 
of files. And so to be responsive to the committee, we have to 
take all of those files and break them into separate documents. 
It is an extraordinarily time-consuming effort.
    I wish we had the capability to just push a button and 
produce all this stuff, but people have to go through it, and 
they have to put it in the right format.
    Mr. Cramer. Sure.
    Mr. Ashe. It is an extraordinarily----
    Mr. Cramer. How long would it take to get every document 
unredacted that has been redacted? How long would that take? 
Somebody has collected it, somebody must have it. Somebody in 
this room might even have it. How long would that take?
    Mr. Ashe. I do not know. Well, I said just to comply with 
that one request, the third item in the committee's subpoena 
request on the law enforcement documents would take us 3 months 
of the effort that I described to provide for that one item.
    Mr. Cramer. Mr. Ashe, previous to getting elected to 
Congress, I spent nearly 10 years as an energy regulator in 
North Dakota. I oversaw 1,500 megawatts of new wind development 
in a State that is the second leading producer of oil. The very 
famous migratory bird case in North Dakota is very familiar to 
me.
    And we want to talk about diverting agents from important 
international crime rings, and we talk about responding to a 
request for information as a gross diversion from that very 
important work of finding international criminals, your agents 
scoured Western North Dakota to find seven dead ducks, and then 
brought charges through the Justice Department against three 
oil companies, only to be thrown out, thank God, by a common-
sense Federal judge in North Dakota, who, quite frankly, raised 
a very important point about the definition and the 
interpretation of what a ``taking'' is. What is your 
understanding of what a take is, given this new ruling that, to 
my knowledge, has not been challenged?
    Mr. Ashe. Again, I am not an attorney. What I can tell you 
is our belief is that we have one district court, Congressman, 
we have dozens of prosecutions that have been upheld in the 
United States court about the take of migratory bird, and 
migratory birds in oil pits.
    And so, we have won a district court decision which is 
anomalous to dozens of other court decisions over the history 
of implementation of the Migratory Bird Treaty Act. It is a 
strict liability statute, as the Chairman said. And if a bird 
is taken, then it is a violation of the law.
    Mr. Cramer. Except that, according to the judge's ruling, 
``taken'' is not as easily described, or as defined as perhaps 
it once was. And has that been clarified, or are we still 
dealing with this sort of broad definition of interpretation 
based on some single agent's view, or perhaps a political view?
    Mr. Ashe. As I said, there is one court that has taken that 
interpretation, many, many courts which have seen the Migratory 
Bird Treaty Act as we believe it is, a law that applies to all 
take of migratory birds, intentional and unintentional.
    Mr. Cramer. Well, one of the things that has frustrated me 
already today, and a lot of it comes from the opening statement 
of the Ranking Member, he references the lack of a single 
secretary policy, along with other things, as evidence that 
somehow our investigation for truth is ``mindless''--again, to 
use his language. And that, somehow, that lack of a policy is, 
and we have heard this a lot in here, is a lack of evidence of 
the lack of transparency.
    And I would submit to you the lack of these policies and 
the lack of the clarity is the evidence of the lack of 
transparency. And we are just trying to have a much more 
transparent process.
    When I was a regulator in North Dakota, if we provided 
redacted documents to the legislature, it would have been our 
last day on the job. I yield back, my time is up.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentlelady from Hawaii, Ms. Hanabusa.
    Ms. Hanabusa. Thank you, Mr. Chair. Welcome, Director Ashe.
    You know, it is a very curious position that I am in, 
because you and I have had many discussions, not necessarily on 
this specific issue, but on issues of take and of issues of 
endangered species. And I just would like to share with 
everyone that whenever I have asked for a meeting with you on 
those issues, you have always been more than willing to be 
there, and you have been always very willing to sit and discuss 
the plight of the various individuals affected.
    And I would like to share with my colleagues here that on 
the Island of Kauai, for example, we have a bird that flies 
into the lights and it is a threatened species. And, as a 
result, every time it does that, it becomes a take. And what 
people may not know here is that in that particular situation, 
it has stopped all high school football games on evenings. And 
that may not sound like much, but it is a big deal.
    And I do want to say that, in that context, you have been 
willing to discuss it, willing to discuss how we work around 
that. And, for that, I find it very difficult to comprehend why 
there seems to be the sense that what we are dealing with here 
is some kind of an unfair treatment. Because I do know that 
part of the policies of the Department is to protect those 
endangered species.
    And on the same island we have issues with our State bird 
that is eating the taro, which is considered to be sacred to 
our native people. And you have also been willing to sit and 
discuss that. And those are endangered species, so you can 
imagine what the take issue is there, where, even if you put up 
a fence and they walk into the fence, it is a take.
    I just share that as a background, because, as I read the 
testimony that we are discussing here, these are situations 
where permits have been issued on takes, and that is something 
that you and I have talked about as a possible resolution for 
what is going on. So I am kind of perplexed as to why there 
seems to be the sense that the Fish and Wildlife Service and, 
in particular, you and your Department, are not willing to deal 
with that, because that is absolutely contrary to my 
experience.
    And I just wanted to ask you, Director Ashe, I assume that 
I am not getting any special treatment. So if anyone else has 
this concern and wants to discuss with you the issues of the 
take and the permits, I assume that you also make yourself 
available for those kinds of discussions, as well. Am I 
correct?
    Mr. Ashe. You are correct. When I come to your office, I 
hope, when I leave you always feel like I have shown you some 
special aloha, perhaps.
    Ms. Hanabusa. That is right.
    Mr. Ashe. But any member of the committee, I believe I have 
provided the same level of courtesy and attention. And when I 
am asked, I come. And I bring, as I have in your office, my 
Assistant Director for Endangered Species, I bring the people 
who can answer your questions and address the concerns of your 
constituents. And I believe we extend that courtesy, regardless 
of geography or party representation.
    Ms. Hanabusa. So, getting to the issue at hand, which is 
really the idea about this, the birds and the eagles, in this 
case, the bald and the golden eagles, and the fact that there 
seems to be some kind of implication, or inference that they 
are being given special treatment when it comes to the wind 
producers. Do you have, and I apologize for being late, I was 
at another event, do you have any information as to how many 
``takes'' are at issue here?
    Mr. Ashe. The issue of how many birds are taken from wind 
turbines is an issue that many researchers have been involved 
in the last several years. But I think the general estimate 
that seems to be accepted in the literature is somewhere around 
or above half a million birds a year. So that is 48,000 wind 
turbines, half a million birds. I guess if I do some quick 
math, that is about 10 birds per turbine per year.
    In the oil and gas industry, the oil pits and stock tanks 
associated with the oil and gas industry, again, the literature 
says about 1 million to 2 million birds per year. Compare that 
to power lines, transmission power lines. The literature 
estimates the average of about 40 million birds per year.
    And then something that is familiar to all of us, like 
automobiles and trucks, about 70 million birds per year.
    So, lots of sources of take on migratory birds. And, as the 
Chairman has pointed out, these are strict liability laws, so 
we have to use our enforcement discretion. In looking at a 
take, we have a capable but small organization, and we have to 
put our resources in the field where we see the most 
significant take, and places where people are ignoring or not 
applying pretty simple and accepted best-management practices.
    Ms. Hanabusa. Thank you.
    The Chairman. The time of the gentlelady has expired. The 
Chair recognizes the gentleman from Colorado, Mr. Lamborn.
    Mr. Lamborn. Thank you, Mr. Chairman.
    Director Ashe, your agency announced in December that you 
were going to start issuing licenses to kill for eagles. And 
these will be good for 30 years. How many of these licenses to 
kill have been issued so far?
    Mr. Ashe. Since 2009, we have had a permit framework in 
place for the Bald and Golden Eagle Protection Act. And we did 
this as a necessary pre-condition to delisting the bald eagle. 
So in delisting the bald eagle, we had to demonstrate that we 
had a conservation framework going forward.
    So, since 2009, we have had a permit process in place for 
people to get authorization for take of bald and golden eagles. 
And we have issued many permits since 2009 for airports, for 
scientific take, for industrial take, for religious take of 
bald and golden eagles. And so what we do, in exchange for 
that, is we get commitments for conservation.
    So, the idea is that we have a net benefit to the eagles--
--
    Mr. Lamborn. OK, thank you. Let me change subjects now, and 
ask about a memo. Director Ashe, on October 17, 2012, a 2-page 
directive was issued by Chief William Woody of the Fish and 
Wildlife Service's Office of Law Enforcement. This memo 
provides guidance for agents of the Office of Law Enforcement 
when investigating possible violations of the Migratory Bird 
Act arising from the take of protected birds in connection with 
industry and agriculture. And could staff please pull up 
Exhibit 1?
    Are you familiar with this memo?
    Mr. Ashe. I am roughly familiar with it.
    Mr. Lamborn. Thank you. And you are familiar with our 
committee's May 16, 2013 request, right?
    Mr. Ashe. I am.
    Mr. Lamborn. OK. Now, the memo states, as you read it down, 
that OLE, Office of Law Enforcement, will look for 
opportunities to foster relationships with and provide guidance 
to individuals, companies, and industries during the 
development and maintenance of their operational plans.
    Why did it take the Fish and Wildlife Service until 
December 13, 7 months after the request was sent, for this memo 
to be provided to us?
    Mr. Ashe. Because it was wrapped into a massive request for 
documents. Congressman, if you or Chairman Hastings or any 
member of this committee simply picked up the phone and called 
me or called Chief Woody, who is sitting right behind me, and 
asked us for that document, I would send it to you today. But 
when you wrap it into this massive request for documents, all 
the sudden I become unresponsive to you. And I understand that 
frustration. And that is a simple request. If you ask me for 
it, you will get it.
    Mr. Lamborn. OK. Director, what bothers me most about this 
particular document is that representatives of the wind 
industry told staff that they were given a copy of this memo 
right after it was issued.
    Mr. Ashe. And if you had asked----
    Mr. Lamborn. And that is a year before we ever saw it.
    Mr. Ashe. And if you had asked for it, you would have 
gotten it. But instead it gets wrapped up into this massive, 
unreasonable request for emails and all documents and all 
correspondence and--so you wrap up a very simple----
    Mr. Lamborn. So why did they get it? Did they ask for it?
    Mr. Ashe. They asked for it. If you had asked for it, you 
would have gotten, hopefully, better treatment.
    Mr. Lamborn. Well, it is a year later, and now we are 
finally getting it. Something is wrong here.
    Mr. Ashe. What is wrong is the way the request was made. It 
was made in the context of this massive, all documents, all 
emails, all correspondence request. And all you had to do is 
ask me for the document.
    The Chairman. Will the gentleman yield?
    Mr. Lamborn. Yes.
    The Chairman. Director Ashe, I appreciate the willingness 
to do that. But I will go back to the timeline here, where the 
frustration leads in. When I asked Mr. Huffman to yield to me, 
I will repeat again. We started asking for information on May 
16, 2013. Now, that is when we made the first request. It may 
have been seen, I guess, as massive is in the eyes of the 
beholder.
    The first response, however, the first response we got from 
you was in September, for goodness sakes. Now, if we sent a 
request in, one would think, OK, there might be a timeline 
here, or maybe some correspondence from you. What are you 
really asking for, and so forth. We didn't get anything like 
that, anything like that. So, we start this process, then, with 
a bit of, I guess, uncertainty, at least from our standpoint.
    So, I just want to make that point, and I know the 
gentleman's time has expired. All right, his time has expired. 
I just want to make that point.
    The Chair recognizes the gentlelady from New Hampshire, Ms. 
Shea-Porter.
    Ms. Shea-Porter. Thank you. And I have to say that, from 
what I have heard you say, it seems as if there is equal 
treatment for the wind industry and all the other industries 
that you actually prosecute, about the same number, and there 
doesn't seem to be any great difference there.
    So, I am sure, Director Ashe, that you have other things 
that you would like us to know. And so, let me also say that 
you have come to my office, and I have found that when I have 
had a question, you have been forthright there. And I 
appreciate that.
    And so, I would like to ask you what you want us to know 
about this that we haven't asked you. And I would like to hear 
what you want to say about this issue now.
    Mr. Ashe. Thank you, Congresswoman. I guess I would say on 
this general question of the Migratory Bird Treaty Act and the 
Bald and Golden Eagle Protection Act, I think we have an 
extraordinarily good record of what the Congress expects, which 
is common sense enforcement of the law, where we put our first 
priority on collaboration and communication with the affected 
industry, whether it is the oil and gas industry, or the 
communication tower industry, or the electric transmission 
industry, or the renewable energy industry, that our first step 
is always to begin a dialog with them, and identify and define 
best management practices.
    Then, in a case like the oil industry, the practices for 
oil pits are fairly simple. You put nets over the top of the 
oil pits. Enforcement then becomes relatively simple, and we 
usually do it in conjunction with other enforcement, like 
easement-based enforcement, where we are flying over. It is 
pretty easy to see, there is an oil and gas facility, the pit 
is not netted. We will send our enforcement agents out.
    Our enforcement agents, if they find birds in the oil pit, 
they advise the operator of their obligation to employ best 
management practice. ``Put a net over the pit.'' We come back 6 
months later. If they haven't done it, then we write them a 
ticket. This is a misdemeanor violation. And so we issue them a 
ticket with a small fine. We again remind them of their 
obligation. Then we come back in another 6 months, and if they 
still haven't taken action, then we would begin a criminal 
prosecution.
    And that is the way we have approached the wind industry. 
And, again, the Chairman's request for how we have worked with 
the wind industry is much the same way. We have sat down with 
the wind and the environmental community. We formed a Federal 
Advisory Committee, completely transparent, with the public 
having the opportunity to participate and see every aspect of 
that discussion. And we sat down and we worked out voluntary 
wind guidelines for the industry to follow in the siting and 
the design and the construction and operation of wind 
facilities. So we have a practice, a best practice, for the 
industry to follow.
    And so, in the future, we will know if a wind facility, as 
it is constructed, has followed that template or not. We will 
know if they have a migratory bird conservation plan in place 
or not. And we will have an expectation about how that facility 
is going to perform, and that will guide our enforcement.
    And so, I think we have followed a very transparent, very 
cooperative framework that has brought all parties to the 
table. And I expect that is how we will continue in the future.
    Ms. Shea-Porter. Thank you. And it sounds like they have a 
year. They have two opportunities, they hear from your agency 
twice. If they are not in compliance before they actually have 
a real punishment, right?
    Mr. Ashe. That is correct.
    Ms. Shea-Porter. So that----
    Mr. Ashe. And again, as I said in my statement, law 
enforcement and criminal prosecution is always our last resort. 
Our goal, our principal goal, is always to provide people with 
information first, and to do that in the context of 
recommending best management practices.
    Ms. Shea-Porter. And can you tell me what percentage of 
organizations manage to fix the problems within a year?
    Mr. Ashe. Oh, the vast majority. We would start with 
probably hundreds of investigations on an annual basis. We end 
up with, probably, 20 to 30 where we would be taking some kind 
of enforcement action, writing a ticket or some other 
enforcement action, and probably 5 or 6 in the course of any 
one year that we would recommend prosecution on.
    Ms. Shea-Porter. Thank you very much. I yield back.
    The Chairman. The time of the gentlelady has expired. I 
recognize the gentleman from Utah, Mr. Bishop.
    Mr. Bishop. Mr. Ashe, thank you for being here. As you said 
to one of the other questions that was given to you, the manner 
in which we ask impacts the way you respond. So, just assume 
anything I ask has the word ``pretty please'' after it.
    For the record, I want to once again re-emphasize that when 
we asked last May 2013, there was a large group of both closed 
and open cases that were requested. The subpoena is actually a 
subset of that, narrowed down just to the closed cases. So I 
would, once again, I realize that you made a complaint that you 
are spending millions of dollars not giving us the information. 
I think if you would spend those millions giving us the 
information, or working closer with us, it would expedite that 
process.
    I believe it was yesterday, it may have been a couple of 
days ago, the Western Governors Association, in a bipartisan 
resolution, passed a resolution that simply said the Endangered 
Species Act need to be reviewed. And, in view of that, there is 
a whole lot of questions that deal with the ESA. I know Western 
States are looking on sage grouse, and many of them are 
spending a great deal of money, and complain that the Fish and 
Wildlife Service is not necessarily helpful in that process.
    But today's committee is looking at a very specific issue 
that deals with birds and taking issues, so I want to limit my 
comments to that. However, there are these other issues that 
are still out there.
    I guess the question I would ask is, would it be possible 
for you to attend and meet with us again, that we could talk 
about the larger view of endangered species issues? Sometimes I 
realize that you are doing outreach with some of the folks over 
on the Senate side. I would appreciate it if we could invite 
you to join us again some time for a larger view of the issues 
of the Endangered Species Act.
    Mr. Ashe. I would enjoy doing that.
    Mr. Bishop. Thank you. I appreciate that. Let me ask you 
specifically. You issued the 30-year eagle take rule last year. 
Did you conduct a NEPA analysis to determine the environmental 
impact of that rule?
    Mr. Ashe. We complied with the National Environmental 
Policy Act in promulgation of that rule.
    Mr. Bishop. Did you do the NEPA analysis, or take a 
categoric exclusion on it?
    Mr. Ashe. We made use of a categorical exclusion, which is 
compliance.
    Mr. Bishop. So, yes. I appreciate that, but there are some 
regulations or limitations on that, going from a 5-year period 
under the old rule to a 30-year period. That is a sixfold 
increase in the permit duration. And that means the agency 
determined that to be a technical amendment, housekeeping, 
administrative changes.
    Mr. Ashe. If we write a 5-year permit for a wind facility 
that is going to be on the ground for 30 years, what we are 
going to have to do, then, is we are going to have to renew 
that permit on 5-year cycles. What we have done is just changed 
the timetable and say, ``When we write a permit, we will write 
a permit for the operational life of the project, and we will 
do 5-year reviews.''
    Mr. Bishop. OK.
    Mr. Ashe. And so that is simply a change, a technical 
change, in the way we are writing the permit for that facility.
    Mr. Bishop. And I appreciate that. I am not actually 
challenging the validity of it. The process is the question I 
am after.
    So, if we are doing a categorical exclusion, as you just 
talked about, it means you have to determine there is no 
extraordinary circumstances, no significant impacts on the 
resources of migratory birds, yada, yada, yada.
    So I just would like to ask you a scenario. Since we are 
dealing with birds that are covered in the Migratory Bird 
Treaty, as well as protected birds under the Eagle Act, and 
something else, birds that are significant to cultural groups 
in the United States, to say that this did not require an 
administrative review is something that I think could be 
subject to some lawsuit in the future. So I am going to ask you 
a scenario.
    Let us assume that this is challenged in a court, that we 
didn't go through the entire NEPA analysis, we only did a 
categorical review, and that if, at some time, it is challenged 
in the court, and the court would rule, that what you did was 
do something that required a NEPA analysis, but did not happen. 
What then happens to the permits that would have been granted 
during that period of time?
    Mr. Ashe. I am not a lawyer. It would depend upon the 
ruling of the judge, and specifically how they ruled. What they 
would probably do in that case, my guess is, that they would 
remand the rule back to us and they would ask us to do some 
higher level of NEPA review, either an environmental assessment 
or an environmental impact statement.
    Mr. Bishop. Thank you, I appreciate that. I hope that the 
avoidance of the full NEPA review doesn't come back to haunt us 
at some time in the future.
    Mr. Ashe. We----
    Mr. Bishop. Thank you, Mr. Director.
    Mr. Ashe. Thank you.
    The Chairman. The time of the gentleman has expired. The 
Chair recognizes the gentleman from Idaho, Mr. Labrador.
    Mr. Labrador. Thank you, Mr. Chairman. I have been really 
confused by your answers to some questions. And you seem like a 
very nice person.
    Mr. Ashe. Thank you, sir.
    Mr. Labrador. You seem like somebody who wants to work with 
people. But yet you keep complaining about the way that your 
questions have been asked. And I guess when we are in a 
process, and maybe I don't understand this process as well, I 
am just in my second term here, but it seems to me that the 
committee has tried to work with your staff. Is that not 
correct?
    Mr. Ashe. I think there is a better way for us to work.
    Mr. Labrador. I understand that you think there is a better 
way. But they have called your staff, you have had meetings 
with the committee staff. Has your staff not had meetings with 
the committee staff?
    Mr. Ashe. We have had meetings and we have had phone 
conversations.
    Mr. Labrador. OK. And have you expressed to the committee, 
for example, you said that you would love to have an 
information-sharing arrangement. When you received this 
subpoena, and I am looking at it right here, it is four pages 
long, three of the four pages are specific requests, so not 
these broad allegations that you are making. Only one page is 
broad. Three pages are specific requests. Did you call the 
Chairman, or did you call the committee and say, ``Hey, I can 
get you these documents, can you give me a little bit more time 
to get you all the additional documents?''
    Mr. Ashe. I did not make the----
    Mr. Labrador. Did somebody on your staff do that?
    Mr. Ashe. I do not know. I will have to ask that question.
    Mr. Labrador. So it seems to me that it is great to come 
here before a hearing and claim that you want to work with us, 
but then to make the kinds of allegations that the people on 
the other side and yourself have made, I don't see how this has 
to be the kind of exchange that you are describing, when they 
have been trying to work with you and your staff.
    Mr. Ashe. That is a fair point, Congressman. I do 
appreciate that. Although I would say I was not called and told 
that I was about to get a subpoena. And so, I will bear my part 
of the responsibility. And I think we can have a better 
relationship----
    Mr. Labrador. And I don't disagree with that. I just think 
that, subpoenas usually, in this committee, especially under 
this Chairman, have been a last resort. This Chairman has not, 
in my experience, started with a subpoena. He has ended, after 
a long, frustrating process.
    I do have some specific questions. Recent wind-mapping 
studies show that Idaho has approximately 25,000 megawatts of 
wind generation potential, it is the 13th largest potential in 
the United States. At present, wind plants provide 
approximately 8 percent of the electric energy consumed in 
Idaho. The taking of migratory birds and eagles is obviously an 
issue that is important to my State.
    Mr. Ashe, what standard do you use when deciding whether 
someone should be prosecuted for a bird crashing into a 
building, an airplane, or even a wind turbine?
    Mr. Ashe. I think the general practice that we follow is, 
was the take avoidable? Were there best management practices 
available to the individual in minimizing or avoiding that 
take? Have we communicated the obligations under Federal law to 
the individual, so they understand what their obligations are?
    Mr. Labrador. So, in 2012, the Fish and Wildlife Service 
issued an 85-page document intended to help mitigate the 
negative effects of wind turbines on wildlife. If a wind 
company follows the 2012 guidance document, even if the project 
was constructed prior to 2012, will the company be a lower 
priority for enforcement and prosecution under the Migratory 
Bird Treaty Act?
    Mr. Ashe. If they followed the voluntary wind turbine 
guidelines, our commitment is that they will be a low priority 
for law enforcement.
    Mr. Labrador. So you set out a series of standards based on 
what you think is appropriate, and then those are the people 
you are giving low priority to. Is that correct?
    Mr. Ashe. Well, we set out a process that was jointly 
determined through the Wind Federal Advisory Committee 
process----
    Mr. Labrador. And that is for the wind turbines. Has the 
Fish and Wildlife Service developed a similar guideline for the 
oil and gas industry to help mitigate any birds taken that are 
covered under the Migratory Treaty Act?
    Mr. Ashe. We have. We have best management practices that 
were developed in cooperation with the industry about the 
operation of oil pits, oil reserve pits.
    Mr. Labrador. OK. And how will a company know if it is has 
sufficiently followed the applicable guidance documents to 
avoid prosecution?
    Mr. Ashe. They are very clear. With regard to an open pit, 
oil waste pit, they are supposed to net the facility so birds 
won't land in it and be oiled and killed. And so, they are very 
explicit and very simple measures that the operator can take.
    Mr. Labrador. All right, thank you. I have no further 
questions.
    The Chairman. And the time of the gentleman had expired, 
the timing is everything. The Chair recognizes the gentleman 
from Colorado, Mr. Tipton.
    Mr. Tipton. Thank you, Mr. Chairman. Mr. Ashe, thank you 
for taking the time to be here. In your written testimony you 
did mention that the service's focus is on developing 
partnerships with industry and other stakeholders in order to 
be able to minimize the take of migratory birds. Could you 
describe a little bit? What role does that cooperation between 
the administration play with industry in terms of enforcing 
violations?
    Mr. Ashe. With which industry, sir?
    Mr. Tipton. With industry.
    Mr. Ashe. Oh, industry in general.
    Mr. Tipton. Yes.
    Mr. Ashe. I mean that is the principal approach that we 
take. I just spoke about the oil and gas industry, I will use 
the electric utility industry, the transmission industry.
    We worked with the industry to develop best management 
practices, again, a voluntary framework for best management 
practices to avoid collision, which is the principal source of 
mortality, and electrocution, which are the principal sources 
of mortality associated with that industry. So the industry 
itself worked to work with us to develop those voluntary 
measures. And the industry, by and large, is implementing those 
measures.
    And so, then potentially we have available mitigation 
measures to apply to other uses, because we know not just how 
to avoid migratory bird take and eagle take in the context of 
building transmission corridors, but we know how to reduce the 
take, or eliminate the take, by retrofitting existing 
facilities.
    Mr. Tipton. Great. I appreciate that. It is interesting. I 
am pleased to be able to hear the comments that we need to be 
able to work a little more closely, and to be able to have some 
better communication going back, because we have had some 
complaints that we have been made aware of from a variety of 
different industries that, when they are trying to be able to 
comply with the law, that there seems to be a real disconnect, 
in terms of being able to find the direct answers that they 
need to make sure that they are truly complying and trying to 
be able to eliminate, as best possible, any taking of birds 
from any kind of activities that are going on.
    I am a little curious, given that we have talked to 
different industries. Are you aware of that disconnect, that 
there is some frustration out there?
    Mr. Ashe. I guess there is always some frustration, 
sometimes at a project level, for whatever reason. I am not 
aware, and when you say ``industry,'' in general, that is a 
pretty general statement.
    Mr. Tipton. We have some of our oil and gas operators that 
are saying that there is a disconnect that is going on when 
they are trying to be able to do it, because----
    Mr. Ashe. I would be happy----
    Mr. Tipton. I guess frustration, as you say, it is very 
clear, apparently, some of the people that are trying to be 
able to get information doesn't feel it is very clear.
    Mr. Ashe. With regard to----
    Mr. Tipton. Are you taking some efforts to be able to reach 
out to them for clarity?
    Mr. Ashe. I would be happy to meet with you, Congressman, 
to better understand that, and figure out what we can do to 
address it. And maybe, their concern may be not with the 
Migratory Bird Treaty Act, it might be with Endangered Species 
Act, or some other aspect of the work that we do. But I would 
be happy to meet with you and better understand that, to see if 
we can address the issue.
    Mr. Tipton. We will be happy to follow up on that, because 
when we are talking about some of the migratory bird end of it, 
we are still also then getting into the Endangered Species Act, 
obviously, as well, and we are seeing impacts not only on some 
of the public lands, but then the encroachment now, in terms of 
a taking, effectively regulating some of the private lands, as 
well, which is critical to the Western United States, that we 
need to be able to seek some good, positive moves forward on.
    So, with that, I yield back, Mr. Chairman.
    The Chairman. OK, the gentleman yields back. The Chair 
recognizes the gentleman from California, Mr. LaMalfa.
    Mr. LaMalfa. Anyway, thank you. I come from northern 
California. Here we have many, many concerns in our forested 
areas, but also cover a lot of flood zones that I will address 
here in my questions and comments that we have.
    In the valley, there has been a listing that is proposed to 
be delisted of the valley longhorn elderberry beetle in 
northern California that has had a very detrimental effect on 
the ability to execute and complete levee repairs, levee 
construction along the Sacramento River, or other river systems 
that really need a lot of help from the levee neglect over a 
lot of years.
    We even, so far as to, some years ago, in Yuba County, a 
levee broke after having known for many years it needed 
repairs, but inability to get permits, hold-ups on things such 
as the elderberry beetle. The elderberry bushes that you would 
find in some of these areas make it very difficult to execute 
any kind of repairs, maintenance, or new construction, where 
you might have an elderberry bush. So it has made it very 
expensive, very slow, very cumbersome to have this listing of 
the beetle, because of the habitat of the bush.
    And so, California lost a $450 million lawsuit a few years 
ago, because the levee that had broken, three lives were lost, 
hundreds of millions of dollars worth of damage, the neglect by 
government cost State government money on that.
    So what we are looking at here is that the flood risk is 
still there, levee work needs to be done desperately, and a lot 
has been spent to set aside, for example, 50,000 acres of 
habitat for the beetle that really should not be listed any 
more. In 2006, the scientists from Fish and Wildlife have 
proposed delisting the beetle. Two years the Wildlife Service 
itself has proposed the delisting, and it has been a year since 
the comment period has closed.
    So, what I am asking for, Mr. Ashe, as well as two lawsuits 
currently are underway, or have been brought, to get the job 
done. When will the Service act on the recommendation of its 
own scientists, and also in response to the lawsuits that are 
pointing out that this, the valley longhorn elderberry beetle, 
should be removed from the endangered species list, and we move 
forward for all the projects that are needed, et cetera?
    Mr. Ashe. I know that, sir, that we are working on the 
delisting rule for the elderberry beetle. I don't know the 
current status of it, but I can find that out quickly, and I 
can call you today with that information, in terms of the 
latest status. And I will do that today.
    Mr. LaMalfa. Why do you think it has been held up as long 
as it has on making the rule, as you say?
    Mr. Ashe. Our endangered species program, in general, is a 
deadline-driven program. We have many, many deadlines to meet, 
and----
    Mr. LaMalfa. Going in which direction, listing or 
delisting?
    Mr. Ashe. Both.
    Mr. LaMalfa. The listing seems to move fairly quickly.
    Mr. Ashe. Well, actually, I mean, we just delisted the 
first fish ever, due to recovery, the Oregon chub in the State 
of Oregon. And so we are, I think, working rapidly, as rapidly 
as we can on delisting. I think we can do more with delisting. 
And let me check on the status of that, and I will get back 
with you today, sir.
    Mr. LaMalfa. And what can we do more to help that process, 
if you find that there is some additional hold-up----
    Mr. Ashe. One thing is, the President's budget has 
increases in our budget for our conservation account, which is 
where we support recovery and delisting, and that is a high 
priority for the U.S. Fish and Wildlife Service----
    Mr. LaMalfa. Well, focused on the areas where delisting has 
been pursued or requested, et cetera.
    Mr. Ashe. What we call ``move the needle.'' What we are 
trying to do is identify places where we can really move the 
needle and, with fairly small investment, get species off of 
the list. And there actually are some great opportunities to do 
that. Hopefully, elderberry beetle is one of those.
    Mr. LaMalfa. OK. Well, I appreciate that. There has been a 
huge success----
    Mr. Ashe. Right.
    Mr. LaMalfa [continuing]. With the bald eagle, for example. 
We have them in my backyard. We have eight of them in the 
immediate area, either adults or juveniles there. So it has 
been pretty amazing to have that in rice country, where I live.
    But now, if we could just move the ball a little bit on the 
beetle, because we have extremely important levee work that 
needs to be done, and I don't want to see us risking people 
unnecessarily, and losing lawsuits on, really, their 
responsibility to get it done. So I would appreciate those 
answers----
    Mr. Ashe. Thank you, sir.
    Mr. LaMalfa [continuing]. Work with you on that.
    Mr. Ashe. Thank you.
    Mr. LaMalfa. Thank you.
    The Chairman. Director Ashe, thank you very much for being 
here. I do appreciate it. And, as I mentioned in my opening 
statement, there is a sense of frustration. I think you saw 
that come out.
    You mentioned, I don't think you used this word, I will use 
it, and correct me if I am wrong, that you were somewhat blind-
sided by the subpoena. At least you characterized it that way, 
that is the way I took it.
    Mr. Ashe. I did.
    The Chairman. For the record, I just wanted to say, now, 
maybe this didn't get to your level, but on February 14 we did 
send you a letter, and we did reiterate all of the requests we 
had, going way back to May, and so forth. The last sentence of 
that letter, this was on February 14, we asked for full 
compliance by February 25. And the last letter, the last 
sentence of that letter said, ``Should the information not be 
provided by February 25, its production may be compelled.''
    So you have said many times that you are not a lawyer. I am 
not a lawyer, either. But I think we all know that when we say 
something is going to be compelled, that the natural extension 
of that is a subpoena. Now, maybe it didn't get to your level, 
and so I will acknowledge that. But your Department was told 
that on February 14.
    Now, in line with that, in your willingness to work on a 
case-by-case basis, there is another issue that has been 
completed. It happens to be in my State, and it deals with the 
White Bluff bladderpod. Now, that is pretty specific. On March 
7, we sent you information, or sent a request for how that 
final determination was made, and that determination was made 
in December, so it can't be too complex, just come from the 
timeline of it. And we asked for that information, like, last 
Friday.
    Last Friday came and went, or came and gone, whatever the 
proper English is on that. And we did not receive the 
information. Now, Director Ashe, I was walking into this 
hearing. I was prepared to tell you that we will subpoena that 
information. But in view of your willingness to work with us on 
a case-by-case basis, and this is pretty specific, it is the 
White Bluff bladderpod, you know, it doesn't go much farther 
than that, I will tell you this. If we don't receive that 
information in a week, which would be April 2, then I will 
subpoena that.
    So, I will just tell you, you don't have to respond, you 
have the copy of the letter, you know the issue, it deals with 
DNA, you know that issue. So if that information is not 
forthcoming by April 2, I will tell you right now, so you won't 
be blind-sided, we will subpoena for that information. I would 
hope that you would have a voluntary compliance with that.
    So, Director Ashe, once again, sometimes, as you know, you 
used to work here, and sometimes Members have follow-up 
questions that something has prompted. That may happen. 
Obviously, we welcome your timely response to the committee, so 
that all committee members can have it.
    So, I will yield to the gentleman.
    Mr. DeFazio. Thank you, Mr. Chairman. Are you aware how 
many requests have been made by this committee to the 
Department of the Interior in this Congress?
    Mr. Ashe. It is my understanding----
    Mr. DeFazio. For production of documents?
    Mr. Ashe. Congressman, there are 16 requests pending before 
the Department.
    Mr. DeFazio. OK. So my understanding is there has been more 
than two dozen requests; apparently eight, perhaps, have been 
complied with.
    Mr. Ashe. Yes.
    Mr. DeFazio. Have you seen any prioritization? I have had 
numerous conversations with the Secretary, she is very 
frustrated and has expressed, as you have, she is willing to 
produce specific information for a specific objective, but the 
fishing expeditions she feels, are just sopping up too much 
time and energy, just as we discussed earlier----
    Mr. Ashe. The Secretary has told me that on several 
occasions she has spoken with the Chairman and asked to work 
with the committee to identify the priorities for the committee 
so that we could do a better job of being responsive.
    Mr. DeFazio. Right, yes. It is my understanding there has 
been no prioritization. So if you have 16 pending requests, it 
is hard to determine which should go first.
    Let me be more specific on this memo we were discussing. 
The memo from Mr. Woody, internal guidance for addressing 
possible violations Migratory Bird Treaty Act by industrial and 
agricultural facilities. Guidance states, ``Fish and Wildlife 
has long employed an unwritten policy of encouraging industry 
and agriculture to employ best practices aimed at minimizing 
and avoiding the un-permitted take of protected birds, service 
agents refer for prosecution those takes that occur after the 
responsible party becomes aware of the condition or practice 
causing the take and fails to remediate it.'' That is----
    Mr. Ashe. That is our policy, and we follow that policy.
    Mr. DeFazio. And you have done that with the oil industry?
    Mr. Ashe. We have done that with the oil industry, we have 
done that with----
    Mr. DeFazio. The gas industry?
    Mr. Ashe [continuing]. With the gas industry.
    Mr. DeFazio. And now with the wind industry.
    Mr. Ashe. Now----
    Mr. DeFazio. Now that you have developed guidance that is--
--
    Mr. Ashe. Correct. Cell tower, the communications tower 
industry, the utilities industry, the buildings industry, all 
of the above. The commercial fishing industry.
    Mr. DeFazio. OK. So, in the case that one Member just 
raised, I think it was the gentleman from Colorado, where they 
feel that it is unclear what they need to do, will you, I don't 
know exactly how your agency works, is it like OSHA, can you 
ask for someone to come out and look and give an advisory 
opinion without giving you a ticket? Will you do that, and say, 
``Well, you are complying,'' or, ``You are not complying; 
please make these changes''?
    Mr. Ashe. We do that quite often.
    Mr. DeFazio. And you would be willing to do that----
    Mr. Ashe. We would be willing to do that.
    Mr. DeFazio [continuing]. For Colorado. That is great. So, 
if, of course, your people aren't tied down to their desks, 
answering subpoenas. Yes, OK, that would be good.
    So, I am a bit puzzled. Are you going to engage in more 
aggressive enforcement now against the wind industry? It seems 
to me that is kind of the point of this hearing, or these 
requests, is that they feel it has been discriminatory, have 
been too tough on oil and gas, which is putting them at a 
competitive disadvantage, and we should get tougher on wind. 
That seems to be where the Majority is headed with this. They 
feel you have really cut some slack to wind that you haven't 
cut to oil and gas. Are you going to go out now and go after 
the wind industry more rigorously and say ``We don't care you 
are trying; you are killing too many birds''?
    Mr. Ashe. Our enforcement agents go, as I said, where the 
facts take them, and the evidence takes them. And if we see 
cause to bring prosecution against wind or solar operators, we 
will. If we see cause to bring action against a utility 
operator, we will. But our first approach is cooperation.
    And I think, going back to the example of the oil and gas 
industry, we have seen tremendous cooperation within the oil 
and gas industry, and that is why we bring as few cases as we 
do, because there is widespread compliance within the oil and 
gas industry. And the wind industry has been a very good and 
communicative partner. There are instances where bird take in 
wind facilities is substantial, as in the Duke Energy case. 
But, as I had said, in that case Duke took responsible action. 
They brought the information to us, and they were engaged in 
the process of coming to resolution in discussions with the 
Department of Justice.
    Mr. DeFazio. OK. So your actions are not going to change. 
You will continue to go for advice, voluntary compliance, and 
then negligence or knowing non-compliance will be the standard 
for prosecution.
    Mr. Ashe. That is correct. Yes, sir.
    Mr. DeFazio. Glad to hear that. Thank you, Mr. Chairman.
    The Chairman. Reclaiming my time, I do want to say this in 
regards to the discussion here of taking so much time. I find 
it hard to believe that part of the budgeting process is such 
that you have to know that your agency has been sued. You must 
set money aside because you have to respond to the courts and 
so forth. So I find it hard to believe that you know that you 
are going to have requests all the time, and you should budget 
for that, and there should be a plan for that. I just find that 
hard to believe, that the only problem, the only entity you 
have a problem responding to is the Congress.
    And yet, it is the Congress's responsibility to have 
oversight of the executive branch. That is a long-held 
tradition. In fact, when I became Chairman of this committee I 
said, I think in the first meeting I had, that we are going to 
do more oversight, and I said I think the committee has been 
negligent in that with administrations on both sides of the 
aisle. We haven't done that.
    Mr. Ashe. May I?
    The Chairman. Yes, you certainly can.
    Mr. Ashe. And I appreciate that. And I guess I would say to 
you what I feel like is you are setting me up for failure. When 
you say, like with the White Bluffs bladderpod, if I can't 
comply in a week, then you are going to send me a subpoena. 
Well, you are setting me up for failure. And I guess I would 
say----
    The Chairman. Well, Director Ashe----
    Mr. Ashe [continuing]. Can we--I will come here, and I will 
assign a senior official in my agency to work with you and your 
staff to try to find a better way forward.
    The Chairman. Well----
    Mr. Ashe. But if you lay down a gauntlet for me that I 
can't comply with, then I am just going to disappoint you. I am 
going to continue to----
    The Chairman. Director Ashe, reclaiming my time, I just 
simply want to say we sent a letter on March 4. There has been 
absolutely no correspondence whatsoever from----
    Mr. Ashe. Sir----
    The Chairman [continuing]. From Fish and Wildlife. None at 
all. So what conclusion am I going to draw?
    And I will say it from this standpoint. This decision was 
made in December. For goodness sakes, the evidence ought to be 
pretty darn fresh. It can't be hidden someplace in an archive. 
This decision was made in December. I don't understand how that 
is so hard, because we are pretty specific.
    I don't know how your system is set up, but press 
``bladderpod.'' There is not a whole lot. I would guess that 
everything dealing with bladderpod had to deal with the White 
Bluffs. But if you want to be specific, press ``White Bluffs 
bladderpod.'' Everything should be there. I just want to know 
how that decision was made, because there is serious, serious, 
serious issues, as it relates to DNA. And you know that issue. 
I just want to know how that decision was made, that is all. 
And so, that is why I tell you. It shouldn't be hard to figure 
that out, in my view.
    Mr. Gohmert. Mr. Chairman? Just one more----
    The Chairman. All right, I will yield to the gentleman from 
Texas.
    Mr. Gohmert [continuing]. Mentioned that he was being set 
up for failure. I couldn't help but think about the companies 
that have strict liability, when they never intend any harm, 
they follow the services directly of your Department, and then 
you go after them anyway. You talk about being set up for 
failure. You haven't felt a fraction of what you have put and 
your Department has put other people through. So I hope you 
will keep that in mind in the future.
    I yield back.
    The Chairman. So, Director Ashe, you can sense the 
frustration here. And I take my responsibility as a Member of 
Congress and as Chairman of this committee and on the Oversight 
Committee. And again, I will go back. We started this process 
last May. The first response we got was in September, and it 
was only 66 pages of information.
    Now, Director Ashe, maybe you haven't been served as well 
as you should be by those, and I will let you draw that 
judgment. But I just want to say it. This is important. I think 
the American people need to know. When we have questions, those 
questions come, generally, from our constituents, those people 
that we have the privilege to represent. I guess there is 
always going to be tension between the executive branch and the 
legislative branch.
    Frankly, I will be very honest with you. I think that 
tension is good for the Republic, I really do. I think that is 
good. But, nevertheless, I think that we have the obligation to 
try to get all the information that we need.
    Now, getting back to the bladderpod issue, again, that 
shouldn't be hard to get that information. So, with that, 
again, I thank you very much, and I will acknowledge that, as 
other Members have, that you have been open, trying to deal 
with us. You have a lot of responsibilities. But the 
information that we have asked for simply has not been 
forthcoming, I will just simply say that.
    If there is no further business coming before the 
committee, the committee stands adjourned.
    [Whereupon, at 11:36 a.m., the committee was adjourned.]

             [Additional Material Submitted for the Record]

 Prepared Statement of the Honorable Kevin Cramer, a Representative in 
                Congress From the State of North Dakota
    Mr. Chairman, thank you for holding this hearing.
    While representing the people of the United States in Congress 
means important oversight of the Government agencies they create, it 
should also mean full cooperation of these agencies to ensure full and 
timely disclosure of requested documents and evidence. The U.S. Fish 
and Wildlife Service has repeatedly demonstrated a lack of both 
transparency and responsibility in their slow response to this 
committee's request for documents and in their excessive redaction of 
information in the small amount of documents they did provide.
    Like many in North Dakota, I am concerned the Obama administration 
is being selective in determining which energy producers are 
investigated or prosecuted, and why, under the Migratory Bird Treaty 
Act and the Bald [MBTA] and Golden Eagle Protection Act [GEPA]. 
Previous to being elected to Congress I spent nearly 10 years as an 
energy regulator in North Dakota. I oversaw 1,500 megawatts of new wind 
development in a State that is the second leading producer of oil. The 
famous migratory bird case in North Dakota is very familiar to me. Fish 
and Wildlife Service agents scoured western North Dakota to find seven 
dead ducks, and then brought charges through the Justice Department 
against three oil companies. Fortunately a common sense Federal judge 
threw the case out, but not until the Government wasted thousands of 
dollars prosecuting lawful commercial activity by corporate citizens 
who had to spend thousands of dollars defending themselves against 
arbitrary and frivolous charges.
    To contrast, a 2013 study suggested up to 573,000 birds are being 
taken each year by wind farms and a 2013 Fish and Wildlife Service 
study found at least 85 eagle mortalities at wind farms between 1997 
and 2012 with only one enforcement case brought against a wind farm 
operator so far.
    I hope to find answers today as to why a well-funded and well-
staffed agency as demonstrated by their prosecution efforts in North 
Dakota cannot respond to a congressional committee's request for 
documents essential to their oversight responsibilities. Further, I 
hope to gain an understanding of the agency's policies and procedures 
for enforcing the MBTA and GEPA.
    Thank you Mr. Chairman.
                                 ______
                                 
       Prepared Statement of the American Wind Energy Association
    The American Wind Energy Association [AWEA] appreciates this 
opportunity to submit a statement regarding the wind energy industry's 
wildlife impacts, our strong history of cooperation with wildlife 
agencies, and our long history of proactively working to reduce and 
mitigate our modest impacts. AWEA is the national trade association 
representing a broad range of entities with a common interest in 
encouraging the expansion and facilitation of wind energy resources in 
the United States, including wind turbine manufacturers, component 
suppliers, project developers, project owners and operators, 
financiers, researchers, utilities, marketers, and customers.
    Wind energy is becoming mainstream energy. In the last 5 years, 
wind energy has represented 31 percent of all newly installed capacity, 
second only to natural gas. There are more than 61,000 megawatts of 
wind energy installed in 39 States and Puerto Rico. These wind turbines 
provide electrical output equivalent to 53 average coal plants or 14 
average nuclear plants.
    This deployment of wind energy has contributed to over $20 billion 
of investment in the United States annually, 550 manufacturing 
facilities in 44 States serving the industry, support for 80,000 U.S. 
jobs, $400 million in annual property taxes nationally to support 
schools and other community needs, and lease payments to landowners of 
around $120,000 per turbine over its lifetime to support family farms 
and ranches, with 95-98 percent of the land remaining available for its 
original use.
    Wind energy is affordable. Due to growing innovation, wind energy's 
costs have fallen 40 percent over just the last 5 years, with both the 
Energy Information Administration and Lazard, a widely respected 
private economic consulting firm, finding that wind energy is one of 
the most affordable options for new electric generation, second only to 
a natural gas combined cycle plant. Further, contracted wind energy is 
guaranteed to remain affordable years into the future because it offers 
long-term fixed price contracts for 15-25 years, something not 
available for traditional energy sources due to volatile fuel costs. 
Wind energy offers a hedge against such volatility in the same way a 30 
year mortgage protects homeowners from rising interest rates.
    Wind energy is reliable. Wind energy produces more than 25 percent 
of the electric generation in Iowa and South Dakota, 12 percent or more 
in 9 States and 5 percent or more in 17 States. Even higher levels of 
wind energy have been integrated by grid operators in the lower plains 
and Texas, 33 percent and 35 percent, respectively. In Chairman 
Hastings' home State, wind energy provides nearly 6 percent of the 
electric generation and 10 percent in Ranking Member DeFazio's State. 
Grid operators in the upper Midwest and in Texas have confirmed that 
integrating large amounts of wind has led to limited impact on the need 
for reserve power.
    All forms of energy production have some impact on wildlife and 
their habitats. Wind energy is no exception. However, wind energy's 
impacts are modest. Wind farms are responsible for the mortality of 
less than 200,000 birds per year based on currently installed capacity. 
This estimate is based on 109 post construction studies from 71 wind 
energy facilities. The National Academy of Sciences found that less 
than three in 100,000 (i.e., .0003 percent) human-caused bird 
fatalities are attributable to wind energy. By contrast, buildings, 
high tension lines, communications towers, vehicles and environmental 
toxins kill millions to hundreds of millions of birds per year.
    With respect to eagles, eagle fatalities occur at only a very small 
number of facilities. Collisions with wind turbines are responsible for 
less than 2 percent of all reported human-caused golden eagle 
fatalities; and only a handful of bald eagle fatalities ever. Vastly 
greater levels of mortality are attributable to power lines, vehicle 
strikes, lead poisoning, drowning in water tanks, and illegal 
shootings, among others.
    The wind energy industry does more to study our impacts, 
collaborate with wildlife agencies, make project adjustments to avoid 
or reduce impacts, and mitigate for those that are unavoidable than any 
other industry of which we are aware.
    The wind energy industry began the National Wind Coordinating 
Collaborative with State and Federal wildlife agencies and conservation 
organizations in 1994. The NWCC focuses on wind and wildlife research 
and site evaluation tools. In 2003, the wind industry joined Bat 
Conservation International in founding the Bats and Wind Energy 
Cooperative, which also includes support from Federal agencies, to 
focus on research and mitigation to reduce impacts from wind energy to 
bats. Industry representatives participated for more than 3 years along 
with State wildlife officials, conservation organizations and 
scientists on a Federal advisory committee established under President 
George W. Bush that concluded by making by unanimous recommendations on 
wind turbine siting guidelines to then Secretary Salazar. And, in 2007, 
the wind energy industry and eight conservation organizations 
established the American Wind Wildlife Institute to focus on wind and 
wildlife research, mapping, mitigation and education.
    The wind energy industry has widely embraced the Land-Based Wind 
Energy Guidelines finalized by the U.S. Fish and Wildlife Service in 
March 2012. These guidelines help ensure that the wind industry adheres 
to a higher standard for wildlife protection than other industries. The 
guidelines go beyond what is required by Federal law through 
commitments to study and protect unlisted bat species and habitat for 
unlisted species. The 71 pages of detailed guidance provide 
recommendations on duration, scope and methodology of pre-construction 
and post-construction monitoring (depending onsite risk, but generally 
one year or more); best management practices for construction, 
operations and decommissioning; and recommendations on adaptive 
management, mitigation and research.
    In April 2013, the Service finalized the Eagle Conservation Plan 
Guidance for Land-Based Wind Energy. This 118 page document also 
provides detailed recommendations for multiple years of pre-
construction research and post-construction monitoring, calculating 
estimated impacts, and fully mitigating any impacts such that there is 
no net loss to regional eagle populations.
    The eagle take permit program process is more onerous than the 
permit process under the Endangered Species Act, which covers species 
that are more imperiled than the Bald and Golden Eagle Protect Act. 
Congress authorized permits for take under the Bald and Golden Eagle 
Protect Act decades ago. The original draft permit program for non-
purposeful take was proposed during the administration of President 
George W. Bush in 2007. The permit is available for any non-purposeful 
activity that could take eagles. It is not specific to wind energy.
    Finally, with respect to law enforcement actions, the Service and 
the Department of Justice Office have said they focus their resources 
on investigating and prosecuting those who take migratory birds, 
including eagles, without identifying and implementing reasonable and 
effective measures to avoid the take. With respect to prioritizing 
these enforcement efforts, both the Service and the Department of 
Justice have stated that they consider a company's level of cooperation 
and communication with the Service, as well as other agencies, as 
appropriate means of identifying and implementing reasonable and 
effective measures to avoid the take of species. Wind energy project 
developers talk to State and Federal wildlife officials as they're 
developing a project. They study the potential for wildlife impacts for 
a year or more before deciding whether to continue pursuing a project. 
They discuss the results of the studies with wildlife officials. If 
wildlife officials make recommendations, the developer will to the 
maximum extent practicable implement those recommendations, and 
maintain internal records sufficient to document responses to 
communications from officials. And, if issues arise after a project is 
built, the project owner and operator will provide the information to 
the Service and discuss ways to address the issue. Given this level of 
engagement, transparency, and effort to reduce and mitigate impacts on 
migratory birds, the wind energy industry has not been a high 
enforcement priority in the past and should not be one in the future.
    Wind energy is an important part of a diverse energy portfolio. The 
industry takes our wildlife responsibilities seriously and will 
continue to strive to reduce our modest impacts, including through 
collaboration and cooperation with the Service, State wildlife 
agencies, and other stakeholders.