[House Hearing, 114 Congress]
[From the U.S. Government Publishing Office]
RECENT CHANGES TO ENDANGERED SPECIES CRITICAL HABITAT DESIGNATION AND
IMPLEMENTATION
=======================================================================
OVERSIGHT HEARING
before the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED FOURTEENTH CONGRESS
SECOND SESSION
__________
Tuesday, April 19, 2016
__________
Serial No. 114-37
__________
Printed for the use of the Committee on Natural Resources
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______
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COMMITTEE ON NATURAL RESOURCES
ROB BISHOP, UT, Chairman
RAUL M. GRIJALVA, AZ, Ranking Democratic Member
Don Young, AK Grace F. Napolitano, CA
Louie Gohmert, TX Madeleine Z. Bordallo, GU
Doug Lamborn, CO Jim Costa, CA
Robert J. Wittman, VA Gregorio Kilili Camacho Sablan,
John Fleming, LA CNMI
Tom McClintock, CA Niki Tsongas, MA
Glenn Thompson, PA Pedro R. Pierluisi, PR
Cynthia M. Lummis, WY Jared Huffman, CA
Dan Benishek, MI Raul Ruiz, CA
Jeff Duncan, SC Alan S. Lowenthal, CA
Paul A. Gosar, AZ Matt Cartwright, PA
Raul R. Labrador, ID Donald S. Beyer, Jr., VA
Doug LaMalfa, CA Norma J. Torres, CA
Jeff Denham, CA Debbie Dingell, MI
Paul Cook, CA Ruben Gallego, AZ
Bruce Westerman, AR Lois Capps, CA
Garret Graves, LA Jared Polis, CO
Dan Newhouse, WA Wm. Lacy Clay, MO
Ryan K. Zinke, MT
Jody B. Hice, GA
Aumua Amata Coleman Radewagen, AS
Thomas MacArthur, NJ
Alexander X. Mooney, WV
Cresent Hardy, NV
Darin LaHood, IL
Jason Knox, Chief of Staff
Lisa Pittman, Chief Counsel
David Watkins, Democratic Staff Director
Sarah Lim, Democratic Chief Counsel
------
CONTENTS
----------
Page
Hearing held on Tuesday, April 19, 2016.......................... 1
Statement of Members:
Bishop, Hon. Rob, a Representative in Congress from the State
of Utah.................................................... 1
Prepared statement of.................................... 2
Grijalva, Hon. Raul M., a Representative in Congress from the
State of Arizona........................................... 3
Prepared statement of.................................... 5
Huffman, Hon. Jared, a Representative in Congress from the
State of California........................................ 7
Lummis, Hon. Cynthia M., a Representative in Congress from
the State of Wyoming....................................... 6
Prepared statement of.................................... 7
Statement of Witnesses:
Ashe, Dan, Director, U.S. Fish and Wildlife Service,
Department of the Interior, Washington, DC................. 9
Prepared statement of.................................... 11
Questions submitted for the record....................... 14
Bernhardt, David L., Shareholder, Brownstein Hyatt Farber
Schreck, LLP; Former Solicitor for the U.S. Department of
the Interior 2006-2008, Washington, DC..................... 28
Prepared statement of.................................... 30
Budd-Falen, Karen, Senior Partner, Budd-Falen Law Offices,
LLC, Cheyenne, Wyoming..................................... 46
Prepared statement of.................................... 47
LeValley, Robbie, Administrator, Delta County, Delta,
Colorado; Former President, Colorado Cattlemen's
Association................................................ 42
Prepared statement of.................................... 43
Mehrhoff, Loyal, Endangered Species Recovery Director, Center
for Biological Diversity, Washington, DC................... 33
Prepared statement of.................................... 34
Questions submitted for the record....................... 40
Additional Materials Submitted for the Record:
List of documents submitted for the record retained in the
Committee's official files................................. 85
OVERSIGHT HEARING ON RECENT CHANGES TO ENDANGERED SPECIES CRITICAL
HABITAT DESIGNATION AND IMPLEMENTATION
----------
Tuesday, April 19, 2016
U.S. House of Representatives
Committee on Natural Resources
Washington, DC
----------
The committee met, pursuant to notice, at 10:10 a.m., in
room 1324, Longworth House Office Building, Hon. Rob Bishop
[Chairman of the Committee] presiding.
Present: Representatives Bishop, Gohmert, McClintock,
Thompson, Lummis, Benishek, Gosar, Labrador, LaMalfa,
Westerman, Newhouse, Zinke, Hice, Mooney, Hardy, LaHood;
Grijalva, Bordallo, Costa, Tsongas, Huffman, Lowenthal, Torres,
Dingell, Gallego, Capps, Polis, and Clay.
The Chairman. The Committee on Natural Resources will come
to order. We are happy to have you all here today. We are going
to hear testimony on recent changes in critical habitat
designation and implementation.
So, under Committee Rule 4(f), any oral opening statements
at this hearing are limited to the Chair, the Ranking Member,
the Vice Chair, and a designee of the Ranking Member. I ask
unanimous consent, as we always do, that other Members' opening
statements will be made part of the hearing record if they are
submitted to the Committee Clerk by 5:00 p.m. today.
[No response.]
The Chairman. Hearing no objections, as usual, so ordered.
I also politely ask that anyone in this hearing room please
silence your cell phones. This will allow for minimum
distraction for both our Members and our guests, and ensure
that our semi-permanent, temporary microphone system will
actually work.
With that, I am going to recognize myself for the first
opening statement before turning it over to Mr. Grijalva. I do
appreciate all of you.
STATEMENT OF THE HON. ROB BISHOP, A REPRESENTATIVE IN CONGRESS
FROM THE STATE OF UTAH
The Chairman. I want to thank the witnesses here who are
traveling today for their willingness to provide testimony on
this important topic and to seek improvements and
implementations of the laws. Hopefully, some day we are going
to have agencies that won't require you to make these long
trips back here to talk about these kinds of rule changes.
Today's hearing is going to focus on the Obama
administration and the Endangered Species Act, and,
specifically, some sweeping new rules that were suddenly
finalized in February that relate to critical habitat
designation. These rules will now make it even easier for the
Federal Government to absorb larger and larger swaths of land
and water from Federal agencies, local and state governments,
and private citizens, calling them ``critical habitat.'' At the
same time, this will give them complete and unprecedented
discretion in determining whether activities in these areas
adversely modify that particular habitat.
As a result, there are going to be a host of activities
that will be potentially delayed or blocked on the whim of
elected bureaucrats. And it is going to hurt people. And
unfortunately, those people who will be hurt have almost no
recourse toward this particular situation.
The sweeping impact of these rules seems to be magnified,
especially when you consider recent regulatory actions like
EPA's water grab, that was dubiously called the Waters of the
U.S. Rule, and other land management directives that expand the
Federal policy and authority. They are sad, but they simply do
not help the situation.
I am also concerned about the legal contortions this
Administration is making to claim authority for these rules in
the first place, from the statutory language. For example, they
are saying the word ``considerable'' in the statute. Now, to a
normal human being, you would consider ``considerable'' to mean
substantial, a large amount. To the agency, ``considerable'' is
now defined as anything worthy of consideration. That is
unrealistic.
The Service is essentially granting to themselves the
authority to designate any area that may someday in the future
become suitable for a species, even in places where there is
absolutely no evidence currently that these species have
existed there, or existed at all, or for years in the past. In
the future, I expect the agencies to ask Appropriations for
tarot cards and Ouija boards so they can do the work under this
new expanded rule.
The rule defies Congress' clear intent, and allows the
agencies almost limitless discretion. In short, by claiming
habitat that may be important in the future in certain areas,
they are rendering the term ``critical'' in ``critical
habitat'' as basically meaningless. This is not what Congress
intended several decades ago when they initially drafted the
Act.
In addition, changing provisions in the law by the
executive branch, as these rules do, will undoubtedly promote
more lawsuits and expand careers of lawyers who make a living
suing and settling with the Federal Government, yet do
absolutely nothing to enhance the benefit of the species they
are intended to protect.
There is a better way of making these policy changes. If
something is really that significant, the law needs to be
amended or clarified. Bring it to Congress and go through the
legal process so we can debate this in open public, so we can
talk about it and then pass something that is decent and real.
What we are doing now is not. We have a poor track record, and
this is exacerbating that history of poor track records.
[The prepared statement of Chairman Bishop follows:]
Prepared Statement of the Hon. Rob Bishop, Chairman, Committee on
Natural Resources
Today's hearing focuses on the Obama administration's
implementation of the Endangered Species Act, and specifically,
sweeping new rules and a new policy finalized in February by the U.S.
Fish and Wildlife Service and National Oceanic and Atmospheric
Administration relating to critical habitat designations and the
standard to determine if critical habitat is adversely modified.
Over the past few years, this Administration has already designated
millions of acres and thousands of river miles as critical habitat
under the ESA. These rules will now make it even easier for the Federal
Government to designate larger and larger swaths of local, state,
Federal and private land and waters as critical habitat, while, at the
same time, give them complete discretion to determine whether
activities in these areas ``adversely modify'' the habitat. As a
result, a host of economic and energy-related activities will
potentially be delayed or blocked at the whim of unelected bureaucrats.
Currently, the ESA consultation process is lengthy, expensive and
uncertain for projects that must navigate through it. Just the threat
of having to consult with either the Fish and Wildlife Service or NOAA
is enough to cloud completion of and discourage investment in job-
producing projects. Yet, the process yields almost no tangible benefit
to species.
In addition to the sweeping impact of these rules, the impact is
greatly magnified when considered in light of other recent regulatory
actions, such as the EPA's water-grab regulation dubbed the ``Waters of
the U.S.'' rule and other land management directives that expand
Federal permitting and regulatory authority.
Beyond any concerns about the significant substantive policy
impacts of these rules, I am also deeply concerned about the legal
contortions the Administration makes to claim the authority for these
rules from the statutory language in the first place.
As an example, the Fish and Wildlife Service and NOAA define the
word ``considerable'' to mean ``anything that is worthy of
consideration,'' rather than ``large in amount'' or ``substantial,'' as
any average person would. The Services have essentially granted to
themselves authority to designate areas that may, someday in the
future, become suitable for a species--even in places where there is no
evidence of the presence of a species for years, if at all.
These rules defy Congress' clear intent to place restrictions on
the Federal Government's designation of critical habitat, instead
allowing the Federal agencies nearly limitless discretion. In short, by
claiming habitat may be important in the future, they render the term
``critical'' in ``critical habitat'' as meaningless. This is not what
Congress intended when these terms were passed and enacted into law
several decades ago.
In addition, changing provisions of the law by executive branch
regulation as these rules do will undoubtedly promote more ESA lawsuits
and careers for lawyers making a living suing and settling with the
Federal Government, yet do little to benefit, (and probably harm), the
species they're intended to protect.
There is a better way to make sweeping policy changes. If something
is important enough that the law needs to be amended or clarified, it
should be brought to Congress and representatives of people to actually
debate and vote on these policies before enactment--not lawyers and
bureaucrats that have a poor track record in recovering species and a
worse one in being responsive to the people.
I want to thank our witnesses for traveling to be here today and
for their willingness to provide testimony on this important issue and
to seek improvements to the implementation of laws that have gone far
afield of their original intent.
______
The Chairman. With that, I will yield back the remainder
of my time and recognize Mr. Grijalva for his opening
statement.
STATEMENT OF THE HON. RAUL M. GRIJALVA, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF ARIZONA
Mr. Grijalva. Thank you, Mr. Chairman. I wish today's
hearing was going to be a thoughtful discussion about the
importance of habitat and protecting and recovering imperiled
American fish and wildlife. That discussion needs to take
place. Because, even though the Endangered Species Act has
proven more than 99 percent effective in preventing extinction,
a lack of suitable habitats has severely limited many species'
prospects for recovery.
We have plowed or paved 99 percent of our tallgrass
prairies, cut down 95 percent of our old-growth forest, and
filled in more than half of our wetlands in the lower 48
states. That more species have not gone extinct in the last 40
years is a testament to how effective the ESA really is.
We should be talking about how to secure more habitat and
protect ecosystems needed for populations of threatened and
endangered fish and wildlife to first recover and then be
delisted.
In my personal experience in Pima County, when I was a
county supervisor there, before ascending to this exhilarating
position as a Member of Congress, in response to an endangered
species, the pigmy owl, we developed a critical habitat plan.
In doing so, the cries of economic Armageddon were loud. The
lawsuits were plentiful. And in the end, the voters in two
elections voted bonds for land acquisition and for habitat
protection. And the only thing that really slowed down
development, almost to a halt, in Pima County in southern
Arizona was the bursting of the housing bubble, which in that
whole recession we brought development in the area to almost a
complete halt.
The people responsible for that particular economic
downturn and the bubble bursting on housing are not listed as
endangered. It is the opposite, they are listed as quite robust
and continuing business as usual.
So, unfortunately, today we are not going to have a
conversation about critical habitat in a reasonable discussion.
The Majority and their witnesses will use this hearing as yet
another opportunity to attack President Obama.
At this point, President Obama cannot eat a sandwich
without being accused of gross executive over-reach and illegal
infringement on congressional authority. My Republican
colleagues, the same ones who say they love the Constitution,
do not even believe the President should be able to exercise
authorities clearly listed in the document, such as the
authority to fill vacancies in the Supreme Court.
But reaching down into these obscure and largely
inconsequential ESA rules to find abuses of power is a serious
stretch, even for them. Critical habitat designations under ESA
do not prevent development, period. They do not prevent
development on public lands, and they do not prevent
development on private lands. This is true, whether or not
consultation is required, because of a federally permitted
action in critical habitat, or whether or not one of the
Services determines that critical habitat would be destroyed or
adversely modified as a result of such an activity.
The most, I repeat, the most the law allows is a
consideration of reasonable and prudent alternatives that would
allow the project to move forward without harming the habitat
necessary for species survival. Over the past 8 years, the Fish
and Wildlife Service conducted 90,000 ESA Section 7
consultations, exactly zero of which found that a project would
result in adverse modification of critical habitat.
Despite what you will hear today from the Majority, these
rules will not change that. They will also not change the fact
that if you are conducting an activity on private property, and
no Federal permit is required, then critical habitats will not
impact you in any way.
Even though it is a very weak regulatory tool, critical
habitat designation does benefit species by helping Federal and
state managers plan for conservation, and ensuring that
activities carried out or permitted by Federal agencies at
least consider the potential impacts to biodiversity.
It is perfectly appropriate and, in fact, necessary for the
maintenance of our republic that our laws protect the interests
of all Americans in conserving the lands and wildlife we all
own together as citizens and taxpayers.
With that in mind, I look forward to and welcome our
witnesses today to the hearing, and I yield back, Mr. Chairman.
[The prepared statement of Mr. Grijalva follows:]
Prepared Statement of the Hon. Raul Grijalva, Ranking Member, Committee
on Natural Resources
Thank you, Mr. Chairman.
I wish today's hearing was going to be a thoughtful discussion
about the importance of habitat in protecting and recovering imperiled
American fish and wildlife. That discussion needs to take place,
because even though the Endangered Species Act has proven more than 99
percent effective in preventing extinction, a lack of suitable habitat
has severely limited many species' prospects for recovery.
We have plowed or paved 99 percent of our tallgrass prairies, cut
down 95 percent of our old growth forests, and filled in more than half
of our wetlands in the lower 48 states. That more species have not gone
extinct in the last 40 years is a testament to how effective the ESA
really is. We should be talking about how to secure more habitat and
protect the ecosystems needed for populations of threatened and
endangered fish and wildlife to first recover, and then be delisted.
Sadly, that is not the conversation we will have today. Instead,
the Majority and their witnesses will use this hearing as yet another
opportunity to attack President Obama. At this point the President
can't eat a sandwich without being accused of gross executive over-
reach and illegal infringement on congressional authority.
Congressional Republicans--the same ones who say they love the
Constitution--do not even believe the President should be able to
exercise authorities clearly listed in that document, such as the
authority to fill vacancies on the Supreme Court.
But reaching down into these obscure and largely inconsequential
ESA rules to find abuses of power is a serious stretch, even for them.
Critical habitat designations under the ESA do not prevent
development, period. They do not prevent development on public lands,
and they do not prevent development on private lands.
That is true whether or not consultation is required because of a
federally permitted action in critical habitat, and whether or not one
of the Services determines that critical habitat would be destroyed or
adversely modified as a result of the activity.
The most--I repeat--the most that the law allows is the
consideration of reasonable and prudent alternatives that would allow
the project to move forward without harming the habitat necessary for
species survival.
Over the past 8 years, the Fish and Wildlife Service conducted
nearly 90,000 ESA Section 7 consultations, exactly zero of which found
that a project would result in adverse modification of critical
habitat. Despite what you will hear today from the Majority, these
rules will not change that. They will also not change the fact that if
you are conducting an activity on private property and no Federal
permit is required, then critical habitat will not impact you in any
way.
Even though it is a very weak regulatory tool, critical habitat
designation does benefit species by helping Federal and state managers
plan for conservation, and ensuring that activities carried out or
permitted by Federal agencies at least consider the potential impacts
to biodiversity.
It is perfectly appropriate, and in fact necessary for the
maintenance of our republic, that our laws protect the interest of all
Americans in conserving the lands and wildlife we all own together as
citizens and taxpayers.
With that in mind, I look forward to hearing from our witnesses
today and I yield back.
______
The Chairman. Thank you.
I now recognize the Vice Chairman, Mrs. Lummis, for her
opening statement.
STATEMENT OF THE HON. CYNTHIA M. LUMMIS, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WYOMING
Mrs. Lummis. Thank you, Mr. Chairman. You know, this
committee must look at the Administration's actions on critical
habitat designations because they expand the scope of the
Endangered Species Act.
The U.S. Fish and Wildlife Service and NOAA Fisheries
recently amended four regulations and two new policies
regarding critical habitat under the Endangered Species Act.
The Services are unilaterally promulgating rules that change
and expand critical habitat designations without congressional
input.
While there is a need for improvement and modernization of
the ESA for the sake of species recovery, these new rules could
alter activities in areas newly proposed or already designated
as critical habitat. This could be in areas where species
simply have the potential for using the habitat, even if
historically a species has not used that habitat before.
Bottom line, these policies will require more Federal
permitting that is already bogged down in bureaucratic
processes. In addition, while the Services have analyzed these
regulations in accordance with the criteria of the National
Environmental Policy Act individually, the cumulative impact
has not been analyzed. The aggregate result is broad-sweeping
changes with minimal input from the American public.
The regulations will also likely encourage increased ESA
litigation and closed-door ESA settlements between the Services
and litigious groups. The Services find that they are forced
into actions from serial litigators and the courts. Decisions
about wildlife management are now made most often behind closed
courtroom doors, not out in the open with the very people who
live on and love the land and the wildlife.
That is why it is so important that we get it right when it
comes to making listing decisions and when rules such as this
are amended. We need sound science and open data that can be
replicated. We need innovative, collaborative approaches to
wildlife management that offer incentives for sound management.
We need a clear distinction in our minds about what
constitutes conservation: on-the-ground stewardship or repeated
court battles. Court battles slow down the ability to recover
species and steal money from recovery. We need a common
understanding of what constitutes success when it comes to the
ESA.
In short, we need a new 21st century conservation ethic
that is consistent with the movement that the American people
have made in their understanding of sound and replicatable
science and boots-on-the-ground conservation, that conserves
species and saves habitat--the people who actually implement it
on the ground, not the bureaucrats in Washington, and not the
litigants in the courtrooms, many of whom have never been on
the habitat that they are challenging.
We need a 21st century conservation ethic that is not
clouded by accusations and rancor. We can and should do better
for our wildlife. To that end, I hope the Services are willing
to engage lawmakers in a productive dialogue to improve the
ESA.
Thank you, Mr. Chairman. I yield back.
[The prepared statement of Mrs. Lummis follows:]
Prepared Statement of the Hon. Cynthia M. Lummis, a Representative in
Congress from the State of Wyoming
Thank you Mr. Chairman.
I'm pleased the committee is looking today at the Administration's
actions on critical habitat designations that I feel expands the scope
of the Endangered Species Act (ESA).
The U.S. Fish and Wildlife Service and NOAA Fisheries (the
Services) recently amended four regulations and two new policies
regarding critical habitat under the Endangered Species Act.
Instead of welcoming congressional input, the Services are
unilaterally promulgating rules that completely change and expand
critical habitat designations.
While there is a need for improvement and modernization of the ESA
for the sake of species recovery, these new rules could significantly
alter activities in areas newly proposed or already designated as
critical habitat. This could be in areas where species simply have the
potential for using the habitat, even if historically a species has not
used that habitat before.
Bottom line, these sweeping policies will require more Federal
permitting that is already bogged down in bureaucratic processes.
In addition, while the Services have analyzed these regulations in
accordance with the criteria of the National Environmental Policy Act
(NEPA) individually, the cumulative impact has not been analyzed. The
aggregate result is broad-sweeping changes with minimal input from the
American public.
The regulations will also likely encourage increased ESA litigation
and closed-door ESA settlements between the Services and litigious
groups.
The Services find that they are forced into actions from serial
litigators and the courts. Decisions about wildlife management are now
made most often behind closed courtroom doors, not out in the open with
the very people who live on and love the land and the wildlife.
That is why it is so important that we get it right when it comes
to making listing decisions. We need sound science, and open data that
can be replicated. We need innovative, collaborative approaches to
wildlife management that offer incentives for sound management.
We need a clear distinction in our minds about what constitutes
conservation: on the ground stewardship, or repeated court battles. We
need a common understanding of what constitutes success when it comes
to the ESA.
In short, we need a new 21st century conservation ethic that is not
clouded by accusations and rancor. We can and should do better for our
wildlife.
To that end, I hope that the Service is willing to engage lawmakers
in a productive dialogue to improve the ESA. Thank you and I yield
back.
______
The Chairman. Thank you. Now, at the request of the
Ranking Member, I recognize for an opening statement Mr.
Huffman for 30 seconds.
Mr. Huffman. Thirty seconds?
The Chairman. No, I am kidding, you have 5 minutes.
[Laughter.]
Mr. Huffman. I won't take it all.
STATEMENT OF THE HON. JARED HUFFMAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF CALIFORNIA
Mr. Huffman. Thank you, Mr. Chair, and thank you to our
Ranking Member for allowing me to pinch hit for Vice Ranking
Member, Mr. Sablan. I always appreciate the chance to have a
policy discussion about the Endangered Species Act, and I want
to thank you for holding this hearing.
To start I want to make something very clear, and that is
that the ESA offers critical protections for all types of
species, not just the charismatic ones, not just the cuddly
megafauna, not just the ones that are beloved by sportsmen. The
keystone species that are protected under the ESA play a vital
role in the maintenance of healthy ecosystems, even when they
do not look cute.
Now, the conservation of endangered and threatened species
relies strongly on the vital designation and protection of
their critical habitats under the ESA. Today I am sure that we
are going to hear the usual myths about the threat that
critical habitat designation creates for landowners and
developers.
And I am sure that my colleagues on the other side of the
aisle will use folksy anecdotes to mock the Fish and Wildlife
Service in carrying out the work of wildlife conservation. And
it would not be a hearing on the ESA if we did not have calls
for reform of the ESA, combined with half-baked promises that
somehow the authors, in their hearts, would never dream of
undermining the work of protecting species.
Just last week marked the 100th legislative proposal to
undermine the Endangered Species Act, which means the assault
on the environment and endangered species by this Congress is
truly unprecedented. But the truth is, these reassurances, like
the myths perpetuated by the Majority, are false; and we have
really seen everything in our discussions on these issues, from
legislative proposals to toxic amendments, dangerous policy
riders, waivers of the ESA for fast-track projects like the
Keystone XL Pipeline. We have seen it all.
And the legislative proposal that was lucky enough to be
number 100 was the energy and water appropriations bill in the
House, which included controversial language from Congressman
Valadao's annual water legislation that would undermine
California state water laws, repeal ongoing conservation
efforts to restore rivers, throw out biological opinions
protecting critical fisheries, and devastate delta and coastal
communities, where clean water and healthy fisheries means
jobs.
Let's not kid ourselves. We know why this is being
proposed, and it is for the very same reason that the Majority
is holding this hearing today and has held so many hearings
just like it before. The goal is not to fix the ESA or to
reform or modernize it, or to somehow do a better job
recovering species. Congressman Valadao, the author of that
anti-ESA provision in the energy and water appropriations bill
was very candid when asked about his goal. He said it was part
of a process that would ``hopefully someday repeal'' the
Endangered Species Act.
I give Congressman Valadao credit for at least being honest
about his intentions. But when my colleagues across the aisle
continuously push to gut the Endangered Species Act, I will
continue to defend it. The protection of biodiversity is worth
defending. Without diversity, ecosystems that provide crucial
services cannot function properly. That includes animals and
plants that simply cannot withstand the onslaught of
development, and cannot compete with the industrial forces that
our society brings to bear.
And critical habitat designations are undoubtedly one of
the most important tools in the toolbox for conservation of
endangered species. Rather than serving as an assault on
private property rights, as my colleagues continuously
characterize it, critical habitat designations serve as
enabling indicators for land and resource users. Without those
designations, recovery will be prolonged, it will be more
expensive, and it will be less successful in the long run.
So, I ask that all Members here today stand up to protect
our threatened and endangered species.
I thank you, Mr. Chair, and I yield back the balance of my
time.
Mrs. Lummis [presiding]. Are there any other opening
statements?
[No response.]
Mrs. Lummis. Thank you. I will now introduce our
witnesses.
First of all, Mr. Dan Ashe is the Director of the U.S. Fish
and Wildlife Service. Welcome, and thank you for being
available to this committee. You have been really helpful to
this committee about being here, so we appreciate that very
much.
I also want to welcome Mr. David Bernhardt. He is an
attorney with the law offices of Brownstein Hyatt Farber
Schreck, where he is Co-Chairman of the Natural Resources
Department. He was formerly the Solicitor for the U.S.
Department of the Interior. Welcome, Mr. Bernhardt.
Dr. Loyal Mehrhoff--did I pronounce that correctly--is the
Endangered Species Recovery Director at the Center for
Biological Diversity. Welcome.
Ms. Robbie LeValley is the County Administrator for Delta
County in Colorado. She was formerly the President of the
Colorado Cattlemen's Association. We welcome you, as well.
And finally, Ms. Karen Budd-Falen is a senior partner with
Budd-Falen Law Offices in Cheyenne, Wyoming, and a long-time
friend, I might add. So welcome, Ms. Budd-Falen.
I would like to remind our witnesses that under our
Committee Rules, oral statements must be limited to 5 minutes,
but your entire written statement will appear in the hearing
record.
When you begin the lights on the witness table will turn
green. When you have 1 minute remaining, the yellow light comes
on; and your time will have expired when the red light comes
on. I will ask you to swiftly conclude your statement when the
red light comes on.
Now an old hand to this committee, the Chair recognizes
Director Ashe for his testimony.
STATEMENT OF DAN ASHE, DIRECTOR, U.S. FISH AND WILDLIFE
SERVICE, DEPARTMENT OF THE INTERIOR, WASHINGTON, DC
Mr. Ashe. Thank you very much, Mrs. Lummis, Mr. Grijalva,
and members of the committee. It is a great honor to be with
you here today. Looking back in history, in 1972, the 92nd
Congress of the United States and President Richard M. Nixon
gave our Nation a great gift, a visionary and a powerful law
with the goal of preventing species extinction. It has been
remarkably successful when you think that between 1972 and
today the United States population has increased by about 65
percent, from 210 million people to 323 million people; the
gross domestic product of our Nation has increased 314 percent
in real terms, from a $5.25 trillion to $16.5 trillion economy;
and the individual per capita GDP in our country has increased
from $24,000 to $51,000.
So, our country has prospered and individual Americans have
prospered during this time. We have managed to preserve our
biological diversity through, in large part, the work and the
working of this great law. In this Administration, we have
built upon the past success of this law. We have delisted more
species due to recovery than any prior administration,
including the Louisiana Black Bear, the Oregon chub, the first
fish ever delisted due to recovery, the Delmarva fox squirrel,
the Virginia northern flying squirrel, the Modoc sucker, the
brown pelican, and many others will follow.
By the time this Administration is done, we will have
delisted, due to recovery, more species than all previous
administrations combined. We have also forged an innovative and
epic partnership to conserve imperiled species before listing
is required. Recent examples are Montana's Arctic grayling, the
Sonoran Desert tortoise in Arizona, the New England cottontail,
and the greater sage-grouse.
I think two major things have enabled this, although many
have contributed: the multi-district litigation settlement that
got us out of court and on to a sensible schedule that allowed
partnerships to form and grow; and a powerful and progressive
partnership with the Natural Resources Conservation Service in
the Department of Agriculture, which has incentivized voluntary
conservation on working landscapes.
The changes that we are going to talk about today in our
rules and underlying the Endangered Species Act remind me of a
quote from Voltaire, that common sense is not so common. So I
am not going to claim that mantle in speaking about our work;
but I am going to say that we have focused on making sensible
and intelligent choices that are improving our administration
of the law, making it more predictable, more transparent, more
scientific, more supportive of partnership, and more conducive
to long-term strategic thinking about recovery of species.
Good government and sensible policy does not attract a lot
of paying clients. It does not generate a lot in direct mail
contributions, or even foundation funding. So I imagine you are
going to hear a lot today predicting dire economic devastation
or maybe even species extinction because of some of the changes
that we have made to the regulations underlying the law. But I
think the record is clear: the law works; we are making it work
better.
Earlier this year, or last year, when we announced our
decision that we did not need to list the greater sage-grouse,
Rancher Duane Coombs from Nevada stood up and said, ``This is
good government.'' Earlier in the year, Rancher Tom Strong in
Hardy County, Oregon stood up and said, ``What is good for the
bird is good for the herd.'' These are reflective of the kind
of work that is going on today to conserve species, and it is
representative of the kind of work that will go on as we
implement the changes in the law that we are going to talk
about today. Thank you very much.
[The prepared statement of Dan Ashe follows:]
Prepared Statement of Dan Ashe, Director, U.S. Fish and Wildlife
Service, Department of the Interior
introduction
Good morning Chairman Bishop, Ranking Member Grijalva, and members
of the committee. I appreciate the opportunity to testify before you
today on the Endangered Species Act of 1973 (ESA). At the committee's
request, my testimony will focus on the U.S. Fish and Wildlife
Service's (FWS) implementation of Congress' mandate under the ESA to
designate critical habitat for threatened and endangered species.
The ESA is one of the Nation's most important conservation laws. It
is implemented jointly by FWS and the National Marine Fisheries Service
(NMFS), collectively referred to as the Services. The law's stated
purpose includes the conservation of threatened and endangered species
and the ecosystems upon which they depend. The ESA provides a safety
net for species that are at risk of going extinct. When a species is
designated as threatened or endangered--or ``listed'' under the ESA--it
is in dire need of help. FWS uses the best available scientific and
commercial information to determine whether species need to be listed,
to identify and address the reasons that listed species are at risk of
going extinct, and to facilitate the recovery of the species.
The ESA has been successful in its essential goal to conserve
listed species, which effectively protects the Nation's biological
diversity heritage for the benefit of future generations of Americans.
Since it was enacted by Congress in 1973, the ESA has successfully
prevented the extinction of more than 99 percent of the over 1,500
domestic species that have been protected through the Act.
The continued success of the ESA is predicated upon FWS's
partnerships with states, other Federal agencies and private
landowners, as demonstrated by several conservation achievements that
recently culminated in ``delisting'' several recovered species.
Recovering species to the point where they no longer need the
protections of the ESA often requires focused efforts over many years
to implement recovery actions that include, for example, habitat
restoration, best management practices for various human activities,
and consistent monitoring. Partnerships developed and maintained by FWS
have sustained years of recovery efforts for a myriad of species. As a
result, during the Obama administration, FWS has delisted more species
due to recovery than during any prior administration. Recently delisted
species include the Louisiana black bear, Oregon chub, Delmarva fox
squirrel, Virginia northern flying squirrel, Modoc sucker, and brown
pelican.
Partnerships have similarly been essential to conserving species
that are candidates for listing to the point where those species don't
need the protection of the ESA. Recent examples include the Sonoran
desert tortoise in Arizona, the New England cottontail in six
northeastern states, and the greater sage grouse in 11 western states.
Ensuring the conservation of these species and the ecosystems upon
which they depend is good for a myriad of other wildlife species and
for humans who use the same ecosystems for hunting, fishing, outdoor
recreation, and other services like clean air and water. These
conservation success stories are also a measure of the success and
importance of the ESA.
critical habitat
Part of the ESA's program for conserving listed species includes
designating ``critical habitat.'' When FWS proposes an animal or plant
for listing, Section 4 of the ESA also requires FWS to designate
critical habitat for the species. FWS proposes critical habitat
designations based on the best available scientific and commercial
information on what an animal or plant species needs to survive,
reproduce, and recover. The ESA also directs the FWS to evaluate the
anticipated economic impacts of the proposed critical habitat
designation. FWS makes both the proposed designation and economic
analysis available for public review and comment. The proposed
designation is also submitted to independent peer review. It is only
after this public comment period, peer review, and consideration of the
impacts of the designation and potential exclusion of specific areas
that the FWS makes a final designation of critical habitat.
Section 3(5)(A) of the ESA defines critical habitat in two parts:
(i) The specific areas within the geographical area occupied by the
species, at the time it is listed in accordance with the
provisions of section 4 of the Act, on which are found
those physical or biological features (1) essential to the
conservation of the species and (2) which may require
special management considerations or protection; and,
(ii) Specific areas outside the geographical area occupied by the
species at the time it is listed, upon a determination by
the Secretary that such areas are essential for the
conservation of the species.
Critical habitat designations do not affect land ownership or
impose liens on property. Designating critical habitat does not allow
the government to take or manage private property, nor does it
establish a refuge, reserve, preserve, or other conservation area.
Designation also does not authorize, in any way, government or public
access to private land.
The only effect of designating an area as critical habitat is to
trigger the ESA requirement that actions authorized, funded, or carried
out by Federal agencies must not destroy or adversely modify designated
critical habitat. FWS assists Federal agencies in meeting this
responsibility by consulting with them pursuant to section 7 of the ESA
when their actions may affect designated critical habitat.
As I testified in September 2015, FWS is continuing to take steps
to improve the implementation of the ESA. We are committed to making
the ESA work for the American people to accomplish its purpose of
conserving threatened and endangered species and protecting the
ecosystems upon which they depend. Our efforts to make the ESA work
better are consistent with President Obama's Executive Order 13563,
Improving Regulation and Regulatory Review, and are outlined in the
Department of Interior's Preliminary Plan for Retrospective Regulatory
Review.
As part of the Administration's ongoing efforts, the Services
finalized a policy and two rules in February of this year that will
provide a clearer, more consistent and predictable process for
designating critical habitat. One rule clarifies the procedures and
standards used for designating critical habitat. The new policy is
intended to provide greater predictability, transparency, and
consistency regarding how the Services consider exclusion of areas from
critical habitat designations. The other rule revises the definition of
``destruction or adverse modification.'' These three components are
discussed in greater detail below.
designating critical habitat rule--part 424
Under the ESA, Congress requires the Services to designate critical
habitat for listed species to the maximum extent ``prudent and
determinable.'' The ESA sets forth the general framework for
designating critical habitat, and the Services have regulations in 50
CFR part 424 that further set out standards and processes for
designation of critical habitat. However, there had been no
comprehensive revisions to the ESA implementing regulations since 1984.
In the years since those last revisions, we have gained considerable
experience in implementing the critical habitat requirements of the
ESA, and there have been numerous court decisions regarding the
designation of critical habitat that have further informed the
designation process. For the benefit of the public, and as a basic
matter of good government, we used this substantial body of experience
to finalize a rule in February 2016 that updates and clarifies the
procedures, standards, and criteria used for designating critical
habitat.
In addition to a number of minor and technical changes, this rule
includes a definition for ``geographical area occupied by the
species,'' which was previously undefined. Of note, this definition
recognizes the importance of areas used throughout all or part of the
species' life cycle, often referred to as the ``range'' of the species,
and can include important areas such as migratory corridors, seasonal
habitats, and habitats used periodically.
The rule also revises the Services' regulations to be consistent
with the 2004 National Defense Authorization Act (NDAA) that make
certain lands managed by the Department of Defense ineligible for
designation as critical habitat. In order to be exempted from a
designation of critical habitat, lands must be covered by an integrated
natural resources management plan (INRMP) under the Sikes Act, with a
determination made by the Secretary of the Interior or the Secretary of
Commerce that the plan provides a conservation benefit to the species.
As mentioned above, the second part of the statutory definition of
critical habitat provides that areas outside the geographical area
occupied by the species at the time of listing, i.e., unoccupied areas,
should be designated as critical habitat if they are determined to be
``essential for the conservation of the species.'' Our previous
regulations specified that the Services should only designate
unoccupied areas when the designation of occupied areas would be
inadequate to ensure the conservation of the species. Based on years of
applying the previous regulations, the Services concluded that this
rigid step-wise approach is both unnecessary and unintentionally
limiting. It does not necessarily serve the best conservation strategy
for the species and, in some circumstances, may result in a designation
that is geographically larger but less effective as a conservation
tool.
This rule allows us to consider including occupied and unoccupied
areas at the same time during a critical habitat designation, based on
any conservation strategy, criteria, or plan for the species that may
be developed. This improved ability to designate unoccupied areas will
help us make more effective and defensible designations for species
dependent upon highly dynamic and short-lived habitats, such as
sandbars and early successional habitats, and will be increasingly
important as the effects of global climate change continue to drive
rapid change in the environment.
The concurrent evaluation of occupied and unoccupied areas for a
critical habitat designation, using the best available science and
reliable predictions, will allow us to develop more precise
designations that can serve as more effective conservation tools,
focusing conservation resources where needed and minimizing any
regulatory burdens that are not needed.
critical habitat exclusions policy--section 4(b)(2)
Under section 4(b)(2) of the ESA, Congress provided discretionary
authority to the Secretary to exclude any specific area from a critical
habitat designation if the benefits of such exclusion outweigh the
benefits of designation, so long as the exclusion will not result in
the extinction of the species.
Over the years, much attention has been focused on the process by
which the Services consider critical habitat exclusions. In February of
2016, we finalized a policy to provide greater predictability and
transparency regarding our process and methods. This policy covers
several fact patterns that frequently arise in the context of
exclusions. It establishes that we will exercise our authority to
exclude specific areas in a way that encourages voluntary conservation
efforts on non-Federal lands; and it focuses designations on Federal
lands because that is where a critical habitat designation is most
likely to make a difference for conservation of the species.
The policy clarifies how we evaluate the benefits that conservation
plans and partnerships on private lands provide to species as we
analyze potential critical habitat exclusions. These considerations can
include private conservation plans, agreements, and partnerships that
do not involve the Services, as well as those developed under section
10 of the ESA, including Habitat Conservation Plans (HCPs), Candidate
Conservation Agreements with Assurances (CCAAs), and Safe Harbor
Agreements (SHAs).
We recognize the strong conservation benefit for listed species
that can be provided by efforts of private landowners. These benefits
often cannot be achieved through the designation of critical habitat,
and a critical habitat designation generally has little effect on
private lands. As such, we generally give great weight to the benefits
of excluding areas where there have been demonstrated partnerships. We
anticipate consistently excluding from critical habitat designations
areas that are covered by properly implemented conservation plans.
This policy clarifies how the Services will address Tribal lands
when designating critical habitat. Following the direction of
Secretarial Order 3206 regarding tribal rights and Federal-Tribal trust
responsibilities, when we undertake a critical habitat exclusion
analysis, we will always consider exclusions of Tribal lands prior to
finalizing a designation of critical habitat, and will give great
weight to Tribal concerns in analyzing the benefits of exclusion.
The new policy also clarifies that in addition to the exemption of
DOD lands with completed INRMPs (as explained above), the Services will
always consider excluding areas based on likely impacts to national
security or homeland security, when those exclusions are requested and
justified by DOD, Department of Homeland Security (DHS), or another
Federal agency.
FWS recognizes Congress' intent to focus on Federal agencies in ESA
implementation. Accordingly, under the policy, Federal lands are
prioritized as sources of support in the recovery of listed species. To
the extent possible, the Services will focus designation of critical
habitat on Federal lands in an effort to avoid any possible regulatory
burdens related to critical habitat on non-Federal lands. As such, we
will focus our critical habitat exclusions on non-Federal lands.
adverse modification rule
Section 7 of the ESA requires Federal agencies to ensure that their
actions are not likely to jeopardize the continued existence of
endangered or threatened species or result in the destruction or
adverse modification of designated critical habitat of such species.
The ESA does not define ``destruction or adverse modification.''
The Services promulgated regulations in 1986 to clarify this statutory
requirement. After two circuit court decisions invalidated the
regulatory definition of ``destruction or adverse modification'' in
2001 and 2004, the Services issued guidance instructing biologists to
no longer rely on the regulatory definition. The guidance, issued in
2004 by FWS and in 2005 by NMFS, provides an analytical framework for
making destruction or adverse modification determinations.
The final rule issued in February 2016 provides a new regulatory
definition of ``destruction or adverse modification'' of critical
habitat. This new definition does not change how the Services conduct
consultations to assess destruction or adverse modification of critical
habitat. Instead, the definition is consistent with our approach for
the past decade. The rule codifies the principles of the 2004/2005
guidance, and takes into consideration public comments, ccongressional
intent, relevant case law, and the Services' collective experience in
applying the ``destruction or adverse modification'' standard over the
last three decades. The definition continues the intent of the 2004/
2005 guidance to evaluate the effects of a Federal action on the
recovery, not just the survival, of listed species. Under the new
definition, FWS will maintain our approach to assessing the effects of
an action on critical habitat by evaluating the impacts to certain
physical and biological features. Specifically, we will continue to
consider alterations to physical and biological features that are
necessary for the recovery of the species as ``effects'' to the
critical habitat. We will also continue to consider as ``effects''
those alterations to critical habitat that prevent or delay the
development of those physical and biological features, which may or may
not be present, or which may be present only in sub-optimal quantity or
quality, at the time of critical habitat designation.
For the past 10 years, the Services have followed this approach to
consulting on the effects of Federal actions on designated critical
habitat. As such, we do not expect this final rule to alter the section
7 consultation process from our current practice, and previously
completed biological opinions do not need to be re-evaluated.
This rulemaking will improve the predictability and transparency of
these determinations for Federal agencies and the public.
conclusion
In conclusion, these two final rules and policy codify and
cohesively present to the public certain aspects of our implementation
of the critical habitat mandates in the ESA. They build upon a
substantial body of experience and court rulings and have benefited
from peer review, and review and comment by the public. They provide a
clearer, more consistent, and more predictable process for designating
critical habitat for listed species under the ESA.
As the Administration moves forward with efforts to improve the
implementation of the ESA, we ask the Congress to join this effort that
benefits the public through more effective conservation of listed
species and more efficient, transparent, and predictable processes for
the regulated public. We note that preventing extinction and
facilitating recovery requires people on the ground--``in the field''--
to do the science, prevent extinction, foster partnerships, and develop
and implement recovery actions. To that end, the most significant step
that Congress can take to improve the effectiveness of the ESA is to
provide the resources needed to get the job done in the field. We
therefore ask that Congress support the President's budget request for
endangered species conservation for Fiscal Year 2017.
______
Questions Submitted for the Record to Dan Ashe, Director, U.S. Fish and
Wildlife Service, Department of the Interior
Questions Submitted by Chairman Rob Bishop
Question 1. In the preamble to the final rule, frequent references
are made to ``range'' in discussing critical habitat. Section 3 of the
Endangered Species Act defines critical habitat relative to ``specific
areas'' and sets a general prohibition against including an ``entire
geographical area'' in a critical habitat designation (except in those
circumstances determined by the Secretary). 16 U.S.C.
Sec. 1532(5)(A)(i)-(ii), (5)(C). Would the new rules allow a
designation of critical habitat that encompasses the full range of a
species, such as widespread avian or bat species, if the entire area is
determined to be essential to the species' conservation? If so, how
would such a broad designation of critical habitat comport with the
statutory limitations in Section 3 of the Act?
Answer. The definition of ``critical habitat'' in the Act
recognizes two types of habitat, distinguished from one another
according to whether or not the species was present in the area at the
time the species was listed under the Act: (1) specific areas within
the geographical area occupied by the species at the time it is listed
on which are found those physical and biological features essential to
the conservation of the species and which may require special
management considerations or protection, (2) specific areas outside the
geographical area occupied by the species at the time it is listed that
are essential for the conservation of the species (emphasis added). The
general prohibition of Section 3(5)(C) refers to ``the entire
geographical area which can be occupied'' (emphasis added) and clearly
applies to a broader area than that occupied at the time a species is
listed.
Our revised regulations governing designation of critical habitat
at 50 CFR Part 424, like the previous regulations they replace, allow
for a critical habitat designation of specific areas that in total
encompass most or all the entire geographical area occupied by the
species at the time it is listed (i.e., the range). This may be the
case for many species that have been reduced to occupying only a small
subset of their historical range at the time of listing. Such a
designation would be consistent with both the definition in Section
3(5)(A) and the limitation in Section 3(5)(C).
Question 2. Similarly, the final rule mentions migratory corridors,
breeding grounds, and foraging grounds. Would the new rules allow for
designation of the entire migratory corridor, breeding grounds, and
foraging grounds as critical habitat for a bat or avian species, such
as the whooping crane, under any circumstance?
Answer. We would limit any designation to those specific areas that
satisfy the definition at Section 3(5)(A), as either occupied or
unoccupied areas, when designating critical habitat in migratory
corridors, breeding grounds, and foraging grounds. We will continue to
use the best scientific data available to determine if any such
specific areas exist for a species. Each species' life cycle is
different and the details of such areas, if they exist, would be
explained in the proposed and final rules designating critical habitat
for a particular species.
Question 3. In the preamble to the final rule, the Service asserts
that it can designate critical habitat in anticipation of changes in
habitat use ``in response to the effects of climate change.'' 81 Fed.
Reg. at 7,426. For example, the Service states that it ``may find that
an unoccupied area is currently `essential for the conservation' even
though the functions the habitat is expected to provide may not be used
by the species until a point in the foreseeable future.'' Id. What is
the Service's legal authority for this approach to designating critical
habitat on the basis of anticipated climate effects? What data would
the Service rely upon for purposes of identifying these future effects?
How does the Service intend to implement designation of critical
habitat in unoccupied areas in advance of climate change in a manner
that is not speculative and is not arbitrary or capricious?
Answer. The Act expressly allows for the consideration and
inclusion of unoccupied habitat (i.e., ``specific areas outside the
geographical area occupied by the species at the time it is listed,''
Section 3(5)(A)(ii) of the Act) in a critical habitat designation if
such habitat is determined to be essential for the conservation of the
species. We determine whether areas unoccupied at the time of listing
are essential for the conservation of the species by considering the
best available scientific data regarding the life history, status, and
conservation needs of the species. Although an area must be determined
essential for the conservation, this could be based on reliable
scientific projections of suitability or use of the habitat in the
future.
There have been specific circumstances, as discussed in our final
rule, where data show or predict a shift in habitat availability or use
by a species in response to the effects of climate change. An example
would be a landward shift in tidal marsh habitat as a result of
predicted sea level rise. In cases where the best scientific data
available indicate that specific areas not currently occupied by a
species are essential for its recovery because of the functions it is
reasonably expected to provide in the future, it is permissible and
appropriate to include such specific areas in a designation, provided
that the Services can explain why the areas meet the definition of
``critical habitat.'' The data and rationale on which such a
designation is based will be clearly articulated in our proposed rule
designating critical habitat, which will be available for public
comment.
Question 4. How has the Service adequately acknowledged and
explained the rules' marked deviation from the Service's longstanding
position--that unoccupied habitat should only be designated after
occupied habitat is exhausted--such that the agency's change in its
interpretation of the ESA would be afforded deference by the courts?
Where does the Service find such authority in the ESA or in legislative
history?
Answer. Section 3(5)(A)(ii) of the ESA expressly allows for the
consideration and inclusion of unoccupied habitat in a critical habitat
designation if such habitat is determined to be essential for the
conservation of the species. This rule does not expand Service's
authority or discretion. Rather, it clarifies the existing process by
which we designate critical habitat based on lessons learned over many
years of implementing critical habitat and case law. The prior
regulation in section 424.12(e) provided that the Secretary shall
designate areas outside the ``geographical area presently occupied by a
species'' only when ``a designation limited to its present range would
be inadequate to ensure the conservation of the species.'' Although
this provision represented one reasonable approach to giving meaning to
the term ``essential'' as it relates to unoccupied areas, the Services
have found,, that this provision is both unnecessary and
unintentionally limiting. While Congress supplied two different
standards to govern the Secretary's designation of these two types of
habitat, there is no suggestion in the legislative history that the
Services were expected to exhaust occupied habitat before considering
whether any unoccupied area may be essential. In addition, although
section 3(5)(C) of the Act reflects congressional intent that a
designation generally should not include every area that the species
can occupy, this does not translate into a mandate to avoid designation
of any unoccupied areas unless relying on occupied areas alone would be
insufficient. Indeed, there may be instances in which particular
unoccupied habitat is more important to the conservation of the species
than some occupied habitat. The Services have thus used their
discretion to update the regulations and have explained the basis for
their interpretation.
We expect that the concurrent evaluation of occupied and unoccupied
areas for a critical habitat designation will allow us to develop more
precise designations that can serve as more effective conservation
tools, focusing conservation resources where needed and minimizing
regulatory burdens where not necessary.
Question 5. How does a designation of critical habitat impact ESA
section 10 permit requirements, as well as section 7 consultation on
the issuance of permits, and how are Service field staff trained
regarding the relationship between critical habitat, species presence,
and likelihood of ``take''?
Answer. Under section 7 of the Act, Federal agencies consult with
the Services to insure that the actions they carry out, fund, or
authorize are not likely to destroy or adversely modify critical
habitat. This requirement extends to our issuance of section 10
permits. As is the current practice, the Service will continue to
conduct intra-Service consultations on the issuance of our permits,
including consulting on effects to designated critical habitat. Service
field staff have been conducting consultation on critical habitat under
guidance issued in 2004, which is now captured in the new regulations
regarding the new definition of adverse modification. In addition, our
section 7 courses delivered by the National Consultation Training
Center all incorporate instruction on the relationship between critical
habitat, species presence, and the likelihood of ``take.'' All section
7 consultations are subject to a rigorous review process within the
Ecological Services field offices before they are finalized.
Question 6. How does the designation of areas ``at a scale
determined by the Secretary to be appropriate'' ensure that such
designation fulfills the ESA requirement that ``specific areas'' be
designated?
Answer. The purpose of this language is to clarify that the
Secretary cannot and need not make determinations at an infinitely fine
scale. Thus, the Secretary need not determine that each square inch,
square yard, acre, or even square mile independently meets the
definition of ``critical habitat.'' Nor will the Secretary necessarily
consider legal property lines in making a scientific judgment about
what areas meet the definition of ``critical habitat.'' Instead, the
Secretary has discretion to determine at what scale to do the analysis.
In making this determination, the Secretary may consider, among other
things, the life history of the species, the scales at which data are
available, and biological or geophysical boundaries (such as
watersheds), and any draft conservation strategy that may have been
developed for the species. Since the Act does not specify at what scale
a ``specific area'' is to be measured, the Services have discretion to
interpret and apply the requirement in a reasonable way.
Question 7. The rule represents that where ``several habitats, each
satisfying the requirements for designation as critical habitat, are
located in proximity to one another, the Secretary may designate an
inclusive area as critical habitat.'' How does designation of areas
that fail to include the elements required for designation as critical
habitat, and are only ``proximate to'' areas that include the elements
for designation, satisfy the ESA's requirements?
Answer. Our rule continues this provision from the prior rule (at
50 CFR 424.14(d)) and merely recognizes that were several individual
areas satisfy the definition of critical habitat and are located close
together, an entire, inclusive area may be designated instead of the
many smaller areas, for greater clarity. This is not a novel
interpretation and is not intended to authorize designation of large
areas that do not meet the definition of critical habitat. The rule
recognizes the Secretaries authority to provide connectivity between
and among several smaller habitats with important habitat
characteristics.
Question 8. The rule expands the definition of adverse modification
to include alterations that would ``preclude or significantly delay
development'' of physical or biological features. How is this expansion
of adverse modification--to now encompass the preclusion or delay of
features' development--a permissible construction of the ESA's
language, which appears to require designated critical habitat to
consist only of habitat in existence at the time of designation?
Answer. The second sentence of the revised regulatory definition
indicating that activities which preclude or significantly delay
development of physical or biological features may result in
destruction or adverse modification does not represent a new concept or
an expansion of authority. In fact, the Service has been applying this
concept since, at least, the issuance of the 2004 and 2005 documents
that provided guidance on the Services' ``destruction or adverse
modification'' analyses. This approach is necessary to effectuate the
statute's and courts' direction that critical habitat must be protected
for the contributions it is expected to make to the species'
conservation over time.
The Services also believe this forward-looking assessment is
consistent with the ESA. The ESA defines critical habitat to include
both areas occupied at the time of listing that contain features
``essential to the conservation'' of listed species, as well as
unoccupied areas that are ``essential for the conservation'' of listed
species. Thus, unoccupied habitat by definition is not required to
contain essential physical or biological features to qualify for
designation, and even occupied habitat is not required to contain all
features throughout the area designated as critical habitat. The
conservation value of designated habitat that exists at the time of
designation may depend in part on the inherent ability of the habitat
to support the essential features over time. Thus, the Services will
generally conclude that a Federal action is likely to ``destroy or
adversely modify'' designated critical habitat if it precludes or
significantly delays the development of physical and biological
features such that the action appreciably diminishes the value of
critical habitat for the conservation of the species.
Question 9. You stated in the hearing that these rules maintain the
status quo regarding designation of critical habitat. If that is the
case, then why was this rulemaking conducted or necessary? Should the
regulated public truly expect no change in practice, outcome, or
project requirements to arise in future consultations? If not, what are
the types of situations in which these rules would impose new or
additional requirements on entities engaged in section 7 consultations
that would differ from what those entities are accustomed to seeing?
Answer. The two recent regulations and recent policy clarify the
interpretations and practices the Services have developed and applied
over many years of experience implementing the Act. The Services
revised the definition of ``destruction or adverse modification,''
because two Federal Courts of Appeals determined in 2001 and 2004 that
the 1986 regulatory definition set too high of threshold for triggering
destruction or adverse modification. The revised definition, which is
consistent with the ESA, its legislative history and circuit court
opinions, codifies the approach the Services have employed since 2004.
The other rule clarifies the procedures and standards used for
designating critical habitat, making minor changes to the regulations
to better describe the scope and purpose of critical habitat, add and
remove some definitions, and clarify the criteria and procedures for
designating critical habitat. This rule also revises the Services'
regulations to be consistent with statutory amendments made in 2004
through the National Defense Authorization Act (Public Law 108-136)
that make certain lands managed by the Department of Defense ineligible
for designation as critical habitat.
Finally, the new policy is intended to provide greater
predictability, transparency and consistency regarding how the Services
consider exclusion of areas from critical habitat designations. Under
the ESA, the Services evaluate the economic, national security and
other impacts of a designation and may exclude particular areas if the
benefits of doing so are greater than the benefits of including the
area in the designation, so long as the exclusion will not result in
the extinction of the species. This final, non-binding policy describes
the general position of the Services for considering different
situations relative to the exclusion process (e.g., voluntary
conservation agreements, national security, and economics).
Question 10. Please put a finer point on whether, where, and how
critical habitat under the final rules would impose additional,
tangible effects on a regulated entity over and above what is likely to
already be imposed due to the species listing itself. Is designating
critical habitat the only way species habitat is protected within a
section 7 consultation? Your statement in the hearing that ``the juice
is not worth the squeeze'' raises questions regarding whether the
concerted effort to designate critical habitat is worthwhile for the
species.
Answer. Designating critical habitat is not the only way species
habitat is protected within a section 7 consultation. Every formal
consultation, even in the absence of a critical habitat designation,
serves to provide the Service's opinion of whether an action is likely
to jeopardize the continued existence of a listed species. The jeopardy
analysis focuses on the effects on an action to the species,
specifically whether the action reasonably would be expected, directly
or indirectly, to reduce appreciably the likelihood of both the
survival and recovery of a listed species in the wild by reducing the
reproduction, numbers, or distribution of that species. Often those
effects to the species are caused by effects to its habitat.
Accordingly, reasonable and prudent alternatives to avoid the
likelihood of jeopardy, or reasonable and prudent measures to minimize
take of the species, may both involve aspects of habitat protection
that reduce the effect of the action on the species. However, the
additional requirement of the statute to consider whether an action is
likely to destroy or adversely modify designated ``critical habitat''
requires the Services to consider impacts to the value of the
designated critical habitat itself. Unlike with the jeopardy
determination, there is no requirement to demonstrate that there are
ultimately impacts on the species via impacts to the habitat.
Designation of critical habitat may impose additional, tangible
effects on a regulated entity over and above what is likely to already
be imposed due to the species listing itself in situations where the
designated critical habitat is not occupied and a section 7
consultation would not otherwise be triggered. However, this has always
been the case, and we do not expect the final rules to have significant
additional impacts to regulated entities when compared to the prior
regulations and policies, but rather codify practices that have been
the status quo for many years. We expect that these final rules will
provide greater certainty to regulated entities about how critical
habitat may affect them.
Questions Submitted by Representative Paul A. Gosar
Question 1. Director Ashe, have you studied up on the draft
recreational boating Compatibility Determination (CD) for Havasu
National Wildlife Refuge announced by the Service April 12 that aims to
close significant areas to motorized boating activities on Lake Havasu?
Your Deputy Director, Jim Kurth, knew detailed information about this
proposal when I questioned him on March 22, yet you claimed to know
nothing about this pressing matter when I questioned you at the
hearing.
Answer. Yes, I have been made aware of the draft recreational
boating Compatibility Determination for Havasu National Wildlife
Refuge.
Question 2. How many new acres will restrict horsepower or prohibit
waterskiing, wakeboarding, fishing and other recreational boating if
the CD is implemented?
Answer. Fluctuating water levels affect the width of the river and
varies throughout the seasons, dam releases, and other environmental
factors making it difficult to provide consistent acreage. We are
providing the estimated acreages based on January 2015 water levels.
Below are the total acres that were proposed motorized boating
restrictions in the withdrawn draft CD:
In total approximately 4,500 acres \1\ were proposed to have
restriction changes.
---------------------------------------------------------------------------
\1\ Acres refers to acres of water surface from January 2015 and is
subject to change throughout the year.
4,000 acres (proposed 30 hp motor limit and no-wake
---------------------------------------------------------------------------
allowed) in Topock Marsh.
500 acres were in the proposed 2-mile expansion of the
existing 17.5-mile regulations. No-wake restrictions were
also proposed in this same 2-mile area.
Question 3. Does that figure include all areas within the main
channel of the lower Colorado River, in the backwaters of the lower
Colorado River, within the 4,000 acre Topock Marsh, within the \1/2\
mile no-wake zone form May 2015, the no-wake restrictions in the Topock
Marsh, the horsepower restrictions in the Topock Marsh, and the
proposed area from the no-wake zone down to Mesquite Bay?
Answer. The numbers in the previous response included all areas
within Havasu National Wildlife Refuge (Refuge) jurisdiction. No new
restrictions were proposed in the existing 17.5 mile stretch on the
main River channel (which includes the \1/2\ mile no-wake zone
designated in 2015). The total number of restricted acres described in
Question 1 included all proposed restrictions in Topock Marsh and the
proposed 2-mile area from the no-wake zone down to Mesquite Bay.
Question 4. How many total acres within the Refuge, including the
Havasu Wilderness Area, already restrict horsepower or prohibit
waterskiing, wakeboarding, fishing and other recreational-towed
devices?
Answer. The following are existing restrictions on the Refuge:
Approximately 4,400 acres of the 17.5-miles (within the
main River channel and its backwaters) prohibit water-
skiing, tubing, wake boarding or other recreational towed
devices as well as wake and personal watercraft as
indicated by signs and buoys. This includes:
-- Approximately 150 acres of Devil's Elbow are designated
no-wake.
-- Approximately 26 acres near the I-40 bridge and Topock
66 Marina are designated no-wake.
Approximately 100 acres of Mesquite Bay are closed to
motorized watercraft.
Question 5. How many total acres on Lake Havasu already restrict
horsepower, have no-wake zones or prohibit certain motorized boating
activities, including restrictions by BLM and other government
agencies?
Answer. The Service does not know how many acres are impacted by
boating restrictions imposed by other government agencies including the
BLM. Within Refuge jurisdiction, approximately 100 acres of Mesquite
Bay are closed to motorized watercraft. North of Mesquite Bay is the
100 acre no-wake restriction of 2015.
Question 6. Of the 700 acres of the Havasu reservoir on the Refuge,
how many acres will have restricted horsepower or prohibit waterskiing,
wakeboarding, fishing and other recreational boating if the CD is
implemented?
Answer. Approximately 700 acres within the Refuge portion of the
19,300 acre Lake Havasu Reservoir will have restricted uses.
It is important to note that at the southern end of the Refuge, the
Refuge boundary is defined by the state line bisecting the river.
Therefore, the California side of the river channel is not within the
Refuge boundary and is not included in these 700 acres. As such,
applicable California regulations will remain unchanged.
Question 7. In a July 10 response from your agency to my letter
objecting to the May 2015 boating restrictions for the Havasu Refuge
which were made 2 days before Memorial Day and without public comment,
the Service stated that these arbitrary restrictions were lawful under
its regulations in the form of 50 CFR 32.22. That particular regulation
deals with regulations for hunting and fishing within the Refuge. The
Service is now citing a different regulation to justify these
restrictions. Was that a mistake or did your agency fail to identify
the proper authority prior to making the May 2015 closure?
Answer. The no-wake zone was established in May 2015 based on the
following facts as identified by Refuge staff and visitors: (1) wake-
causing motorized boating in the area impacts crucial riparian and
wetland habitat needed for foraging, breeding, loafing and nesting for
a wide variety of residential and migrating birds including the Clarks
and Western grebe and endangered Ridgeway's rail; (2) wake-causing
motorized boating in the area posed threats to non-motorized boaters
because wakes generated by high speed motorized boats in narrow
channels and backwaters cannot readily dissipate resulting in unsafe
conditions and potential to capsize or swamp non-motorized users; (3)
wake-causing motorized boating in the area is impacting refuge-
dependent wildlife in the area causing shoreline erosion of their
habitat, bird strikes, vegetation destruction and floating nest
disturbance. The Service takes all concerns regarding risks to visitor
and natural resource safety seriously and is committed to being
responsive when conflicts arise. Safety concerns regarding wake speeds
and water depth brought to the attention of refuge management prompted
further evaluation of uses impacting refuge resources.
Although the header for 50 CFR 32.22 relates to Sport Fishing, all
boating regulations for the Refuge fall under this category. It was
appropriate to have boating restrictions under 50 CFR Part 32 when
making fishing compatible with the refuge-specific mission, Service
mission, and to ensure public safety. On September 13, 2005 the Refuge
regulations were revised in the Code of Federal Regulations and 50 CFR
32.22 paragraph D incorporated subparagraphs 1 through 6 to include
regulations on Topock Marsh, 17 miles of the main river channel and
Mesquite Bay. The May 2015 \1/2\ mile backwater no-wake designation was
an extension of the 17-mile existing regulations.
The regulatory guidelines used to make this designation is present
not only in the Code of Federal Regulations (50 CFR 32.22 and 25.21),
but also in the guiding legislation for the National Wildlife Refuge
System and The National Wildlife Refuge System Improvement Act of 1997
(Improvement Act), which amended the National Wildlife Refuge System
Administration Act of 1966. The Improvement Act states, ``Wildlife-
dependent recreational uses may be authorized on a refuge when they are
compatible and not inconsistent with public safety.'' The threshold to
determine compatibility is outlined in the Improvement Act and Service
policy. The threshold is high and the Refuge Manager has the authority
to impose restrictions to make an activity compatible. Wildlife-
dependent recreational opportunities, such as fishing, get precedence
over non-wildlife uses.
Question 8. The Service has since changed its justification for the
May 2015 restrictions as the CD states these restrictions were lawful
under 50 CFR 25.21(e). This regulation allows temporary closures in the
``event of a threat or emergency endangering the health of the general
public or Refuge resources.'' This isn't the EPA Animas spill and there
is no pending threat or emergency. Further, the CD states that a NEPA
categorical exclusion was allowed for the May 2015 restrictions ``due
to the absence of controversy related to environmental impacts.'' There
was plenty of controversy and the Service knew about it as documented
in multiple Freedom of Information Act requests. I will ask you again,
what legal authority does your agency cite to go around arbitrarily
closing motorized boating activities in areas utilized by recreational
enthusiasts for decades?
Answer. No areas have been or are proposed to be closed to
motorized boating.
The Service believes the May 2015 decision met the considerations
discussed in 50 CFR 25.21. The regulation states, ``In the event of a
threat or emergency endangering the health and safety of the public or
property or to protect the resources of the area, the Refuge Manager
may close or curtail refuge uses of all or any part of an opened area
to public access and use in accordance with the provisions in
Sec. 25.31, without advance notice.'' The threat may relate to the
endangerment of refuge users as well as to protect the resources of an
area.
The Service takes all concerns regarding risks to visitor and
natural resource safety seriously and is committed to being responsive
when conflicts arise. Because this area is shallow and narrow, high-
speed boats may not be able to safely share the waterway with non-
motorized craft thereby creating a threat to users. Safety concerns
regarding wake speeds and water depth were brought to the Service's
attention. The Service investigated the matter and found that there
were conflicts in uses posing safety concerns and impacts to resources.
This review prompted further evaluation of all boating uses impacting
refuge resources. The Refuge found the no-wake designation in the
backwater, known to some visitors as ``speed alley,'' to be a necessary
action for the continued safety of the public and the protection of
area resources.
The now withdrawn draft CD stated that a National Environmental
Policy Act (NEPA) categorical exclusion was allowed for the May 2015
restrictions ``due to the absence of controversy related to
environmental impacts.'' This allowance specifically states controversy
related to environmental impacts, not recreation. The Service is aware
of little to no controversy regarding the effects that boating
restrictions will have on natural resources.
Question 9. I appreciate you granting our request to hold a public
meeting in Lake Havasu City. Why wasn't a meeting scheduled here in the
first place? Why did the Service only schedule two public meetings on
this matter, both on the same Tuesday at the same location in Laughlin,
Nevada?
Answer. The Service's compatibility policy 603 FW 2, section
2.12A(9) provides guidance on public review and comment. The Service is
required to provide an opportunity for public review for a minimum of
14 days. No public meetings are required. In this case, however, we
believed it was important to hear from the community directly, so we
initially committed to holding two public meetings at a venue in
Laughlin, Nevada because it could accommodate a large group and was
easily accessible to interested parties in three states. Due to
significant community interest in Lake Havasu City, the Service agreed
to hold a third public meeting in Lake Havasu City. We secured a venue
in Lake Havasu City, however there was concern the location would be
unable to accommodate the expected number of participants. After our
public announcement of the Lake Havasu City meeting, the Mayor of Lake
Havasu City and others offered use of the Aquatic Center, which could
hold a large capacity of people. We were pleased to accommodate that
request once we became aware of the availability.
Question 10. On April 29, 21 bipartisan members of the House
expressed concern about the CD and requested a 60-day extension of the
comment period. This same request has been made by Lake Havasu City
Mayor Mark Nexsen, the Arizona Game and Fish Department and the Lake
Havasu Area Chamber of Commerce. Will the Service adhere to these
requests for a 60-day extension of the public comment period? If not,
why not?
Answer. The Service is committed to better understanding the
concerns raised by local stakeholders and encourages public
participation. As such, a public meeting was held on May 2, 2016 in
Lake Havasu City and two additional meetings were held in the
surrounding area of Laughlin on May 3, 2016. Due to the level of
interest in recreational boating on the Refuge, the Service decided to
expand the public comment period from 30 days to 60 days making the new
closing date June 13, 2016. For ease of access, the Draft CD was made
available for review and comment at the following Web site:
www.fws.gov/refuge/havasu.
Question 11. Is the agency intent on seeking to impose the CD prior
to Memorial Day Weekend?
Answer. The Service did not impose any new restrictions prior to
Memorial Day weekend, 2016. The draft CD was withdrawn following the
close of the comment period.
Question 12. Will you scrap the CD announced April 12, 2016?
Answer. The CD released on April 12, 2016 was a draft proposal. It
was not finalized. The Service intends to work with local community
leaders and others before moving forward with any revised proposal.
Question 13. The current refuge manager has demonstrated a clear
conflict of interest and disregard for public involvement in this
process. If the Service chooses to move forward with the CD, will you
encourage Regional Director Tuggle to make the final decision as to
whether or not to implement the CD and remove that decision from the
current refuge manager?
Answer. The Service is unaware of a conflict of interest. The
Refuge Manager is an employee of the Service and was acting within the
scope of her position and authorities when she designated the no-wake
zone to ensure visitor safety and initiated the draft CD.
As directed by the Improvement Act, the Service promulgated
regulations establishing the process for determining whether the use of
a refuge is a compatible use (50 Code of Federal Regulations Part
26.41). The regulations direct the Refuge Manager to only permit a new
use, or expand or renew an existing use, if it is determined the use is
a compatible with the Refuge's purpose. These regulations outline the
procedures for documenting compatibility determinations including what
a compatibility determination must contain and who has the authority to
make the final decision. The regulations give the authority for making
the decision to the Refuge Manager and Regional Refuge Chief.
All decisions on final determination are made after close
coordination with Regional Director, Dr. Benjamin Tuggle.
Question 14. What is the primary justification for the expanded
boating restrictions found in the CD?
Answer. Wildlife-dependent recreational uses may be authorized on a
refuge when they are compatible and consistent with public safety and
the purpose of the Refuge. The provisions to determine compatibility is
outlined in the Improvement Act and Service policy. The Refuge Manager
has the authority to impose restrictions to make an activity, such as
boating, compatible with the purpose of the Refuge.
The Refuge Improvement Act of 1997 states the following:
``3) With respect to the System, it is the policy of the United
States that--(A) each refuge shall be managed to fulfill the
mission of the System, as well as the specific purposes for
which that refuge was established; (B) compatible wildlife-
dependent recreation is a legitimate and appropriate general
public use of the System, directly related to the mission of
the System and the purposes of many refuges, and which
generally fosters refuge management and through which the
American public can develop an appreciation for fish and
wildlife;
(4) In administering the System, the Secretary shall--`(A)
provide for the conservation of fish, wildlife, and plants, and
their habitats within the System; (B) ensure that the
biological integrity, diversity, and environmental health of
the System are maintained for the benefit of present and future
generations of Americans;''
In 1990, the U.S. Fish and Wildlife Service (Service) began a
Comprehensive Management Plan (CMP) for the lower Colorado River
refuges (U.S. Fish and Wildlife Service 1994). The CMP specifically
addressed boating in the following goals and objectives:
``Goal #12 is to reduce levels of non-wildlife oriented
recreation on the River channel that runs through the lower
Colorado River refuges, to eliminate all non-wildlife oriented
recreation that is not compatible, to increase the quality
experience related to natural values by all River visitors, and
to raise public awareness of the lower Colorado River ecosystem
values.
Objective #2 under Goal #12 is to protect wildlife resources by
implementing the appropriate zoning policy for sensitive areas
of the Refuges, especially those pertaining to endangered
species. Each Refuge Manager will review existing refuge zoning
regulations and implement zones that take into account refuge
purposes and the proximity to other jurisdictions that are more
conducive to the non-wildlife oriented uses (i.e., water-skiing
areas, jet skiing areas).
The CMP provided a list of secondary uses not planned to occur at
any of the lower Colorado River National Wildlife Refuges because they
do not conform to uses, which could be, in a regulated manner,
``compatible'' with the purposes of the Refuge, or they have been
determined to be harmful to refuge resources. The CMP underwent close
coordination with a number of entities, as well as public comment and
the NEPA process.
Additionally, the Fish and Wildlife Service Manual 603 FW2 states
the Service will ``. . . re-evaluate compatibility determinations for
all existing uses other than wildlife-dependent recreational uses when
conditions under which the use is permitted change significantly, or if
there is significant new information regarding the effects of the use,
or at least every 10 years, whichever is earlier. Additionally, a
Refuge Manager always may re-evaluate the compatibility of a use at any
time.''
To comply with the Improvement Act and Service Manual standards,
the Service proposed several restrictions in the draft CD.
Question 15. What objective analysis, science and statistics do you
have to support the CD?
Answer. The purpose of a CD is to determine if a use is compatible
or not compatible with the Service mission and Refuge purpose(s). Per
the Service Manual 603 FW 2, ``A proposed or existing wildlife-
dependent recreational use or any other use of a national wildlife
refuge that, based on sound professional judgment, will not materially
interfere with or detract from the fulfillment of the National Wildlife
Refuge System mission or the purposes of the national wildlife
refuge.''
The Refuge is required to maintain biological integrity, diversity,
and environmental health for the benefit of migratory birds and all
other species that feed, breed, and shelter on the Refuge. Recreational
high-speed boating can adversely impact Refuge habitats and wildlife.
Refuge staff and visitors have witnessed the flushing of birds, nest
disturbance, bird strikes, and habitat destruction from wake-causing
motorized boating. Because boats produce emissions, turbulence from
propulsion, wakes, pollution and noise, the Refuge Manager must
evaluate where these specific uses may occur as these factors may
affect wildlife use patterns, use of particular habitats, feeding
behavior and early departure of migratory birds dependent on the Refuge
as a resting ground. As the land management agency responsible for the
protection of endangered species and other wildlife, all potential
impacts must continue to be evaluated for their compatibility with the
refuge purpose.
The withdrawn draft CD found that boating is compatible with the
National Wildlife Refuge System mission and the Refuge purpose with
proposed restrictions. The Service is committed to working
collaboratively with local community leaders to find a path forward
that both meets the needs of the community and the purpose of the
Refuge as well as supports the Service's mission.
Question 16. What alternatives, if any, were considered prior to
releasing the CD?
Answer. The Service is responsible for reviewing existing refuge
zoning regulations and implementing zones that take into account refuge
purposes and the proximity to other jurisdictions that are more
conducive to the non-wildlife oriented uses (i.e., open water for high-
speed uses, like Lake Havasu). Based on sound professional judgment,
refuge management evaluated area locations and uses to determine
potential negative impact to refuge resources and visitors
participating in priority public uses. The Service considered several
alternatives, including a ``no action'' alternative when developing the
draft CD, before pursuing the alternative with proposed restrictions
identified in the draft CD.
Question 17. Other than employees within the Service, who was
consulted prior to releasing the CD and what is your record of
consultation?
Answer. The Service believes the draft Compatibility Determination
was consistent with the principles outlined in the Comprehensive
Management Plan of 1994, the current guiding document for Havasu
National Wildlife Refuge management. The CMP underwent public comment
in 1991 and NEPA prior to its completion in 1994.
During the CMP planning process, meetings were held with the
following agencies and organizations: Arizona Game and Fish Department;
California Department of Fish and Game; Nevada Department of Wildlife;
California Department of Parks and Recreation; Arizona State Parks;
BLM; Bureau of Indian Affairs; Department of the Air Force; Chemehuevi
Indian Tribe; Fort Mojave Indian Tribe; Colorado River Indian Tribe;
city of Lake Havasu, Arizona; city of Blythe, California; city of
Needles, California; Colorado River Environmental and Wildlife Society
(Martinez Lake, Arizona); Sierra Club; Audubon Society; Yuma Rod and
Gun Club; Palo Verde Rod and Gun Club; Lake Havasu City Chamber of
Commerce; Parker Arizona Chamber of Commerce; Golden Shores/Topock
Chamber of Commerce; Arizona Wildlife Federation; Arizona Department of
Environmental Quality; Arizona Department of Water Resources; Arizona
State Lands Department; Arizona Nature Conservancy; Lake Havasu City
Bass Club; and Arizona Trappers Association. The U.S. Bureau of
Reclamation was also a cooperating agency in this project.
Public meetings were held as follows:
August 28, 1991, Yuma, Arizona
August 29, 1991, Blythe, California
August 30, 1991, Lake Havasu City, Arizona
August 31, 1991, Needles, California
Question 18. According to the Service's own estimates, nearly 3
million visitors vacation at Lake Havasu each year and a typical
holiday weekend draws nearly 50,000 boaters to the area. According to a
2008 Lake Havasu City Tourism Survey, nearly 75 percent of tourists are
interested in waterskiing, wakeboarding or boating while visiting Lake
Havasu. The survey also revealed tourists spend more than $200 million
and support nearly 4,000 full-time equivalent jobs. Did the Service
carefully consider the economic impacts that could result from the CD?
If so, what specific actions did the Service take to mitigate any
economic harm?
Answer. Currently, 17.5 miles of the Colorado River on the Refuge
restrict certain uses.
It is important to note that significant numbers of visitors
participate in several priority public uses including hunting, fishing,
wildlife observation and photography, environmental education and
interpretation on the Refuge. Due to the number of uses on the Refuge,
the Service anticipates visitors would continue to visit the Refuge in
large numbers and bring commerce to the local area. To highlight one of
the many user communities that visit the Refuge, anglers and fishing
groups are some of the highest users of Lake Havasu. High-grossing
fishing tournaments continue to bring these wildlife-dependent users to
the area. According to Lake Havasu City's Convention and Visitors
Bureau, fishing tournaments on Lake Havasu can require up to $200
solely for team admission. We also expect the fishing community will
continue to use boating vendors in the Havasu area and fishing
continues to be allowed in all areas of proposed restrictions. As
another example of tourist activities, the Refuge is part of a major
migratory bird migration route along the western coast of the United
States making the Refuge a birding hotspot with 318 bird species
drawing in bird enthusiasts and wildlife photographers, all of whom
will continue to add to the local economy.
Question 19. In November 2013, the Fish and Wildlife Service
inflated costs for fixing a broken water supply line by millions of
dollars and attempted to terminate the rainbow trout stocking program
at Willow Beach, threatening 1,700 jobs and $75 million in associated
economic output. It took significant efforts from myself, Senator
McCain, and others to reverse that terrible decision. Why does the
Service continue to ignore important associated economic impacts for
Mohave County prior to implementing new restrictions and unilaterally
changing programs?
Answer. The U.S. Fish and Wildlife Service (Service) has completed
construction of a long-term water supply system for the Willow Beach
National Fish Hatchery. With recognition of your support, the Service
announced the successful completion of the floating pipeline project on
August 5, 2016.
The Service understands that the fish supplied by our National Fish
hatcheries provide important economic and recreational opportunities to
the states, tribes, and recreational communities. Since its
construction, the Willow Beach National Fish Hatchery has long helped
provide economic benefits to Arizona. It was devastating to the
Service, tribes, the local community and many others when, due to age
and wear, the hatchery experienced a significant water supply system
failure, leading to the loss of 40,000 fish in 2013. Tremendous efforts
were made to save as many fish as possible and to look at potential
alternatives to repair the system.
Early cost estimates to completely revamp the system and implement
safeguards against a future failure were very high. For more than a
year, the Service met with the Arizona Game and Fish Department, Mohave
County of Arizona, and the National Park Service to develop viable,
less costly solutions. The team agreed on a project proposal (Floating
Pump) that provides a sufficient and reliable water supply system at an
estimated cost is $776,448. In a partnership agreement, the Arizona
Game and Fish Department (AZG&FD) and the Service agreed to share
costs, with AZG&FD providing $389,000.
Following a competitive bid process, Performance Systems, Inc. was
selected to complete the project for $801,506. Modifications were made
to take additional precautionary measures, including installation of
safety measures for regular maintenance and creation of a barrier to
prevent invasive quagga mussels from entering the pipeline. This
increased costs by an additional $211,704. The Service is covering
these additional costs through its operations and maintenance accounts.
Now that testing of the new water conveyance system is completed,
trout production will recommence at Willow Beach NFH. To better meet
the needs of anglers, the Service will continue to work with AZG&FD to
expedite initial production of trout and shorten the time frame for
catchable size trout to be available. The Service will also work on a
stocking schedule with the AZG&FD to ensure that the fishing experience
can be enjoyed the entire season.
Question 20. I want to now turn my attention to the Mexican Wolf,
an issue that is very important to the southwestern states. On November
13, 2015, the four governors from the states of Arizona, Colorado, New
Mexico and Utah sent a bipartisan letter expressing serious concerns
and a unified position in opposition to the ``Service's [new] planned
approach to recovery plan development'' for the Mexican gray wolf. On
December 11, 2015, House Committee on Oversight and Government Reform
Chairman Chaffetz, Subcommittee of Interior Chairman Cynthia Lummis,
House Natural Resources Committee Chairman Rob Bishop and several of
our colleagues reiterated those very valid concerns in a letter to you
and Secretary Jewell. In a February 3, 2016 response to that letter,
you stated, ``The Service has initiated recovery planning discussions
with the states of Arizona, Colorado, New Mexico and Utah; Federal
agencies in Mexico; and independent and objective scientists from the
United States and Mexico.''
Question 21. Why exactly is the Service having planning discussions
with Colorado and Utah?
Answer. The Service has a unique relationship with the states in
recovery and management of threatened and endangered species, as laid
out in the Endangered Species Act. The states of Colorado and Utah have
been involved in recovery planning for the Mexican wolf since 2003,
when our recovery planning efforts were focused on a Distinct
Population Segment that included those states up to Interstate 70.
Subsequently, they were invited to participate in the Mexican Wolf
Recovery Team that was appointed in 2010, which focused on the Mexican
wolf subspecies rather than a Distinct Population Segment. During that
recovery planning effort, some scientific experts on the Science and
Planning Subcommittee of the recovery team considered habitat north of
I-40 in Arizona and New Mexico as potentially suitable habitat for
recovery efforts. More recently, Colorado and Utah have also been
participating in the recovery planning workshops that commenced in
December 2015 to assist the Service in the development of our revised
Mexican wolf recovery plan which is due to be published in November
2017.
Question 22. The wolf has had no presence in these states
historically. Are you all looking at expanding the habitat of the
Mexican wolf to include territories in Colorado and Utah?
Answer. The Service has no current plans to reintroduce Mexican
wolves into either Utah or Colorado. The Service, the states of
Arizona, Colorado, New Mexico, and Utah; the Mexican government, and
scientists from both countries are currently assessing the amount of
suitable habitat and prey in Mexico that could contribute to recovery.
We will consider this information in combination with our population
objective of 300 to 325 wolves in the Mexican Wolf Experimental
Population Area to determine whether recovery is possible south of I-40
in the southwestern United States and in Mexico. If, based on this
information, we are not successful in identifying sufficient habitat to
support recovery, we will look elsewhere for additional suitable
habitat to achieve Mexican wolf recovery. Recent genetic evidence in
published scientific literature indicates that gene flow occurred
between Mexican wolves and other gray wolf subspecies as far north as
Utah.
Question 23. Despite the fact that 90 percent of the Mexican wolf's
historic range is in Mexico, the Service seems committed to restoring
Mexican wolves only in the United States. Why?
Answer. The Service has demonstrated a commitment to binational
collaboration with Mexico in Mexican wolf recovery since the inception
of the binational Mexican wolf captive breeding program in the early
1980s. We continue to have an active relationship with Federal agencies
in Mexico to implement field activities for the reintroduction efforts
in both countries. In addition, Mexico Federal agencies have
participated in our recovery plan revision processes in 2003 and 2010,
as well as our current series of workshops. In April, we held a
recovery planning workshop in Mexico City (following December 2015 and
March 2015 meetings in Arizona) to ensure robust participation by
Mexico Federal agencies and independent scientists. In addition to
gathering and assessing scientific information at the workshop, we also
discussed avenues for binational collaboration in the recovery of the
Mexican wolf. The Service and Federal agencies in Mexico will continue
to explore mechanisms for a binational recovery effort.
Applicable information for determining areas suitable for Mexican
wolf recovery includes suitable habitat features, adequate prey, and
low human density. As is our standard, the Service will use the best
available scientific information to evaluate appropriate areas for
Mexican wolf recovery. We expect to complete the recovery plan by
November 2017.
Question 24. You also stated in your February 3, 2016 response
``The revised recovery plan will also provide estimates of the time
required and the cost to carry out those measures needed to achieve the
plan's goal.'' Do you have any preliminary estimates of those costs and
time that you can share with the committee today?
Answer. No. The information on costs and time will depend on the
actions needed to recover the Mexican wolf. This information will be
provided in the draft recovery plan, which is currently under
development and is expected to be completed by the end of 2016.
Question 25. On January 16, 2015 the U.S. Fish and Wildlife Service
announced its decision to list the Mexican wolf as an endangered
subspecies and arbitrarily expanded the range the wolves can roam in
Arizona and New Mexico under Section 10(j) of the ESA.
Why did your agency violate the Anti-Deficiency Act and fail to
secure funding for the 10(j) nonessential experimental Mexican wolf
population program before implementing this new program? Regional
Director Tuggle admitted this fact on a conference call with
stakeholders announcing the program.
Answer. The Service did not arbitrarily expand the range into which
Mexican wolves can be released and disperse in New Mexico and Arizona
in the revised 10(j) Rule. The revised 10(j) Rule thoroughly analyzed
the expansion of the Mexican Wolf Experimental Population Area (MWEPA).
This expanded area will promote Mexican wolf population growth, genetic
diversity, and management flexibility. The regulatory flexibility
provided by our revisions to the 1998 Final Rule, including expansion
of the MWEPA, will allow the Service to take management actions within
the MWEPA that further the conservation of the Mexican wolf while being
responsive to needs of the local community in cases of problem wolf
behavior. There is no basis for the allegation that the Service has in
any way violated the Anti-Deficiency Act in its implementation of the
revised 10(j) Rule.
Question 26. The Service has been producing genetically modified
wolves ever since the January 2015 announcement and 45 percent of those
died last year. On your watch the population of the Mexican wolves in
the wild actually declined by 12.5 percent last year. Why is the
Service doing such a terrible job managing Mexican wolf populations?
Answer. The experimental population has demonstrated several years
of strong growth in recent years (2011-2014). The Mexican wolf pups
that were documented in the wild in 2015 were all born in the wild to
wild parents, which demonstrate that the population continues to self-
perpetuate and is not demographically reliant on releases from
captivity. In the 2014 Environmental Impact Statement for the Proposed
Revision to the Regulations for the Nonessential Experimental
Population of the Mexican Wolf, we projected a 10 percent average
annual growth of the population, which anticipates that there will be
years with less than and greater than that projected growth rate. It is
normal for population growth of any species to fluctuate over time.
Recovering the Mexican wolf into its historic landscape has unique
challenges unlike other gray wolf recovery programs. In the Northern
Rocky Mountains, gray wolves were captured in Canada and released
directly into Yellowstone National Park and the Central Idaho
Wilderness. In contrast, the reintroduction of the Mexican wolf has
been reliant on the release of captive bred Mexican wolves because
Mexican wolves were completely eliminated from the wild by the 1980s.
We captured seven of the last remaining wolves and developed a
binational captive breeding program. From this captive population of
seven founder wolves, we began releasing wolves back into the wild in
the Apache National Forest in 1998. In addition, unlike Yellowstone
National Park, which was a large swath of protected lands to
reintroduce wolves into, the Apache National Forest is a working
landscape, and thus we need to address effects of wolves on livestock
production, hunting, and recreation.
Question 27. I have heard serious concerns from cattleman and
ranchers in my district since you made that arbitrary decision in
January 2015. How many Mexican wolf attacks have occurred since that
January 16, 2015 decision? How many attacks have occurred since the
wolf was first listed in 1976 and been under your agency's care?
Answer. There have been no Mexican wolf attacks on humans since the
reintroduction program began in 1998. Any person has the right to take
a Mexican wolf in self-defense or the defense of another person.
We recognize that livestock depredation occasionally occurs.
Between 1998, when our reintroduction effort began, and 2013, we
documented 184 confirmed cattle depredations by Mexican wolves. More
recently, in 2014, we documented 30 cattle mortalities from wolves; in
2015, we documented 52 cattle mortalities and 8 cattle injuries, and so
far in 2016 we have documented 8 cattle mortalities.
Question 28. Has the Service done genetic testing on Mexican
wolves? If so, how many? What were the results?
Answer. Yes, we conduct genetic testing. We monitor the genetics of
the wild population by taking blood samples from every canid handled,
as well as through the collection and testing of scat in some areas.
All samples are sent to the University of Idaho for species
confirmation, meaning the samples are determined to be from a pure
Mexican wolf, pure coyote, pure dog, etc. Since reintroduction of
Mexican wolves began in 1998, the Fish and Wildlife Service has
detected three instances of hybridization between Mexican wolves and
domestic dogs. In all three cases the offspring were removed and
euthanized. We have not detected other evidence of Mexican wolves
hybridizing with dogs or coyotes.
Question 29. Mr. Ashe, we know that the Endangered Species Act
requires Fish and Wildlife Service (FWS) to consult with and receive
input from counties affected by petition listings and regulations
written as a result of ESA listings. In your testimony you talked about
the successful partnerships the Service has engaged in over the years
to carry out your work. However, this committee, the Natural Resources
Committee, and dozens of Members' offices are flooded with complaints
about how the Service blatantly disregards state and local input when
formulating new regulations and policy. I am not sure we can even count
how many lawsuits you have pending against your agency from states who
clearly feel that they were not involved in the decisionmaking process.
Just this week New Mexico state officials notified your agency
regarding their intent to sue over your new plan to release captive
Mexican wolves into New Mexico to ``cross-foster'' with wild packs in
an attempt to infuse some DNA diversity into the wild population. I
don't know how you choose to define collaboration, but all these
lawsuits don't really sound like the rosy kumbaya cooperation your
agency tries to depict to this committee. Why is New Mexico planning to
sue you from your perspective?
Answer. The Service values the partnership we have with the New
Mexico Department of Game and Fish, and it remains our policy to
consult with the states and others in our joint efforts to recover
species. Recovery of the Mexican wolf remains the Service's goal. We
have a statutory responsibility and the authority to recover the
Mexican wolf and strive to do so in a collaborative manner with our
partners. We continue to engage the state of New Mexico in the Mexican
Wolf Recovery Program, even though they have withdrawn as a partner
agency. We are also involved in meetings with them regarding their
recent notice of intent to sue regarding the Service's continued
activities to recover the Mexican wolf so that it can be delisted and
returned to state management. The remaining lead agencies have primary
regulatory jurisdiction and management authority of the Mexican wolf in
Arizona and New Mexico. Graham, Greenlee, Gila, and Navajo counties in
Arizona, and the Eastern Arizona Counties Organization are designated
as cooperators to the reintroduction project with an interest in
Mexican wolf management. The MOU, which expired in 2008, was revised
and signed by the cooperators in and subsequent to 2010. The Service
remains committed to involving all partners and vested parties in
managing Mexican wolves.
Question 30. The Mexican wolf has lingered on the Endangered
Species list for more 40 years. The Service has utilized the same
flawed recovery plan for the Mexican wolf since the early 1980s. This
plan does not comply with Federal law as it does not contain objective
and measurable recovery data for delisting as required by 4(f)(1) of
the ESA. Why has you agency failed to comply with those requirements of
law? How much longer do you expect the Mexican wolf to linger on the
Endangered Species Act?
Answer. The Service intends to publish a final revised recovery
plan by November 2017 that incorporates the best available scientific
information. The revised recovery plan will, to the maximum extent
practicable, provide measurable and objective criteria which, when met,
will enable the Service to remove the Mexican wolf from the list of
endangered species and turn its management over to the appropriate
states and tribes. The revised recovery plan will also provide
estimates of the time required and the cost to carry out those measures
needed to achieve the plan's goal.
Our greatest conservation need at the current time is to improve
the genetic health of the experimental population, which has a high
level of relatedness and is experiencing inbreeding. We will improve
the experimental population's genetic health by releasing additional
Mexican wolves from the captive population, which is more genetically
diverse because we are able to actively manage breeding pairs to
maintain gene diversity. The experimental population is expected to
contribute toward the recovery of the Mexican wolf; however, the
establishment of additional populations of Mexican wolves in Mexico or
the United States is likely to be necessary to achieve recovery based
on our current scientific understanding, though that cannot be
confirmed until the recovery plan is developed. Expediency in improving
the genetic health of the experimental population is critical to moving
the Mexican wolf toward recovery.
Questions Submitted by Representative Norma J. Torres
Question 1. Mr. Ashe: If the critical habitat designation does not
necessarily restrict further land development, than what is done by the
Fish & Wildlife Service and National Marine Fisheries Service to dispel
that notion to the public?
Answer. We include the following language on all proposed and final
critical habitat rules and shorter summaries of this language in our
outreach materials for all designations:
``Critical habitat receives protection under section 7 of the
Act through the requirement that Federal agencies ensure, in
consultation with the Service, that any action they authorize,
fund, or carry out is not likely to result in the destruction
or adverse modification of critical habitat. The designation of
critical habitat does not affect land ownership or establish a
refuge, wilderness, reserve, preserve, or other conservation
area. Such designation does not allow the government or public
to access private lands. Such designation does not require
implementation of restoration, recovery, or enhancement
measures by non-Federal landowners. Where a landowner requests
Federal agency funding or authorization for an action that may
affect a listed species or critical habitat, the consultation
requirements of section 7(a)(2) of the Act would apply, but
even in the event of a destruction or adverse modification
finding, the obligation of the Federal action agency and the
landowner is not to restore or recover the species, but to
implement reasonable and prudent alternatives to avoid
destruction or adverse modification of critical habitat.''
Additionally, we have testified on numerous occasions that critical
habitat does not necessarily preclude further land development.
Finally, our field staff, who work with local landowners on a regular
basis, provide guidance on Endangered Species Act requirements,
including providing clarification that critical habitat designations do
not restrict private land development that does not involve Federal
permits or other authorizations.
Question 2. Mr. Ashe: On November 3, 2015 the President issued a
memorandum, ``Mitigating Impacts on Natural Resources from Development
and Encouraging Related Private Investment.'' What role does that play
into this discussion about critical habit designations? What impact has
the issuance of that new guidance had, if any?
Answer. The Presidential Memorandum, Mitigating Impacts on Natural
Resources from Development and Encouraging Related Private Investment,
encourages private investment in restoration, including through public-
private partnerships, and helps foster opportunities for businesses or
non-profit organizations with relevant expertise to successfully
achieve restoration and conservation objectives across all lands.
The Service published on March 8, 2016, a draft revision of the
Service's Mitigation Policy, which has guided agency recommendations to
address these issues since 1981. This new policy is intended to provide
a broad and flexible framework to facilitate conservation that
addresses the potential negative effects of development, while allowing
economic activity to continue.
The primary intent of the draft policy is to apply mitigation in a
strategic manner that ensures an effective link with conservation
strategies at appropriate landscape scales, consistent with the
Presidential Memorandum, the Secretary of the Interior's Order 3330
entitled ``Improving Mitigation Policies and Practices of the
Department of the Interior'' (October 31, 2013), and the Departmental
Manual Chapter (600 DM 6) on Implementing Mitigation at the Landscape-
scale (October 23, 2015).
The draft revised policy will serve as an over-arching guidance
applicable to all actions for which the Service has specific authority
to recommend or require the mitigation of impacts to fish, wildlife,
plants, and their habitats, including those covered by the ESA. We
intend to adapt Service program-specific policies, handbooks, and
guidance documents, consistent with applicable statutes, to integrate
the spirit and intent of this policy.
______
Mrs. Lummis. Thank you, Mr. Ashe.
The Chair now recognizes Mr. Bernhardt for 5 minutes.
STATEMENT OF DAVID L. BERNHARDT, SHAREHOLDER, BROWNSTEIN HYATT
FARBER SCHRECK, LLP; FORMER SOLICITOR FOR THE U.S. DEPARTMENT
OF THE INTERIOR 2006-2008, WASHINGTON, DC
Mr. Bernhardt. Good morning, members of the committee. I
appreciate the invitation to testify before you today. I am
here to share my own views with you, views that are informed by
my experience of working on the ESA issues for nearly--or I
guess over, now--two decades, including while serving as
Solicitor for the Department of the Interior.
Given the breadth of today's hearing, and the number of
panelists you will hear from, I request that my written
statement be submitted for the record, and I will summarize
with three points.
First, Director Ashe and his team should be commended for
taking the effort to try to improve outdated regulations. As
Mr. Grijalva said, the executive branch is entitled to place
its gloss on the ESA and how it wants it to be executed,
subject to certain provisos. Those provisos are: it must
operate within the statute; it must comply with the
Administrative Procedure Act; and other procedural
requirements.
Second point--the recent regulatory changes by the
Services, when taken together, in my opinion are likely to
exacerbate, not minimize the conflict and controversy
associated with implementing the Act. Most importantly, to
achieve the Administration's policy objectives, the Service's
regulations are untethered from both their statutory text and
Congress' clear direction. I will discuss how they do so in two
specific ways, after providing you a bit of background.
As the Chairman stated in his opening statement, in most
instances under the ESA any time a Federal agency wants to
fund, carry out, or authorize someone else to conduct
activities that may affect a listed species designated critical
habitat, the agency must ensure that it is not likely to
destroy or adversely modify the habitat. This is generally
determined through an interagency process with one of the
Services.
If the agency cannot make such an assurance, they cannot
proceed without an exemption from the Species Committee. This
is where the rubber meets the road under Section 7 of the Act.
These are consequential, not inconsequential decisions by
government.
Here, with their new regulations, the Service has modified
the definition of the terms ``destruction'' and ``adverse
modification.'' In doing so, they have placed a new duty on
Federal agencies. This duty is not just to refrain from making
the present condition of habitat worse, but to refrain from
doing anything that would significantly preclude or delay the
habitat from developing conservation features in the future,
even where those features do not now and may never exist.
This is contrary to the Act, which grants the Services the
authority to designate any habitat of a species that has just
been listed when it is then considered to be critical habitat.
It does not grant them the authority to designate habitat,
which is not then considered to be critical habitat, but may
become critical habitat at some point in the future.
The statute does not provide for the designation of not yet
but might one day be critical habitat. Instead, the ESA
provides the Services with the authority to deal with changes
that may occur in the future by authorizing them to make
changes to their critical habitat designations as it becomes
clear what those changes actually are--i.e. as the features
actually develop.
Second, the Services have fundamentally and improperly
altered the role of designating unoccupied habitat in the ESA's
regulatory scheme, going forward. Under the Services' new
reading of the definition of the term ``critical habitat,''
they assert that Congress, by defining ``critical habitat'' in
a particular way, intended to grant the Services a larger
authority to designate areas where the species did not exist
when it was listed than the area they actually occupied at the
time of listing.
As I describe in my testimony, this newfound assertion of
authority flatly contradicts both the legislative intent, as
shown through the legislative history of the definition of
``critical habitat,'' and the words of that definition itself.
The Service's claim that the term ``essential'' can be read so
broadly cannot be squared with the definition of ``critical
habitat.''
Simply put, defining ``critical habitat'' in the way it did
in 1978, Congress was deeply concerned about the amount of
habitat, even in occupied areas that would be deemed critical,
and sought to carefully limit it. The Administration's changes
reflect a policy goal. That policy goal is appropriate. And if
they want this authority, they should come to Congress and ask
for it.
Thank you for the time.
[The prepared statement of Mr. Bernhardt follows:]
Prepared Statement of David Bernhardt, Brownstein Hyatt Farber Schreck,
LLP (Former Solicitor for the Department of the Interior 2006-2008)
Mr. Chairman and members of the Committee on Natural Resources, I
appreciate the invitation to testify today, and I appreciate the
opportunity to share my own views with you. These views are informed by
my experience of working on the Endangered Species Act (``ESA'' or
``Act'') issues for over 20 years, including while serving as the
Solicitor of the Department of the Interior, as an attorney in private
law practice, and as a Congressional aide. Given the breadth of today's
hearing, and the number of panelists, I have four points to make:
The U.S. Fish and Wildlife Service (``Service'') and NOAA
Fisheries (Collectively ``Services'') should be commended
for making the effort to provide greater clarity to its
employees and to the public by working to improve the
implementation of the ESA. Efforts to modify longstanding
regulations regarding the implementation of the ESA are
never without criticism;
The executive branch is entitled to place its gloss on how
the ESA will be executed, provided it operates within the
scope of the statute and complies with the Administrative
Procedure Act;
The Obama administration's promulgation of two
regulations, one related to the designation of critical
habitat, the other redefining the term ``destruction or
adverse modification,'' and the finalization of one policy
describing how the Services intend to utilize their
authority to exclude areas from critical habitat
designations are, together, likely to exacerbate, not
minimize, the conflict and controversy associated with the
implementation of the ESA; and
To achieve the Obama administration's policy objectives
the Services' regulations have been untethered from both
their statutory text and Congress's clear direction.
understanding a federal agency's duty to ensure that their actions are
not likely to result in the ``destruction of adverse modification'' of
designated critical habitat
Under the ESA, the primary consequence of a critical habitat
designation is found in Section 7(a)(2) which states,
Each Federal agency shall, in consultation with and with the
assistance of the Secretary, insure that any action authorized,
funded, or carried out by such agency (hereinafter in this
section referred to as an ``agency action'') is not likely to
jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse
modification of habitat of such species which is determined by
the Secretary, after consultation as appropriate with affected
states, to be critical, unless such agency has been granted an
exemption for such action by the committee pursuant to
subsection (h) of this section. In fulfilling the requirements
of this paragraph each agency shall use the best scientific and
commercial data available.\1\
---------------------------------------------------------------------------
\1\ 16 U.S.C. Sec. 1536(a)(2).
Therefore, Section 7(a)(2) essentially, absent an exemption from
the Endangered Species Committee, precludes actions by Federal agencies
that are ``likely to jeopardize the continued existence of any
endangered species or threatened species or result in the destruction
or adverse modification'' of its critical habitat.\2\ To effect that
preclusion, an agency contemplating action \3\ that it believes may
implicate Section 7(a)(2) is required to consult with the respective
Service to determine whether the action is likely to have the precluded
effect, and, if so, what reasonably prudent alternatives can be
implemented to modify its action so that it comports with the statutory
stricture.\4\ Formal consultation is initiated by a Federal action
agency's submission of a Biological Assessment, although the Services
will engage in informal discussion and exchanges of information before
a Biological Assessment is completed. The duty to consult applies to
``ongoing agency action[s]'' as well as future actions.\5\ In general,
the consultation process is occurs each time a Federal agency is
contemplating funding, carrying out, or authorizing someone else to
carry out a discretionary activity that may effect a listed species or
its designated critical habitat.
---------------------------------------------------------------------------
\2\ Id.
\3\ The Federal agency seeking to consult is commonly referred to
as the ``action agency,'' whereas the Services are commonly referred to
as ``consulting agencies.''
\4\ Id.; see also, e.g., Wild Fish Conservancy v. Salazar, 628 F.3d
513, 518-519 (9th Cir. 2010).
\5\ Pac. Rivers Council v. Thomas, 30 F.3d 1050, 1053 (9th Cir.
1994); Wild Fish Conservancy, 628 F.3d at 518.
---------------------------------------------------------------------------
It is here, as part of this consultation analysis, where the
question of what physical and biological features are encompassed by
the designation of critical habitat and the application of the meaning
of the term ``destruction or adverse modification'' of critical habitat
is most important. Here, the Services' must determine if the agency's
proposed action destroys or adversely modifies designated critical
habitat. Depending upon the Service's conclusion, the action agency
will choose to proceed, accept a modification to its proposal, seek an
exemption from the Endangered Species Committee, or simply decide not
to proceed forward with its action.
imposing a new duty on federal agencies to ensure their actions are
unlikely to destroy or adversely modify features that do not and may
never exist before proceeding with their actions
Since 1986, the Services' regulations defined the term
``destruction and adverse modification'' as
a direct or indirect alteration that appreciably diminishes the
value of critical habitat for both the survival and recovery of
a listed species. Such alterations include, but are not limited
to, alterations adversely modifying any of those physical or
biological features that were the basis for determining the
habitat to be critical.\6\
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\6\ 51 FR 19926, June 3, 1986; codified at 50 CFR 402.02.
---------------------------------------------------------------------------
The term ``destruction and adverse modification'' now means:
a direct or indirect alteration that appreciably diminishes the
value of critical habitat for the conservation of a listed
species. Such alterations may include, but are not limited to,
those that alter the physical or biological features essential
to the conservation of a species or that preclude or
significantly delay development of such features.\7\
---------------------------------------------------------------------------
\7\ 81 FR 7226, February 11, 2016, codified at 50 C.F.R. 402.02.
(Emphasis added). When the Obama administration finalized this new
---------------------------------------------------------------------------
definition, they explained that in their view, the
revised definition codifies our practices and provide Service
biologists a clear and consistent benchmark within the
regulations to use when making their determination of
``destruction or adverse modification''. While this revised
definition replaces one that the courts found improper, we do
not expect that its application will alter the number of
``destruction or adverse modification'' findings compared to
recent years. In other words, we do not expect it to be
substantially more or less protective of critical habitat than
the internal guidance we have used in recent years.\8\
---------------------------------------------------------------------------
\8\ Revision of the Definition of ``Destruction or Adverse
Modification'' of Designated Critical Habitat Questions and Answers
available at: http://www.fws.gov/endangered/improving_ESA/AM.html.
I wish they were right, but from my vantage point they are almost
certainly wrong. They have chosen to impose a new duty on action
agencies. This duty is unprecedented and will over the course of time
prove to be very significant.
The ESA granted the Services the authority ``to designate any
habitat of [a species that has just been listed] which is then
considered to be critical habitat.'' \9\ It did not grant them the
authority to designate habitat which ``is [not] then considered to be
critical habitat,'' but that may become critical habitat at some point
in the future, depending on the effects of climate change or other
factors. Instead, the ESA provides the Services with the authority to
deal with changes that may occur in the critical habitat of a species
in the future by authorizing them to make changes in their designations
as it becomes clear what those changes are. The ESA states that the
Services ``may, from time-to-time thereafter [i.e., after the
designation of habitat that is critical habitat at the time of listing]
as appropriate, revise such designation.'' \10\ The ESA does not grant
them the authority to predict what changes may be necessary in the
future and to designate habitat as critical now that is not presently
needed, even though that habitat may (or may not) be needed at some
indefinite point in the future.
---------------------------------------------------------------------------
\9\ 16 U.S.C. Sec. 1533(a)(3)(A).
\10\ Id.
---------------------------------------------------------------------------
By seeking to protect presently unneeded and non-existent features
from ``destruction or adverse modification,'' the Services have imposed
an unprecedented new affirmative duty on Federal agencies to recover
listed species by forcing them to refrain from actions that would
adversely modify, not the present capacity of the habitat to aid in the
recovery of a species, but the potential of the habitat to develop new
features in the future that might provide additional aid in the
recovery of the species. In doing so, they require Federal agencies not
just to refrain from making the present condition of the habitat worse,
but to also refrain from doing anything that would prevent the
condition of the habitat from getting better, or developing
conservation features in the future. While this may be a desirable
goal, it is not what the ESA requires of action agencies under Section
7(a)(2).\11\
---------------------------------------------------------------------------
\11\ 16 U.S.C. Sec. 1536(a)(2).
---------------------------------------------------------------------------
Also troubling, from my perspective, is that the Services have not
placed any boundaries on their expected evaluation of the impacts to
presently unneeded potential features that may (or may not) develop for
their employees, for other agencies or for the public. Instead they
have explained, that they ``consider [designated critical habitats]
future capabilities only so far as we are able to make reliable
projections with reasonable confidence.'' \12\ The lack of clear
parameters places tremendous discretion in the hands of field staff. It
will almost certainly foster speculation on whether any area might
eventually develop the physical and biological features that do not
presently exist.
---------------------------------------------------------------------------
\12\ 81 FR 7220, February 11, 2016.
---------------------------------------------------------------------------
a big change regarding the designation of unoccupied areas as critical
habitat
Magnifying the future conflict that I anticipate arising from the
new definition of ``destruction or adverse modification,'' is the novel
approach to designating critical habitat in areas not occupied by
listed species finalized by the Services. Primarily to deal with the
anticipated effects from climate change, the Services have
fundamentally altered the role that the designation of unoccupied areas
has historically played in the ESA regulatory scheme. Whatever one may
think of the Services' concern for the effects that climate change may
have on critical habitat, their changes to 50 CFR Sec. 424.12 to deal
with those effects almost certainly exceed their authority under the
ESA.
The ESA grants the Services the authority to designate unoccupied
areas as critical habitat only if those areas are ``essential for the
conservation of the species.'' \13\ Clearly, an unoccupied area cannot
be ``essential for the conservation of [a] species'' if the occupied
area is adequate to insure its conservation. Thus, it is impossible to
claim that an unoccupied area is ``essential for the conservation of
[a] species'' without knowing how the species would fare if the
unoccupied area were not designated.
---------------------------------------------------------------------------
\13\ Id. at Sec. 1532(5).
---------------------------------------------------------------------------
Under the Services' new reading of the definition of ``critical
habitat,'' they assert that Congress, by defining ``critical habitat''
in the way it did-i.e., by defining unoccupied areas as critical
habitat if they were deemed ``essential'' to the conservation of the
species by the Services-intended to grant them a larger authority to
designate unoccupied areas as critical habitat. This interpretation is
far broader than they have previously recognized. Indeed, it is
actually far broader than the authority Congress granted them for the
designation of occupied areas.
This newfound assertion of authority is contradicted by the
legislative history of the definition of critical habitat. The ESA as
originally passed in 1973 did not contain a definition of ``critical
habitat.'' Concerned about the issues raised by the snail darter case,
Tennessee Valley Authority v. Hill, 437 U.S. 153 (1978), Congress
adopted its own definition of ``critical habitat'' in 1978, which
remains the definition today. Congress provided a statutory definition
of critical habitat that was narrower than the Service's original
regulatory definition; it changed the definition from a focus on
``constituents,'' the loss of which would ``appreciably decrease the
likelihood of the survival and recovery of a listed species,'' to a
focus on ``physical and biological features'' that are ``essential to
the conservation of a species.'' The Services now read ``essential,''
however, in a way that would broaden the definition of ``critical
habitat'' far beyond that contained in the Services' original
definition that was rejected by Congress. They read ``essential'' as
encompassing potential features, the loss of which (if the features
actually develop) may (or may not) at some unspecified point in the
future reduce the likelihood of the survival and recovery of the
species by some unspecified degree, depending on the accuracy of their
predictions about the effects of climate change.
In addition to being in conflict with the legislative history, the
Services' claim that ``essential'' may be read that broadly cannot be
squared with the rest of the language in the definition of critical
habitat. Congress, in defining ``critical habitat'' in the way it did
in 1978, was deeply concerned about the amount of habitat, even in
occupied areas, that would be deemed critical and sought to carefully
limit it, not grant a broad new authority to designate it.
In the definition, Congress placed three limitations on the amount
of occupied areas that could be designated. First, it limited critical
habitat to those occupied areas that presently have ``those physical
and biological features . . . essential to the conservation of the
species.'' \14\ But even that was not limited enough, so it added a
second limitation. It defined critical habitat in such a way that only
those areas with the requisite features that also required ``special
management considerations or protection'' could be designated.\15\
Finally, to make sure that its intent to limit the amount of occupied
habitat that could be designated was clear, it stated that ``[e]xcept
in those circumstances determined by the Secretary, critical habitat
shall not include the entire geographical area which can be occupied by
the threatened or endangered species.'' \16\
---------------------------------------------------------------------------
\14\ 16 U.S.C. Sec. 1533(5).
\15\ Id.
\16\ Id.
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The Services' changes to their regulations based on their new
reading of the definition of ``critical habitat,'' legitimately reflect
a policy goal that the Administration feels is important, but if they
wanted such authority they should have sought the legislation to garner
such authority rather than trying to shoehorn it into a regulatory
change which will be litigated for years to come.
conclusion
Mr. Chairman and members of the committee, the actions taken by the
Administration are significant. The Administration should be
complemented on its effort to try to address these important issues.
However, they should be called on to reconsider their potential to
cause unnecessary conflict by creating a new mandate thereby
misapplying the requirements that Federal agencies have under Section
7(a)(2) of the ESA and by taking an expansive view of their power to
designate critical habitat where the listed species do not exist and
that habitat is not presently needed.
I welcome any questions you may have.
______
Mrs. Lummis. Thank you, Mr. Bernhardt.
Mr. Mehrhoff, you are recognized for 5 minutes.
STATEMENT OF LOYAL MEHRHOFF, ENDANGERED SPECIES RECOVERY
DIRECTOR, CENTER FOR BIOLOGICAL DIVERSITY, WASHINGTON, DC
Dr. Mehrhoff. Thank you very much, Vice Chair Lummis,
Ranking Member Grijalva, and members of the committee. My name
is Loyal Mehrhoff, and I am the Endangered Species Recovery
Director at the Center for Biological Diversity. I want to
thank you for giving me the opportunity to testify on the
benefits that critical habitat provides to endangered species.
Before joining the Center last year, I spent over 20 years
working on endangered species with the U.S. Fish and Wildlife
Service, the U.S. Geological Survey, and the National Park
Service. My last assignment was as the field supervisor of the
Pacific Islands Fish and Wildlife Office in Hawaii. I have been
involved in the listing and critical habitat designation
process for dozens of endangered species in Hawaii and
elsewhere. These experiences have provided me with a front-row
seat to the valuable role critical habitat plays not only in
preventing extinctions, but also in promoting the recovery of
endangered species.
But first, I think it is important to remember that the
Endangered Species Act remains one of the most successful
conservation laws ever passed by any nation. It has prevented
the extinction of the vast majority of the species that have
come under its protection. Without the Act, scientists have
estimated that at least 227 species in the United States would
have gone extinct in the last 40 years.
Critical habitat is an essential tool in preventing
extinctions. Simply put, if you want to protect endangered
species, you need to protect the places where they live.
Scientific studies have shown that endangered species with
critical habitat are twice as likely to be on the road to
recovery as species that do not have critical habitat.
Critical habitat designations show the general public and
land managers where endangered species live, so that we can
better target our conservation efforts on those most important
places. By drawing lines on a map, critical habitat focuses
voluntary conservation activities by Federal, state, and local
governments on those priority habitats. It also helps clarify
for Federal agencies which geographic areas require additional
consultation.
By identifying mitigation and other reasonable conservation
measures during the Section 7 consultation process, critical
habitat provides significant regulatory protections against
Federal actions that could adversely modify or destroy it. The
consultation process almost never stops projects outright, but
rather, it steers activities away from the most sensitive
habitats and ensures that all significant impacts are properly
mitigated.
To illustrate, the Palila, which is a small songbird on the
Big Island of Hawaii, had its habitat degraded as a result of
non-native ungulates, primarily introduced sheep and goats, on
the slopes of Mauna Kea. When the state of Hawaii's Federal
Highway Administration and the U.S. Army chose to realign an
important road across the island, critical habitat designations
helped ensure that the new route for the road avoided important
habitats, compensated for the loss of some critical habitat
when it could not be avoided, and minimized fire risks from the
new road.
More recently, Palila's critical habitat has been fenced to
protect it from goats and sheep, and begin the long process of
restoring habitat. Without having these lines on the map,
effective conservation of the Palila would probably not be
occurring.
So, without question, critical habitat works. It identifies
which areas are important, focuses restoration actions on those
priority areas, and provides important protections for
irreplaceable areas that endangered species rely upon for their
survival and recovery.
Thank you again for the opportunity to speak today.
[The prepared statement of Dr. Mehrhoff follows:]
Prepared Statement of Loyal A. Mehrhoff, Endangered Species Recovery
Director, Center for Biological Diversity
Good morning, Mr. Chairman, Ranking Member, and members of the
committee. My name is Loyal Mehrhoff, and I am the Endangered Species
Recovery Director at the Center for Biological Diversity. On behalf of
the Center and its more than 1 million members and supporters, I want
to thank you for giving me the opportunity today to testify on the
benefits that critical habitat provides under the Endangered Species
Act, and the Services' recently finalized rules relating to critical
habitat.
Prior to joining the Center in 2015, I spent 5 years as the field
supervisor of the U.S. Fish and Wildlife Service's Pacific Islands
Office in Hawaii, and before that I spent 3 years as the director of
the U.S. Geological Survey's Pacific Island Ecosystems Research Center.
I was integrally involved in the listing and critical habitat
designation process for dozens of endangered species in Hawaii, and I
know from personal experience in Hawaii that critical habitat provides
significant benefits to endangered species and is often the key to
their recovery. Research has shown that species with designated
critical habitat are twice as likely to be on the road to recovery as
species that do not have designated critical habitat.\1\
---------------------------------------------------------------------------
\1\ Taylor and Suckling et. al, 2005. The effectiveness of the
Endangered Species Act: a quantitative analysis. Bioscience 55(4) at
362.
---------------------------------------------------------------------------
the benefits of critical habitat
First, it is important to recognize that the Endangered Species Act
is one of the most successful conservation laws ever passed by any
nation on Earth, and has prevented the extinction of 99 percent of the
species under its protections. Today, a majority of the species
protected by the Act are either stable or improving. Scientists
estimate that without the Act's protection, at least 227 species in the
United States would have gone extinct.\2\
---------------------------------------------------------------------------
\2\ See Suckling, K. et. al., 2012. On time, on target: how the
Endangered Species Act is saving America's wildlife. Center for
Biological Diversity, http://www.esasuccess.org/report_2012.html.
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With respect to threats to endangered species, habitat destruction
remains the leading cause of species imperilment and extinction both
here in the United States and around the world.\3\ Congress recognized
this stark reality when it passed the Endangered Species Act in 1973:
---------------------------------------------------------------------------
\3\ See, e.g., Pimm, S.L. et al., 2014. The biodiversity of species
and their rates of extinction, distribution, and protection. Science
344: DOI: 10.1126/science.1246752; Wilcove, D.S., et al. 1998.
Quantifying Threats to Imperiled Species in the United States:
Assessing the relative importance of habitat destruction, alien
species, pollution, overexploitation, and disease, BioScience 48:607-
615.
Man can threaten the existence of species of plants and animals
in any of a number of ways, by excessive use, by unrestricted
trade, by pollution or by other destruction of their habitat or
range. The most significant of those has proven also to be the
most difficult to control: the destruction of critical
habitat.\4\
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\4\ H. Rep. No. 93-412, 93d Cong., 1st Sess. (July 27, 1973).
In the 1978 Amendments to the Endangered Species Act, Congress
defined critical habitat to include both occupied and unoccupied areas
that are essential to the conservation of threatened and endangered
species. And by defining ``conservation'' as using all available tools
and measures to improve a species' condition ``to the point that the
protective measures of the Act are no longer required,'' Congress made
clear that the purpose of critical habitat is to further the recovery
of listed species to achieve the fundamental goals of the Endangered
Species Act: to prevent extinction and to move species toward recovery.
As the Fish and Wildlife Service correctly explained in their
recently finalized rules, critical habitat serves multiple functions in
implementing the Act.\5\ Most simply, by telling the public and land
managers where endangered species live or roam, we can better target
conservation efforts to benefit those species. By drawing lines on a
map, critical habitat facilitates conservation activities by other
Federal agencies, which are required to use their authorities to
develop programs that benefit endangered species under Section 7(a)(1)
of the Act. Critical habitat also focuses conservation efforts of
states and local governments, nongovernmental organizations, and
individuals. Critical habitat also helps to develop efficient and
effective habitat conservation plans, and can guide the development of
recovery plans and planning efforts.
---------------------------------------------------------------------------
\5\ 79 Fed. Reg. 27066, 27067.
---------------------------------------------------------------------------
Finally, by identifying mitigation and other reasonable
conservation measures during the Section 7(a)(2) consultation process
critical habitat provides significant regulatory protection by ensuring
that Federal agencies do not adversely modify or destroy critical
habitat. It is important to note that the consultation process almost
never stops Federal projects.\6\ Instead, the consultation process
steers development away from the most sensitive areas and ensures that
the remaining significant impacts are properly mitigated. Critical
habitat designations do not affect private development on private lands
if there is no Federal nexus or Federal permit required. Nor does it,
as if often claimed, establish de-facto wilderness areas or limit
public access to public lands. Critical habitat designations are
therefore quite compatible with economic development if when mitigation
and reasonable conservation measures are utilized.
---------------------------------------------------------------------------
\6\ Malcom and Li, 2015. Data contradict common perceptions about a
controversial provision of the U.S. Endangered Species Act. PNAS
112(52) at 15844-15849, www.pnas.org/cgi/doi/10.1073/pnas.1516938112
(Out of an analyzed 6,829 formal consultations between 2008 and 2015,
only one biological opinion of the Service reached a jeopardy opinion.
In that instance, the project was still allowed to proceed by adopting
reasonable prudent alternatives (RPAs) to mitigate adverse effects on
the species, pursuant to Section 7(b)(3)(A) of the Act.)
Despite the clear requirement in the Act that listing and critical
habitat designation occur concurrently to the greatest extent
practicable, more than half of endangered species have not received
critical habitat designations.\7\ Freshwater fish and mussels in the
Southeast, for example, are some of the most rapidly declining
endangered species, and most of these did not received critical habitat
when they were listed. The failure to designate critical habitat
ultimately makes recovery for these species slower and more costly than
what likely would have occurred had critical habitat been designated.
---------------------------------------------------------------------------
\7\ Taylor and Suckling et. al, 2005 at 360-367.
When critical habitat is designated, endangered species often
---------------------------------------------------------------------------
benefit significantly.
The following examples demonstrate this reality:
Palila: The Palila is a small songbird found in the high
elevation forests of Hawaii's Big Island. This bird was first
protected in 1967 and received critical habitat in 1977.\8\ The
Palila's habitat had been consistently degraded as a result of
non-native ungulates on the slopes of Mauna Kea. It took more
than 30 years before appropriate management of Palila habitat
was fully implemented. During that time the Palila numbers rose
and fell. Current management--which emphasizes habitat
restoration--is designed to accelerate Palila recovery. When a
realignment of Saddle Road through critical habitat was
undertaken, the required consultation ensured that mitigation
for impacts occurred and that Palila was protected from
increased fire risk resulting from this road work. Today, some
of the most important areas of critical habitat have been
fenced off to protect the forests from over-browsing by non-
native species. Without these lines on the map, adequate
management for Palila habitat would have been much more
challenging.
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\8\ 32 Fed. Reg 4001; 42 Fed. Reg. 40685-40690.
Dusky Gopher Frog: The dusky gopher frog was listed in 2001,
but critical habitat was not designated until 2012.\9\ Although
it was once common from Louisiana to Alabama, the frog is now
only found in four locations in southern Mississippi. With a
population of just a few hundred individuals, it is one of the
most endangered frogs in the United States. During its early
years of protection under the Endangered Species Act, the
frog's populations continued to drop. After critical habitat
was designated, additional actions were taken to save the
species. In 2013, an agreement with the Center, other non-
profit groups, and private landowners resulted in 170 acres of
critical habitat being purchased and protected from
development. This land, which will be owned by the Land Trust
for the Mississippi Coastal Plain, will be shielded from
development. Together with a recovery plan finalized in 2015,
this frog has a fighting chance of survival.
---------------------------------------------------------------------------
\9\ 77 FR 35117-35161 (June 12, 2012), available at http://
ecos.fws.gov/tess_public/profile/species Profile.action?spcode=B079.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Atlantic and Great Lakes Piping Plover: Piping plovers were
protected under the Endangered Species Act in 1985,\10\ but did
not receive designated critical habitat until 2001. Following
its listing, intensive management to stabilize its populations
was undertaken to address direct threats to the plover, such as
predator management programs for raccoons, crows and ravens.
These early efforts led to small increases in plover
populations in the Great Lakes and Northeast. However it was
not until after 2001 when critical habitat was designated, that
populations truly rebounded. Critical habitat made it easier
for land managers to identify areas where common-sense
restrictions on beach use--such as limits on off-highway
vehicles--should be deployed to protect nesting birds. The
Northeast population has now exceeded its recovery plan goal of
625 nesting pairs for more than 10 years and continues to grow.
---------------------------------------------------------------------------
\10\ 50 Fed. Reg. 50726-50734 (Dec. 11, 1985).
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Peninsular bighorn sheep: Although the U.S. Fish and
Wildlife Service first listed it as an endangered species in
1998, little was done initially to protect its habitat.\11\
Bighorn sheep numbers along the Southern California Peninsular
Mountain range had already declined by 77 percent due to
livestock overgrazing, road development and urban sprawl. By
the year 2000, there were just 334 individuals left, leaving
more golf courses in the Palm Springs area than bighorn sheep.
In 2001 the Service designated 845,000 acres of critical
habitat.\12\ The population subsequently grew from the low
point of 334 animals in 2001 to approximately 955 animals in
2010 in the Palm Springs area.
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\11\ 63 Fed. Reg. 13134-13150 (March 18, 1998), available at
https://ecos.fws.gov/docs/federal_register/fr3225.pdf.
\12\ 66 Fed. Reg. 8650-8677 (Feb. 1, 2001), available at https://
ecos.fws.gov/docs/federal_register/fr3703.pdf.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Steller's sea lion (Eastern DPS): The Steller's sea lion
was protected under an emergency listing in 1990.\13\ Shortly
after listing, critical habitat was designated in 1993 along
the coasts of Alaska, Oregon and California, and groundfish
trawling was banned within the sea lion's critical habitat. The
population thereafter increased from roughly 21,000 animals in
1989 to 63,488 in 2009. In 2014, the eastern Distinct
Population Segment of the Steller's sea lion was declared
recovered and delisted.\14\
---------------------------------------------------------------------------
\13\ 55 Fed. Reg. 13488 (April 10, 1990), available at http://
ecos.fws.gov/docs/federal_register/fr1683.pdf.
\14\ 79 Fed. Reg. 42687-42696 (July 23, 2014), available at http://
www.gpo.gov/fdsys/pkg/FR-2014-07-23/pdf/2014-16756.pdf.
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
the services final rules on ``adverse modification'' of critical
habitat, changes to the 424 regulations, and final policy on 4(b)(2)
exclusions
The Center submitted extensive comments on each of these three
changes to the rules implementing critical habitat under the Act. I
summarize our concerns and analysis below for each final rule.
The Services finalized definition for the phrase ``destruction or
adverse modification'' is legally invalid as it fails to give
independent meaning to beyond what is prohibited under the Services'
jeopardy standard. Section 7 of the Act prohibits Federal agencies from
taking actions that jeopardize the continued existence of listed
species or result in destruction or adverse modification of critical
habitat. Where Congress uses the word ``or'' it is generally accepted
that phrases on either side of the ``or'' have independent meaning.\15\
In the final rule, the prohibition on ``destruction or adverse
modification'' is effectively the same as the prohibition on jeopardy
because the prohibition applies only to any action that ``affects the
value of the critical habitat as a whole for the conservation of a
listed species.'' \16\ The reality is that where such activities reach
this high threshold, a species will almost always be jeopardized as
well. Furthermore, by not defining ``destruction'' separate from
``adverse modification'' the Services also failed to give independent
meaning to each type of impact to critical habitat. As a practical
consequence, this regulation will not result in changes in existing
practice during consultations. In the final rule, the Services state:
``We do not expect this final rule to alter the section 7(a)(2)
consultation process from our current practice, and previously
completed biological opinions do not need to be re-evaluated in light
of this rule.'' \17\ This is unfortunate if it is proven to be true. A
recent study from Defenders of Wildlife showed that of more than 80,000
biological opinions completed over the past 8 years, only one resulted
in a jeopardy finding, and none resulted in a finding of ``destruction
or adverse modification'' of critical habitat.
---------------------------------------------------------------------------
\15\ Howell-Robinson v. Albert, 384 B.R. 19, 21 (D.D.C. 2008) (A
statute's words are to be interpreted according to their ordinary sense
and with the meaning commonly attributed to them).
\16\ 80 Fed. Reg. 7214, 7218 (Feb. 11, 2016), available at https://
federalregister.gov/a/2016-02675.
\17\ 80 Fed. Reg. 7214, 7216.
---------------------------------------------------------------------------
The Services finalized rulemaking changes to the regulations at 50
C.F.R. Sec. 424 will generally only have minor impacts on the process
the Services use to designate critical habitat.\18\ The most notable
change is that the Services will no longer identify the ``primary
constituent elements'' (``PCEs'') of critical habitat, but rather will
identify the ``physical or biological features'' of critical habitat
when it designates ``occupied'' critical habitat. This change better
tracks the statutory language of the Act, and is easier to understand
than PCEs, which had no basis at all in the Act, and were generally
confusing to the public. This change will likely have no effect, either
positive or negative, on the size of a species' critical habitat
designation. Other changes to the 424 regulations are mainly
ministerial in nature.
---------------------------------------------------------------------------
\18\ 81 Fed. Reg. 7413-7440 (Feb. 11, 2016), available at https://
federalregister.gov/a/2016-02680.
---------------------------------------------------------------------------
The Services finalized policy regarding critical habitat exclusions
under Section 4(b)(2) \19\ of the Act may represent an improvement over
existing practice in evaluating possible exclusions from a final
critical habitat designation. However, only time will tell if the
Services use the policy as it was intended, or instead simply continue
their existing practices. It is important to note that the current
practice for evaluating exclusions varies considerably between the U.S.
Fish and Wildlife Service and National Marine Fisheries Service. The
Fisheries Service's approach to exclusions is transparent and
understandable because the agency evaluates each potential exclusion
separately based on the conservation value of the particular area. In
contrast, the Fish and Wildlife Service approach is not transparent,
and is instead based on vague generalizations about the ``value'' of
conservation partnerships. Having eight criteria to evaluate non-
binding, not-federally approved conservation plans could be an
important step forward in making the exclusion process fairer and more
protective of endangered species. It is important that the Services
identify and map habitat excluded under 4(b)(2) on the same maps
showing designated critical habitat. These areas are excluded due to
value of conservation plans, as such they are expected to play a
positive role in the recovery of the species. Identifying them on maps
in the Federal register will help ensure that their important role is
not forgotten by future planners, managers and conservationists.
---------------------------------------------------------------------------
\19\ 81 Fed. Reg. 7226-7248 (Jan. 11, 2016), available at https://
federalregister.gov/a/2016-02677.
---------------------------------------------------------------------------
Although not a subject of today's hearing, the Service also
finalized a rule in August of 2013 on the timing of economic analyses
of critical habitat.\20\ The rule accomplished three separate things.
First, it officially split listing rules and critical habitat
designations into two separate rulemaking proposals. Second, it
required the Services to provide their economic analysis at the time
the proposed designation is released to the public. Third, it requires
the Services to use an ``incremental'' economic analysis when assessing
critical habitat economic impacts. The Center opposed the Services'
decision to segregate the critical habitat proposal from the listing
proposal, as it drastically increases the cost of completing each
document and therefore reduces the number of species the Services can
protect in a given year. The Center notes that the Fish and Wildlife
Service generally is unable to complete their economic analyses of
critical habitat at the same time that they release the proposed
critical habitat designation, and therefore must reopen the public
comment period regularly. This also adds unnecessary cost to the
listing program. Finally, the Center agrees that an incremental
economic analysis is the most appropriate methodology for conducting
economic analyses, as it follows the government-wide approach required
by the Office of Management and Budget as detailed in OMB Circular A-4,
which was finalized in 2003 during the George W. Bush
administration.\21\
---------------------------------------------------------------------------
\20\ 178 Fed. Reg. 53058 (Aug. 28, 2013).
\21\ Office of Management and Budget, Circular A-4 (Sept. 17,
2003), available at https://www.whitehouse.gov/omb/circulars_a004_a-4/.
---------------------------------------------------------------------------
conclusion
Critical habitat is a key and proven tool in recovering species
under the Endangered Species Act. Weakening or undermining its
effectiveness only slows down recovery, and means that species will be
on the list of endangered species longer, something that all parties
agree is not a desired outcome. We offer our assistance to the
committee in finding ways to make critical habitat designations more
effective, and to get our most imperiled species the protections they
need as quickly as possible so that they can be quickly recovered to
healthy and sustainable levels.
Thank you.
______
Questions Submitted for the Record by Chairman Rob Bishop to Dr. Loyal
Mehrhoff, Endangered Species Recovery Director at the Center for
Biological Diversity
Question 1. You stated in the hearing that these rules maintain the
status quo regarding designation of critical habitat. If that is the
case, then why was this rulemaking conducted or necessary? Should the
regulated public truly expect no change in practice, outcome, or
project requirements to arise in future consultations? If not, what are
the types of situations in which these rules would impose new or
additional requirements on entities engaged in section 7 consultations
that would differ from what those entities are accustomed to seeing?
Answer. Thank you for your written question to me regarding the new
regulation defining ``destruction or adverse modification'' of critical
habitat. As stated in both my written and oral testimony, the Center
believes that this rule will likely maintain the status quo regarding
consultations. While this rule is too recent to know for sure exactly
what will happen in future consultations, here are some additional
points of information to help explain our position.
First, throughout this rulemaking process, the Services have
asserted that the rule maintains their existing consultation practices.
For example, on May 9, 2015--the day that the regulation was proposed
and opened for public comment--Gary Frazer, the Assistant Director of
the Endangered Species at the Fish and Wildlife Service stated to the
press that, ``The reality is, this definition, in our view, is unlikely
to be any more or less protective.'' \1\ In their view, the rule merely
codified existing internal guidance on consultations that was issued in
2004 and 2005. Furthermore, the preamble of the proposed rule did not
change key aspects of how consultations are conducted following the
Services' Joint Consultation Handbook.\2\
---------------------------------------------------------------------------
\1\ http://www.eenews.net/greenwire/stories/1059999335.
\2\ See U.S. Fish and Wildlife Service and National Marine
Fisheries Service. 1998. Endangered Species Consultation Handbook:
Procedures for Conducting Consultation and Conference Activities Under
Section 7 of the Endangered Species Act at xiii.
---------------------------------------------------------------------------
Second, the final rule itself states that the new definition does
not change the status quo. For example, the preamble states: ``We do
not expect this final rule to alter the section 7(a)(2) consultation
process from our current practice, and previously completed biological
opinions do not need to be re-evaluated in light of this rule.'' \3\
They also state: ``Because the final regulatory definition largely
formalizes existing guidance that FWS and NMFS have implemented since
2004 and 2005, respectively, we conclude that the section 7(a)(2)
consultation process will not significantly change.'' \4\
---------------------------------------------------------------------------
\3\ Definition of Destruction or Adverse Modification of Critical
Habitat, 81 Fed. Reg. 7214 at 7216 (Feb. 11, 2016).
\4\ Id. at 7223.
---------------------------------------------------------------------------
Based upon my own personal experience with section 7 consultations,
I also feel that this new rule maintains the status quo and does not
alter the way consultations are currently supposed to be conducted; nor
does it make the process more or less protective of listed species.
However, what this rule may, and should, do is make the consultation
process more consistent across the agency. As an example, the rule
provides some updates to the outdated Consultation Handbook and should
make it easier for new employees or consulting agencies to more quickly
understand how to conduct or participate in consultations.
Although for different reasons than you, we too were disappointed
with the Services' final rule. As noted in my written testimony, the
Services' definition of ``destruction or adverse modification'' is
insufficient, as it fails to give independent meaning to this standard
as compared to the prohibitions under the jeopardy standard. Section 7
of the Act prohibits Federal agencies from taking actions that
jeopardize the continued existence of listed species or result in
destruction or adverse modification of critical habitat. Where Congress
uses the word ``or'' it is generally accepted that phrases on either
side of the ``or'' have independent meaning.\5\ In the final rule, the
prohibition on ``destruction or adverse modification'' of critical
habitat and the prohibition on jeopardy are not adequately
differentiated. Specifically, the rule defines ``destruction or adverse
modification'' to apply only to an action that ``affects the value of
the critical habitat as a whole for the conservation of a listed
species.'' \6\ The reality is that where such activities reach this
high threshold, a species will almost always be jeopardized as well.
Again, in our view, the intent of the Act was to have two somewhat
independent standards; with a habitat-specific ``adverse modification''
standard using a different and lower threshold for being triggered. A
recent study from Defenders of Wildlife showed that of more than 80,000
biological opinions completed over the past 8 years, only one resulted
in a jeopardy finding, and none resulted in a finding of ``destruction
or adverse modification'' of critical habitat.\7\ My personal
experience with consultations reaching ``jeopardy'' or ``adverse
modification'' has been similar.
---------------------------------------------------------------------------
\5\ Howell-Robinson v. Albert, 384 B.R. 19, 21 (D.D.C. 2008) (A
statute's words are to be interpreted according to their ordinary sense
and with the meaning commonly attributed to them).
\6\ 80 Fed. Reg. 7214, 7218 (Feb. 11, 2016), available at https://
federalregister.gov/a/2016-02675.
\7\ See Malcom, J.W. and Y-W. Li, 2015. Data contradict common
perceptions about a controversial provision of the U.S. Endangered
Species Act, Proceedings of the National Academy of Sciences 112:(52)
15844-1584, doi:10.1073/pnas.1516938112.
---------------------------------------------------------------------------
Thank you for having me participate in the hearing and please let
me know if you have additional follow up questions to this response.
______
Mrs. Lummis. Thank you, Dr. Mehrhoff.
I now recognize Ms. LeValley for 5 minutes.
STATEMENT OF ROBBIE LeVALLEY, ADMINISTRATOR, DELTA COUNTY,
DELTA, COLORADO; FORMER PRESIDENT, COLORADO CATTLEMEN'S
ASSOCIATION
Ms. LeValley. Thank you, members of the committee. My name
is Robbie LeValley. I am a cow-calf producer from western
Colorado, and have been so for four generations. I currently
serve as the Chairman of the National Cattlemen's Beef
Association Federal Lands Committee, as well.
My testimony will be specific to the Gunnison sage-grouse,
which was listed as threatened under the Endangered Species Act
in 2014. Our ranch has made the habitat for the Gunnison sage-
grouse a priority since 1995, when we worked in cooperation
with the Bureau of Land Management and the Colorado Parks and
Wildlife to not only have our public land, our BLM land, but
our private land have the priority for the Gunnison sage-
grouse.
We have two conservation easements on our private ground,
and we have enrolled over 1,300 acres of our private ground in
habitat for the Gunnison sage-grouse in the Canada Conservation
Agreement with assurances. We are well versed in the critical
habitat, and we maintain that habitat for the Gunnison sage-
grouse.
Our BLM grazing and our private land is a high desert
ecological site. Today we have put in over 17 miles of pipe, 14
of it which resides on public land, not only to provide water
to the wildlife and to the Gunnison sage-grouse, but our
livestock, as well.
The source of that water is our private ground. The water
that we provide to the Gunnison sage-grouse originates on our
private ground and goes across public land. We maintain the
pipe and keep the waters going for the Gunnison sage-grouse.
Our managed grazing consistently yields the habitat that
exceeds the sage-grouse guidelines. We do that through a
deferred rotation and through, again, managing our public and
our private land in concert.
We have worked cooperatively with the U.S. Fish and
Wildlife Service, the local Audubon group, the BLM, and the
Colorado Parks and Wildlife for two decades to benefit the
Gunnison sage-grouse. The recently issued rule to implement
changes to the regulations for designating critical habitat
does cause us some concern. We have been managing for the
Gunnison sage-grouse, because it has the broadly expanded power
to classify even larger areas of unoccupied range as critical
habitat based solely on the evidence of physical and biological
features.
The reason for the significant concern is because we have
the certainty that we have endured with the BLM for the past
two decades; but now that the species is listed as threatened,
then the BLM and those giving direction to the BLM are asking
us to change our livestock grazing. That is why the concern of
not only what we are currently experiencing, but why the
expanse of the critical habitat causes us concern.
Again, we are seeing areas that should be completely
avoided, even though, in the past, under the management, when
we have been working cooperatively together, we have exceeded
the sage-grouse guidelines. And now this regulatory uncertainty
is maybe even larger.
Livestock grazing was not even listed in the top listing
factors for the Gunnison sage-grouse, and yet we see this being
applied inappropriately, almost always reducing the time that
the livestock are to be on the allotment, the season, our
reduced numbers in the AUM, or a combination of both.
Our fear is that the over-regulation of a necessary tool,
like grazing, has nothing to do with grazing itself, but
instead is due to the lack of other viable regulatory targets.
Finding it is impossible to regulate recreation, wildfire,
drought, and invasive weeds, grazing becomes the primary
casualty of the over-reach into effective ongoing state
management of wildlife.
Because we are a permitted and regulated industry should
not mean that we are the regulated industry of choice or by de
facto.
Another issue of concern is the revised definition of
``destruction,'' or ``adverse modification,'' which can be
triggered if a permitted use significantly delays the
development of features needed by the species. There is only
one multiple use that will be the target for the delay of
development, and that will be livestock grazing.
A current example of this is unfolding with the listed bull
trout, where the grazing is providing for proper functioning
condition. However, the litigants continue to say that because
of adverse delay, that livestock grazing should be removed.
The U.S. Fish and Wildlife Service consistently and
correctly says that grazing is necessary and critical for the
conservation of species and maintenance of essential habitat.
However, what we see in this modification definition stands in
contrast to the assertion by allowing for even more opportunity
for abusive litigation and significant delay in Section 7
consultation.
In closing, Federal agencies must move away from the
scientifically inaccurate idea that removing, reducing, and
retiring grazing is the answer to every problem that faces the
agencies and species in critical habitat.
We look forward to working with this committee, the Fish
and Wildlife Service, and all other partners involved.
[The prepared statement of Ms. LeValley follows:]
Prepared Statement of Robbie LeValley, Administrator, Delta County,
Colorado and Federal Lands Chair, National Cattlemen's Beef Association
Mr. Chairman, Ranking Member Grijalva, and members of the
subcommittee, my name is Robbie LeValley. I am a fourth generation
cattle producer and my family and I run a cow-calf operation in
Hotchkiss, Colorado. In addition to ranching, my family and I are part
owners of Homestead Meats, a direct beef marketing business and USDA
processing plant. I currently serve as chairman of the National
Cattlemen's Beef Association's Federal Lands Committee and as a
director for the Colorado Public Lands Council. It is my pleasure to
testify before your committee to discuss the impact this
Administration's critical habitat policy has on ranchers across the
West.
For generations, ranchers have served as stewards of the land. Land
and habitat thrives because of the knowledge and resources that we put
into our land and grazing management decisions. My operation, and the
operations of other ranchers proves that managed grazing not only
provides for livestock, but for wildlife as well. The time and money
that ranchers invest into public land improves water sources, controls
invasive species, and removes the fine fuel loads that contribute to
catastrophic wildfires that destroy habitat and food sources for
wildlife.
My testimony will be specific to the Gunnison Sage Grouse which was
listed as a threatened under the Endangered Species Act in 2014. Our
ranch has made the habitat for the Gunnison Sage Grouse (GSG) a
priority since 1995, when we became involved with the Colorado Parks
and Wildlife and Bureau of Land Management (BLM) to cooperate in
providing habitat on our private land and BLM allotments. We have two
conservation easements on our private ground and have enrolled an
additional 1,300 acres of private ground in a Candidate Conservation
Agreement with Assurances (CCAA) strictly for the grouse.
Our BLM grazing allotments are a high desert ecological site. To
date, we have put in over 17 miles of pipe--14 of which resides on
public land--to not only provide water for our cows but supply waterers
for the GSG as well as other wildlife species. The source of this water
for the GSG is from our private land and we maintain the pipe
infrastructure on both the public and private lands to ensure delivery
of this water. In addition, we manage our grazing each year to provide
nesting, brood rearing and summer habitat. Our managed grazing
consistently yields habitat that exceeds GSG guidelines set by the
USFWS and BLM. We have worked cooperatively with the USFWS, the local
Audubon group, BLM, and CPW for two decades to benefit the Gunnison
Sage Grouse and our efforts are yielding quality grouse habitat.
The U.S. Fish and Wildlife Service recently issued a final rule to
implement changes to the regulations for designating critical habitat
under the Endangered Species Act. The Service stated that the rule was
``intended to add clarity for the public, clarify expectations
regarding critical habitat and provide for a credible, predictable, and
simplified critical habitat designation process.'' In reality, the rule
goes beyond mere clarifications and simplification of the process and
instead attempts a broad re-orientation of the scope and purpose of
critical habitat designations.
Under the revised rules, the Service will have broadly expanded
power to classify large areas of unoccupied range as critical habitat
based solely on evidence of the ``physical and biological features''
needed to support a species. Worse, the new rules also provide the
ability to designate critical habitat based on a site's potential to
support those physical or biological features, even if they do not
exist at the time of the designation. In essence, this broad latitude
brings every single acre of a species' range into the crosshairs of a
critical habitat designation.
The ability to plan is essential in any business, and in our
business--where we are managing both our herd and the landscape--this
action by the Service could be catastrophic. As adopted, these changes
increase the discretion of the Service to broadly designate areas as
critical habitat--or be forced to do so through litigation abuse by
predatory environmental groups, which will impose strict requirements
and modifications on public land livestock grazing at a time of
unprecedented, effective coordination between ranchers and
conservationists to create and protect GSG habitat.
Derailing these successful ongoing conservation efforts and
undermining the regulatory certainty needed to execute highly technical
business operations like rotational grazing from year-to-year will
seriously disrupt our business as well as the habitat improvements
we've made on the ground. Introduction of new Federal regulations into
an ongoing collaborative effort should not be undertaken lightly, and
must be done in a manner that is consistent with conservation efforts
that are already working. Unfortunately, this is not the case with the
new critical habitat guidelines, which propose a series of definitions
that step outside the bounds of the statute, but are also so vague that
they are ineffective in implementation.
Additionally, USFWS has directed BLM to standardize language in
Resource Management Plans (RMPs) on occupied and critical habitat for
habitat guidelines across entire landscapes, which is simply not
biologically possible given the ecological site descriptions, year-to-
year temperature and moisture fluctuations, and diversity of vegetation
on the landscape. Variations on the landscape and seasonal fluctuations
in habitat require intensive day-to-day management, which only an
empowered permittee with extensive knowledge of site-specific
conditions can achieve. This management becomes especially problematic
in the context of a one-size-fits-all regulatory scheme as proposed.
The end result of this regulatory expansion is a classic Federal over-
reach with the potential to greatly reduce the grazing footprint and
decrease the active management of herbivory.
Ranching is a technical business that operates on a year round
planning cycle. Regulatory certainty is absolutely essential to
effective partnerships between land management agencies like USFWS and
BLM and ranchers. The broad generalizations and definitions in the
proposed critical habitat guidelines do not provide this. Specific to
the Gunnison Sage Grouse, livestock grazing was not listed in the top
listing factors, yet it continues to be a management tool that BLM
applies inappropriately--almost always resulting in reduced time that
livestock can be on an allotment, reduced numbers or AUMs, or a
combination of both. Our fear is that this over-regulation of a
necessary biological partner like grazing has nothing to do with
grazing itself and instead is due to the lack of other viable
regulatory targets. Finding it impossible to regulate wildfire,
drought, or invasive weeds, grazing becomes the primary casualty of
Federal over-reach into effective ongoing state management of wildlife.
Another issue of concern is the revised definition of ``destruction
or adverse modification''--which can be triggered if a permitted use
such as livestock grazing significantly delays the development of
features needed by the species, a standard that is almost impossible to
define or measure. Implementation of this language will create yet
another vast opportunity for abuse by litigious environmental
organizations that seek to eliminate multiple use on Federal lands.
Again, there is only one multiple use that will take the hit for
this ``delay in development''--proper livestock grazing. An example of
this is currently unfolding in regard to the listed bull trout where
environmental litigants are arguing that continued grazing while
maintaining the current conditions of the range and riparian areas that
are classified as being in ``properly functioning condition'' is still
adverse modification of critical habitat because the Forest Service
cannot demonstrate that the range will move to an ``ecologically ideal
level'' over time. The litigants are focusing on temperature and
believe there is adverse modification of critical habitat if the warmer
streams found throughout the West in August are not converted to cold
streams at that time. The FWS' new rule will support the litigants'
arguments regarding modification of critical habitat in most grazing
allotments throughout the West.
USFWS consistently and correctly says that grazing is necessary and
critical for the conservation of species and maintenance of essential
habitat. However, the revised critical habitat rules and adverse
modification definition stand in contrast to this assertion by allowing
for even more opportunity for abusive litigation and reduction in
grazing over time. Additionally, this regulatory expansion exposes
public grazing allotments to lengthy delays for ESA Section 7
consultations--yet another source of litigation abuse by environmental
activists.
The critical habitat rule states that ``lands owned by the Federal
Government should be prioritized as sources of support in the recovery
of listed species, and that to the extent possible the Services will
focus designation of critical habitat on Federal lands in an effort to
avoid the regulatory burdens on non-Federal lands.'' [79 Fed. Reg. at
27056; 25057]. In general, we are supportive of this approach.
Nevertheless, the Service must recognize that functional Federal land
grazing permits are essential in maintaining a viable ranching
community as well as healthy ecosystems. The Services must also
consider the potential consequences of increased grazing pressure on
private lands that would occur if burdensome grazing restrictions were
imposed on the use of adjacent public lands. Appreciation of this
inter-relationship of private and public lands for ranching is crucial
in both minimizing burdens on the regulated community and effectively
managing for sensitive species.
In closing, Federal agencies must move away from the scientifically
inaccurate idea that removing, reducing and retiring grazing is the
answer to every problem the agencies face on public land. As these new
standards are implemented, they will have a negative economic impact on
ranchers and rural communities without benefiting habitat and the
species that live there. Imposing regulatory change on grazing without
any scientific basis is unwarranted and makes it clear that this
Administration's intent is to manage away from productive uses, rather
than actually protecting species and their habitat.
The livestock industry not only plays an integral role in the
safekeeping of our Federal lands but also in the maintenance of the
critical habitat for the species on that land. We look forward to
working with the committee to ensure that America's ranchers continue
to have the ability to protect and restore natural habitat while
grazing at the same time--without having to spend countless hours and
thousands of dollars to defend a practice that has been jointly
occurring with species, to the benefit of those species, for centuries.
I appreciate the opportunity to be here today and I am happy to take
any questions the committee members may have. Thank you.
______
Mrs. Lummis. Thank you, Ms. LeValley.
And, Ms. Budd-Falen, you are recognized for 5 minutes.
STATEMENT OF KAREN BUDD-FALEN, SENIOR PARTNER, BUDD-FALEN LAW
OFFICES, LLC, CHEYENNE, WYOMING
Ms. Budd-Falen. Thank you, Congresswoman Lummis, Ranking
Member Grijalva, and honorable committee members. I appreciate
the opportunity to be here.
My name is Karen Budd-Falen. Not only am I an attorney, I
am a fifth-generation rancher who now has an ownership interest
to make sure that that ranch continues in our family for a
sixth generation. We raise a cow-calf operation there, and no
one cares more about that land than we do, because without that
land we would not continue to the next generation.
The Honorable Dan Ashe talked about how many species this
Administration has delisted, and I would certainly thank them
for that; but I would also note that they have also listed more
species on the endangered species list than any other
administration. Today there are 2,285 plant and animal species
listed as threatened or endangered, 1,592 of which are located
in the United States. Although critical habitat is supposed to
be designated within 1 year of listing, only 791 of those
species have designated critical habitat.
Even with that backlog in critical habitat designation, new
listing petitions, candidate species determinations, and
proposed listings are looming. According to the Fish and
Wildlife Service data, 1,508 species are still pending review
for listing. For every species listed, new critical habitat
will have to be considered.
Although the ESA has not seen major regulatory change
between 2012 and 2016, this Administration finalized four new
regulations and two new policies that I believe substantially
increase the amount of critical habitat designation and the
amount of management that is going to occur. While I am happy
to discuss those regulations individually, I think that,
overall, you have three major problems.
First, these regulations were all developed in a piecemeal
fashion: one regulation here, one regulation there, one draft
here, another draft there. And each of those drafts did include
a NEPA analysis. The problem is that none of those NEPA
analyses were ever cumulatively considered. So there has never
been a cumulative impacts analysis on four new regulations and
two new policies, all of which implicate critical habitat. I
would argue that that is a violation of the National
Environmental Policy Act.
The whole purpose of NEPA is to give the public and
decisionmakers a chance to cumulatively look at their decisions
and to offer effective comments. I believe there was no way for
the public to argue and offer those effective comments when
things were dribbled out piece by piece, and no one has read
them all together.
Everyone got sort of excited when the new regulations came
out in February 2016, but you have to look at what came out
before and add them all together to truly understand the impact
of the new critical habitat arguments.
Additionally, I would argue that the new regulations
violate the Administrative Procedures Act. Again, I think it is
a matter of transparency to the public. If the public does not
have the opportunity to look at everything as a package and
understand it all together, the public simply cannot make
informed public comment, and this Congress cannot offer
informed public comment. I think that is one of the fallacies
with the regulation. I think that is one of the problems with
piecemeal offering of regulations and new policies that
substantially change what has gone on before.
Second, the National Environmental Policy Act requires a
consideration not only of just the environmental impacts, but
also of the community custom and culture and the economic
impacts. Without adding all of these regulations together,
there is simply no way that that occurred; so we really do not
have any idea what the economic impact of these new regulations
are going to be, or what the impacts are going to be on small,
local governments, private landowners, or citizens throughout
the country.
Finally, I believe that these new regulations do not follow
the Endangered Species Act itself. Congress and the Endangered
Species Act use the word ``critical'' for a reason. It did not
say ``Designate habitat,'' it said, ``Designate habitat that is
critical and must be managed.'' And I think these new
regulations eliminate that distinction between habitat and
critical habitat and are a violation of the Endangered Species
Act.
With that, I would stand for questions. Thank you.
[The prepared statement of Ms. Budd-Falen follows:]
Prepared Statement of Karen Budd-Falen, Senior Partner, Budd-Falen Law
Offices, LLC, Cheyenne, Wyoming
My name is Karen Budd-Falen. I grew up as a fifth generation
rancher and have an ownership interest in a family owned ranch west of
Big Piney, Wyoming. I am also an attorney emphasizing private property
and environmental litigation (including the Endangered Species Act). I
represent the citizens, local businesses, private property owners and
rural counties and communities who will bear the brunt of these new
critical habitat regulations and the significant litigation costs that
will follow.
The U.S. Fish and Wildlife Service (``FWS'') characterizes the
purpose of the Endangered Species Act (``ESA'') ``to protect and
recover imperiled species and the ecosystems upon which they depend.''
According to the FWS Web site, last visited on April 4, 2016, there are
a total of 2258 plant and animal species on the threatened or
endangered species list. Specifically there are 898 U.S. plants, 694
U.S. animals, 3 foreign plants and 663 foreign animals on the list. Of
these, only 791 currently have designated critical habitat. There are
also 59 species on the ``candidate species'' list; 72 more species
proposed to be listed; and 1377 species that have been petitioned for
listing, uplisting or critical habitat designation and the petition is
under review. On the pending petitions, the Center for Biological
Diversity (``CBD'') is responsible for filing 44 of them including 583
species; WildEarth Guardians (``WEG'') is responsible for filing 32
petitions including 716 species, and other environmental groups such as
the Defenders of Wildlife, Natural Resources Defense Council, Friends
of Animals and others have filed 31 petitions including 44 species.
Although the mega-species settlement agreement of July 12, 2011 was
supposed to curb listing petitions to allow the FWS to catch-up on its
backlog, just since the mega-species settlement agreement was signed,
65 new listing petitions have been filed including 135 species. Since
the mega species settlement agreement was signed on July 12, 2011, the
CBD has filed 24 listing petitions including 92 species, and the WEG
has filed 12 listing petitions including 13 species.
Although the language of the ESA has not significantly changed
since 1979, the totality of the new regulatory mandates for critical
habitat designation and management has significantly expanded the FWS's
jurisdiction over private property. While many Members of Congress and
private property owners were vehemently protesting the Environmental
Protection Agency's expansion of jurisdiction under the Clean Water Act
with the ``Ditch Rule,'' the FWS and NOAA-Fisheries (collectively
``FWS'') were bit-by-bit expanding the Federal Government's over-reach
on private property rights and Federal land uses through the new
critical habitat and ``adverse modification'' regulations. This
expansion is embodied in the release of four separate final rules and
two final policies that the FWS admits will result in listing more
species and expanding designated critical habitat. According to the
FWS, all of these new requirements conform to President Obama's
Executive Order 13563, ``Improving Regulation and Regulatory Review.''
i. overview of the endangered species act pre-2012, 2013, 2014, 2015
and 2016 regulations
The ESA is ``the most comprehensive legislation for the
preservation of endangered species ever enacted.'' See Tennessee Valley
Authority v. Hill, 437 U.S. 153, 180 (1978). The goal of the Act is
``to provide for the conservation, protection, restoration, and
propagation of species of fish, wildlife, and plants facing
extinction.'' Wyoming Farm Bureau Federation v. Babbitt, 199 F.3d 1224,
1231 (10th Cir. 2000), citing S. Rep. No. 93-307, at 1 (1973) and 16
U.S.C. Sec. 1531(b). Under the ESA, a threatened species means any
species which is likely to become an endangered species within the
foreseeable future throughout all or a significant part of its range,
see 16 U.S.C. Sec. 1532 (20), and an endangered species means any
species which is in danger of extinction throughout all or a
significant portion of its range other than insects that constitute a
pest whose protection would present an overwhelming and over-riding
risk to man. 16 U.S.C. Sec. 1532(6).
Anyone can petition the FWS or NOAA to have a species listed as
threatened or endangered. 16 U.S.C. Sec. 1533. Listing decisions are to
be based on the ``best scientific and commercial data available.'' 16
U.S.C. Sec. 1533(b)(1)(A). However, there is no requirement that the
Federal Government actually count the species populations prior to
listing. There are no economic considerations included as part of the
listing of a threatened or endangered species.
The listing process is also based on very specific time frames as
set forth in the Act. If the FWS fails to meet any of these time
frames, litigation can occur. See Exhibit 1. In the listing and
critical habitat designation process, there are eight different points
at which Federal court litigation can be filed.
Exhibit 1
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Once a species is listed as threatened or endangered,
prohibitions against ``take'' apply. 16 U.S.C. Sec. 1540. ``Take''
means to harass, harm, pursue, hunt, shoot, wound, kill, capture, or
collect, or attempt to engage in such conduct. 16 U.S.C. Sec. 1532(19).
``Harm'' within the definition of ``take'' means an act which actually
kills or injures wildlife. Such act may include significant habitat
modification or degradation where it actually kills or injures wildlife
by significantly impairing breeding, sheltering or feeding. 50 C.F.R.
Sec. 17.3. Harass in the definition of ``take'' means intentional or
negligent act or omission which creates the likelihood of injury to
wildlife by annoying it to such an extent as to significantly disrupt
normal behavioral patterns which include, but are not limited to,
breeding, feeding or sheltering. 50 C.F.R. Sec. 17.3. ``Take'' may
include critical habitat modification. Babbitt v. Sweet Home Chapter of
Communities for a Great Oregon, 515 U.S. 687 (1995). If convicted of
``take,'' a person can be liable for civil penalties of $10,000 per day
and possible prison time. 16 U.S.C. Sec. 1540(a), (b).
Once a species is listed as threatened or endangered, the FWS or
NOAA must ``to the maximum extent prudent and determinable,''
concurrently with making a listing determination, designate any habitat
of such species to be critical habitat. Id. at Sec. 1533(a)(3). By
definition, critical habitat (``CH'') are ``specific areas'' see 16
U.S.C. Sec. 1532(5)(A) and must be ``defined by specific limits using
reference points and lines found on standard topographic maps of the
area.'' 50 C.F.R. Sec. 424.12(c); see also Sec. 424.16 (CH must be
delineated on a map). For ``specific areas within the geographical area
occupied by the [listed] species,'' the FWS may designate CH, provided
such habitat includes the species' ``primary constituent elements
(``PCEs'') which are the (1) ``physical or biological features;'' (2)
that are ``essential to the conservation of the species;'' and (3)
``which may require special management considerations or protection.''
16 U.S.C. Sec. 1532(5)(A)(I); 50 C.F.R. Sec. 424.12(b).
CH must also be designated on the basis of the best scientific data
available, 16 U.S.C. Sec. 1533(b)(2), after the FWS considers all
economic and other impacts of proposed CH designation. New Mexico
Cattle Growers Assoc. v. United States Fish and Wildlife Service, 248
F.3d 1277 (10th Cir. 2001) (specifically rejecting the ``baseline''
approach to economic analyses) but see Arizona Cattle Growers
Association v. Salazar, 606 F.3d 1160 (9th Cir. 2010) (adopting the
baseline or incremental impacts approach). CH may not be designated
when information sufficient to perform the required analysis of the
impacts of the designation is lacking. 50 C.F.R. Sec. 424.12(a)(2). The
FWS may exclude any area from CH if it determines that the benefits of
such exclusion outweigh the benefits, unless it determines that the
failure to designate such area as CH will result in extinction of the
species concerned. 16 U.S.C. Sec. 1533(b)(2). This is called the
``exclusion analysis.''
Once a species is listed, for actions with a Federal nexus, ESA
section 7 consultation applies. Section 7 of the ESA provides that
``[e]ach Federal agency [must] in consultation with and with the
assistance of the Secretary [of the Interior], insure that any action
authorized, funded, or carried out by such agency . . . is not likely
to jeopardize the continued existence of any endangered species or
threatened species or result in the destruction or adverse modification
of habitat of such species which is determined by the Secretary . . .
to be critical . . . .'' 16 U.S.C. Sec. 1536(a)(2). The first step in
the consultation process is to name the listed species and identify CH
which may be found in the area affected by the proposed action. 50
C.F.R. Sec. 402.12(c-d). If the FWS or NOAA determines that no species
or CH exists, the consultation is complete, otherwise, the FWS must
approve the species or habitat list. Id. Once the list is approved, the
action agency must prepare a Biological Assessment or Biological
Evaluation (``BA''). Id. The contents of the BA are at the discretion
of the agency, but must evaluate the potential effects of the action on
the listed species and critical habitat and determine whether there are
likely to be adverse effects by the proposed action. Id. at
Sec. 402.12(a, f). In doing so, the action agency must use the best
available scientific evidence. 50 C.F.R. Sec. 402.14(d); 16 U.S.C.
Sec. 1536(a)(2). Once complete, the action agency submits the BA to the
FWS or NOAA. The FWS or NOAA uses the BA to determine whether
``formal'' consultation is necessary. 50 C.F.R. Sec. 402.12(k). The
action agency may also request formal consultation at the same time it
submits the BA to the FWS. Id. at Sec. 402.12(j-k). During formal
consultation, the FWS will use the information included in the BA to
review and evaluate the potential effects of the proposed action on the
listed species or CH, and to report these findings in its Biological
Opinion (``BO''). 50 C.F.R. Sec. 402.14(g-f). Unless extended, the FWS
or NOAA must conclude formal consultation within 90 days, and must
issue the BO within 45 days. Id. at Sec. 402.14(e); 16 U.S.C.
Sec. 1536(b)(1)(A).
If the BO concludes that the proposed action will jeopardize any
listed species or adversely modify critical habitat, the FWS's BO will
take the form of a ``jeopardy opinion'' and must include any reasonable
and prudent alternatives which would avoid this consequence. 16 U.S.C.
Sec. 1536(b)(3)(A); 50 C.F.R. Sec. 402.14(h). If the BO contains a
jeopardy opinion with no reasonable and prudent alternatives, the
action agency cannot lawfully proceed with the proposed action. 16
U.S.C. Sec. 1536(a)(2). If the BO does not include a jeopardy opinion,
or if jeopardy can be avoided by reasonable and prudent measures, then
the BO must also include an incidental take statement (``ITS''). 16
U.S.C. Sec. 1536(b)(4); 50 C.F.R. Sec. 402.14(I). The ITS describes the
amount or extent of potential ``take'' of listed species which will
occur from the proposed action, the reasonable and prudent measures
which will help avoid this result, and the terms and conditions which
the action agency must follow to be in compliance with the ESA. Id.;
see Bennett v. Spear, 520 U.S. 154, 170 (1997). See Exhibit 2.
Exhibit 2
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
While most private property owners do not think that the
activity on their private property has a ``Federal nexus'' to trigger
an ESA section 7 consultation, the courts have held otherwise. For
example, the courts require FEMA to complete section 7 consultation
prior to providing flood insurance; U.S. Department of Agriculture Farm
Service Agency to complete section 7 consultation related to farm
conservation measures, issuing farm operating loans and completing
nutrient management plans; Bureau of Reclamation when developing flood
control plans, and others.
Once a species is listed, ESA section 10 also applies on private
land, even if there is no Federal nexus. In order to avoid the
penalties for ``take'' of a species, and still allow the use and
development of private land, the ESA also authorizes the FWS to issue
ITSs to private landowners upon the fulfillment of certain conditions,
specifically the development and implementation of habitat conservation
plans (``HCPs''). 16 U.S.C. Sec. 1539. A HCP has to include (a) a
description of the proposed action, (b) the impact to the species that
will result from the proposed action, (c) the steps that the applicant
will take to minimize any negative consequences to the listed species
by the proposed action, (d) any alternatives the applicant considered
to the proposed action and why those alternatives were rejected, and
(e) any other measures that the FWS may deem necessary for the
conservation plan. 16 U.S.C. Sec. 1539(a)(2)(A). Once an HCP is
presented, the FWS must make certain findings before it can issue an
ITS. Those findings include (a) that the taking of the species is
incidental to the proposed action, (b) that the proposed action
implements a lawful activity, (c) that the applicant, to the maximum
extent possible, will minimize and mitigate any negative impacts to the
listed species, (d) that the HCP is adequately funded, (e) that the
taking will not appreciably reduce the survival and recovery of the
species, and (f) any other measures deemed necessary will be carried
out. 16 U.S.C. Sec. 1539(a)(2)(B). As a practical matter, mitigation
means that the applicant will either fund programs supporting the
listed species or will provide or set aside land. See Exhibit 3.
Exhibit 3
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
ii. changes caused by the four new regulations and two new policies
promulgated in 2012, 2013, 2014, 2015 and 2016
As stated above, according to the FWS, the new critical habitat
regulations were adopted to comply with President Obama's Executive
Order 13563, ``Improving Regulation and Regulatory Review'' (``E.O.
13563''). That Executive Order, signed on January 18, 2011,
``supplement[s] and reaffirm[s]'' the requirements of Executive Order
12866 dated September 30, 1993. That E.O. stated that:
each agency must, among other things: (1) propose or adopt a
regulation only upon a reasoned determination that its benefits
justify its costs (recognizing that some benefits and costs are
difficult to quantify); (2) tailor its regulations to impose
the least burden on society, consistent with obtaining
regulatory objectives, taking into account, among other things,
and to the extent practicable, the costs of cumulative
regulations; (3) select, in choosing among alternative
regulatory approaches, those approaches that maximize net
benefits (including potential economic, environmental, public
health and safety, and other advantages; distributive impacts;
and equity); (4) to the extent feasible, specify performance
objectives, rather than specifying the behavior or manner of
compliance that regulated entities must adopt; and (5) identify
and assess available alternatives to direct regulation,
including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or
providing information upon which choices can be made by the
public.
Based upon the principals in the Obama Executive Order, each
Federal agency was to present a list of proposed regulatory reforms to
the Office of Information and Regulatory Affairs within 120 days of the
signing of E.O. 13563.
While the FWS and NOAA may have complied with the 120 day
requirement in the Executive Order, I do not believe that the rest of
the Order presented any guidance to the regulatory changes in critical
habitat designation and management.
First, the FWS and NOAA issued four new regulations and two new
policies in the space of 4\1/4\ years. These new regulations all
concern the same subject: critical habitat designations. These new
regulations were issued as draft rules at different times, making it
extremely difficult for the public to understand the regulatory changes
in their totality. Certainly issuing rules and policies in a piecemeal
fashion cannot be said to provide adequate public notice and
understanding of the working of the FWS and NOAA in implementing the
ESA. In fact Executive Order 13563 directs the FWS and NOAA to consider
the costs of the ``cumulative regulations,'' see (2), but this
cumulative cost of four new regulations and two new policies has not
been assessed. The E.O. also commands the agencies to ``tailor its
regulations to impose the least burden on society,'' id., and ``to the
maximum extent feasible, specify performance objectives, rather than
specifying the behavior or manner of compliance that regulated entities
must adopt.'' Id. (5). As described below, I do not believe that any of
these requirements have been--or can be--met.
Starting with a new 2012 rule and extending to the 2015 rules and
policy, designation of critical habitat, including the amount of both
private land and Federal land that will be included as, and managed
for, critical habitat have changed, and the FWS has admitted that the
new rules will result in more land and water being included in critical
habitat designations. The first major change is the inclusion of ``the
principals of conservation biology'' as part of the ``best scientific
and commercial data available.'' Conservation biology was not created
until the 1980s and has been described by some scientists as ``agenda-
driven'' or ``goal-oriented'' biology. See Final Rule, Implementing
Changes to the Regulations for Designating Critical Habitat, February
11, 2016.
Second, the new Obama policy has changed regarding a listing
species ``throughout a significant portion of its range.'' Now rather
than listing species within the range where the problem lies, all
species throughout the entire range will be listed as threatened or
endangered. See Final Policy, Interpretation of the Phrase
``Significant Portion of its Range,'' July 1, 2014.
Third, based upon the principals of conservation biology, including
indirect or circumstantial information, critical habitat designations
will be greatly expanded. Under the new regulations, the FWS will
initially consider designation of both occupied and unoccupied habitat,
including habitat with POTENTIAL PCEs. In other words, not only is the
FWS considering habitat that is or may be used by the species, the FWS
will consider habitat that may develop PCEs sometime in the future.
There is no time limit on when such future development of PCEs will
occur, or what types of events have to occur so that the habitat will
develop PCEs. The FWS can also look outside occupied and unoccupied
habitat to decide if the potential habitat will develop PCEs in the
future and should be designated as critical habitat now. The FWS has
determined that critical habitat can include temporary or periodic
habitat, ephemeral habitat, potential habitat and migratory habitat,
even if that habitat is currently unusable by the species. See Final
Rule, Implementing Changes to Regulations for Designating Critical
Habitat, February 11, 2016.
Fourth the FWS has also determined that it will no longer publish
the text or legal descriptions or GIS coordinates for critical habitat,
rather it will only publish maps of the critical habitat designation.
Given the small size of the Federal Register, I do not think this will
adequately notify landowners whether their private property is included
or excluded from a critical habitat designation. See Final Rule,
``Revised Implementing Regulations for Requirements to Publish Textual
Description of Boundaries of Critical Habitat,'' May 1, 2012.
Fifth, the FWS has significantly limited what economic impacts are
considered as part of the critical habitat designation. According to a
Tenth Circuit Court of Appeals decision, although the economic impacts
are not to be considered as part of the listing process, once a species
was listed, if the FWS could not determine whether the economic impact
came from listing OR critical habitat, the cost should be included in
the economic analysis. In other words, only those costs that were
solely based on listing were excluded from the economic analysis. In
contrast, the Ninth Circuit Court took the opposite view and determined
that only economic costs that were SOLELY attributable to critical
habitat designations were to be included. Rather than requesting the
U.S. Supreme Court make a consistent ruling among the courts, the FWS
simply recognized this circuit split for almost 15 years. However, on
August 28, 2013, the FWS issued a final rule that determined that the
Ninth Circuit Court was ``correct,'' and regulatorily determined that
ONLY economic costs attributable SOLELY to the critical habitat
designation would be analyzed. This rule substantially reduces the
determination of the cost of critical habitat designation because the
FWS can claim that almost all costs are based on the listing of the
species because if not for the listing, there would be no need for
critical habitat. See Final Rule, Revisions to the Regulations for
Impact Analysis of Critical Habitat, August 28, 2013.
Sixth, the FWS has determined that while completing the economic
analysis is mandatory, the consideration of whether habitat should be
excluded based on economic considerations is discretionary. In other
words, under the new policy, the FWS is no longer required to consider
whether areas should be excluded from critical habitat designation
based upon economic costs and burdens. See Final Policy Regarding
Implementation of Section 4(b)(2) of the Endangered Species Act,
February 11, 2016.
Seventh, the problem with these new rules is what it means if
private property (or Federal lands) are designated as critical habitat
even if the designated habitat only has the potential to develop PCEs.
Even if the species is not present in the designated critical habitat,
a ``take'' of a species can occur through ``adverse modification of
critical habitat.'' For private land, that may include stopping stream
diversions because the water is needed in downstream critical habitat
for a fish species, or that haying practices (including the cutting of
invasive species to protect hay fields) are stopped because it will
prevent the area from developing PCEs in the future that may support a
species. It could include stopping someone from putting on fertilizer
or doing other crop management on a farm field because of a concern
with runoff into downstream designated habitat. Designation of an area
as critical habitat (even if that area does not contain PCEs now) will
absolutely require more Federal permitting (i.e. section 7
consultation) for things like crop plans, or conservation plans or
anything else requiring a Federal permit. In fact, one of the new
regulations issued by Obama concludes that ``adverse modification of
critical habitat'' can include ``alteration of the quantity or
quality'' of habitat that precludes or ``significantly delays'' the
capacity of the habitat to develop PCEs over time. See Final Rule,
``Definition of Destruction or Adverse Modification of Critical
Habitat,'' February 11, 2016.
While the agriculture community raised a huge alarm over the
``waters of the U.S.,'' the FWS was quietly implementing these new
rules, in a piecemeal manner, without a lot of fanfare. Honestly I
believe these new habitat rules will have as great or greater impact on
the private lands and Federal land permits as does the Ditch Rule and I
would hope that the outcry from the agriculture community, private
property advocates, and our congressional delegations would be as
great.
Should you have any questions, please do not hesitate to contact
me.
______
Mrs. Lummis. I thank the panel for their testimony. And as
we begin questions, I want to remind our committee that we are
limited to 5 minutes on questions.
With that, I recognize the gentleman from Nevada, Mr.
Hardy, for 5 minutes.
Mr. Hardy. Thank you, Madam Chair. Back in September, the
Department of the Interior proposed to withdraw approximately
10 million acres of sage-grouse habitat from new mining
operations, despite the fact that the DOI found mining
operations not to be a major threat to the species or its
habitat. Instead it found wildfires and invasive species to be
far greater threats for the greater sage-grouse.
This proposed withdrawal of sage-grouse focal areas would
be the largest ever in the history of FLPMA, coming at a time
when mining operations are already restricted or banned on more
than half of our federally-controlled public lands. For a state
like Nevada that depends on mining, and where more than 85
percent of our land is federally controlled, this would not
only be a major blow to our state economy, but also to our
national economy and American mineral security.
Ms. Falen, I want you to know that I, too, am a fifth-
generation son of farmer-ranchers, but I got out of the
business. So I appreciate your perspective on what you bring
here today.
You mentioned the split between the consideration of
economic impacts as part of the critical habitat designation,
specifically the 10th Circuit Court of Appeals deciding that
only those costs that are solely based on listing should be
excluded from the economic analysis under the ESA. However, the
9th Circuit took an opposite view, that only the economic costs
that are solely attributed to the critical habitat designation
are to be included in an economic analysis.
You go on further to say that the Fish and Wildlife Service
went ahead and issued the rule in 2013, determining that the
9th Circuit Court was correct.
Isn't this a case of the executive branch usurping its
authority on the Supreme Court to resolve the court splits, and
shouldn't the final rule maybe be looked at as
unconstitutional?
Ms. Budd-Falen. Yes. Madam Chairman, Representative Hardy,
I think that that is exactly right. This is the rule that you
are talking about that was implemented on August 28, 2013. It
directly looked at the split between the 9th Circuit and the
10th Circuit on what they call incremental analysis, or the
baseline analysis for economic consideration.
I think the thing that I found most offensive about this is
that the 10th Circuit made its ruling first. The 9th Circuit
then made its ruling second. And, rather than immediately
seeking cert in the Supreme Court, where, quite frankly, I
believe we would have had a good argument to have the 10th
Circuit ruling determined, the Fish and Wildlife Service simply
left the split.
For a while, it was a big joke between our groups and the
environmental groups of whether we were going to litigate in
the 9th Circuit or the 10th Circuit, and now that entire
opportunity to litigate in the 10th Circuit and get all
critical habitat costs included has been eliminated. I believe
that that is simply the Administration picking one court over
another, and the Supreme Court should have had that opportunity
to make that decision.
Mr. Hardy. Thank you. Following up on that, the 2013 rule
stating that only economic costs attributed solely to the
critical habitat designation shall be included in economic
analysis, doesn't that determine or allow the Fish and Wildlife
Service to disregard most economic costs associated with a
critical habitat determination?
Ms. Budd-Falen. Yes. Madam Chairman, Mr. Hardy, I think
that that is absolutely right. I can absolutely foresee the
Fish and Wildlife Service arguing that, but for the listing,
there would not be a need for critical habitat. Therefore,
there are no costs associated with a critical habitat
determination. That is not what Congress intended.
Mr. Hardy. You mentioned that under the ESA regulation,
that the Fish and Wildlife Service is greatly expanding
critical habitat designations by considering the designation of
habitat that is or may be used for species, as well as the
habitat that may develop primary constituent elements, or PCEs,
at the undesignated time in the future.
With no time limit on which such development of PCEs may
occur, or what types of events must occur so that the habitat
will develop PCEs, doesn't that give the Fish and Wildlife
Service carte blanche to designate anything and everything as
critical habitat?
Ms. Budd-Falen. Yes, Mr. Hardy. That was the rule that was
designated in 2016. And it plays directly in with the rule that
was created in 2013, whereby anything could be determined to be
potential habitat.
In fact, that rule goes so far as to also include migratory
habitat, ephemeral habitat, temporary habitat, periodic
habitat, none of which are mentioned in the Endangered Species
Act. And I believe that then you can argue that almost anything
has the ability to develop into habitat at some time in the
future if we just manage it right. I am very concerned that
just managing it right will mean the elimination of land use.
Mr. Hardy. My time has----
Mrs. Lummis. The gentleman's time has expired. The Chair
will pull about 30 seconds off her own time in order to allow
Ms. Budd-Falen to answer that question.
The Chair now recognizes the gentlewoman from Guam, Ms.
Bordallo, for 5 minutes.
Ms. Bordallo. Thank you very much, Madam Chairwoman,
Ranking Member, and members of the panel for your testimony
this morning.
Mr. Ashe, I want to thank you for your attention to the
matters regarding our local Guam landowners and the Ritidian
right-of-way. My office is working to get you the information
you requested as soon as possible, and I hope that we can
continue to work together to come to a temporary solution.
My first question is for you, Mr. Ashe. How does Fish and
Wildlife's proposed definition changes impact ongoing Section 7
consultations?
Mr. Ashe. Overall, Ms. Bordallo, we do not see the changes
as significant; certainly they have no effect on prior Section
7 consultations or critical habitat designations. New, ongoing,
or future consultations under Section 7 will be subject to the
application of the new definitions and the revisions in the
rules that the committee is considering today.
Ms. Bordallo. So there will be future effects, yes. My
second question, Mr. Ashe, is also for you. As we have heard in
this hearing, designation of critical habitat only truly has an
impact if there is a need for a Federal permit process.
To that end, if one Federal agency wants to return excess
land to a local entity, consistent with Federal law and rules,
if that excess land includes land designated as critical
habitat, can you clarify if that would trigger Section 7
consultations or certain restrictions?
Mr. Ashe. If I am understanding the situation correctly, I
believe that it would trigger a Section 7 consultation.
If a Federal agency were excessing, surplusing, or
transferring land to a local entity or a private entity, and
that land was identified critical habitat, it would be the
responsibility of the agency to make a determination about
whether that was likely to adversely affect the species; and,
if they did, they would need to consult with either the U.S.
Fish and Wildlife Service or the National Marine Fisheries
Service.
Ms. Bordallo. Thank you very much, Mr. Ashe. Madam
Chairman, I yield back.
Mrs. Lummis. I thank the gentlelady. The gentleman from
Texas, Mr. Gohmert, is recognized for 5 minutes.
Mr. Gohmert. Thank you, Madam Chair. I appreciate the
witnesses being here. I want to just go to Director Ashe for a
moment.
Back in March, the Subcommittee on Oversight and
Investigations tried to invite you to testify about the law
enforcement database system, called IMARS for short. The
Department of the Interior provided one witness, but I was
curious since we have you here, what is your position on the
IMARS electronic database?
There was a lot of discussion about Fish and Wildlife, and
I am sure you heard about that discussion. So, I wanted to see
if we could get you to express any concerns you might have.
Obviously, Fish and Wildlife has not gotten on board over the
years, so you must have concerns about it.
Mr. Ashe. Well, we have been working with the Department
for a number of years.
Mr. Gohmert. A number of years.
Mr. Ashe. A number of years, Mr. Gohmert. One of the most
common refrains I hear in my work is people admonishing me when
they see an instance of one size fits all, right? And I get
admonished a lot for what people perceived as an instance of
where I am trying to impose some kind of one-size-fits-all
framework. And they are asking for flexibility.
I think with IMARS, within the Department of the Interior,
the same thing is true. There are benefits of a centralized law
enforcement database; but in a complex law enforcement agency
like mine, trying to fit into a one-size-fits-all framework is
more difficult.
We have been working with the Department of the Interior to
try to support the effort for a unified database, but also
recognize that we have the most complicated law enforcement
capacity in the Department. We operate internationally, and we
are right now in the midst of developing a cooperative
agreement in a pilot project with the Department of Homeland
Security on the International Trade Data System, allowing us
access to that system. And that is dependent upon the
application of our existing system, LEMAS, within the U.S. Fish
and Wildlife Service.
So, we have proposed to the Department of the Interior that
we build a bridge system that would allow the sharing of data
between those two systems, and we do that cooperatively. We are
in ongoing discussions with the Department----
Mr. Gohmert. OK.
Mr. Ashe [continuing]. And the Department of Homeland
Security about how we can do that, but still move forward in
the implementation of that pilot.
Mr. Gohmert. Let me go to the one of the comments of one
of my colleagues across the aisle, that made it appear that all
of us on this side of the aisle want to do away with the
Endangered Species Act. I don't. I really don't. But I have
seen the inequities caused by the Endangered Species Act. I
have seen the billions and billions of dollars that have
resulted in saving maybe not even 1 percent of the endangered
species. Some of us feel like there has to be a better way,
where you do not take away private property rights.
Even though my one colleague may not feel like private
property is a problem, there are some that feel like we ought
to have big high-rises, where everybody lives in an apartment,
and there are some at HUD who have dreamed of those types of
things.
So, I would just like to ask--we have heard, ``good for the
bird, good for the herd.'' Do any of our witnesses know of
situations where the Department of the Interior thinks it is
good for the bird, but it is not really, in your opinion, good
for the herd? Especially if you have herds.
Ms. LeValley. Certainly, and I appreciate that. We also
believe what is good for the bird is good for the herd. And
again, our managed grazing on the landscape has yielded and
exceeded the sage-grouse habitat guidelines for this.
But in response to that, once the bird was listed as
threatened, and because the continuation of ``now you should
avoid areas,'' we are getting significant pressure, and there
will be NEPA analysis to avoid whole areas, and basically take
our managed deferred rotation, which involves multiple pastures
across our public and private lands, and narrow that down,
which we believe will not yield the same results as we are
having now with the bird and for the industry as a whole, and
our county.
Mrs. Lummis. The gentleman's time has expired.
Mr. Gohmert. One witness that wished to respond. Could I
get her response?
Mrs. Lummis. You know, the gentleman's time has expired.
Mr. Gohmert. Yes, but there is----
Mrs. Lummis. The Chair now recognizes the gentleman from
California, Mr. Huffman.
Mr. Huffman. Thank you, Madam Chair.
Director Ashe, I want to give you a chance to respond to a
claim that was made a little earlier, and I want to kind of
check my own facts on this. It was stated that the Obama
administration has done more listings than any other prior
administration. Just a quick Google search on my smartphone
suggested that the Clinton administration had listed far more
than the Obama administration. Can you just set us straight on
this?
Mr. Ashe. That is true. We have not set a record for
listing. We have done our job well, and we have done it
according to a logical schedule; but it is not a record number
of listings.
Mr. Huffman. All right. Thanks for that clarification.
Mr. Mehrhoff, I know that there is a study published in
Science recently that looked into ESA listings by both
agencies, public petitions, and civil litigation from 1986
through 2012. I don't know if you are familiar with that study,
but my understanding is that it found that the citizen-
initiated ESA listings actually involve species that faced
higher levels of biological threat, as determined by the Fish
and Wildlife Service.
I want to ask you if you have any thoughts about why that
might be. Why might citizen petitions and lawsuits actually
target species that face greater biological threats than what
we would get through the normal agency process?
Dr. Mehrhoff. Thank you for the question. That is actually
a pretty hard question to answer, as to why that might be. I
would have to kind of speculate on that from my perspective.
Generally, the Services don't have a lot of funding for
going out and doing survey work to try to identify,
proactively, some of those species that might be at risk, at
least not as much as probably necessary to be able to truly
identify what species out there really need protection.
The citizens who are seeing things going on on a day-to-day
basis may catch those quicker, because they are on the ground,
and then say, ``We feel that, based upon our experience here
with this area, that this particular species needs to go
forward.'' So, that would be one potential answer that I would
have for that Science article and that particular finding. But
it is a hard question.
Mr. Huffman. There is this narrative out there that the
litigation under the Endangered Species Act and using the Equal
Access to Justice Act consists overwhelmingly of environmental
groups abusing the court system and trying to force friendly
settlements, et cetera. I know in California, every time
protections for fisheries are proposed, we can guarantee a
lawsuit under the ESA or any available mechanism by large water
users like the Westlands Water District or the San Luis Delta-
Minota Water Authority.
Mr. Bernhardt, I know you are familiar with those entities,
having worked for them. I wanted to just ask you if you are
familiar with the lawsuit filed by San Luis and Delta-Minota
Water Authority challenging both the Delta smelt biological
opinion and also the salmon biological opinion. Are you
familiar with that litigation?
Mr. Bernhardt. During the 2009-2010 time frame?
Mr. Huffman. I believe so.
Mr. Bernhardt. I am generally familiar with that
litigation, yes.
Mr. Huffman. In the litigation I just referred to, were
attorney fees sought by the plaintiffs under the Equal Access
to Justice Act?
Mr. Bernhardt. I suspect they were; I don't know for sure.
Mr. Huffman. My information is that they were. And, in
fact, they lost every one of their Endangered Species Act
claims, but in each case found a narrow technical NEPA
violation and, on that basis, were able to recover significant
attorneys fees against the government. Does that sound correct?
Mr. Bernhardt. I would say that they did not lose each of
their claims. To be awarded attorney fees they had to prevail
in some way.
Mr. Huffman. On the NEPA----
Mr. Bernhardt. On the procedural claims----
Mr. Huffman. But it is a matter of----
Mr. Bernhardt. And they were both substantive and
procedural claims----
Mr. Huffman. I will represent to you as a matter of fact
that on each of the ESA claims they lost----
Mr. Bernhardt. They won in district court and they lost in
the 9th Circuit. That is correct.
Mr. Huffman. Well, that is a loss.
Mr. Bernhardt. Sure.
Mr. Huffman. Yes. Director Ashe, you have said that in
terms of challenges that you face implementing the Endangered
Species Act, litigation does not even show up on the radar
screen. That is a quote from you back in 2012. So, let me just
ask you--in 2016, where does litigation stand on the continuum
of challenges you face making the ESA work?
Mr. Ashe. I think, over the history of the Endangered
Species Act, litigation has, on balance, been a positive
influence in the implementation of the Endangered Species Act.
In my particular case, it certainly is frustrating from time to
time. Certainly, it is always frustrating when you lose in
court.
But habitat loss and destruction, climate change, invasive
species, fire, water drought, and water scarcity are far and
away the biggest challenges that we face in the conservation of
species. Litigation is still not even on the radar screen.
Mr. Huffman. Thank you.
The Chairman [presiding]. Mrs. Lummis.
Mrs. Lummis. Thank you, Mr. Chairman. I want to focus my
questions on the rule allowing for critical habitat designation
if the land merely has the potential to develop primary
constituent elements. Now, as I understand it, those are the
elements of species needs for breeding, feeding, and
sheltering.
As I understand it--and, Mr. Ashe, I have some questions
about how this is going to be implemented--it looks like the
Fish and Wildlife Service will initially consider designations
of both occupied and unoccupied habitat. So, even if a species
is not present in the designated critical habitat, a prohibited
take of a species can occur through adverse modification of
critical habitat. So that is going to be the focus of my
questions.
Mr. Ashe, how could a landowner, a permittee, know whether
their land has the potential to be critical habitat? It sounds
pretty subjective.
Mr. Ashe. Well, we have the obligation to propose and then
publish critical habitat. So the landowner would know that
their land was critical habitat because we would propose it,
then publish and demarcate a map that showed the landowner that
their land was in critical habitat. If we chose to designate
unoccupied habitat, we have the obligation to demonstrate with
a scientifically-based administrative record showing the case
for why that habitat is necessary to support the conservation
of the species.
Mrs. Lummis. My biggest concern is the part that habitat
could develop at some undetermined time in the future. That
language opens up, quite frankly, every undeveloped piece of
land in the state of Wyoming. It could be deemed potential
critical habitat for any creature.
Why does the Fish and Wildlife Service want to consider
designating critical habitat deemed unusual by a certain
species, or habitat that could develop at some undetermined
time in the future? Why would you want to designate that?
Mr. Ashe. The goal of the law is to protect and recover
listed species for species that are habitat-limited. We
obviously have to find or make the habitat to support recovery
of that species.
In the case of potential habitat, Mrs. Lummis, I would say
that the obligation is on us to create an administrative record
that documents why we see the potential in habitat. We would
have to show why we see the potential for the development of
habitat.
So, when we are facing something like climate change, and
we see the potential for sea level rise, we have to see a
future for the conservation of sea turtles, for instance, that
will be affected by sea level rise, and we have to see the
potential for habitat for them in the future.
Mrs. Lummis. Let me give you an example on private land
that is specific to Wyoming. Could an adverse modification be
used to stop stream diversions because the water is needed in a
downstream critical habitat for a fish, even if that water is
historically permitted for irrigation?
Mr. Ashe. The short answer to your question is yes. I do
want the committee to understand, though, that adverse
modification determinations are exceedingly rare. In fact, I
cannot even think of one during my term as director. I cannot
think of a single adverse modification determination that the
Fish and Wildlife Service has made.
So, the hypothetical that you raise, to be fair, the answer
to that is yes; but the statute and our regulations create a
high bar for that determination, and they are exceedingly rare.
Mrs. Lummis. Will the Agency provide a timeline for when
future development occurs for the elements a species needs in
critical habitat?
How far out in the future, if you choose to designate land
as having potential to be critical habitat, will activities be
prohibited on that land?
Mr. Ashe. Again, I would think the committee should bear
in mind that the designation of critical habitat does not
prohibit any activity. What the designation of critical habitat
does is it says that a Federal agency cannot----
The Chairman. Mr. Ashe, I am giving you 10 seconds to
actually answer the question. You are over.
Mr. Ashe. I am happy to stop.
The Chairman. I will give you 10 seconds to give her an
answer.
Mr. Ashe. Well, it does not prohibit any activity. How
long into the future? The law asks us to see foreseeable
future, so that can differ in the context of each species.
The Chairman. OK. Mr. Lowenthal, you are recognized for
the foreseeable future.
[Laughter.]
Dr. Lowenthal. Thank you.
The Chairman. By me that is 30 seconds. By him, that is 7
years. So----
Dr. Lowenthal. Thank you, Mr. Chair, and I will take up
all that time as you have given to me.
[Laughter.]
Dr. Lowenthal. First I want to thank our witnesses for
being here. I would like to take a moment now to mention an
endangered species success: the recovery of the island fox on
Catalina Island, which is an endangered species in my
congressional district.
When the Center for Biological Diversity and the Institute
for Wildlife Studies petitioned the Fish and Wildlife Service
in June of 2000 to list the species, there were identified at
that time 103 island fox left on the island, on the entire
island. After listing in 2001, and a lot of work--hard work, I
might say--by both the Fish and Wildlife Service, the Catalina
Island Conservancy, and other local partners, the population of
the Catalina Island fox has rebounded now to more than 1,700
individuals.
So, the Fish and Wildlife Service announced recently they
are considering downlisting the Catalina Island fox from
endangered to threatened, because the species is recovered
biologically, but the threat of disease still remains.
Mr. Ashe, thank you to the Fish and Wildlife Service for
the work you have done and continue to do to ensure a
sustainable population of our iconic island fox. And Mr.
Mehrhoff, thank you and your colleagues at the Center for
Biological Diversity for petitioning the Service for an
Endangered Species Act listing 16 years ago. Without the
Endangered Species Act, I believe the Catalina Island fox would
most likely be extinct today.
So, to Mr. Ashe, do all endangered species receive a
critical habitat designation?
Mr. Ashe. No, sir. The law requires us to designate
critical habitat at the time of listing if it is prudent; and
then, otherwise, within 1 year of listing a species. Like all
work under the Endangered Species Act, we have more work than
we have the resources to accomplish--we have to put that into
the context of a system of prioritization.
Dr. Lowenthal. Thank you. I know you have answered this
before, but I want to hear it again. Does having a critical
habitat designation on an area prohibit all future development?
Mr. Ashe. No, it does not.
Dr. Lowenthal. Thank you. I want to ask Mr. Mehrhoff. My
colleague talked before about the impact of the Endangered
Species Act to private property owners. My question to you is,
will this rule affect private actions on private property that
do not require a Federal permit, license, or funding?
Dr. Mehrhoff. It should not. It is specifically designed
to deal with Federal agencies. So if there is a Federal agency
that is taking some sort of an action--even giving money to
someone--then there is a nexus, if you will, for critical
habitat. Otherwise, there isn't, that I can see. In my
experience, there has not been anything that is mandated by
that action.
But I do want to say thank you for bringing up the island
foxes. It is a great success story.
Dr. Lowenthal. It is a great success story, just
recently----
Dr. Mehrhoff. And a wonderful, wonderful thing.
Dr. Lowenthal. Yes, it was. We just recently, my district
staff and myself, spent time there. And people are so, so
excited about that.
I want to hear from your point of view. I know Mr. Ashe has
answered the question. How often does an adverse modification
determination--do you know, has it ever occurred?
Dr. Mehrhoff. I have not seen one. There have been times
when we have looked at that, back in my previous time with the
other agencies, whether it was Fish and Wildlife Service or
Park Service; but none of those ever came to be, because
working with the action agencies, we found ways around those
adverse modifications, to where the project went forward and
accomplished the mission that that agency had.
So, I have not seen an adverse mod. That is the shorthand
version for it, sorry. That does not mean that there shouldn't
be one or couldn't be one, but I have not seen one, personally.
Dr. Lowenthal. Thank you. And quickly, one of your
organization's complaints with the final rule is that
cumulative impacts are not addressed. Why are cumulative
impacts so important to endangered species recovery?
Dr. Mehrhoff. Cumulative impacts are important,
particularly when you have a very large, widespread species,
where it is more easy to see how small, little things happening
inside of critical habitat occur.
As Director Ashe mentioned, critical habitat does not
necessarily stop projects. A lot of times, it focuses on ways
to have them occur quickly. So we do that and, generally
speaking, you miss what happens, as far as impacts go.
Dr. Lowenthal. Thank you, and I yield back, Mr. Chair----
The Chairman. Thank you.
Dr. Lowenthal [continuing]. Even though I was given
unlimited time.
The Chairman. Your 7 years is not up yet, but thank you
for giving a success by the Bush administration.
Mr. McClintock, you are recognized.
Mr. McClintock. Thank you, Mr. Chairman. I would like to
pick up on that line of questioning. We are constantly told
that critical habitat designations have no economic impact;
nothing to see here, folks, move along.
Mr. Bernhardt, can you tell us, is that true? Are there
costs involved with this?
Mr. Bernhardt. There are significant costs associated with
the designation of critical habitat.
Mr. McClintock. Such as?
Mr. Bernhardt. Certainly, the substantive provisions and
the legal effect of critical habitat only affects Federal
agencies, but critical habitat does have meaning in other
contexts. It affects what people perceive of the land, it
affects how folks look at that property. And I will tell you
that there is another way that is very significant----
Mr. McClintock. So does it reduce the property values for
those----
Mr. Bernhardt. I would turn to others to answer if it
actually creates a reduction in----
Mr. McClintock. Well, let me turn to Ms. Budd-Falen, then.
Perhaps you could give us some guidance, or Ms. LeValley.
Ms. Budd-Falen. Certainly yes, Mr. Chairman. I believe
that critical habitat designation can reduce property values,
particularly if you are looking at a ranching operation that
has Federal grazing permits tied with it, and all of a sudden
then you are looking at sage-grouse mitigation, pigmy rabbit
mitigation, or whatever other permitted species is on the
Federal land. It reduces that ranch unit value.
Mr. McClintock. Are any of you aware of examples of
investors or job creators pulling out of projects because of a
lengthy consultation process involving these designations?
Ms. Budd-Falen. Yes, Mr. Chairman, I am. For example, I
worked with a guy in Oregon that was trying to do a wind power
project and put up wind towers. The Section 7 consultation and
the NEPA got drug into the Interior Board of Land Appeals
Courts with the BLM. The consultation and the NEPA was so
lengthy that all of the investors simply pulled out.
We are still actually in court because we believe we are
right, and it would not have happened. But even at the end of
the day, that wind power project will never be built simply
because they could not stand the length of time of appeals and
permitting that it took because of ESA.
Mr. McClintock. Is that typical?
Mr. Bernhardt. Congressman, there is another very
significant effect. This is really not technically a legal
effect, but it is significant.
If you are taking an activity on private land in an area
that is designated critical habitat, very often when you walk
in and talk to the Services about that--even though it is not
legally required--at a field level they will push you very hard
to seek a permit under Section 10, even if you are not likely
to constitute take. Because, at the field level--even though it
is not truly legal--they do perceive strongly that part of
their mission is to protect this critical----
Mr. McClintock. This insidious thing. We are told
officially, ``Oh, this has no impact on human activity,'' but
what you are saying is it is used as an excuse for major
activity on private and public land.
Mr. Bernhardt. What I would say is that the government is
right that, as a legal matter, the designation of critical
habitat is largely focused on Section 7 of the Act. That is
where the legal rubber meets the road. But there are other----
Mr. McClintock. But in practice, the ramifications are
that it is used for other----
Mr. Bernhardt. That is right, sir. It is not irrelevant to
other significant activities. In fact, it is very relevant.
Mr. McClintock. Very good. I would like to press on. One
of the spectacular stories of failure has been the spotted owl.
The restrictions on habitat on the spotted owl have been
attributed to, basically, the destruction of the timber
industry throughout my district in the Sierra Nevada.
What is worse, they seem to make it impossible for us to
properly manage the lands. As a result, we have lost dozens of
spotted owl habitats to catastrophic wildfire, because we have
not been able to get in there to manage the land because of
these restrictions. Was that the original intent of the Act?
Mr. Bernhardt. I am happy to address that question. The
answer is no, that was not the original intent of the Act. It
is not the current intent of the Act, and it is probably not
the current intent of the administrators of the Act.
But the reality is when Director Ashe says, ``Adverse
modification decisions have been rare, and we are hopeful that
they won't happen more often in the future,'' I would like to
believe him, because I think that that is--number one, he is
right historically, and hopefully he is right perspectively.
But here is the problem, as I see it. They are going to
designate areas that were not occupied by species when the
species was listed, and that currently do not have----
The Chairman. Ten seconds to answer quickly.
Mr. Bernhardt [continuing]. Any features for consultation.
So, when a Federal agency goes in for a consultation, the
agency is going to say, ``I think you are delaying the
development of these features.''
And you are going to say, ``Well, where are the features?
'' And they are going to say, ``Well, we think they are
delaying them.'' And their requirement is going to be merely--
--
The Chairman. I am sorry. My definition of 10 seconds is a
little bit less than yours.
Mr. Bernhardt. I am sorry.
The Chairman. But you got the answer in there.
Mrs. Dingell.
Mrs. Dingell. Thank you, Mr. Chairman.
Mr. Grijalva. If you could yield just a second?
The Chairman. I didn't recognize you at all.
Mrs. Dingell. That is all right.
The Chairman. I have no idea who you are, have never seen
you before.
Mr. Grijalva.
Mr. Grijalva. No, I was asking Mrs. Dingell to yield just
for one question, before we get away from it.
The Chairman. I now know who you are.
Mrs. Dingell, you are recognized. You want to yield to a
question from Mr. Grijalva?
Mrs. Dingell. I will yield to my Ranking----
The Chairman. You got it.
Mr. Grijalva. Mr. Ashe, on the accusations of loss of
property values, burdensome requirements that prevent
development because you have to seek those permits, any
evidence one can stand up in front of these accusations and say
it is fact or not?
Mr. Ashe. Mr. Grijalva, I am aware of no scientific
evidence whatsoever that critical habitat has resulted in
reduction of property value. I would say, the next time any of
you are flying into Las Vegas, look to the north and west from
Las Vegas, and you are going to see the largest commercial
solar facility in the world, the Ivanpah BrightSource Solar
Facility. That is right smack dab in the middle of desert
tortoise critical habitat.
Mr. Grijalva. Well, I am working on borrowed time. Thank
you, I yield back.
Mrs. Dingell. Thank you, Mr. Chairman.
Mr. Grijalva. Thank you.
Mrs. Dingell. I know I now have 4 minutes left, and I have
to say that I am probably one of the only people here that is
blessed to have been up at 3:00 a.m. talking to the original
sponsor of the Endangered Species Act.
[Laughter.]
Mrs. Dingell. And I will look at my distinguished
colleague from the Upper Peninsula, and it was the wolves that
had me started.
But having said that--and I won't tell you where we came
out--it is clear that I am concerned about some of the claims
that are being made today. For me, the legislative history and
a reading of the statute--the ESA is designed to conserve both
the species identified as endangered or threatened with
extinction and the ecosystems they depend on to survive. So I
want to explore that a bit further.
Director Ashe, we have heard these theories that I don't
know that I really agree with about how designating critical
habitat in areas of species range that are only sometimes
utilized by the species, that it is outside of the Service's
authority under ESA. Do you agree? Do you believe that the
authors of the Endangered Species Act intended for the species
to remain on house arrest, unable to visit the places they go
to eat, breed, and avoid conflict?
Mr. Ashe. No, I don't, Mrs. Dingell, and it is
unequivocal. The law actually speaks specifically to critical
habitat and the designation, and authorizes the designation of
both occupied and unoccupied habitat.
Mrs. Dingell. For the record, the original author agrees
with you. In fact, the Fish and Wildlife Service has been
designating unoccupied territory as a critical habitat for
years. Is that correct? And these new regulations are simply a
good government attempt to consolidate existing authorities and
practices in one place. Correct?
Mr. Ashe. That is correct.
Mrs. Dingell. OK. So now I have 2 minutes and 15 seconds,
so we are going to talk fast.
In her testimony, Ms. Budd-Falen characterizes conservation
biology as agenda-driven science. The use of that phrase is
obviously meant to imply that conservation biology is not
legitimate or not as ``sciencey'' as other science. So, I would
like to ask Mr. Mehrhoff, do conservation biologists use the
scientific method? Doctor--I am sorry, I should have said
Doctor.
Dr. Mehrhoff. That is quite all right. Actually, they do,
particularly if they want to get anything published. So it is a
field of science, like anything else that we deal with, like
medicine, which does have an objective also, to kind of keep us
healthy. Conservation biology also has all of the same
scientific rules, constraints, requirements, et cetera. So it
is a fully legitimate, hard-core science.
Mrs. Dingell. Are any of the standards for receiving a
master's degree or Ph.D. in conservation biology any less
stringent than they are for receiving a degree in chemistry,
physics, or just plain old biology?
Dr. Mehrhoff. Not to my knowledge.
Mrs. Dingell. OK----
Dr. Mehrhoff. They are all right there----
Mrs. Dingell. Let's keep moving, because we are down to a
minute.
Doctor, do academic journals that publish studies by
conservation biologists require those studies to be peer
reviewed?
Dr. Mehrhoff. The better journals do, absolutely.
Mrs. Dingell. So, is there any evidence at all to support
the claim that the field of conservation biology is driven by
anything other than a search for knowledge or that it is any
less rigorous than any of the other natural sciences?
Dr. Mehrhoff. It is a search for knowledge, agreed. And it
is very rigorous, agreed.
Mrs. Dingell. Thank you. It is clear to me that
conservation biology is an accepted science practice, and one
that has yielded incredible gains in species protection. I hope
that the committee will keep this in mind as it moves forward,
and I yield back my 25 seconds, Mr. Chairman.
The Chairman. Thank you. Mr. Thompson, you have 5 minutes
and 25 seconds.
Mr. Thompson. Chairman, thank----
The Chairman. No, five.
Mr. Thompson. Thank you. Hopefully I will give you change
back at the end.
Thanks to all members of the panel for being here today.
Thank you, Director Ashe. I really appreciate the folks, many
who are working with your Service. I spend time with them. I
was just inside a cave, a rather large cave, with one of your
excellent staff, Laura Zimmerman. We were looking at bats. I
want to ask you about bats. I was there in a collaborative way.
I was there with the Pennsylvania State bat biologist
technician.
But here is my impression of your agency right now:
schizophrenic, at best, and one that takes one step forward and
two steps backwards.
You talked about the partnership with NRCS. I chair the
conservation committee, I do support conservation as a science.
And, as a science, we should rely on data in science and try to
put other agendas aside. And you talked about some of the
victories and successes we have had partnering with NRCS in the
Department of Agriculture. That has been done in a
collaborative way and that has been very effective.
And I think the successes we have had have been because of
a change of attitude and strategy that, to some degree--
although not completely--Fish and Wildlife Service has
embraced. For the NRCS Department of Agriculture, conservation
and collaboration projects kind of define them.
I compare that to how effective those have been compared to
the top-down controlling approaches that have excluded
Congress, have excluded private property owners, have excluded
maybe not all key stakeholders, but certainly ones that should
be at the table. So that is the schizophrenia part. What seems
to be working is collaborative, and not top-down, not
controlling, not excluding.
OK. Well, I wanted to talk about bats. Why don't we do
that? As you know, 38 states, including Pennsylvania, will be
impacted by the listing of the Northern long-eared bat as
threatened under the ESA. The underlying problem in this
instance is not habitat loss, but rather the white-nose
syndrome, a fungal disease. In fact, Congress has provided you,
I think, some great investments, in terms of researching that
disease. We have, I think, for the past 2 years.
Now, how specifically does Fish and Wildlife intend to
implement this new designation of threatened for the Northern
long-eared bat, while ensuring that critical activities such as
agriculture, timbering, forest management, and energy
production in those 38 states are allowed to continue?
Mr. Ashe. I think it is actually a great demonstration of
the flexibility that is inherent in the Endangered Species Act,
and our ability to apply it. We listed the bat as threatened,
which allows us the flexibility to tailor the restrictions in
the law.
With the long-eared bat, what we did was--since white-nose
syndrome is what is devastating these bat populations, we said
we are only going to use the Endangered Species Act to protect
critical life stages of the bat. We are protecting hibernacula;
we do not want disturbance of the bats when they are in that
sensitive stage of hibernation. We are also protecting nesting
trees, known nesting trees, only during the pupping season,
which is, I believe, June to August.
So, we have tailored the restrictions of the law down to
the bare minimum necessary to secure very sensitive life
history stages for the bats; and we have exempted all other
activities, like forestry, rights-of-way, oil and gas
development, things that affect, potentially, the habitat of
the bat. But habitat is not a limiting factor for the bat, it
is the white-nose syndrome disease. So we have very
specifically tailored the restrictions of the law to the bare
minimum necessary to achieve our conservation objective.
Mr. Thompson. I do appreciate when we are able to work
using collaborative conservation approaches. I have witnessed
that a number of times, where there have been disagreements
with--whether it is individuals putting housing developments
and there was a threat to Indian bat.
Mr. Ashe. Right.
Mr. Thompson. And the fact that, when folks come to the
table, we are able to work through those. But I do have
concerns with these regulations you have written, because they
do not seem to be in that spirit. They seem to be more
controlling, and I don't think that works as effectively at
all.
The Chairman. Mrs. Capps.
Mrs. Capps. Thank you, Mr. Chairman Bishop and Ranking
Member Grijalva. There is no question that humans have adapted
and expanded to a growing number of ecosystems across the
planet. While this expansion has demonstrated great ingenuity,
it has also brought with it many unintended consequences.
Humans have greatly altered the landscapes and waterscapes
that plants and animals have lived in throughout history. In
some cases, we have compromised habitat so much that species
have become endangered or, in the worst of circumstances, they
have become extinct. However, in recognition of this growing
threat to these species, Congress recognized it needed to act,
and passed the Endangered Species Act.
Since 1973, this Act, ESA, has been one of the Nation's
most important conservation laws. Since then, ESA has worked to
successfully prevent the extinction of hundreds of vulnerable
species. There is still a long road ahead.
Along the Central Coast of California, my congressional
district, there are over 70 species that are threatened or
endangered. While this number is daunting, there are some
exciting success stories, one of which my colleague, Mr.
Lowenthal, already referred to, because, through extensive
effort and significant collaboration, the Fish and Wildlife
Service worked with many stakeholders to implement a recovery
plan for four subspecies of the island fox endemic to the
Channel Islands off the coast of Santa Barbara in my district.
Despite having populations that were down to the teens for
some of the subspecies, three of the four listed subspecies now
have recovered to the point that there is a proposal to delist
them. This recovery marks the fastest recovery of any mammal
population of the United States, something that we are very
proud of.
However, successfully protecting species requires
significant effort, extensive collaboration, and utilization of
a lot of data. Specifically, the Fish and Wildlife Service and
NOAA must understand what a species needs to recover. You do a
lot of background work.
So, Mr. Ashe, first I want to thank Fish and Wildlife for
all the hard work you put in. I do this on behalf of my
constituents--that is a big tourist area draw out there--and
every other species to recover. So could you elaborate just
briefly on what information you need in order to develop? What
is the path that this island fox now has demonstrated is
effective?
Mr. Ashe. First of all, you have to understand the threats
to the species. What are the limiting factors for the species?
With the island fox, in some cases it was predation, direct
predation, from golden eagles.
Mrs. Capps. Right.
Mr. Ashe. And we had to deal with that species-to-species
conflict. And then it was just erosion of the habitat from
other invasive mammals and change in the habitat structure. So
it required control of other species of mammals on the island
to support a better habitat basis for them.
Mrs. Capps. And you work with other stakeholders, right? I
mean maybe you could list----
Mr. Ashe. We do, exactly.
Mrs. Capps. Talk about that.
Mr. Ashe. We work with local community, we work with the
National Park Service, we work with the state of California. It
is the collaboration that Mr. Thompson was talking about.
Mrs. Capps. Good. Now, Dr. Mehrhoff, identifying and
protecting the appropriate habitat is an important component of
a recovery effort. I mean this is a joint goal that you work
with many agencies about. Can you explain how critical habitat
designation is important to meeting the needs that Director
Ashe outlined?
Dr. Mehrhoff. Certainly. Critical habitat is very
important. I most recently have been in Hawaii, where we have a
lot of species that have been reduced to very low numbers--12
plant species with one individual left in the wild, that level
of endangerment. When you are dealing with that, where that
plant occurs right now will not be nearly enough to actually
meet what it needs for recovery, to get it off the list.
So, you need to look at what areas potentially in the
future the species needs in order to get to a healthy
population so that it can allow for delisting of the species.
So it is really important to have good science, and to identify
the areas that are currently needed, currently occupied, and
then what other areas that are unoccupied that need to be
provided protection in order to make sure you get to your
recovery numbers. Thank you.
Mrs. Capps. Thank you very much, and I yield back my time.
But it is wonderful to have some success stories to celebrate.
Thank you very much.
The Chairman. Thank you.
Mr. Benishek.
Dr. Benishek. Thank you, Mr. Chairman. Thank you all for
being here this morning.
Ms. LeValley, do you feel as if these changes in the rules
are inconsequential?
Ms. LeValley. Again, we have worked in cooperation with
Fish and Wildlife Service, with the BLM to manage the
landscape, to manage for the benefit of the Gunnison sage-
grouse.
Where I think the uncertainty comes in is in the actual
listing. When we talk about having to look at a map to
determine critical habitat without clear parameters and no
specific landowner notification, that is a concern. And again,
where we are talking about the adverse modification potential,
I clearly appreciate that there has been no action to date. But
where you have the continual litigation, it just opens the door
for additional litigation for the potential for the adverse--
those are the concerns that we have, as far as the unintended
consequences.
Dr. Benishek. Ms. Budd-Falen, do you feel as if these rule
changes are inconsequential?
Ms. Budd-Falen. No, I think these rule changes are
absolutely consequential.
Dr. Benishek. That is my real problem with this whole
situation we have in Washington, is that this Administration,
supported by some members of the Minority, changed the rules
and then called them inconsequential without realizing that
this affects people on the ground. It may not be consequential
to the bureaucrats here in Washington, but it is certainly
consequential to the areas where people live and work and try
to make a living. So, I just think that is an odd designation.
Ms. LeValley, let me ask you another question. In the next
few years, if the Fish and Wildlife Service proposed to delist
another species in your general vicinity, what would your
initial reaction be? Would you be concerned or would you have
any confidence they would be able to continue to work with
them? And can you do your business without drastic change?
Ms. LeValley. We are already experiencing change when we
continue to get the push to change what we are doing on the
ground now, even though what we are doing now on the ground has
yielded and exceeded the habitat guidelines. We are already
getting the change.
So when another species come, which species wins, which
critical habitat wins? What are we supposed to manage for? That
is, to me, again, the other unintended consequence. When we
talk about the science in all of this, it is very hard to meet
a statistical significance in science when we actually have the
reflection of the grazing that is being done on the ground now.
So we have to have such broad parameters for that that we
often lose sight of what is actually occurring on the ground
when we talk about statistical science and that----
Dr. Benishek. Do you feel that the Fish and Wildlife
Service is a collaborative? I mean Mr. Thompson was talking
about collaboration and things that you mentioned that you have
been doing right along. But do you feel that the Fish and
Wildlife Service is a collaborative partner in this, or do you
feel like it is more of an adversarial relationship?
Ms. LeValley. Again, we are working with them, but there
are times, especially recently, when we have been in meetings
where the Fish and Wildlife Service has said, when we are in
meetings with BLM, ``Our preferred alternative is no livestock
grazing.'' That is concerning.
Dr. Benishek. Ms. Budd-Falen, do you have any comments
along those lines?
Ms. Budd-Falen. Obviously, I think it depends on the
individual, whether they are collaborative or not. Several
times the sage-grouse CCAA in Harney County has been mentioned,
which is the one that they are counting in Oregon as such a
great success story, where they talk about the bird and the
herd. Those Fish and Wildlife Service people actually stated to
me that they went out on a limb to do that, because the habitat
conservation looked at the entire habitat and the land, not
just the species itself.
And for that area, that was a whole new ball game to look
at. That is why the landowners support it, because the
collaboration occurred looking at the ecosystem, not just the
sage-grouse. But the Fish and Wildlife Service is a species-
oriented agency, not an ecosystem-oriented agency, and that
causes great problems to those of us that have to live with the
decisions.
Dr. Benishek. Let me ask Mr. Ashe a follow-up to that
statement.
Mr. Ashe, what do you say to that species-oriented versus
ecosystem-oriented remark there by Ms. Budd-Falen?
Mr. Ashe. Well, there----
The Chairman. And you have 9 seconds.
Mr. Ashe. Yes, really. There is no distinction between
species and the ecosystem that they live in. The Endangered
Species Act says it is our responsibility to conserve the
species and the ecosystems on which they depend.
Dr. Benishek. All right. I am sorry. Thank you.
The Chairman. Mr. Polis.
Mr. Polis. Thank you, Mr. Chairman. First I want to
welcome Ms. LeValley from Colorado. She is from just a bit
outside my district, but truly one of the most beautiful parts
of our state, and we welcome her before our committee. Our
county administrators juggle a great number of balls, and we
appreciate you being here to share your wisdom with the
Congress.
My question is for Director Ashe. Of course, the most
important thing that can be done to avoid any controversy over
critical habitat designation is to proactively protect species
habitat so that a listing and critical habitat designation are
not even necessary. I wanted to thank you for your
collaborative proactive approach for conserving the habitat of
the greater sage-grouse so a listing is not necessary in that
case.
As this committee has discussed, and as your work
indicates, protecting the sage-grouse's habitat is important,
not only for that particular bird, but also for deer and elk,
hunters and recreationists, and many others who place a high
value on protecting our sagebrush ecosystem.
I find it ironic that those who opposed the efforts of the
agency to have a negotiated protection of sage-grouse habitat
through a collaborative approach also oppose what happens in
the failure of such an approach: namely, critical habitat
designation. I think that this kind of collaborative approach
is the best way to prevent the very kind of critical habitat
designation that is being discussed before the committee today.
I was hoping you could update me and the committee on your
efforts to work with Federal, state, local, and industry
partners to implement protections for sage-grouse, and comment
about the role of wilderness and other protected areas in
ensuring that species' habitats remain intact and, therefore,
can avoid listing, and recovering a species and habitat so that
species can be delisted.
Mr. Ashe. Thank you. Mr. Polis, I refer back to Secretary
Jewell's remarks--when we made our announcement on the sage-
grouse, calling it ``epic collaboration.'' Really, when you
think about the NRCS, the U.S. Forest Service, the Bureau of
Land Management, the U.S. Fish and Wildlife Service, thousands
of private landowners, and 11 range states, it was just
extraordinary collaboration to get to that point.
And to your point about wilderness and protected lands, one
of the key aspects that allowed us to get to that not-warranted
determination was that Federal land base, and particularly what
BLM and the Forest Service have called the sage-grouse focal
area. We had high-quality habitat. Under Federal land
stewardship, we could put additional protections on top of that
and we could see into the future. We could see that we would
have abundant, distributed, genetically-connected populations
of sage-grouse into the future, supported by that network of
protected public lands.
Mr. Polis. Do you see all of these as tools in the toolbox
toward the same end? And how important is critical habitat
designation as one of those tools?
Mr. Ashe. They are all important tools in the toolbox.
Critical habitat? As an administrator, I would say sometimes it
feels like the juice is not worth the squeeze, because it has
become so controversial. But the impact of critical habitat, as
we have been talking about here today, is not what many people
make it out to be.
But, as Dr. Mehrhoff said, I think the fact that that
habitat is identified as being important, the fact that Federal
agencies have an obligation to protect it in the context of
Section 7 consultations, they exercise their discretion in a
way to support the continuing viability of that habitat. So,
overall, it is all part of the important toolbox that we have.
Mr. Polis. And, Dr. Mehrhoff, in the final 45 seconds I
want to give you a chance to set the record straight about what
a critical habitat designation means, and if these rules make a
difference in what that means.
Dr. Mehrhoff. I think these rules pretty much keep things
in the status quo. That is the quick answer to that.
As far as critical habitat and how things are playing out,
one of the great things about the Endangered Species Act is
that it is wanting to make sure that the left hand wasn't doing
something that the right hand wasn't doing; so it really tried
to make sure that agencies collaborated with each other in the
consultation process.
Critical habitat is one of those things that is really
important and turns around and dovetails quite nicely into all
the recovery efforts. Having it there really identifies the key
issues, the key habitat that needs to be protected, and focuses
all the agencies to at least consider it, and not inadvertently
cause the extinction of a species.
Mr. Polis. I thank the Chair and I yield back the balance
of my time.
Dr. Gosar [presiding]. I thank the gentleman, and now will
yield his time to Mr. LaMalfa from California.
Mr. LaMalfa. Thank you, Mr. Chairman. We have had just a
tremendous amount of wildfire in the West. Over the past 15
years, there is an average of a little over 320,000 acres
burned in California each year. A more aggressive
implementation of the 40-plus-year-old Endangered Species Act
is severely limiting the ability of the Forest Service to
prevent future fire and to restore burned lands.
Up in my area, we are talking now about a fall of 2014
fire. The Forest Service, implementing the Section 7
consultation, or actually not doing so, delayed what should
have been a 90-day process. It took over a year. And now, about
a month ago, the consultation finally was issued, where the
lands that had burned in the fall of 2014, can now start--4
percent of them is what the project is trying to do, 4 percent
on the west side fire, Western Siskiyou County, to be salvaged.
We know what happens when you wait that long. If you wait
more than 6 months, up to a year, the value of the timber, the
ability to salvage it and gain something from that, it
deteriorates every day. So, the Yreka office of the U.S. Fish
and Wildlife is working through that Section 7 process.
Mr. Ashe, I would like to ask you why evidently the
Portland office, which supersedes them, came in and said, ``We
are not going to give you a consultation,'' so it drug out the
process for a year, instead of 90 days, where, collaboratively,
the Yreka office was working on that. Somebody up there
decided, ``We don't want this to happen.'' Ostensibly, over
spotted owls.
Isn't it reasonable to expect that U.S. Fish and Wildlife
can meet the 90-day deadline for a consultation?
Mr. Ashe. Deadline for consultations is 135 days, and it
is reasonable to expect us to accommodate that deadline unless,
of course, we do not get the information that is necessary for
us to do the evaluation. Oftentimes, we do not get adequate
information to allow us to do the evaluation. But I am not
familiar with that particular case, and I am happy to find out
about it and come speak to you about it.
Mr. LaMalfa. OK. We have an individual in the Portland
office that just decided they did not want it to happen.
So without having to declare critical habitat, the process
can slow it down. We have other examples that include farming
and ranching operations in my part of the state that somebody
from Army Corps wanted to decide it was a wetland. The person
could not use their land for 3 years because they were under
the threat of prosecution, even though no actual charges were
filed.
We have other cases where EPA decides by plowing your land
that it could be changing the waterways under the Clean Water
Act.
Does this all feel pretty good, Mr. Mehrhoff, that you can
ball people up like this? You heard Ms. Falen and Ms. LeValley,
I mean, you guys are having your day right now, but the people
out here in the West are really frustrated by things that do
not actually help when we have 1 percent of species that
actually reach the recovery mode. Does that feel like a win for
you all?
Dr. Mehrhoff. Well, I think that, certainly, we feel that
the Endangered Species Act has been a win, and its
implementation has been good.
Mr. LaMalfa. What, a 1 percent recovery rate for all the
billions we spend----
Dr. Mehrhoff. One percent recovery rate, when you put it
against the expectations of what it should be, is not too bad.
Mr. LaMalfa. Well, it sounds like you have a whole list of
other stuff that you are having people out there look for, too.
Dr. Mehrhoff. There are going to be lots of folks----
Mr. LaMalfa. Expand the list even more.
Dr. Mehrhoff. Lots of things.
Mr. LaMalfa. Yes.
Dr. Mehrhoff. I think it is important to identify them,
yes.
Mr. LaMalfa. Mr. Bernhardt, I am going to shift.
Mr. Bernhardt, I heard you lost some of those rounds in the
9th Circuit. The gentleman over there said that is a loss.
Well, it is not really a loss, given the record of the 9th
Circuit; it just means it has not gone to a reasonable court
yet. I am glad that at least the Equal Access to Justice Act
can actually be equal for somebody that is not an environmental
group.
Mr. Bernhardt. Well, actually, the ESA specifically
provides for these fees, as well, in its text. It is there and
exists under the ESA. And the so-called procedural win was a
requirement that the government actually do NEPA on the biggest
water project changes that had been made in the history of
California.
It was quite a consequential victory to require that
agencies actually think about the ramifications of their
actions.
Mr. LaMalfa. Well, we will be looking into the hourly
rates at which they are compensated. Instead of being 500-plus,
maybe more like a standard--like 150. Thank you.
Dr. Gosar. I thank the gentleman. The gentleman from
California, Mr. Costa, is recognized for 5 minutes.
Mr. Costa. Thank you very much, Mr. Chairman, Ranking
Member. I apologize for having missed the earlier testimony and
comments from my colleagues, but this is an issue that, in
terms of its broader application and scope, has troubled me
because I think that the Endangered Species Act is an important
law in our Nation. But I think that, frankly, there are
challenges that we see today in terms of its application. When
you couple in climate change and other factors, I question how
we best provide its implementation in various circumstances.
Mr. Ashe, the Administration has been moving forward on
implementation of the ESA on its ability to make a difference.
Regulations that are promulgated, as has been discussed, have
had devastating overlying impacts on water allocation in
California, and that is where I am going to confine my comments
to. We have had a zero water allocation last year, a zero
allocation the year before, and a 5 percent allocation this
year.
I believe that the numbers are pretty accurate that, as of
January 1 of this year, if we had used the flexibility under
the existing law--and I think the biological opinions are
flawed--that at least 240,000 acre-feet could have been moved
through the Delta. Obviously, that water is gone. The
Sacramento Bee--and I would like to enter it into the record--
on Sunday indicated, I think, a good descriptive on this.
Director Ashe, is this the best that can be done in
implementing the Endangered Species Act and still allow for the
protection and the movement of water in California?
Mr. Ashe. Is it the best that can be done? I believe,
Congressman, our people are doing the best that they can do,
and----
Mr. Costa. Let me ask you the question this way. Has the
Fish and Wildlife Service taken the time to create a long-term
recovery plan for the Delta smelt?
Mr. Ashe. We do not have a recovery plan for the Delta
smelt.
Mr. Costa. So you are trying to use the law to protect the
species by using one management tool in your toolbox, which is
simply the flows of water, and you do not have a recovery plan.
Mr. Ashe. I would say what we are trying to do is trying
to help the project operate. The project has an obligation----
Mr. Costa. Well, that is subject to definition.
Mr. Ashe. I will admit----
Mr. Costa. I do not want to belabor that point. Do you
think the Endangered Species Act can be reformed to achieve
better outcomes for species recovery in light of climate
change, as it relates to minimizing the impact on human
populations? Because I want to tell you something. Those zero
water allocations have devastated the communities I represent,
with thousands and thousands of farm workers being unemployed,
the impact to the farm communities and to the farmers, and lost
income, and potentially, lost farms, and people that have had
to move away because there are no longer jobs available.
Mr. Ashe. Well, as you know, Mr. Costa, I respect and
admire your ferocity in representing your constituents on this
issue----
Mr. Costa. I appreciate that. But my question is, can we
get better outcomes? Do you think we should look at----
Mr. Ashe. We can get better outcomes if we have more
resources to implement the law.
Mr. Costa. Why don't we have a species recovery plan?
Mr. Ashe. Because we lack the resources to----
Mr. Costa. There was $50 million in drought funding for
California, alone. It seems to me that a priority ought to be
to deal with a species recovery plan that would not rely solely
on the use of water.
Mr. Bernhardt, this is an issue that you are very familiar
with. Do you think we could modify the Endangered Species Act
in a way that would make species recovery better?
Mr. Bernhardt. I think certainly the law can be modified.
And I think the challenge of climate change creates new
challenges for the administration of the Act.
Mr. Costa. Why don't you think there is a recovery plan?
Mr. Bernhardt. Why do I not? I think that, at the end of
the day, the Service focuses on its priorities, whatever those
may be, with the resources it has.
Mr. Costa. But if their priority is recovering the
species, it seems to me having a plan to recovery would be kind
of the first order of business.
Mr. Bernhardt. It is my experience, sir, that agencies
focus their resources on their priorities.
Mr. Costa. What you are saying, then, in your opinion,
this is not a priority of the agency.
Mr. Ashe. Our priority has been on consultation----
Dr. Gosar. I thank the gentleman. The gentleman from
Washington is acknowledged.
Mr. Costa. I think I have made my point.
Dr. Gosar. I think you did. The gentleman from----
Mr. Newhouse. Thank you, Mr. Chairman, Mr. Ranking Member.
I appreciate all the panelists being here today. Your time is
very valuable, and we appreciate your input.
Director Ashe, I am particularly interested in your
testimony, and appreciate your comments very much. I wanted to
point out that on April 1 your agency released a report that
found that the gray wolf populations are actually doing quite
well. They are increasing in the Northwest.
Mr. Ashe. They are.
Mr. Newhouse. They have stabilized. According to your
press release--and I will quote that--``The wolf population has
exceeded recovery goals identified by the Service and partner
biologists since 2002. The wolves continue to expand their
range westward in Oregon and Washington. An additional 200
wolves and 34 packs, including 19 breeding pairs, were
estimated in those two states.'' Additionally, the report
states that the total wolf population in the Pacific Northwest
and Montana, Idaho, and Wyoming now is estimated to be 1,904
wolves.
So, it seems to me like we should call success when we see
it. Given your comments about this Administration delisting
more species than all other administrations combined, why isn't
the Service moving forward with finalizing and implementing
their 2013 proposed delisting rule for the wolf?
Mr. Ashe. The wolf is probably one of the most frustrating
issues during my tenure as director. Wolves are recovered in
the Northern Rocky Mountains, and as I said before the House
Appropriations Committee, we are kind of like that truck that
is in the mud up to the running boards, you know? We can't go
forward, we can't go backward.
And so, right now, we proposed a rule to delist wolves
nationwide, except for the Mexican wolf in the southwestern
United States. That proposal was criticized roundly; we put it
out for peer review, and we got significant scientific
criticism of the proposal.
Wolf taxonomy is Byzantine at best, I would say. We are in
a position where it is very difficult for us to move forward or
backward on wolf. And, right now I have much higher priorities,
quite frankly, in terms of our delisting agenda. That is
unfortunate for states like Washington and Oregon that have
very good wolf management programs. We continue to see the
geography and the numbers of wolves expand, and we are trying
to provide all the flexibility that we can to those states to
manage within the context of an endangered listing for wolves.
Mr. Newhouse. Now, as you know, our State Department of
Fish and Wildlife supports delisting.
Mr. Ashe. They do.
Mr. Newhouse. I will look forward to continuing to work
with you to achieve your stated goal.
Mr. Ashe. And I would like to come talk to you about that,
specifically.
Mr. Newhouse. Absolutely. Let's move on to another
species. Could you explain to me the reasoning behind the
decision to reintroduce grizzly into the North Cascades? What
scientific evidence led to that decision? And where does that
process currently stand?
I can tell you that I have heard from many concerned
constituents about this proposal. So, maybe you could discuss
some of the public feedback that you have gotten, as well, and
some of the common themes that you are hearing.
Mr. Ashe. So what we have done is, along with the Park
Service and the state of Washington, we have begun a scoping
process. We have not made a decision to re-introduce grizzly
bear, we just made a decision to consider that possibility. And
it was principally the interest of the National Park Service to
begin that process. So we worked with them, along with the
state of Washington, to design that scoping process and to hear
the concerns that the public might have.
Mr. Newhouse. What are some of those concerns. Could you
share?
Mr. Ashe. I have not seen the record directly myself at
this point, Mr. Newhouse. I would imagine I could predict some
of the concerns about predation, about personal safety
associated with grizzly bear. But at the same time, grizzly
bears can be an important part of a recreational economy, as
well. We see certainly in the greater Yellowstone ecosystem
grizzly bears are a very vibrant part of a recreational economy
and essential to the vitality of that area.
Mr. Newhouse. Well, again, I look forward to working with
you and having further conversation. With that, my time has
just about expired.
Thank you, Mr. Chairman, and again, I appreciate all of you
being here.
Dr. Gosar. I thank the gentleman. The gentleman from
Georgia, Mr. Hice, is recognized for 5 minutes.
Dr. Hice. Thank you, Mr. Chairman. I appreciate calling
this committee hearing on critical habitat; and each of our
panelists, I thank you for your testimony here today.
Director Ashe, you are on a roll, so we will try to keep
you going here for a couple more questions. Under these rules,
will the Services need to make a distinction between occupied
and unoccupied habitat and designating the critical habitat?
Mr. Ashe. We would make a distinction. At the time we
designate habitat, if habitat is unoccupied, we would be
identifying that as currently unoccupied habitat, and we would
be justifying our reason for designating critical habitat.
Dr. Hice. Well, how will they need to make the
distinction?
Mr. Ashe. So what we would do is, if the habitat is
currently unoccupied, we would make the case for why that
habitat is important to the potential recovery of the species.
So again, we would have to build an administrative record
to support that designation in the light of, certainly,
substantial interests being expressed against designating that
critical habitat. So, the process of designating critical
habitat is a public process where we get much input from the
state and from interested public and private parties.
Dr. Hice. Correct me if I am wrong, but it seems that it
would be much easier to designate an unoccupied area than
occupied. And to me, this goes against common sense. But it
seems that designating unoccupied areas would be easier
because, obviously, the occupied area requires having certain
biological and physical features and all that sort of stuff,
whereas the unoccupied area would not.
Mr. Ashe. I would think I would take the opposite posture.
I think it is much easier for us to document a case for
critical habitat if it is occupied, the species is there, we
can demonstrate that the habitat is there, because the species
are there.
If we are going to make a case for designating unoccupied
habitat, I would say the burden is higher on us to show why,
because the species is not there, or because maybe some of the
critical biological or physical features are not there
currently, that we would have a higher obligation in that case.
Dr. Hice. Mr. Bernhardt, do you have anything to add to
that?
Mr. Bernhardt. Yes, I do, because I think Mr. Ashe just
explained the converse of what his new rule does. His new rule
specifically does not require that physical biological features
be present in unoccupied habitat, but it does in occupied
areas.
A very significant change of this rule is that, up to this
point, they did not look at designating unoccupied habitat
until they made a determination that the occupied habitat was
not sufficient for the conservation of the species.
They don't have to do that, and they don't have to look for
the features that are necessary for conservation. They just
have to say, ``In our mind, this area is essential for the
conservation of the species because,'' even if the physical and
biological features are not present.
Dr. Hice. OK. Thank you.
Ms. Budd-Falen, do you have anything further to add?
Ms. Budd-Falen. No, I absolutely agree with Mr. Bernhardt.
And I think that, actually, it is going to make litigation much
harder, because under the arbitrary and capricious standard of
the APA, the Fish and Wildlife Service only has to come up with
some sort of scenario where they are correct, and we cannot win
that. It is much different and going to be much harder for us
to challenge these critical habitat designations, because they
only have to show up with something that says, ``Some day in
the future this is going to have the features,'' and there is
no way for us to argue that.
Dr. Hice. I would agree with you.
Director Ashe, back to you. It is easy to view rules and
regulations in a vacuum. I think sometimes we do this. But
these rules are piled up on top of hundreds of other rules and
regulations. Have you analyzed the cost impacts of increased
consultations because of expanding Federal jurisdiction in
other areas, such as the EPA's expansion of the Waters of the
U.S.?
Mr. Ashe. I have no context within which I can do that,
no. When we----
Dr. Hice. Well, that seems like a rather important thing.
Why have you not taken time to do this, since there is a pretty
big impact on the Federal budget?
Mr. Ashe. What you are asking me to do is analyze the
impact of my rule in the context of all rules that EPA or the
Securities Exchange Commission, or any----
Dr. Hice. Don't you think it is important for someone to?
Mr. Ashe. I don't know, but it is impossible for me to do,
especially given the resources that I have to implement the
law. What my responsibility to do is to analyze the
consequences of my action; and we do that with the Office of
Management and Budget as we move a rule forward, to look at the
additional costs of consultation and burdens that our
regulation may impose.
Dr. Hice. Thank you.
Dr. Gosar. I thank the gentleman. The gentleman from
Arizona, Mr. Grijalva, is acknowledged for 5 minutes.
Mr. Grijalva. Thank you, Mr. Chairman.
Dr. Mehrhoff, ESA opponents claim that Fish and Wildlife is
not delisting species fast enough. However, threatened and
endangered species, as has been said before by Mr. Ashe and
others, must recover before they are delisted.
How does the designation of critical habitat promote that
species recovery? Doctor?
Dr. Mehrhoff. Thank you for the question. Critical habitat
is a pretty important aspect of the recovery process,
particularly for species that are already at extremely low
numbers, because you have a very large increase in population
that is going to be needed before those species can reach
recovery. So you need to make sure that you have habitat for
them to grow into as they recover.
It also, as we have mentioned several times today, really
helps focus conservation actions in specific high-priority
areas, and kind of gets us to the end game quicker by everybody
working together, like what happened with Channel Island foxes,
a slightly different situation, but that is kind of the idea.
Mr. Grijalva. OK. In your opinion again, Doctor, does the
Fish and Wildlife Service get the financial resources and the
political backing it needs from Congress in order to achieve a
shared goal, which is to be able to recover and delist species
as quickly as Congress would like to see it?
Dr. Mehrhoff. No. When there is money that comes in,
particularly on a species like Channel Island fox, and
everybody is working together, you can see how quickly things
can move.
But I can tell you from personal experience working on a
lot of very rare species that do not get very much money, that
there is never enough money in some parts of the United States
in the Fish and Wildlife Service--not necessarily all, but in
some, where, when I was in that decisionmaking process, I did
not fund projects that were close to getting a species off the
list, because my higher priority was to keep other species from
going extinct in the next 2 years. So, by not having enough
money to do both of those, we delayed recovery without
question.
Mr. Grijalva. The other point that came up as a mitigating
factor in both habitat designation and recovery is the issue of
climate change.
Dr. Mehrhoff. Correct.
Mr. Grijalva. I appreciate the acknowledgment by all the
witnesses that that is a factor, despite the lack of
acknowledgment by the U.S. Congress.
But nevertheless, climate change, as a mitigating factor,
critical habitat as part of that recovery process. Doctor, do
you see a ``because of one we should not do the other'' kind of
a----
Dr. Mehrhoff. Well, no. I think you are going to have to
factor critical habitat into the climate change scenario to
look at what will be needed into the future. But again, this is
not a fly-by-night operation. There is a lot of science that
needs to go into that to decide that these areas are the ones
that are needed above and beyond currently occupied habitat to
take into account the needs of climate change.
So, it is a very intense process, heavy science, heavy
lifting by a lot of people in order to figure out what is the--
--
Mr. Grijalva. One does not negate the other in terms of--
--
Dr. Mehrhoff. Absolutely not.
Mr. Grijalva. OK.
Dr. Mehrhoff. You have to have both.
Mr. Grijalva. I was hoping that was not the choice we were
being confronted with.
Again, one more point, Doctor, Ms. Budd-Falen lamented the
fact that the issuance of Federal flood insurance and Federal
agriculture assistance triggers consultation under ESA. Do you
share that concern?
Dr. Mehrhoff. I don't see it as a concern. I see it as
proper functioning of a government. In other words, as we
mentioned before, the ESA kind of tries to make sure that one
hand isn't doing something that the other hand doesn't know
about by working together under the consultation process. This
is an important feature to keep one agency from inadvertently
causing the extinction of another species.
So, it is an important role for the ESA to play, but it
usually does not stop projects, it means they have to be
jiggled around----
Mr. Grijalva. Yes. So if a landowner does not want to be
bothered with this, they do not accept the government
assistance, correct?
Dr. Mehrhoff. Correct.
Mr. Grijalva. With that, thank you, Mr. Chairman. I yield
back.
Dr. Gosar. I thank the gentleman. Can I get Slide 1 placed
up there?
[Slide]
Dr. Gosar. Director Ashe, you know, it is you on the hot
spot.
Here is a map that was released last week by the Service
announcing that the agency is pursuing a draft compatibility
determination to impose new boating restrictions within the
Havasu National Wildlife Refuge. Essentially, the Service is
seeking to prohibit waterskiing, wakeboarding, and other
recreational towed devices in all the purple and teal areas
with the dots. Is that correct, Director Ashe?
Mr. Ashe. I am not familiar with the substance. I will
assume that it is.
Dr. Gosar. It is. So, in total, how many miles or acres
would be closed to these activities under this compatibility
determination?
Mr. Ashe. I have no idea.
Dr. Gosar. Would that include all the purple dots within
the 4,000-acre Topock Marsh, where you are all seeking to
implement the no-wake speeds?
Mr. Ashe. I do not know.
Dr. Gosar. You do realize this is a man-made impoundment,
do you not?
Mr. Ashe. I do realize that.
Dr. Gosar. OK. I have heard all these wonderful things
about your Service, but this is going to kind of be a black
eye.
Last May, the Service established new boating restrictions
and closed motorized boating in a half-mile backwater area that
had been utilized by recreational enthusiasts for decades. This
order was effective immediately and implemented by the acting
refuge director without public comment.
Shamefully, this arbitrary closure became effective 2 days
before the Memorial Day weekend, a very important tourist
weekend for Lake Havasu.
Could staff bring up Slide 2?
[Slide]
Dr. Gosar. Do you know who this is, Mr. Ashe?
Mr. Ashe. I do not.
Dr. Gosar. This is 10-year-old Ryder Bliss. Ryder is a
special needs child who learned to wakeboard in the backwaters
of Lake Havasu that your agency shut down last May. Ryder no
longer has a safe place to wakeboard in Lake Havasu, as you
expect him to go out in the open waters, where boats are
traveling at 70 miles per hour.
Slide 3.
[Slide]
Dr. Gosar. This slide contains an email from the acting
refuge manager stating that a paddle boater's request to
immediately extend the half-mile no wake zone was not feasible,
and would require public comment.
Slide 4.
[Slide]
Dr. Gosar. This slide contains another email from the
acting refuge manager on November 26, 2014, stating she will be
putting out a proposal for a 30- to 60-day public comment
period.
Slide 5.
[Slide]
Dr. Gosar. This slide contains another email from the
acting refuge manager from January 9, 2015 stating she is still
working on a proposal for public comment.
Slide 6.
[Slide]
Dr. Gosar. This slide contains an email from acting refuge
manager stating that this half-mile closure would likely meet
resistance and require NEPA compliance.
Did your agency follow NEPA before implementing the May
2015 closure?
Mr. Ashe. [No response.]
Dr. Gosar. The answer is no. I don't want you to
misrepresent it, so the answer is no. Your agency did not
comply with NEPA prior to implementing the May 2015
restriction.
Shamefully, in the draft compatibility determination
released last week, your agency stated, ``Due to the absence of
controversy, the Service utilized a NEPA categorical exclusion
and did not solicit public comment prior to the May 2015
closure.'' There was considerable controversy, and your agency
knew it. There should have been a public comment period.
Furthermore, this closure was arbitrary, and not warranted.
In fact, on a March 31 conference call, your staff indicated
that there had been about 12 citations since 2012 in the area
you closed last May. That is around three per year. Your staff
also indicated the number could be higher, but that you all
don't know, because your agency and local law enforcement does
not document the actual locations of boating citations. If you
don't know how many incidents actually occurred in these areas,
how are you going around arbitrarily closing these boating
areas and citing safety concerns?
Your staff also admitted on March 31 that you all had no
data or environmental studies that documented any washouts of
threatened or endangered species nests prior to making this
arbitrary decision. In fact, when asked if wakes had harmed
wildlife in this area, staff stated, ``I assume the answer is
yes.'' Hmm, that is really scientific. No evidence actually
existed prior to implementing this arbitrary closure.
Your staff also indicated that your agency was holding a
30-day public comment period in public meeting on a new
compatibility determination because you heard my concerns. I
don't think you heard my concerns, so let's be clear: Stop
arbitrarily trying to close motorized boating areas in Lake
Havasu. Your shameful proposals are not based on science nor
merit.
Further, holding a public meeting on a Tuesday, when people
working from Arizona cannot attend, just does not cut it. I am
going to continue to keep this open.
I have one last question. Director Ashe, last year you
testified during a joint subcommittee hearing that the warm
water discharges from the Big Ben Power Plant in Florida are
``having a direct and substantial impact on the manatee.'' That
power plant is actually a warm water refuge for manatees that
help them survive cold water temperatures during the winter.
In January of this year, the Fish and Wildlife Service
proposed to downlist the manatee from endangered to threatened
status under the ESA. Meanwhile, the EPA is defending its clean
power regulations, which will most likely shut down Big Ben and
other power plants that manatees rely on.
Director Ashe, will you assure the committee today that the
Fish and Wildlife Service will not issue any 4(d) rules that
allow the take of manatees at warm water refuges directly or
indirectly affected by the EPA's regulations?
Mr. Ashe. I am not going to make any statement about what
the Fish and Wildlife Service might do under Section 4(d)
without more context to that. We have no intention of
publishing a 4(d) rule at this point in time with regard to
manatee, to my knowledge.
Dr. Gosar. Well, given the circumstances, we would like a
full synopsis, based on that question, for the record.
So, with that, this hearing is adjourned, and I thank all
the witnesses for coming today. Thank you.
[Whereupon, at 12:30 p.m., the committee was adjourned.]
[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S
OFFICIAL FILES]
-- PowerPoint slides used in the hearing by Rep. Paul A.
Gosar
-- The Sacramento Bee--Editorial: Delta pumping to
Southern California restricted despite rainy winter (2016)
[all]