[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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                     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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    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.
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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.
---------------------------------------------------------------------------
    \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]