[Senate Hearing 114-532]
[From the U.S. Government Publishing Office]











                                                        S. Hrg. 114-532

REVIEWING THE PROPOSED REVISIONS TO THE U.S. FISH AND WILDLIFE SERVICE 
                           MITIGATION POLICY

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

                                HEARING

                               before the

                      SUBCOMMITTEE ON FISHERIES, 
                          WATER, AND WILDLIFE

                                 of the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             SECOND SESSION

                               __________

                           SEPTEMBER 21, 2016

                               __________

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


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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                    ONE HUNDRED FOURTEENTH CONGRESS
                             SECOND SESSION

                  JAMES M. INHOFE, Oklahoma, Chairman
DAVID VITTER, Louisiana              BARBARA BOXER, California
JOHN BARRASSO, Wyoming               THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
MIKE CRAPO, Idaho                    BERNARD SANDERS, Vermont
JOHN BOOZMAN, Arkansas               SHELDON WHITEHOUSE, Rhode Island
JEFF SESSIONS, Alabama               JEFF MERKLEY, Oregon
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska

                 Ryan Jackson, Majority Staff Director
               Bettina Poirier, Democratic Staff Director
                              ----------                              

             Subcommittee on Fisheries, Water, and Wildlife

                     DAN SULLIVAN, Alaska, Chairman
JOHN BARRASSO, Wyoming               SHELDON WHITEHOUSE, Rhode Island
SHELLEY MOORE CAPITO, West Virginia  THOMAS R. CARPER, Delaware
JOHN BOOZMAN, Arkansas               BENJAMIN L. CARDIN, Maryland
JEFF SESSIONS, Alabama               BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi            KIRSTEN GILLIBRAND, New York
DEB FISCHER, Nebraska                CORY A. BOOKER, New Jersey
MIKE ROUNDS, South Dakota            EDWARD J. MARKEY, Massachusetts
JAMES M. INHOFE, Oklahoma (ex        BARBARA BOXER, California (ex 
    officio)                             officio)
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
    
                            C O N T E N T S

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                                                                   Page

                           SEPTEMBER 21, 2016
                           OPENING STATEMENTS

Sullivan, Hon. Dan, U.S. Senator from the State of Alaska........     1
Whitehouse, Hon. Sheldon, U.S. Senator from the State of Rhode 
  Island.........................................................     3

                               WITNESSES

Bean, Michael, Principal Deputy Assistant Secretary, Fish and 
  Wildlife and Parks, U.S. Department of the Interior............     4
    Prepared statement...........................................     7
    Responses to additional questions from:
        Senator Inhofe...........................................    15
        Senator Sullivan.........................................    17
        Senator Barrasso.........................................    20
Kindred, Joshua M., Environmental Counsel, Alaska Oil and Gas 
  Association....................................................    32
    Prepared statement...........................................    36
Yates, Ryan, Chairman, National Endangered Species Act Reform 
  Coalition......................................................    40
    Prepared statement...........................................    42
Colburn, Jamison, Professor of Law, Penn State University........    47
    Prepared statement...........................................    50
 
REVIEWING THE PROPOSED REVISIONS TO THE U.S. FISH AND WILDLIFE SERVICE 
                           MITIGATION POLICY

                              ----------                              


                     WEDNESDAY, SEPTEMBER 21, 2016

                               U.S. Senate,
         Committee on Environment and Public Works,
            Subcommittee on Fisheries, Water, and Wildlife,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 2:30 p.m. in room 
406, Dirksen Senate Office Building, Hon. Dan Sullivan 
(Chairman of the Subcommittee) presiding.
    Present: Senators Sullivan, Whitehouse, Barrasso, Boozman, 
Wicker, Fischer, Inhofe, Cardin, and Gillibrand.

            OPENING STATEMENT OF HON. DAN SULLIVAN, 
             U.S. SENATOR FROM THE STATE OF ALASKA

    Senator Sullivan. The Subcommittee on Fisheries, Water, and 
Wildlife will now come to order.
    I first want to apologize to everybody. We are trying to 
schedule some votes, especially to my colleagues, that we are 
going to be voting at 2:15, but I guess we are pushing that 
back. So my apologies.
    I want to thank everybody for being here to discuss what I 
think is an exceptionally important issue, the Fish and 
Wildlife Service proposed revisions to its mitigation policies 
and the impacts these could have on projects, economic 
projects, across the United States, including in my home State 
of Alaska.
    I know some of you have had to come from far away and 
shuffle competing demands on your schedule on short notice, so 
I very much appreciate everybody being here at the hearing.
    And I want to begin by saying something I think is pretty 
obvious on this Committee, but it is important to mention at 
the outset. We all certainly want to protect our wildlife, our 
environment. In my State, that is something that is near and 
dear to everybody, and we certainly have a strong record of 
doing that in Alaska, but we also need to take care of our 
citizens with economic opportunity.
    So this hearing gives us a chance to review the Service's 
broad proposal that has the potential to extend the scope of 
Federal review and consideration of infrastructure, energy, and 
private development and land use projects throughout the 
Nation.
    The Fish and Wildlife Service proposal, when added to the 
existing number of procedural and resource reviews for Federal 
actions and permits for private development, will increase 
costs, delay, or possibly paralyze projects, essentially 
withdraw lands, and discourage needed investment in many 
States. In short, broadly crafted and poorly explained policy 
proposals like the Service's proposed revisions may have 
significant economic impacts on economic growth and opportunity 
while doing little to protect the environment and the species.
    This is not some theoretical concern. For example, 
burdensome regulations and delays have created delay after 
delay on many large scale resource and economic development 
projects in our country. On average, right now it takes 5 to 6 
years to permit a bridge. Just to permit a bridge in the United 
States. Permitting a highway project can often take twice as 
long, up to 10 years. Again, just for the Federal permits.
    More specifically we had a case of the airport runway 
expansion at Sea-Tac Airport in Seattle; testimony on the 
Commerce Committee. Fourteen years to get the Federal permits. 
In Alaska it took 7 years, $7 billion to get an oil company to 
get one permit for an exploration well. Seven years. And we had 
a goldmine that took almost 20 years to go through Federal 
permitting.
    A recent report for the American Society of Civil Engineers 
found that there is an over $1.4 trillion funding gap for needs 
of infrastructure spending through 2025 for the United States. 
That is $1.4 trillion worth of roads, water, wastewater, basic 
utility, airport and port repairs, and investments that will be 
required to meet our Nation's infrastructure needs in the next 
decade.
    We all want to do that. We all need to think through the 
important ways to do that.
    In some places these U.S. investments will rebuild 
crumbling bridges and roads. But in other places, like my 
State, there is no infrastructure, no roads, no water and sewer 
projects in communities; and these infrastructure projects are 
necessary for lower priced goods, medicine, electricity, and 
water.
    On top of all these investments, our Nation still needs to 
strategically explore and develop energy resources, all types 
of energy resources, whether renewables or oil and gas.
    Again, when projects like roads or power lines are delayed 
or not built, it is often the most economically disadvantaged 
of our citizens who are hurt the most. I see this on a very 
regular basis in Alaska.
    As drafted, the Service's proposed revisions will add more 
complexity to the dizzying array of regulatory requirements, 
big and small, that all projects must face. The Fish and 
Wildlife Service is proposing to potentially veto projects by 
requiring a ``no action'' alternative in some cases.
    Let me be clear. The Fish and Wildlife Service has no 
authority under the law to veto an economic development 
project, period. There is none.
    Alaska's unique situation also raises concerns under the 
Fish and Wildlife Service broad revisions. Alaska was recently 
recognized by the Supreme Court in the Sturgeon case is 
different from the rest of the country in regards to our lands. 
Eighty-eight percent of Alaska is public lands, with only 1 
percent private sector ownership lands. Large proportions of 
these lands are undeveloped. Alaska contains more wetlands than 
the rest of the United States' States combined.
    Yet the proposed revisions are completely silent on the 
unique differences posed in Alaska or other States that have 
unique circumstances.
    Finally, as noted above, the scope of the authority 
asserted by the Service in its proposal is exceptionally broad 
and far from clear. The Service bases its authority to 
implement its new net gain or no net loss policy on no less 
than 26 statutes. It is a fundamental principle of 
administrative law that agencies must only exercise the 
authority delegated to them by Congress. It should cause us all 
concern, all my colleagues, that its own grant of authority 
from Congress to be implemented for policy revisions is so 
unclear at this stage of the proposal.
    I would like to conclude by just noting after the 
President's 2015 memo on mitigation, Federal agencies have been 
piling on additional regulatory requirements and served as so-
called guidance and regulatory mandates. Such guidance must be 
authorized by Congress in Federal statute, and it must allow 
for not delay or prohibit economic opportunity that Americans 
so desperately need.
    I have serious doubts that this guidance meets either of 
these critical requirements and look forward to asking 
questions about these issues. Thank you.
    Senator Whitehouse.

         OPENING STATEMENT OF HON. SHELDON WHITEHOUSE, 
          U.S. SENATOR FROM THE STATE OF RHODE ISLAND

    Senator Whitehouse. Thank you, Chairman.
    We are here today to examine the Fish and Wildlife 
Service's proposed revision to its mitigation policy. The Fish 
and Wildlife Service is the Federal Government's lead agency 
for protecting the plants, fish, and wildlife held in trust for 
the public. The agency has statutory authority to make sure 
there is a mitigation plan to protect natural resources 
affected by any development performed or funded by the Federal 
Government or that requires a Federal permit.
    The Fish and Wildlife Service is still operating under a 
mitigation policy that hasn't been updated since the first year 
of the Reagan administration.
    In the past 35 years we have made significant advances in 
the science of endangered species, habitat conservation, and 
climate change. For one thing, the Service is relying on a 
document that predates the first intergovernmental panel on 
climate change report by 9 years. We are now at the fifth 
iteration of that report.
    The revisions under review today are needed to bring the 
Fish and Wildlife Service into the 21st century and ensure that 
it provides consistent guidance on protecting America's natural 
spaces and native wildlife from a multitude of dangers, 
including those from climate change.
    In my home State of Rhode Island, we have already seen 
winter surface water temperatures increase by around 4 degrees 
Fahrenheit since the 1960s. Sea level at the Newport Naval 
Station tide gauge is up almost 10 inches since the 1930s. In a 
State tied so closely to its oceans and coasts--in 2013, Rhode 
Island's ocean economy generated $2.1 billion--these changes 
are serious. Rhode Island is not alone in seeing climate change 
undermine its natural resources, wildlife, and economy.
    I appreciate the Service's efforts to better incorporate 
the latest climate change science into its mitigation policy, 
and I encourage it to be more specific about accounting for 
climate change and resiliency in mitigation plans, some of 
which can cover decades of effort and monitoring.
    There is no question as to the Service's authority to 
promulgate the proposed revisions to its mitigation policy. The 
Fish and Wildlife Service cites 20 separate laws, 7 executive 
orders, and a multitude of regulations and administrative 
guidance documents that support its proposal.
    In his presidential memorandum from November 2015, the 
President set clear expectations for the Department of Interior 
and other Federal agencies to ``avoid and minimize harmful 
effects to land, water, wildlife, and other ecological 
resources caused by land and water disturbing events, and to 
ensure that any remaining harmful effects are effectively 
addressed consistent with existing missions and legal 
authorities.''
    The memorandum specifically calls for the use of landscape 
scale planning which coordinates mitigation projects on a 
larger scale to enhance conservation goals, and of policies to 
``establish a net benefit goal, or at minimum a no net loss 
goal for natural resources.''
    With these proposed revisions to its mitigation policy, the 
Fish and Wildlife Service has set high expectations for its 
review of mitigation projects. This long overdue update is 
necessary to bring the Service's mitigation policy into the 
modern era and to provide increased consistency and 
transparency for non-Federal entities that work with the Fish 
and Wildlife Service and other Federal agencies.
    I thank our witnesses for being here today and look forward 
to the testimony.
    Thank you, Chairman.
    Senator Sullivan. Thank you, Senator Whitehouse.
    We do have two distinguished panels here today, and I want 
to thank, again, the witnesses for being here.
    I want to welcome our first witness, Mr. Michael Bean, who 
is the Principal Deputy Assistant Secretary for the Fish and 
Wildlife Service and Parks at the Department of Interior.
    Mr. Bean, you will have 5 minutes to deliver an oral 
statement, and a longer written statement will be included in 
the record.

     STATEMENT OF MICHAEL BEAN, PRINCIPAL DEPUTY ASSISTANT 
SECRETARY, FISH AND WILDLIFE AND PARKS, U.S. DEPARTMENT OF THE 
                            INTERIOR

    Mr. Bean. Thank you, and good afternoon.
    Senator Sullivan. Excuse me, Mr. Bean. I apologize, but I 
think the vote has started, and as opposed to trying to cycle 
us through, if we can recess for a quick 10 minute recess, we 
will be back to hear your opening statement. Again, I apologize 
for the delay at the hearing.
    Thank you.
    [Recess.]
    Senator Sullivan. OK, we will reconvene the Subcommittee on 
Fisheries, Water, and Wildlife.
    Again, thank you for your patience, everybody. Apologize 
for that recess.
    Mr. Bean, the floor is yours for 5 minutes.
    Mr. Bean. Thank you, sir.
    Chairman Inhofe, Chairman Sullivan, Ranking Member 
Whitehouse, members of the Subcommittee, it is a pleasure to 
have the opportunity to testify before you today regarding the 
proposed mitigation policies of the U.S. Fish and Wildlife 
Service. I am Michael Bean, Principal Deputy Assistant 
Secretary for Fish and Wildlife and Parks at the Department of 
the Interior.
    Mitigation is an important and longstanding means of 
reconciling development activities with the conservation of 
fish and wildlife in their habitat. Mitigation encompasses a 
wide range of activities, including measures to avoid adverse 
impacts to wildlife, measures to minimize impacts that cannot 
practically be avoided, and measures to offset or compensate 
for those that remain.
    The Service generally plays one of two roles with respect 
to mitigation. In one it recommends to other agencies the 
mitigation measures that contribute to the achievement of 
priority conservation goals pursuant to a variety of statutory 
authorities. Examples are its recommendations pursuant to the 
Fish and Wildlife Coordination Act or the National 
Environmental Policy Act, NEPA.
    In other cases, the Service functions as a regulatory 
authority and requires mitigation measures of its permittees 
under various statutes that it administers. For example, 
permits issued under section 10 of the Endangered Species Act 
for take of listed species resulting from otherwise lawful 
development activities require applicants to minimize and 
mitigate the impacts of their projects to the maximum extent 
practicable. That is the statutory standard.
    Mitigation is not a new responsibility for the Service. The 
Service has been authorized by Congress to recommend measures 
to mitigate the impact of water resource development projects 
since the Fish and Wildlife Coordination Act of 1934, more than 
80 years ago. Decades of experience with mitigation under the 
Coordination Act, NEPA, and other laws led the Service to 
formulate a general mitigation policy in 1981.
    Recently, the Service has proposed two major policy 
documents relating to mitigation. The first, published last 
March, is a comprehensive revision of its 1981 gentle 
mitigation policy. The second, published in early September, is 
a stepdown policy specific to compensatory mitigation under the 
Endangered Species Act. Both were published in the Federal 
Register for public review and comment.
    With respect to the revised general mitigation policy, the 
Service is now evaluating comments received. With respect to 
the ESA compensatory mitigation policy, the comment period will 
remain open through October 17.
    The Service's two recent policy proposals were informed by 
its own practical experience and the evolution of mitigation 
science and policy since 1981. The goal of both policy 
proposals is to make mitigation recommendations and 
requirements more predictable, consistent, transparent, and 
effective. Neither policy proposal represents a radical 
departure from prior practice.
    Several key principles guide both proposed policies. They 
reaffirm the importance of the longstanding mitigation 
hierarchy in which practicable measures to avoid impacts are 
taken first, followed by measures to minimize those impacts 
that cannot practically be avoided, and finally measures to 
compensate for remaining impacts, if any.
    They emphasize the benefits of compensatory mitigation 
being done in advance of impacts. The proposed policies urge a 
broader look at where in the relevant landscape compensatory 
mitigation can have the greatest benefit to the affected 
resource, broadening the frame beyond the impact site.
    Recognizing that there are a variety of mechanisms for 
compensatory mitigation, including permittee of responsible 
mitigation, conservation banks, in-lieu fee programs, and 
habitat exchanges, the proposed policies make clear that 
regardless of the mechanism chosen, equivalent standards must 
be applied, creating a level playing field where the market-
based mechanisms can flourish.
    Finally, the proposed policies set a goal of improving, or 
at a minimum maintaining, the current status of important, 
scarce, or sensitive resources as allowed by applicable 
authority and consistent with the responsibilities of action 
proponents.
    It is vitally important that we get the greatest 
conservation value for each mitigation dollar expended. The 
proposed policies are intended to improve the effectiveness of 
mitigation investments while at the same time improving the 
consistency, predictability, and transparency of mitigation 
decisions and providing opportunity for market-based mitigation 
mechanisms to achieve their full potential.
    Thank you for this opportunity to testify on the Service's 
proposed mitigation policies. We especially appreciate the 
opportunity to hear and discuss your interest in them. I would 
be glad to answer any questions you may have.
    Thank you.
    [The prepared statement of Mr. Bean follows:]
    
    
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    Senator Sullivan. Thank you, Mr. Bean.
    I am going to start with some questions just basically on 
some of the topics that I mentioned in my opening statement, 
and the one is the issue of delay.
    Do you think it is in the interest of the United States to 
have--it takes, on average, 6 years to permit a bridge--to get 
the Federal permitting requirements to permit a bridge?
    Mr. Bean. No, sir. I think delay is a genuine problem, and 
indeed it is a problem that our proposals are intended to 
address.
    Senator Sullivan. I was going to give you a rundown of some 
of the delays. They're outrageous, right? Fourteen years to 
permit a runway; 20 years to permit a goldmine; 7 years to get 
permission to drill one exploration in 100 feet of water. I 
mean, this is the sound of the economic decline of the country, 
in my view.
    So I am not going to run through those because you already 
stated that you don't disagree that that is a problem, so thank 
you for that.
    Let me speak to what the Corps, another Federal agency, has 
said about your proposed regs, your proposed guidance. This is 
the Corps of Engineers. Knows a lot about projects, knows a lot 
about protecting the environment, knows a lot about, 
unfortunately, projects that take too long. This is their 
submitted comments on your proposed regulation: ``Our 
experience is that the Fish and Wildlife staff are 
extraordinarily busy, to the point where handling existing 
requirements in a timely manner can be challenging.'' Just what 
you got right now. ``Therefore, requiring Fish and Wildlife 
staff to take the lead,'' and that is what many people think 
you are trying to do here, take the lead, ``in these types of 
determinations may only exacerbate the problem.''
    Again, this is your fellow brother-sister agency 
essentially saying this is going to create more delays. ``We 
believe that it might be more efficient and effective for Fish 
and Wildlife staff to simply review materials for acceptability 
and consistency with the policy recommending any needed 
changes.'' So your traditional role.
    So other Federal agencies in the Obama administration are 
worried that this rule is going to actually require more delays 
and have you guys take on too much work. What do you say in 
response to the Corps of Engineers, that knows a lot about 
these issues?
    Mr. Bean. Yes, the Corps does, and we have learned a good 
deal about mitigation from the Corps' own experience. Our view 
is that we believe, through our proposals, that we can be more 
efficient, more effective by being more transparent, more----
    Senator Sullivan. So you think having another layer of 
Federal permitting requirements is going to make it more 
efficient to get projects done? The Corps of Engineers doesn't 
believe that. They are trying to be polite, but it is very 
clear that they don't believe that.
    Mr. Bean. We are not creating another layer of review.
    Senator Sullivan. You are not?
    Mr. Bean. No, we are not.
    Senator Sullivan. Explain how you are not creating another 
layer of review.
    Mr. Bean. Well, when there is an existing requirement for 
input from the Fish and Wildlife Service to the Corps, for 
example, under its Clean Water Act authority, section 404(m), I 
believe it is, gives the Fish and Wildlife Service the 
authority, and indeed the obligation, to recommend to the Corps 
its views with respect to mitigation.
    Senator Sullivan. Why do you think the Corps submitted 
these comments? It is pretty extraordinary, right? They 
obviously work with you guys closely. They don't seem to be 
fans of your policy. Why do you think they submitted and know 
that you are already having a hard time keeping up with 
permitting projects on a timely basis right now? They are 
clearly indicating that this is going to make that worse. Why 
do you think they submitted those comments?
    Mr. Bean. Well, our view is that this will not make that 
matter worse; it will make it better.
    Senator Sullivan. OK, they disagree.
    Mr. Bean. They may disagree, but that is for them to say.
    Senator Sullivan. So you can you commit to me that this is 
not going to cause any additional layer of bureaucracy and any 
additional delay on these critical, critical economic projects 
that our country needs so desperately? We are not growing our 
economy, and a lot of the reason is it takes forever to permit 
anything. Can you commit to me that that is not going to happen 
with this new proposed regulation?
    Mr. Bean. I believe it will not happen. I know that it is 
the intent to keep that from happening, and I believe it will 
be the case that we will be more efficient and more effective 
with these measures than we are today.
    Senator Sullivan. Another issue that I have a lot of 
concerns about is just the legal authority to where you are 
going on a number of your policy calls. The first and foremost 
is in the President's memo, the no net loss net gain policy. 
That is a pretty big policy call, wouldn't you say?
    Mr. Bean. It is an important measure, but I think it has 
perhaps been misunderstood. I can give you an example from 
Senator Inhofe's State. Oklahoma and four other States together 
put together a range-wide conservation strategy for the lesser 
prairie-chicken, and that is basically a mitigation program, 
and as a key part of that program which functions by generating 
credits from activities that benefit that species, then making 
those credits available to offset impacts from oil and gas and 
other activities. What the States creatively have done is to 
provide that some portion of the credits generated will never 
be used to offset impacts, and thus, programmatically, they 
will achieve a net benefit, a net conservation benefit.
    Senator Sullivan. OK, well, I am going to get back to that 
because that is a big policy call; it is a role for the 
Congress to make that call. And when I follow up, I want to be 
respectful to the other members here, but I don't believe that 
is laid out in any statute, any statute by which you get your 
authority, and that is a policy call that should be made by the 
Congress of the United States, not by a Federal agency that 
doesn't have that authority.
    Senator Whitehouse.
    Senator Whitehouse. Thanks, Chairman.
    Welcome, Director Bean. I appreciate you being here.
    Let's pick up on the no net loss policy. That is kind of a 
baseline to inform your efforts. Tell us in simple terms what 
it means, and tell us in simple terms whether it is a novelty 
under this new guidance.
    Mr. Bean. It is not a novelty in general because the no net 
loss notion was first floated and embraced by President George 
H.W. Bush in 1988, who articulated that as his goal for 
mitigation under the Clean Water Act, and it has become 
established as the mitigation goal for the Clean Water Act in 
the ensuing 30 years. The Fish and Wildlife Service, in its 
1981 policy, has a similar no net loss goal for important 
resources.
    Senator Whitehouse. That would be 35 years ago in that 
case.
    Mr. Bean. Yes, indeed. So it is not novel. But what is, I 
think, important is some of the ways in which we can accomplish 
that goal. I tried to give the example of lesser prairie-
chicken as an illustration of how sometimes it is possible to 
do that relatively creatively and somewhat easily.
    Senator Whitehouse. The concern that Senator Sullivan has 
for unnecessary delays and problems and bureaucracy, I think, 
is a very legitimate concern, and I hope that the Service will 
take that to heart in the way it implements the new policy or 
the new guidance.
    Mr. Bean. Yes, sir. Let me just say that we were very much 
aware of the delays of the sort the Chairman described when we 
set out in this Administration to authorize various wind and 
solar projects on public lands in the west, and we were able to 
approve many of those projects relatively quickly, certainly by 
comparison to the statistics the Chairman gave. We did so in 
large measure by early coordination amongst several Federal 
agencies, Federal, State, and sometimes local agencies, all of 
whom have permitting responsibilities of one sort or another, 
and we found that by coordinating those efforts early on we 
could achieve some real efficiencies and time savings.
    Senator Whitehouse. For what it is worth, it is in a 
different context, but we deployed very coordinated permitting 
in our Federal waters and as a result were the first State in 
the country to be able to build offshore wind. We shot by both 
Massachusetts and Delaware and other States because we had done 
a good job of coordinating the permitting into a much more 
convenient and singular process, and the private sector folks 
who invested in and built the offshore wind program are huge 
fans of that coordinated permitting. Again, it is a different 
area, but I think the process savings were evident in that as 
well.
    One other point. One of the chemical consequences of amping 
up the CO2 levels in our atmosphere to 400 parts per 
million and above has been the chemical reaction of the oceans, 
which is to acidify. They are measurably acidifying more 
rapidly than any time in human history that we can find. And 
that will have considerable effects on ocean creatures of 
various kinds, whether it is the terrapod that is the base of 
the food chain in Senator Sullivan's side of the world or the 
corals that are so important to Florida's economy, or the clams 
and oysters that Rhode Island grows so effectively.
    Are you looking at the impact of ocean acidification on 
species as a question worth considering under the Endangered 
Species Act authorities?
    Mr. Bean. Certainly, sir, it is a serious problem, 
apparently one that is growing in significance. We are looking 
at it, although I would note that the National Oceanic 
Atmospheric Administration has primary jurisdiction over marine 
creatures. The Fish and Wildlife Service has relatively limited 
authority over marine creatures, so it is primarily NOAA's lead 
on this issue. But we certainly are aware of the problem and 
recognize that it is a problem, and when it does affect species 
or other resources for which we are responsible we need to take 
it into account as part of our overall science-based analysis 
of the problem and its solutions.
    Senator Whitehouse. And in any event, when you are looking 
at a potentially multi-year plan like the prairie-chicken plan, 
you have to take the known facts of what is happening in that 
creature's environment from climate change into account as part 
of the scientific baseline against which you make your 
determinations, correct?
    Mr. Bean. Yes, we do need to do that, and the information 
to do that varies in quality, but where we have the information 
that we can rely upon we very definitely need to and do use 
that information.
    Senator Whitehouse. Thank you.
    Senator Sullivan. Chairman Inhofe.
    Senator Inhofe. Thank you.
    Both Chairman Sullivan and Ranking Member Whitehouse are 
very well respected attorneys, and I am not a lawyer, so there 
might be a very simple answer to this, but your mitigation 
policy adopts a position that mitigation should take place in 
advance of project construction. Now, in section 906 of WRDA, 
that was the 1986 WRDA, Congress authorized the Corps to do 
mitigation as a project is being built; and then again in 1999, 
section 119 of title 23, that is the Highway Federal Code, the 
Federal law limits which mitigation can happen in advance of 
construction, even if the mitigation is voluntary.
    So the question I would have is by what authority would you 
have this mitigation in advance?
    Mr. Bean. Well, let me begin by saying that the policy is a 
policy that does not purport to change statutory authority, so 
to the extent that there are statutory mandates or authorities 
that are in conflict with the policy, those prevail. What the 
policy articulates is where there is discretion as to the 
timing of mitigation, it is desirable, it is preferred to have 
it done in advance or contemporaneously with the impacting 
activities.
    It has been our experience over the years that when 
activities that impact the environment are done first and 
mitigation comes later, that often leads to problems. The 
mitigation sometimes fails, for example; and thus there are 
temporal losses for which you can never fully recover. But the 
policy is one that is designed to influence where we have the 
discretion as to the timing, the choice, in favor of early 
mitigation activities.
    Senator Inhofe. And would you say that when it is done in 
advance that lengthens or shortens the time for ultimate 
consideration?
    Mr. Bean. It actually shortens it quite considerably. A 
good example of that are the various mitigation banks, of which 
there are now over 1,000, I believe, under the Clean Water Act, 
these make it possible for Corps of Engineers permittees to 
quickly get permits and quickly fulfill their mitigation 
responsibilities by buying credits from established successful 
banks.
    Senator Inhofe. All right.
    Mr. Chairman, I am going to reserve some time because I 
need a little more time on the second panel.
    Senator Sullivan. OK. Thank you, Mr. Chairman.
    Senator Cardin.
    Senator Cardin. Well, thank you, Mr. Chairman, for calling 
this hearing on the update of the mitigation policies of the 
Fish and Wildlife.
    Was 1981 the last time that we have looked at this? If my 
math is correct, the amount of developed acres in the lower 48 
States since 1981 has increased by about 70 percent since that 
time, from about 70 million developed acres to about 120 
million developed acres. That is a tremendous increase.
    Our knowledge of climate change and the impact of climate 
change has changed so dramatically in the last 35 years. Our 
expertise on how to deal with the impact of climate change has 
changed very dramatically over the last 35 years.
    I call to my colleagues' attention that on Tuesday we will 
have the ribbon cutting in Queen Anne's County, Maryland, of 
the living shoreline. It will be the first cobblestone and sand 
shingle beach project in the United States, and the Maryland 
Department of Natural Resources worked together with engineers 
to research and design this innovative shoreline stabilization 
project which aims to protect the beach from erosion by serving 
as a natural barrier to currents and tides, and increase the 
presence of marsh grasses that provide habitat for wildlife.
    We didn't know what that was all about 35 years ago. That 
technology just wasn't even thought to be possible.
    We have Smith Island, a habitable island in the Chesapeake 
Bay that I think 35 years ago they thought there was no way 
that we could preserve that land. Today people are still living 
on Smith Island, and I want to make sure they still have a 
place to live. And we have contributed to ways in which we can 
help the environment and help where people live.
    So I guess my question is what is the objective here? What 
are we trying to do by these revisions and plans? We know that 
diversity of species if critically important to our environment 
and to our future. We know habitats have been destroyed because 
of climate change and development. What is the objective that 
Fish and Wildlife is attempting to do by these revisions?
    Mr. Bean. Thank you, Senator. The objective is to have a 
mitigation program that is more effective, more efficient, more 
predictable, and more transparent. You are correct that the 
1981 policy, since that policy was promulgated, we have learned 
a good deal. The changes you have cited are real. I think the 
most important aspect of this policy is its directive to make 
mitigation decisions in a landscape context, and what I mean by 
that is the following: in 1981 and for many years thereafter 
there was an almost reflexive view that mitigation should take 
place as close to the point of impact being mitigated as 
possible. Under this policy we are asking people to take a step 
back and look at where the mitigation can do the most good, and 
that is a big change because what it will mean is that we won't 
necessarily be tied to just mitigating at the point of impact 
if we can find a better place for the resource to do that 
mitigation. And I think that is really the most important 
aspect of this policy change.
    Senator Cardin. I was listening to the Chairman and his 
desire to try to balance our protection of the environment with 
the need for economic growth. You said something that I think 
is very, very important that we all should be able to agree on, 
and that is we need a transparent process and a predictable 
conclusion so that a developer or government knows what to 
expect as they try to determine whether they want to make an 
investment or how they are going to deal with the realities of 
the challenges that they have.
    So I just really want to underscore that point about 
predictability and an open process. If I understand correctly, 
you are committed to the end result leading to predictable and 
understanding of what the requirements of mitigation are all 
about.
    Mr. Bean. Yes, sir, that is the objective. Again, to cite 
the example of the lesser prairie-chicken, the participants at 
that program know exactly what it will cost based upon the 
development activities that they are planning, the acreage they 
will affect, and whether that acreage is in the highest 
priority or the middle priority or the lowest priority 
habitats. They can do a quick calculation of what it will cost 
and decide whether they want to proceed. So it is a very 
predictable scheme, and it is the sort of thing that we would 
like to do more broadly.
    Senator Cardin. Thank you.
    Thank you, Mr. Chairman.
    Senator Sullivan. Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman.
    And thank you for being with us today. The draft policy 
requires the Fish and Wildlife Service to use a valuation 
species for assessing required mitigation. More so, the draft 
policy requires the Service to identify habit values to support 
these evaluation species by designating them as high importance 
or high value. Habits of high importance are described as 
irreplaceable or difficult to replace.
    Has the Service made everyone aware of what makes a habitat 
irreplaceable?
    Mr. Bean. I think the Service has tried to convey clearly 
what that concept means. There are certain examples, and I 
would give you an example from the west, peat habitats, wetland 
habitats that accumulate peat at a rate of about 1 foot per 
1,000 years. Impacts to those habitats are, for all practical 
purposes in terms of our lifetimes and our grandchildren's 
lifetimes, irreplaceable. So that is an example of several that 
I would try to convey.
    Senator Boozman. And I appreciate the example, but have you 
got in writing someplace the principle of the example?
    Mr. Bean. I think so, sir. I think that the proposed policy 
makes clear that irreplaceable resource are those for which we 
either lack the means of recreating or restoring them, or the 
means are so time consumptive and resource consumptive as to be 
impractical.
    Senator Boozman. So how do you mitigate something that is 
irreplaceable?
    Mr. Bean. Well, the Fish and Wildlife Service's view is 
that for an irreplaceable resource, the proper response is 
avoidance. Now, we recognize that maybe our recommendation, but 
the agency to whom we make the recommendation may not take that 
recommendation, in which case we would then strongly urge that 
agency to take whatever minimization measures are practical.
    Senator Boozman. So once you deem something irreplaceable, 
it is very difficult, then, to mitigate?
    Mr. Bean. Yes, it is very difficult to mitigate, and the 
Service recommendation would be to avoid impacts.
    Senator Boozman. I think it would be good if we knew very 
clearly since you can't mitigate it, I think it is important 
that you very clearly state what is deemed irreplaceable.
    Mr. Bean. Sure. Let me emphasize one point. Mitigation is a 
term that encompasses a range of activities, including 
avoidance, minimization, and compensatory actions. So when you 
say something can't be mitigated, I don't want to leave the 
impression that you can't do things to minimize impacts to it. 
That, too, is a form of mitigation.
    Senator Boozman. Is there a possibility that irreplaceable 
could arbitrarily apply to other categories, such as minerals?
    Mr. Bean. Such as what, sir?
    Senator Boozman. Minerals.
    Mr. Bean. Not under our policy. The resources to which our 
policies apply are wildlife and their habitats.
    Senator Boozman. OK. Very good.
    Thank you, Mr. Chair.
    Senator Sullivan. Thank you, Senator Boozman.
    I am going to follow up just with a few questions. I think 
this topic on the legal authority, which is something that we 
have discussed a number of times in this Committee, which is a 
really important issue.
    So, Secretary Bean, you agree that the Fish and Wildlife 
Service does not have just unfettered discretion to make policy 
calls, right, without the regulatory, statutory authority from 
the Congress, correct?
    Mr. Bean. The Fish and Wildlife Service is required by law 
and does follow the statutory mandates applicable to it, yes, 
sir.
    Senator Sullivan. So even when you cited whether it is 
President Obama's memo or even you cited President George H. W. 
Bush, the two Presidents don't have the ability to make 
statutory policy calls, do they?
    Mr. Bean. Only Congress does that, sir.
    Senator Sullivan. So that is clear. Only Congress does. 
Whether you are citing the 2015 memo or a former President, if 
they are acting without statutory authority it doesn't matter 
what they say, correct, or what their memos say?
    Mr. Bean. It doesn't matter, although statutory authority 
is often granted in rather general terms, leaving them quite a 
bit of discretion.
    Senator Sullivan. Correct. But let me get back to this no 
net loss or net gain. That is a pretty major statutory policy 
call, isn't it?
    Mr. Bean. It is certainly a major policy call, yes, sir.
    Senator Sullivan. So what I would like you to do, and if 
you can't do it here, of the 26 statutes that you cited, I 
would like to know exactly where that policy is laid out, in 
which statute. My team has looked, and we haven't been able to 
find it at all, so my concern is, whether it is President 
Obama's 2015 memo, you are making policy, major, major policy 
calls that are the realm of the Congress. So right now, for 
example, even section 10 of the ESA, which authorizes 
incidental take permits, does not require a net gain or no net 
loss.
    Again, we haven't been able to find that anywhere, so can 
you just tell me where? And don't give me 26 statutes. I want 
the statute, and I want the language in the statute that says 
it is the policy of the United States to have no net gain or no 
net loss. I mean, I am sorry, net gain or no net loss.
    Mr. Bean. What you will find in all of those statutes, I 
believe, just as you find in the Endangered Species Act----
    Senator Sullivan. Endangered Species Act doesn't have it. 
The Migratory Bird Act doesn't even talk about mitigation.
    Mr. Bean. That is correct. But the Endangered Species Act 
does, and it requires, in the case of section 10 permits, that 
the impacts be mitigated and minimized to the maximum extent 
practical.
    Senator Sullivan. Right. That is not no net gain. That is 
not no net loss. That is a very different. That is the 
standard, you are exactly correct.
    Mr. Bean. That is the statutory standard.
    Senator Sullivan. Correct. So how do you get from there to 
no net loss or gain? That is a very different standard.
    Mr. Bean. If it is practicable, for example, to achieve no 
net loss, then that is entirely consistent with that goal.
    Senator Sullivan. No, but you are saying that the net 
policy is--the President's memo says the new policy is no net 
loss, or indeed, net gain. And I am saying there is nowhere in 
any statute that we can find that lays out that policy. So you 
are making policy, whether it is the President or you. And you 
have no authority to do that. So what section of what statute 
gives you that----
    Mr. Bean. If you are asking, sir, do those precise words 
appear in the statute?
    Senator Sullivan. Correct.
    Mr. Bean. The answer is no. Instead, what we have in all of 
those statutes, or nearly all of those statutes, is a directive 
and an authorization to mitigate.
    Senator Sullivan. Correct.
    Mr. Bean. And the Service----
    Senator Sullivan. I don't disagree with that. Mitigate is 
very different than no net loss or a net gain. It is very 
different. That is what I am talking about. This is a major 
policy call that you are usurping the authority of the Congress 
on this issue.
    Mr. Bean. Well, I don't think the Service views it that 
way, sir. I think the Service views that it has discretion 
authorized by Congress----
    Senator Sullivan. It doesn't have discretion to make new 
policy when the policy is stated in the law.
    Mr. Bean. It has the discretion to interpret what Congress 
has said, and that is what it has tried to do.
    I would add one other thing which is important, which is 
both the Service policies and the President's memo make clear 
that they do not override statutory restrictions.
    Senator Sullivan. Yes, but you can say that, but in 
practicality that is exactly what you are doing. You are 
essentially admitting it here. Mitigation under the ESA is very 
different. The standard you are citing, which I agree with, in 
the ESA is very different than a standard, a policy directive 
of no net loss or net gain. They are apples and oranges. And 
you are now saying that you have this authority, when we can't 
find it anywhere in any statute.
    Mr. Bean. Well, let me point you to one other provision of 
the Endangered Species Act, section 4(d), which authorizes the 
Secretary to have such regulations as are necessary and 
advisable for the conservation of a threatened species. It is a 
broadly worded authorization. If the Secretary were to find, as 
she did in the case of the lesser prairie-chicken, that it was 
necessary and advisable for the conservation of that species to 
have a regulation that required participation in the State 
generated plan which itself requires a net conservation gain, 
that is fully consistent with the language of the statute.
    Senator Sullivan. I would just, and maybe you can do it 
again, I don't want to belabor the point, but if you can give 
us the statutes and the language that lay out the statutory 
mandates on that policy, I would like to see it, because I 
don't think it exists.
    And let me ask one other one with regard to the veto. You 
do have a provision in here that allows you to recommend no 
action. Now, it is very vague, and I don't exactly understand 
what you are trying to do in the new regs, but if you are 
trying to say somehow that you have authority to veto projects, 
when you are not even the lead on these projects, that again is 
way, way beyond your statutory authority.
    What are you trying to do with that no action provision in 
your new policy?
    Mr. Bean. Our recommendations are just that, sir, 
recommendations. We have been very clear in this policy that 
where we have irreplaceable resources our recommendation will 
be to avoid impacts. That is the appropriate thing for the Fish 
and Wildlife Service to do in light of the responsibility that 
this Congress has given it, to be vigilant, if you will, in the 
conservation of wildlife. That is our role.
    The agencies to which we make those recommendations are 
free to make the ultimate decision, but they need to have that 
decision made based upon input from us as an agency charged by 
law with understanding in recommending what is best for 
wildlife.
    Senator Sullivan. Thank you.
    Senator Whitehouse.
    Senator Whitehouse. Director Bean, I don't, frankly, think 
you need my help in this exchange, but I do want for the record 
to say that where the statute says that it is the goal and task 
conferred by Congress on the Fish and Wildlife Service to see 
to it that, where there is harm to wildlife or habitat, that 
that harm shall be mitigated to the extent practicable. That is 
a pretty clear statement to me, but it is also very general 
language.
    So, to me, for the Service to then say here is a standard 
that we believe would meet our responsibility to mitigate the 
harm to the species or habitat to the extent practicable, and 
that is that there is no net loss; that if you are going to 
harm it here, and you bring back the same amount there, that 
meets our standard.
    I think it is a question of trying to actually provide 
clarity to the original definition. So just from my 
perspective, I am completely comfortable that the no net loss 
standard is legitimate and clear regulatory implementation of a 
statute well within its terms, which is probably why Presidents 
since President Bush have stood by it.
    So I don't mean to belabor this point any further, but at 
least from my point of view, I wanted to have my opinion on 
this in the record. So thank you.
    Senator Sullivan. Thank you, Senator Whitehouse.
    Director Bean, thank you for your testimony. Much 
appreciated.
    I am going to ask the second panel to come up to the dais 
here, and I want to welcome Mr. Joshua Kindred, who is the 
Environmental Counsel of the Alaska Oil and Gas Association; 
Mr. Ryan Yates, Chairman of the National Endangered Species Act 
Reform Coalition; and Mr. Jamison Colburn, Professor of Law at 
Penn State.
    You will each have 5 minutes to deliver your oral 
statement, and a longer written statement will be included in 
the record.
    Gentlemen, if you can please join us now. Thank you again 
for coming here. Sorry again about the delays in the hearing.
    Mr. Kindred, I would like to begin with you. You have 5 
minutes to deliver your statement. Thanks again.

 STATEMENT OF JOSHUA M. KINDRED, ENVIRONMENTAL COUNSEL, ALASKA 
                    OIL AND GAS ASSOCIATION

    Mr. Kindred. Thank you, and good afternoon, Chairman 
Sullivan, Ranking Member Whitehouse, and members of the 
Committee. My name is Josh Kindred. I serve as Environmental 
Counsel for the Alaska Oil and Gas Association, or AOGA. AOGA 
is a professional trade association whose mission is to foster 
long-term viability of the oil and gas industry to the benefit 
of all Alaskans. AOGA's members have a long history of proven 
environmentally responsible oil and gas exploration development 
in Alaska, and we appreciate the opportunity to provide 
testimony today.
    In an effort to sort of avoid duplicative testimony, and I 
don't know if I will succeed in that, I will proceed directly 
to the substantive issues and concerns that AOGA has, and they 
fall effectively in three categories: first, as Senator 
Sullivan pointed out, an inability to reconcile achieving a net 
benefit, or at minimum no net loss standard with the statutory 
sources available for the Service; second, issues and concerns 
regarding ambiguity and incompatibility; and finally, how ill-
suited the draft policy is for meaningful implementation.
    Now, according to the draft policy, under the memorandum, 
all Federal mitigation policies shall clearly set a net benefit 
goal, or at minimum a no net loss goal for natural resources 
wherever doing so is allowed by existing statutory authority 
and is consistent with agency mission and established natural 
resources objectives. The fundamental problem with the 
Service's draft policy is that the primary sources of the 
Service's authority provide no basis for and are irreconcilable 
with the imposition of a net benefit or no net loss mitigation 
standard.
    The fundamental flaw is particular evident when examined in 
the context of the Endangered Species Act. The ESA provides no 
authority for the Service to impose mitigation measures upon 
private applicants that will result in a net benefit or no net 
loss. For example, in the section 7 consultation, the Service 
is charged with ensuring that any federally approved action 
that may affect listed species is not likely to jeopardize the 
continued existence of a listed species or destroy or adversely 
modify their critical habitat.
    The Service prepares a biological opinion to explain it in 
document section 7 determinations for actions that are not 
likely to jeopardize listed species or cause adverse 
modification of critical habitat but that may, nonetheless, 
result in incidental take of a listed species, and the Service 
will include an incidental take statement in the biological 
opinion.
    Under these statutory and regulatory provisions, a non-
jeopardizing action under ESA section 7 may have some impact on 
listed species and critical habitat and may result in 
incidental take of listed species. The Service's authority in 
this context is simply to recommend measures that minimize the 
impact of the incidental take. These measures may only result 
in minor changes to the project. Neither the ESA nor its 
implementing regulations contain any authorization for the 
Service to require or recommend measures in a section 7 
consultation to ensure that the Federal action results in a net 
gain or no net loss.
    Any action taken by the Service to recommend such measures 
would exceed the Service's statutory authority under, and 
therefore violate, section 7 of the Endangered Species Act.
    Similarly, when the Service issues a permit under section 
10 of the ESA, it must ensure that the permit applicant will, 
to the maximum extent practicable, minimize and mitigate the 
impacts of the incidental take authorized by the permit. These 
statutory provisions also give no authority to the Service to 
impose measures that will result in a net gain or no net loss. 
Rather the Service must ensure that the applicant minimizes and 
mitigates the impact on listed species to the maximum extent 
practicable.
    Nowhere in the draft policy does the Service grapple with 
the fact that the scope of its authority under section 7 and 10 
of the ESA is irreconcilable with the net benefit, or at 
minimum no net loss standard policy adopted by the draft 
policy.
    The draft policy explains that it is intended to clarify 
the role of mitigation in dangerous species conservation but 
also notes that nothing herein replaces, supersedes, or 
substitutes for the ESA's implementing regulations.
    Respectfully, the Service's acknowledgments of its 
obligations under the ESA, while correct, do little to address 
the fact that the draft policy nevertheless purports to apply a 
standard that is fundamentally incompatible with both the ESA 
and its implementing regulations. The Service's competing 
positions that it will both apply a policy to ESA actions that 
is contrary to the ESA and that it will respect the authority 
of the ESA when implementing the draft policy cannot be 
rationalized.
    If Congress had intended to require that every impact to 
listed species be completely offset, it would have written such 
a requirement into the ESA. If the Service or the President 
desires such a result, Congress must first act by amending the 
ESA to provide the authority to the executive branch.
    The draft policy's incompatibility with statutory authority 
is not unique to the ESA. Indeed, we are aware of no sources of 
statutory authority that authorizes the Service to require a 
net benefit mitigation for Federal actions undertaken by 
citizen applicants.
    For example, under section 101 of the Marine Mammal 
Protection Act, private citizens may obtain authorization to 
take small numbers of marine mammals incidental to lawful 
activity so long as the take has no more than a negligible 
impact on the affected marine mammal species or stock and will 
not have an unmitigable adverse impact on the availability of 
such species or stock for taking for subsistence uses.
    The Service has no authority under the MMPA to require 
recipients of incidental take authorizations to take actions to 
achieve a net benefit or no net loss to the affected marine 
mammal species or stock.
    Similarly, under the National Environmental Policy Act, or 
NEPA, agencies are required to identify appropriate mitigation 
measures in the discussion of alternatives and in an 
environmental impact statement. Such measures are not required 
to achieve a net benefit or no net loss. Moreover, the Supreme 
Court has established that NEPA provides no substantive 
authority to Federal agencies to require mitigation, nor does 
it impose a substantive duty to develop a complete mitigation 
plan and an EIS.
    Furthermore, one unintended consequence that the Service 
may not have contemplated is that the draft policy's 
articulation of a net conservation gain mandate might result in 
regulatory takings. The U.S. Supreme Court has held that a 
regulatory taking occurs when the Government conditions 
approval of a land use permit on the dedication of property or 
money to the public unless a nexus or rough proportionality 
exists between the Government's requirement and the impacts of 
the proposed land use.
    If the draft policy dictates that the Service will 
condition the approval of a land use permit on a net 
conservation gain standard, the amount of compensatory 
mitigation may lack the requisite nexus or rough 
proportionality to the impacts of the proposed land uses and 
thus result in a taking.
    Finally, the draft ESA policy does not, but should, take 
into account the fact that the ESA plays a much different role 
in Alaska than the lower 48 States. In the last 10 years there 
have been ESA listings of very abundant, presently healthy, and 
wide ranging species in Alaska based on protected habitat 
conditions at the end of the century.
    For example, the Arctic green seal population numbers in 
the millions and occupies a range far larger than any other 
listed species. As another example, almost 200,000 square miles 
of land in offshore waters in Alaska have been designated as 
polar bear critical habitat.
    Much of the resource development in Alaska occurs through a 
structured Federal process, while either Boehm or BLM in the 
oil and gas leasing process, that already take into account the 
avoidance, minimization, and mitigation of impacts to federally 
listed species. For example, Boehm has identified and 
conditioned offshore leases on related permits based in part on 
the presence of listed species.
    In addition, almost every project in Alaska falls under the 
jurisdiction of the Army Corps of Engineers, which already 
applies stringent compensatory mitigation measures under the 
Clean Water Act. Accordingly, aside from being beyond the scope 
of authority granted by the ESA, additional action by the 
Service to require or recommend compensatory mitigation through 
the ESA would unnecessarily complicate and duplicate a Federal 
project approval system in Alaska that already accounts for and 
mitigates impacts to listed species and their habitat.
    We understand that the President and the Department of 
Interior are motivated to broadly implement new policies to 
achieve net gains or no net loss of environmental values. But 
those policies, however well intended they may be, cannot be 
implemented without statutory authority. The draft policy is 
fundamentally flawed because it is entirely premised on 
achieving a standard that cannot be lawfully implemented by the 
Service under the Service's existing sources of statutory 
authority. Because of this overarching flaw, the draft policy 
should be withdrawn and rewritten.
    Thank you.
    [The prepared statement of Mr. Kindred follows:]
    
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    Senator Sullivan. Thank you, Mr. Kindred.
    Mr. Yates.

STATEMENT OF RYAN YATES, CHAIRMAN, NATIONAL ENDANGERED SPECIES 
                      ACT REFORM COALITION

    Mr. Yates. Chairman Sullivan, Ranking Member Whitehouse, 
members of the Subcommittee, my name is Ryan Yates. I currently 
serve as Chairman of the National Endangered Species Act Reform 
Coalition, also known as NESARC. I am pleased to provide 
testimony today on the Fish and Wildlife Service proposed 
revisions to its mitigation policy.
    NESARC is the country's oldest broad-based national 
coalition dedicated solely to achieving improvements to the 
Endangered Species Act and its implementation. NESARC's members 
represent a broad section of the American economy, which 
include agriculture, energy, real estate, forestry, water 
development, local governments, and other important industries. 
NESARC and its members are committed to promoting effective and 
balanced legislative and administrative improvements to the 
ESA.
    The business concerns and activities of NESARC's members 
frequently require them to seek approval from Federal agencies 
for permitting and authorization decisions. Our members seek 
clear and consistent standards that are within the scope of the 
law and that will guide the implementation of mitigation for a 
particular permit or authorization.
    NESARC's primary concern with the proposed mitigation 
policy and the Administration's other recent policies 
addressing mitigation is that they exceed the scope of 
applicable statutory authority. While the Service proposed the 
mitigation policy in response to directives from the President 
and the Secretary of the Interior, these policies cannot 
supplant, expand, and allow deviations from the Service's 
existing authorities and responsibilities and obligations. 
These responsibilities and obligations are grants from Congress 
and cannot be created by executive action.
    The ESA establishes specific standards and requirements for 
the scope and nature of any avoidance, minimization, and 
mitigation measures that may be imposed by the Service. 
Further, the ESA requires specific analysis and evaluation of 
impacts to listed species and designated critical habitat. The 
mitigation policy would impermissibly expand the scope of the 
ESA to rely upon landscape scale approaches, net conservation 
gains, and evaluation of species in a manner that is 
inconsistent with the requirements of ESA section 7 and section 
10. These statutory requirements cannot be overridden or 
undermined by the application of a general agency policy.
    The central goal of the mitigation policy is to effectuate 
a net conservation gain, or at minimum no net loss in the 
status of affected resources. Under the ESA, there is no 
mandatory obligation to improve or maintain the current status 
of affected resources. On the contrary, the statute provides 
specific standards in section 7 and section 10 regarding what 
may be required of a project proponent or a permit applicant.
    For example, the ESA section 7 requirements to avoid 
jeopardy or adverse modification and to minimize the impact of 
any take of listed species do not equate to the net 
conservation gain or no net loss standard articulated in the 
mitigation policy. There is no statutory authority to impose 
such requirements in the section 7 consultation context.
    A further problem posed by the Service's approach is that 
the term ``conservation gain'' is not easily defined and will 
likely evade consistent application in practice. Further 
complicating matters, if the Service uses this standard to 
require mitigation that is not commensurate with impacts to 
species or habitat the agency's application of a net 
conservation gain requirement could result in a regulatory 
taking.
    Last, the Service's landscape scale approach is overly 
expansive and fails to consider the role of States and local 
jurisdictions in species conservation. The Service cannot 
incorporate landscape scale mitigation into permitting 
decisions or authorizations without explicit statutory 
authority which requires such a broad ecological approach. For 
example, the Service cannot convert its limited scope of 
authority under section 7 and section 10, which focus on the 
impact of take of the species in a particular area, to an 
authorization to expand the minimization component to a 
landscape scale.
    Further, the agency's new definition of landscape and its 
reliance on a landscape scale approach are not conducive to 
consistent application and would undermine the role of States 
and other local jurisdictions in the management of species and 
habitat.
    While NESARC recognizes that mitigation is a tool which can 
be required in the application and approval of certain Federal 
permits, the proposed mitigation policy is overly broad, lacks 
the requisite statutory authority for implementation. Unless 
revised and clarified, the mitigation policy will introduce 
uncertainty into project planning, impose significant 
additional costs, and delay or prevent the issuance of 
necessary permits and authorizations, and ultimately reduce 
incentives for participation in efforts that would conserve 
species and their habitat.
    Senator, thank you again or the opportunity to testify. I 
am happy to answer any questions you may have.
    [The prepared statement of Mr. Yates follows:]
    
    
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    Senator Sullivan. Great. Thank you very much, Mr. Yates.
    Professor Colburn.

  STATEMENT OF JAMISON COLBURN, PROFESSOR OF LAW, PENN STATE 
                           UNIVERSITY

    Mr. Colburn. I would like to thank Chairman Sullivan and 
Ranking Member Whitehouse, as well as the rest of the 
Committee, for the opportunity to testify today. It is an honor 
and a privilege to be here with you.
    My name is Jamie Colburn. I am a Professor of Law at Penn 
State. For the last 15 years I have conducted research on 
policies like this one and their importance and significance in 
our legal system.
    Before I left practice I went into teaching full-time. I 
spent 2 years as assistant regional counsel for U.S. EPA, and I 
am here today to talk about the breadth of this policy and the 
challenge created by the many different statutory authorities 
the Fish and Wildlife Service has to discharge.
    I want to highlight a couple general points before I delve 
into specifics.
    First, I think it is important to point out that this is 
guidance to subordinate agency personnel; it is not binding on 
anybody outside of the agency. Certainly not binding on the 
Federal courts, and it is immediately repealable by executive 
action if a subsequent Presidential administration would choose 
to do so.
    I think in citing 11 different Federal statutes at the 
outset of the policy proposal, the agency tipped its hand, so 
to speak, about the scope of its challenge. The Fish and 
Wildlife Service is often called upon to enforce a very 
specific statutory standard, which is the case with Endangered 
Species Act section 10, maximum extent practicable 
determinations, but they are also called upon in many contexts 
to offer recommendations that really don't have any force or 
effect at all; they are just the recommendation of an expert 
agency.
    And in the 15 years that I have been working on Endangered 
Species Act NEPA issues I have seen the scope of this practice 
of mitigation expand to an extreme degree, and it is my belief 
that what the agency was trying to do in offering a policy to 
its subordinates is to bring some coherent predictability and 
some transparency to mitigation at a broader scale. And if I 
may, I would just like to focus on a couple of specifics both 
from the Endangered Species Act and the NEPA context.
    When the agency is offering a specific interpretation of a 
statutory standard, as, for example, with the Endangered 
Species Act, it is often in everybody's best interest, 
certainly with something as complicated as mitigation for 
purposes of a habitat conservation plan, that agency personnel 
know all of the factors that they have to balance and only the 
factors that they have to balance. And I say that it is in 
everybody's best interest because of how litigious many of 
these issues have become.
    If agency personnel have to reinvent the wheel every time 
they make a necessarily discretionary judgment like this, it is 
going to compound the delay; it is going to reduce the 
transparency of those determinations to permittees in 
particular. And that is just the case with respect to HCP and 
other determinations that the Service has to make. This 
compounds itself through section 7 consultations as well.
    A policy of this kind, though, which treats mitigation in 
full, isn't just aiming at the Fish and Wildlife Service's 
specific duties to interpret statutory standards and enforce 
them against individual parties; it also encompasses more 
passive actions that the Fish and Wildlife Service takes as a 
recommender of good practices. And that brings me to what 
mitigation means in the NEPA context.
    NEPA section 102(2)(C) specifically requires action 
agencies that are preparing its detailed statements to seek the 
input--really the expertise--of any agency with Federal 
jurisdiction involved with the action, that might be germane to 
the action; and Fish and Wildlife Service, having the broad 
remit that it does, almost more often than any other agency 
finds itself called upon to offer its recommendations with 
regard to fish, wildlife, and plant resources.
    And in that context this is an entirely passive act by the 
Fish and Wildlife Service. They don't have any regulatory 
authority at all; what they are attempting to do is offer an 
expert opinion. But it has a lot of consequences for the action 
agency and oftentimes for the permittee behind that action 
agency if the Fish and Wildlife Service doesn't understand the 
scope, the Fish and Wildlife Service personnel involved in that 
case don't understand the scope of what mitigation should or 
ought to entail according to broader agency priorities.
    And as I lay out in my written testimony, this is a 
threshold problem both for whether or not to prepare a detailed 
statement under section 102(2)(C) of NEPA, but it is also a 
problem that arises a little bit further down the road when 
agencies are preparing what are known as Findings Of No 
Significant Impact, or FONSIs--environmental lawyers love 
acronyms--and the FONSI itself is predicated on the permittee 
or the action agency taking some kind of mitigating action.
    These mitigated FONSIs have grown in prevalence, and they 
have also grown in importance, which means that they often wind 
up in Federal court. They often become the subject of Federal 
court scrutiny. A policy of this kind, which communicates to 
other action agencies like the Corps of Engineers, as the 
Chairman was referencing, and their permittees what the Fish 
and Wildlife Service's priorities will be when it comes to a 
mitigation opinion under a section 102(2)(C) detailed statement 
or a mitigation opinion in the mitigated FONSI context I think 
would have the potential actually to speed permitting processes 
along. And I think that is why you see Federal courts 
encouraging agencies to maintain policies like this.
    In my view you have gotten clear signals from our Supreme 
Court last year, in the Perez case, and from the D.C. Circuit 
in a variety of cases, where they want to interpret the 
Administrative Procedure Act really to encourage these kinds of 
policies in order to increase the transparency and in order to 
ensure that subordinate agency personnel are responding to 
broader priorities that the agency has and that the 
Administration has, and that everybody knows how they will be 
doing so ahead of time. I think that is something that you can 
find from a number of lower Federal court opinions as well as 
from the Supreme Court.
    I see my time is about up, and I welcome any questions you 
may have. Thank you again.
    [The prepared statement of Mr. Colburn follows:]
    
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    Senator Sullivan. Great.
    Well, I again want to thank the panelists. You guys 
obviously are very knowledgeable on these issues, and you have 
thought about them, studied them in practice, been involved 
with them, so I appreciate you coming here and helping 
enlighten us.
    Let me just kind of start with the basics.
    We would all agree, and I will just ask each of you, that a 
permitting delay, and in Alaska, where it is notorious, for 
years and years and years of delays for important economic 
projects, but it is also throughout the country, would each of 
you agree that that is not in the national interest, nor is it 
what the statutes envisioned when they were passed, whether it 
was Endangered Species or any other provision?
    Would you agree, Mr. Kindred?
    Mr. Kindred. I would agree. And it is difficult, and I 
don't know if it is just the cynic in me, to imagine a scenario 
where adding another layer of policies is not going to result--
--
    Senator Sullivan. Well, I am going to get to that.
    Mr. Yates, would you agree? The statutes weren't designed 
for 8-year delays on a project, correct?
    Mr. Yates. Senator, I agree.
    Senator Sullivan. Professor Colburn.
    Mr. Colburn. Absolutely, Mr. Chair.
    Senator Sullivan. So let me ask, and I am going to get to 
the issue. You guys were very, all three of you very articulate 
on the existing authorities, which, again, I believe are very 
dubious, and I know at least two of the witnesses also believe 
that. But we had Mr. Bean here essentially saying, hey, don't 
worry, this is not an additional level of bureaucracy; this is 
not going to delay. Do you even remotely think that that is 
going to be the case? I am not saying he was being deceitful, 
but is there any conceivable way that a new issuance of this 
kind of guidance is going to make more efficient and timely the 
permitting decisions by the Federal agencies?
    Mr. Kindred.
    Mr. Kindred. I don't see how it could. I mean, just 
realistically.
    Senator Sullivan. Can you give just your experience and 
examples?
    Mr. Kindred. Well, Alaska is unique in the sense that, and 
Mr. Bean referenced this idea; well, the Corps works well 
because they have these mitigation banks that afford the 
opportunity to put some this up front. There are no mitigation 
banks currently in Alaska. The fact of the matter is that right 
now there is a great deal of uncertainty just to get Corps-
approved mitigation permits. So I find it highly unlikely--
given how much of Alaska land is wetlands and critical 
habitat--how adding this additional layer won't just result in 
greater delays and greater uncertainty.
    Senator Sullivan. Mr. Yates, do you see this as Mr. Bean 
testified, that this is not an additional layer of bureaucracy; 
that this is going to speed things up; it is not going to 
delay? In your experience, do you think he is correct?
    Mr. Yates. I would have to disagree. In my experience, I 
have yet to find a scenario where additional layers of 
bureaucracy and requirements from a Federal action agency have 
increased the efficiency and reduced time and delays and costs 
related to a project being permitted and authorized.
    Senator Sullivan. How about this issue of the Corps of 
Engineers, which obviously works very closely with Fish and 
Wildlife, coming out and essentially saying this is going to 
tax you guys too much; you are already overburdened? I mean, 
the sister agency is coming out and saying that this is going 
to delay projects.
    Have you ever seen that before? To me, that is relatively 
remarkable that the Corps is essentially saying you don't need 
this, and it is going to delay things. The Corps of Engineers. 
This is not a Senator; this is a fellow agency. Have you ever 
seen anything like that in your practice, Mr. Yates, where the 
Corps has come out and said don't do it, it is a bad idea; or 
Mr. Kindred?
    Mr. Yates. I think it is very telling when you have a 
sister agency or a land management agency criticize this type 
of a policy or rulemaking. I think their expertise and their 
thoughts should be weighed heavily by the authorizing committee 
here in Congress through this process of scrutinizing this type 
of Federal regulatory action.
    Senator Sullivan. Mr. Kindred.
    Mr. Kindred. I agree. And I think probably another aspect 
of this is if I was working with the Corps I would be concerned 
about increasing the likelihood of litigation.
    Senator Sullivan. Yes.
    Mr. Kindred. If you have the Corps coming to one conclusion 
on mitigation and a recommendation from the Fish and Wildlife 
Service that is adverse to that, how is that reconciled, and 
how does that result in greater litigation?
    Senator Sullivan. Professor Colburn, let me ask you. You 
had some very insightful testimony as well, and I appreciated 
that. Your two colleagues there on the panel were very dubious, 
as am I, about the legal authority that the Fish and Wildlife 
Service has with regard to promulgating this policy when it 
clearly seems to be expanding what is in the statutory 
provision. You mentioned that it is just guidance, but as you 
know guidance actually matters; it matters in litigation, it 
matters in what these Federal agencies are empowered to do. We 
have had examples, the CD5 case in Alaska that delayed a really 
important project for the State and the country by well over 3 
years where at the very end the Corps was going to approve a 
bridge permit. At the very end the Fish and Wildlife Service 
put a letter into the file, and it delayed it for 3 years.
    So Mr. Bean was very nice about saying, hey, I am just 
giving advice; they don't have to listen, but they have power, 
whether it is guidance, whether it is their objection letters 
that can delay projects for years. I have seen this.
    So can you talk to that a little bit? You ended your 
testimony with something that is really important. What can we 
do to make sure that we don't have Federal agencies that are 
delaying and delaying and delaying projects?
    In my experience, most Federal agencies don't want to 
delay. To be perfectly honest, some do. I think the Secretary 
of Interior and the rest of the leadership in the Department of 
Interior wanted to kill that Shell project off the coast of 
Alaska. That is why it took 7 years, $7 billion to get 
permission to drill one exploration well in 100 feet of water. 
Outrageous. They wanted to kill it. They were successful. But I 
don't think that is the case most of the time.
    What can we do, in your experience, and you have a lot, to 
help not cut corners, we all want to protect the environment, 
but not to have a 20-year permitting process for a mine in 
Alaska?
    Mr. Colburn. Mr. Chairman, I think that is the question 
here, and I think it is the question that the agency is trying 
to address; and it is obvious that opinions vary about how they 
did.
    Senator Sullivan. But do you think that the additional 
guidance is not going to add to the delay, like the two other 
witnesses?
    Mr. Colburn. I think I would answer your question by 
pointing out that the delays in the examples you cite from 
Alaska are meeting at a single location, but they are beginning 
from many different sources, and if I were a general purpose 
agency like the Corps of Engineers, which under section 404 of 
the Clean Water Act is empowered to just make the ultimate 
determination on a permit, along with EPA, the reason I would 
take Fish and Wildlife Service's opinions so seriously is 
because they have the biologists necessary to make the best 
call, thumbs up or thumbs down, on a lot of the trust 
resources. And if they ignore what the Fish and Wildlife 
Service says, they do at their peril because the Clean Water 
Act is, as you know, Mr. Chairman, is so good at empowering 
parties outside of the Government to sue in the event they 
disagree with any permitting decision by the Corps.
    So if we were to grease the skid, so to speak, at the early 
phases and take mitigation not so seriously, when it is 
actually a statutory factor that has to be considered and has 
to be weighed co-equal with the other factors, I think it would 
be speed that we are borrowing temporarily for a lot of these 
cases. It would ultimately contribute to legal uncertainty in 
one form or another.
    Now, the other thing that I just wanted to respond to very 
quickly, what could Congress do to fix this, I think one of the 
sources of delay within the Fish and Wildlife Service is the 
fact that they have so many responsibilities and so little 
personnel to discharge them. And I know you have a thousand 
people a day asking you for money, but it strikes me that, in 
my experience with complex permitting problems like the one you 
referenced, the overwhelming culprit is the fact that there 
just isn't personnel, and there just aren't resources needed to 
answer some of these really technical questions.
    Senator Sullivan. Great. Thank you; that is excellent 
testimony.
    Senator Whitehouse. So, in a nutshell, agency guidance is 
capable of speeding up the administrative process by making it 
clearer to the applicants and clearer to the participants what 
is expected from the get-go.
    Mr. Colburn. I agree, Senator Whitehouse. I think that 
especially for the Fish and Wildlife Service, an agency that is 
so often in the business of providing an expert opinion to 
another agency whose only process delays add to theirs, 
guidance of this kind, which is, after all, aimed only at 
subordinate Fish and Wildlife Service personnel, actually has a 
realistic chance of speeding things up.
    Senator Whitehouse. Mr. Kindred, to use a colloquial 
phrase, Alaska is kind of getting whomped by climate change, 
compared to more southern locations. Your concern about how 
climate change gets factored into the Fish and Wildlife 
policies is that there not be unwarranted reliance on 
predictive models and that there not be speculation, and that 
there should be a documented cause and effect relationship 
based on predictable, reliable data that connects the data that 
is out there to the problem before the agency. And your concern 
is that if that is not there, you risk making an error.
    Mr. Kindred. That is part of my concern, yes.
    Senator Whitehouse. Now, what is the default proposition 
for you?
    Mr. Kindred. I guess I would like a little more clarity in 
the question.
    Senator Whitehouse. Well, you may get it wrong if you look 
at climate change data and try to use that data to predict 
exactly what the influence is going to be over time.
    Mr. Kindred. Right.
    Senator Whitehouse. And that is your concern, that you may 
get it wrong. But if you ignore climate change data, then you 
know you are going to be wrong, right? So the problem that I 
have is if you are concerned that the climate change data isn't 
secure enough for the agency to make a decision on, to me, that 
leaves you with the default proposition that you just ignore 
climate change. And particularly for somebody coming from 
Alaska that seems like a really implausible thing to ask the 
U.S. Fish and Wildlife Service to do based on the science.
    So my question is what is the default proposition here? 
What should be the kind of baseline from which the Fish and 
Wildlife Service makes these decisions that involve plugging 
climate change data into their determination?
    Mr. Kindred. I think that may be an oversimplification of 
my position on this, and it is important to distinguish between 
what NMFS did in their listing of the bearded and ring seals, 
where they contradicted themselves and went from saying that 
century-long modeling wasn't reliable to it was with the polar 
bear. And the polar bear species, I think, is a great example 
of some of the flaws with Fish and Wildlife Service's approach. 
I don't think any reasonable person can disagree that although 
polar bears are currently healthy and abundant, it is difficult 
to look at climate change modeling, no matter how much weight 
you want to give it, and not come to the conclusion that sooner 
or later the species will be imperiled.
    But part of the problem with Fish and Wildlife Service's 
approach to this is they came out, and they, one, acknowledged, 
even in listing the polar bear species as endangered, they 
lacked any authority to do anything about the only threat to 
the species, which is climate change.
    More to my point, I guess my concern as an Alaskan is that 
Fish and Wildlife Service also acknowledges that there is 
nothing that is happening locally, whether it be industry or--
--
    Senator Whitehouse. Isn't it appropriate for the Fish and 
Wildlife Service to take into account outside factors that are 
putting pressure on a particular species and evaluating what 
additional pressures it can take? I mean, that is a known that 
they should put into their calculus, which is, based on our 
information, there is going to be a real wipeout in the polar 
bear population coming up, and therefore the population that is 
likely to remain is what we have to work with, and that is the 
data that we--that doesn't seem to be unreasonable at all.
    Mr. Kindred. That is not unreasonable, but when you look at 
what the effect is, the way people are being asked to pay a 
price for climate change as it relates to polar bear species, 
our Alaskans, have very little to do about the climate change 
threat.
    Now, if the Fish and Wildlife Service would have come out 
and said, you know what, we look at States with high 
populations like California, and we are going to regulate them 
and make them pay the price because they are actually far more 
responsible for the threat on polar bears than Alaska, I may 
come to a----
    Senator Whitehouse. But back to the question of climate 
change, your recommendation to the Fish and Wildlife Service 
would be get the best data you can, make the most reliable 
determination you can, not throw up your hands and do something 
you know is wrong unless there is a level of certainty.
    Mr. Kindred. To be perfectly candid, my recommendation to 
the Fish and Wildlife Service as they were going through this 
process was to announce that we are going to impose no 
regulations on Alaska. Not because it is just advantageous to 
me as an Alaskan, but because it sends the message to people--
--
    Senator Whitehouse. That would make Senator Sullivan so 
happy.
    Mr. Kindred. Well, no, but it sends the----
    Senator Whitehouse. I think we could end all these hearings 
if there could just be an Alaska exemption. He'd come home 
happy.
    Mr. Kindred. But from an environmental standpoint, I think 
it is more important to announce to the citizens of the United 
States that simply listing a species, knowing that you can't do 
anything to protect it, gives people the false sense that it is 
being protected. And that was my biggest problem. If they would 
have come out and said this is a problem for everybody, the 
citizens of the United States, the citizens of the world, and 
if they don't take action, then we are going to have problems 
with the polar bear species. But to give people the false sense 
of security and not have them acknowledge their culpability in 
it, to me, is wrong.
    Senator Whitehouse. Understood. But to put it simply, it is 
not your recommendation for the Fish and Wildlife Service to 
ignore climate change impacts.
    Mr. Kindred. It isn't.
    Senator Whitehouse. Thank you. My time is over.
    Senator Sullivan. Chairman Inhofe.
    Senator Inhofe. Well, thank you. I am sorry I had to leave. 
I was kind of hoping this wouldn't devolve into a climate 
committee, but I suspected it might.
    You know, you are oil and gas up in Alaska, right? And we 
are in my State of Oklahoma. And what I would like to get from 
you, Mr. Kindred, is how would the new policy impact my State 
insofar as oil and gas are considered? I have two other areas I 
will be asking about, too, but thoughts on that?
    Mr. Kindred. Well, I apologize in advance; I don't know how 
intelligently I can speak about how this will affect Oklahoma 
only given that we have so many unique issues that cause delays 
and increase costs and kill projects. I mean, I think to the 
extent that there are areas that are designated as critical 
habitat in Oklahoma, I think changing the policy and changing 
Fish and Wildlife Service's approach from effectively working 
and creating reasonable mitigation policies to this no net loss 
or net gain can only result in adverse impacts to industry.
    Now, there is a separate question, academically, if that is 
OK, but from just oil and gas's perspective, it is hard for me 
to believe that this is going to be anything but increased 
costs, increased delays, and increased uncertainty.
    Senator Inhofe. I agree with that.
    Mr. Yates, you are also involved with the Farm Bureau, is 
that correct?
    Mr. Yates. Yes, sir.
    Senator Inhofe. And do you know Buchanan in Oklahoma?
    Mr. Yates. Yes, sir.
    Senator Inhofe. He talks about the things that affect 
adversely that farmers are concerned about, Tom Buchanan, not 
just in the State of Oklahoma, but throughout America, that it 
is the overregulation of the EPA. Then they single out as No. 1 
within those regulations, WOTUS. That is the No. 1 concern that 
he has. And the second thing is some of the endangered species 
and what is happening there.
    Have you already addressed how this would affect farmers in 
terms of this new mitigation policy?
    Mr. Yates. No, but I will try to expand on that. I think 
generally speaking, from the ag sector's perspective, be it if 
we are talking from additional regulatory requirements coming 
from the EPA concern to WOTUS, again, I think we have had a 
consistent dialog with this Committee about our concerns about 
that. But I think generally speaking we are trying to evaluate 
what these regulatory changes mean for ag producers not just in 
Oklahoma, but across the country. Generally speaking farmers 
are concerned with mitigation requirements which have 
ultimately led to the elimination of all ag use on these 
mitigated lands, and I think that is the general concern from 
the ag sector, is the reduction in use of these private lands 
for agriculture.
    And while this is a problem for agriculture in general, I 
would say especially a problem that we are seeing impact new 
beginning and young farmers and ranchers that are trying to get 
started in the industry.
    Last, I think the concern about loss of ag infrastructure 
when mitigation takes land out of production is continuing to 
provide concern, the lack of certainty for producers. This is 
what we hear that is keeping people up at night.
    So, again, be it from the EPA, be it from proposals like 
the mitigation policy, these new requirements that are being 
created from these executive branch agencies are troubling, and 
I think in my testimony we have had a conversation about this 
already, but I think the scope in which the Fish and Wildlife 
Service mitigation policy expands the regulatory reach of that 
agency as it pertains to landscape level conservation, and 
these new broad authorities that are largely undefined in 
statute is troubling, and I think that is a role for you, Mr. 
Chairman, and this Committee.
    The Fish and Wildlife Service should have come to you. They 
should have said, we have a problem, we are seeking--we think 
that additional mitigation would be helpful for the agency to 
protect species. And if that is their position, they need to 
come up with a legislative proposal and work with Congress to 
make those changes and not go about it through executive fiat. 
I think that is the wrong approach, and we have a lot of 
concern with that.
    Senator Inhofe. Yes, we understand that. Also, my State has 
a lot of DOD activity there. We have, of course, highway 
projects; we have a lot of Corps activities.
    But what effect--any one of the three of you--would this 
have in terms of our Department of Defense facilities? We have 
five major ones in the State. Any comments, any thoughts about 
that? Are they mainly exempt from this? And what areas are they 
not? Are you conversant with that?
    Mr. Yates. Unfortunately, I would be happy to get back to 
you with that question.
    Senator Inhofe. OK. Thank you.
    Senator Sullivan. Well, thank you, Senator Inhofe.
    I am going to wrap up with just a few final questions. 
Again, I want to thank the panelists. You have been outstanding 
witnesses.
    Just so we are clear in terms of your testimony, Mr. 
Kindred, Mr. Yates, you don't think that the no net loss net 
benefit policy that has been promulgated in the President's 
2015 memo and in these new regs, that that has a statutory 
basis for them to do that, is that correct?
    Mr. Kindred. It does not.
    Senator Sullivan. So they are exceeding their authority 
quite clearly, in your view.
    Mr. Kindred. Yes, Senator.
    Senator Sullivan. And you agree with that, Mr. Yates?
    Mr. Yates. In our opinion, they have gone well beyond their 
authority.
    Senator Sullivan. And Professor Colburn, you disagree with 
that, or you didn't have an opinion on that?
    Mr. Colburn. I disagree, Mr. Chairman. I think that if you 
were looking for statutory authority, and because you are 
dealing with very broad statutory authorities, the programs 
that they implement and that this policy touches are very 
broad. I would look at the purposes sections of those statutes.
    Senator Sullivan. But you are not troubled that the 26 
statutes that they cite, there is nothing like that in the 
language they cite?
    Mr. Colburn. To be honest, Mr. Chairman, I think of NEPA 
section 101, where it talks about the authority and the 
continuing responsibility of all agencies of the Federal 
Government. I think of the Endangered Species Act section 
7(a)(1) that says utilize the secretary, utilize all of your 
authorities in pursuit of the purposes of the Act. I think that 
is where the no net loss impetus is coming from.
    Senator Sullivan. Just let me throw in a final question. 
Senator Cardin had mentioned the goals of transparent, more 
predictable and timeliness in terms of permitting. I agree with 
that. And Senator Whitehouse talked about the importance of 
coordinating better among Federal agencies.
    Do you think that this policy is going to advance those 
goals?
    Mr. Kindred.
    Mr. Kindred. I think it would represent the first time that 
a great deal was added to the regulatory rubric, and it 
resulted in more transparency and more efficiency. It will be 
the first time it has ever happened, in my experience.
    Senator Sullivan. So your answer is no?
    Mr. Kindred. No.
    Senator Sullivan. OK.
    Mr. Yates.
    Mr. Yates. I will keep it simple. No, sir.
    Senator Sullivan. OK.
    Professor Colburn.
    Mr. Colburn. I think the 1981 policy creates its own 
uncertainties, so my answer would be I think it has a realistic 
chance of improving clarity and transparency.
    Senator Sullivan. Well, thank you, gentlemen. Outstanding 
testimony. Very much appreciate you being here.
    This hearing is adjourned.
    [Whereupon, at 4:24 p.m. the Committee was adjourned.]

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