[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
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
Available via the World Wide Web: http://www.gpo.gov/fdsys
______
U.S. GOVERNMENT PUBLISHING OFFICE
23-400 PDF WASHINGTON : 2017
-----------------------------------------------------------------------
For sale by the Superintendent of Documents, U.S. Government Publishing
Office Internet: bookstore.gpo.gov Phone: toll free (866) 512-1800;
DC area (202) 512-1800 Fax: (202) 512-2104 Mail: Stop IDCC,
Washington, DC 20402-0001
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
----------
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.]
[all]