[House Hearing, 115 Congress]
[From the U.S. Government Publishing Office]




 
     ESA CONSULTATION IMPEDIMENTS TO ECONOMIC AND INFRASTRUCTURE 
                              DEVELOPMENT

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

                           OVERSIGHT HEARING

                               before the

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                                 of the

                     COMMITTEE ON NATURAL RESOURCES
                     U.S. HOUSE OF REPRESENTATIVES

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                        Tuesday, March 28, 2017

                               __________

                            Serial No. 115-4

                               __________

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                     COMMITTEE ON NATURAL RESOURCES

                        ROB BISHOP, UT, Chairman
            RAUL M. GRIJALVA, AZ, Ranking Democratic Member

Don Young, AK                        Grace F. Napolitano, CA
  Chairman Emeritus                  Madeleine Z. Bordallo, GU
Louie Gohmert, TX                    Jim Costa, CA
  Vice Chairman                      Gregorio Kilili Camacho Sablan, 
Doug Lamborn, CO                         CNMI
Robert J. Wittman, VA                Niki Tsongas, MA
Tom McClintock, CA                   Jared Huffman, CA
Stevan Pearce, NM                      Vice Ranking Member
Glenn Thompson, PA                   Alan S. Lowenthal, CA
Paul A. Gosar, AZ                    Donald S. Beyer, Jr., VA
Raul R. Labrador, ID                 Norma J. Torres, CA
Scott R. Tipton, CO                  Ruben Gallego, AZ
Doug LaMalfa, CA                     Colleen Hanabusa, HI
Jeff Denham, CA                      Nanette Diaz Barragan, CA
Paul Cook, CA                        Darren Soto, FL
Bruce Westerman, AR                  Jimmy Panetta, CA
Garret Graves, LA                    A. Donald McEachin, VA
Jody B. Hice, GA                     Anthony G. Brown, MD
Aumua Amata Coleman Radewagen, AS    Wm. Lacy Clay, MO
Darin LaHood, IL
Daniel Webster, FL
David Rouzer, NC
Jack Bergman, MI
Liz Cheney, WY
Mike Johnson, LA
Jenniffer Gonzalez-Colon, PR

                       Jason Knox, Chief of Staff
                      Lisa Pittman, Chief Counsel
                David Watkins, Democratic Staff Director
                                 ------                                

              SUBCOMMITTEE ON OVERSIGHT AND INVESTIGATIONS

                     RAUL R. LABRADOR, ID, Chairman
           A. DONALD McEACHIN, VA, Ranking Democratic Member

Louie Gohmert, TX                    Ruben Gallego, AZ
Aumua Amata Coleman Radewagen, AS    Jared Huffman, CA
Jack Bergman, MI                     Darren Soto, FL
Mike Johnson, LA                     Wm. Lacy Clay, MO
  Vice Chairman                      Raul M. Grijalva, AZ, ex officio
Jenniffer Gonzalez-Colon, PR
Rob Bishop, UT, ex officio
                                 ------                                
                                CONTENTS

                              ----------                              
                                                                   Page

Hearing held on Tuesday, March 28, 2017..........................     1

Statement of Members:
    Johnson, Hon. Mike, a Representative in Congress from the 
      State of Louisiana, prepared statement of..................    57
    Labrador, Hon. Raul R., a Representative in Congress from the 
      State of Idaho.............................................     1
        Prepared statement of....................................     3
    McEachin, Hon. A. Donald, a Representative in Congress from 
      the State of Virginia......................................     4

Statement of Witnesses:
    Calkins, Ronald J., President, American Public Works 
      Association, Washington, DC................................    17
        Prepared statement of....................................    18
        Questions submitted for the record.......................    21
    Li, Ya-Wei (Jake), Vice President, Endangered Species 
      Conservation; Director, Center for Conservation Innovation, 
      Defenders of Wildlife, Washington, DC......................    25
        Prepared statement of....................................    26
        Questions submitted for the record.......................    31
    Stiles, Doug, General Manager, Hecla Mining Company, Coeur 
      d'Alene, Idaho.............................................     5
        Prepared statement of....................................     7
        Questions submitted for the record.......................    14
    Wood, Jonathan, Staff Attorney, Pacific Legal Foundation, 
      Arlington, Virginia........................................    42
        Prepared statement of....................................    44
        Questions submitted for the record.......................    51

Additional Materials Submitted for the Record:
    Beyer, Hon. Donald S., March 27, 2017 Memo requesting 
      colleagues to sign on to support funding for endangered 
      species conservation.......................................    61
    Department of the Army, April 30, 2015 Letter to Save Crystal 
      River......................................................    67
    List of documents submitted for the record retained in the 
      Committee's official files.................................    88
    Pacific Legal Fund Contributor List..........................    59
    Williamson County Conservation Foundation, March 27, 2017 
      Letter to Chairman Bishop..................................    79
                                     


 
   OVERSIGHT HEARING ON ESA CONSULTATION IMPEDIMENTS TO ECONOMIC AND 
                       INFRASTRUCTURE DEVELOPMENT

                              ----------                              


                        Tuesday, March 28, 2017

                     U.S. House of Representatives

              Subcommittee on Oversight and Investigations

                     Committee on Natural Resources

                             Washington, DC

                              ----------                              

    The Subcommittee met, pursuant to notice, at 10:02 a.m., in 
room 1324, Longworth House Office Building, Hon. Raul Labrador 
[Chairman of the Subcommittee] presiding.
    Present: Representatives Labrador, Radewagen, Bergman, 
Johnson, Gonzalez-Colon, Bishop; McEachin, Huffman, Clay, and 
Grijalva.
    Also present: Representatives Beyer and Tsongas.
    Mr. Labrador. Good morning. The Subcommittee on Oversight 
and Investigations will come to order. The Subcommittee is 
meeting today to hear testimony on ESA consultation impediments 
to economic and infrastructure development. Under Committee 
Rule 4(f), any oral opening statements at hearings are limited 
to the Chairman, the Ranking Minority Member, the Vice Chair, 
and the Vice Ranking Member.
    Therefore, I ask unanimous consent that all other Members' 
opening statements be made part of the hearing record if they 
are submitted to the Subcommittee Clerk by 5:00 p.m.
    Hearing no objection, so ordered.
    Also I ask unanimous consent that the gentleman from 
Arkansas, Mr. Westerman; the gentlelady from Massachusetts, Ms. 
Tsongas; the gentleman from California, Mr. Lowenthal; and the 
gentleman from Virginia, Mr. Beyer, be allowed to sit with the 
Subcommittee and participate in the hearing.
    Hearing no objection, so ordered.
    I will now recognize myself for 5 minutes for an opening 
statement.

  STATEMENT OF THE HON. RAUL R. LABRADOR, A REPRESENTATIVE IN 
                CONGRESS FROM THE STATE OF IDAHO

    Mr. Labrador. Many, including myself, strongly believe that 
the Endangered Species Act, last authorized nearly 30 years 
ago, is in serious need of reform. That is a priority that I 
expect the full Natural Resources Committee, under Chairman 
Bishop's leadership, to explore later this Congress.
    Today's hearing will examine one specific section of the 
Act, and provide more evidence of just how dysfunctional and 
problematic the Endangered Species Act, and its implementation 
by the Federal Government, has become.
    Nearly every imaginable action with a Federal nexus--
including thousands of activities critical to the development 
of our Nation's infrastructure, energy, and resources, must 
undergo a Section 7 consultation with the Fish and Wildlife 
Service, the National Marine Fisheries Service, or both. This 
includes activities such as building and maintaining roads, 
bridges, schools, water facilities, hydropower dams, electrical 
transmission lines, grazing, mining, forest thinning, and even 
fire suppression efforts.
    Because so much discretion is left to these Federal 
agencies to determine whether a species is present, how they 
may be impacted by the project, and what must be done to avoid 
impacts, the regulatory impediments are sweeping.
    Worse, even when project applicants have, in good faith, 
sought to follow the Section 7 process, the threat of 
litigation always looms, and can impact the results of the 
process. Such unnecessary litigation does not help protect 
species and, instead, serves only to enrich private interests, 
draw resources away from conserving species and habitats, and 
prevent the law from working as intended.
    Indeed, the ESA has become a lawyer's dream. Lawsuits 
extort mitigation requirements that are unrelated to projects 
as the price to complete consultation. Lawsuit after lawsuit 
can result in blocking a project entirely, and taxpayers foot 
the bill, paying tens of millions of dollars in attorneys' fees 
and grants to certain groups to file endangered species 
lawsuits. One of the groups testifying here today, the 
Defenders of Wildlife, has been party to more than 80 ESA-
related lawsuits in just the 5 previous years.
    In theory, project applicants should expect to navigate, or 
at least be given certainty of, the outcome of the consultation 
process within 135 days or less; but that is rarely what 
happens. Projects are stalled, Federal agencies force costly 
surveys or studies, and often require questionable or 
unattainable mitigation measures, sometimes at a cost of 
millions of taxpayer dollars, all due to Section 7. 
Consultations are frequently handled inconsistently between 
service regions, and are often delayed by local service 
employees.
    We will hear testimony today about one egregious example of 
a mining project, that would have generated many local jobs and 
benefits to rural Montana, that was held up in the processes 
for 30 years due to the Services' shifting requirements during 
its Section 7 consultation.
    A 2015 study found that 20 percent of formal consultations 
undertaken by the Fish and Wildlife Service between 2008 and 
2015 went well beyond the statutory 135-day time frame.
    The National Marine Fisheries Service has a far worse 
record, with just over 70 percent of their formal consultations 
exceeding required deadlines. In addition, the Services often 
unilaterally delay the start or the end of consultation, 
sometimes requiring projects to undergo years of studies, 
lengthy extensions, and negotiations before starting the clock 
on the consultation process.
    Inconsistency, increased process and legal costs, and a 
lack of certainty about the consultation process severely 
hinders our Nation's ability to provide necessary public 
services, and discourages investment in critical projects 
needed to boost our economy. Reform is needed to improve 
consistency between regions, adherence to timelines, and to 
hold the employees of the Services accountable for completing 
consultations in an efficient, timely, and effective manner.
    I look forward to hearing from the witnesses today, and I 
am appreciative of their willingness to share their stories and 
expertise regarding the flaws in the ESA consultation process.
    [The prepared statement of Mr. Labrador follows:]
Prepared Statement of the Hon. Raul R. Labrador, Chairman, Subcommittee 
                    on Oversight and Investigations
    Many, including myself, strongly believe that the Endangered 
Species Act, last authorized nearly 30 years ago, is in serious need of 
reform. That is a priority that I expect the full Natural Resources 
Committee, under Chairman Bishop's leadership, to explore later this 
Congress. Today's hearing will examine one specific section of the Act, 
and provide more evidence of just how dysfunctional and problematic the 
Endangered Species Act, and its implementation by the Federal 
Government, has become.
    Nearly every imaginable action with a Federal nexus--including 
thousands of activities critical to the development of our Nation's 
infrastructure, energy, and resources, must undergo a ``Section 7'' 
consultation with the Fish and Wildlife Service, the National Marine 
Fisheries Service, or both. This includes activities such as building 
and maintaining roads, bridges, schools, water facilities, hydropower 
dams, electrical transmission lines, grazing, mining, forest thinning, 
and even fire suppression efforts. Because so much discretion is left 
to these Federal agencies to determine whether a species is present, 
how they may be impacted by the project, and what must be done to avoid 
impacts, the regulatory impediments are sweeping.
    Worse, even when project applicants have, in good faith, sought to 
follow the Section 7 process, the threat of litigation always looms, 
and can impact the results of the process. Such unnecessary litigation 
does not help protect species, and instead serves only to enrich 
private interests, draw resources away from conserving species and 
habitats, and prevent the law from working as intended.
    Indeed, the Endangered Species Act has become a lawyer's dream. 
Lawsuits extort mitigation requirements that are unrelated to projects 
as the price to complete consultation. Lawsuit after lawsuit can result 
in blocking a project entirely. And, taxpayers foot the bill, paying 
tens of millions of dollars in attorneys' fees and grants to certain 
groups to file endangered species lawsuits. One of the groups 
testifying here today, the Defenders of Wildlife, has been party to 
more than 80 Endangered Species Act-related lawsuits in just the past 5 
years.
    In theory, project applicants should expect to navigate--or at 
least be given certainty of--the outcome of the consultation process 
within 135 days or less, but that is rarely what happens. Projects are 
stalled, Federal agencies force costly surveys or studies, and often 
require questionable or unattainable mitigation measures, sometimes at 
a cost of millions of taxpayer dollars, all due to Section 7. 
Consultations are frequently handled inconsistently between service 
regions, and are often delayed by local service employees.
    We will hear testimony today about one egregious example of a 
mining project, that would have generated many local jobs and benefits 
to rural Montana, that was held up in the processes for 30 years due to 
the Services' shifting requirements during its Section 7 consultation.
    A 2015 study found that 20 percent of formal consultations 
undertaken by the Fish and Wildlife Service between 2008 and 2015 went 
well beyond the statutory 135-day time frame. The National Marine 
Fisheries Service has a far worse record, with just over 70 percent of 
their formal consultations exceeding required deadlines. In addition, 
the Services often unilaterally delay the start or the end of 
consultation--sometimes requiring projects to undergo years of studies, 
lengthy extensions, and negotiations before starting the clock on the 
consultation process.
    Inconsistency, increased process and legal costs, and a lack of 
certainty about the consultation process severely hinders our Nation's 
ability to provide necessary public services and discourages investment 
in critical projects needed to boost our economy. Reform is needed to 
improve consistency between regions, adherence to timelines, and to 
hold the employees of the Services accountable for completing 
consultations in an efficient, timely, and effective manner.
    I look forward to hearing from the witnesses here today, and am 
appreciative of their willingness to share their stories and expertise 
regarding the flaws in the ESA consultation process.

                                 ______
                                 

    Mr. Labrador. The Chairman now recognizes the Ranking 
Member of the Subcommittee, Mr. McEachin, for 5 minutes for an 
opening statement.

 STATEMENT OF THE HON. A. DONALD McEACHIN, A REPRESENTATIVE IN 
              CONGRESS FROM THE STATE OF VIRGINIA

    Mr. McEachin. Thank you, Mr. Chairman. Today's hearing is 
the latest in a series of attempts by the Majority to blame 
bedrock environmental laws for holding up infrastructure 
projects, despite copious amounts of evidence to the contrary.
    As we will hear from the Minority witness today, the vast 
majority of Federal agency consultations under Section 7 of the 
Endangered Species Act are completed in only a few days. If a 
consultation takes longer, it is because there is a good 
reason. A proposed action could drive a species of life off the 
face of this planet. When a species disappears, the world 
becomes a poorer and less interesting place, because we have 
lost a unique and valuable piece of God's creation.
    Imagine a world without a bald eagle, which is with us 
today because of the Endangered Species Act protections. Would 
that be a better world? Would anyone here prefer it?
    When a species is lost, there are also concrete harms to 
human beings. What if a plant has medicinal properties? What if 
an animal has genes that could help us cure disease? If a 
species disappears, we lose the chance forever to study and 
learn from its biology or behavior.
    So, when we fail to adequately protect endangered species, 
we are throwing away something priceless and irreplaceable. We 
are throwing away opportunities to better understand our world, 
and to make life better for ourselves and for our children.
    That is why it is very important that we keep strong, 
effective processes in place. Make no mistake, the Section 7 
consultation process and the ESA, in general, have been 
incredibly effective in preventing extinction. Ninety-nine 
percent of all species that have received ESA protections are 
still with us today, and ninety percent are on track to meet 
their scientifically-developed recovery goals.
    We should not be tearing down these processes or writing in 
loopholes. Instead, we should be building on the successes that 
they have produced. Unfortunately, that is not the path that 
the President or the Majority has signaled. Donald Trump has 
proposed debilitating cuts to the agencies that conduct Section 
7 consultations, instead of giving them additional funding to 
process the requests more quickly.
    In countless ways, we need a healthy, rich, sustainable 
environment. Policies that degrade the environment may be cheap 
or easy today, but in the long run we all pay the price.
    Economic development, including the construction and the 
maintenance of infrastructure, should be compatible with the 
conservation of wildlife, fish, plants, and biological 
diversity in general. The ESA ensures that it is, and Section 7 
consultations are a big reason why.
    Tired talking points claiming that complying with the Act 
kills jobs and unnecessarily impedes economic growth are simply 
not grounded in reality. The U.S. economy has more than tripled 
since the ESA was passed, from $5 trillion in 1973 to $16 
trillion today. Keeping continued growth that requires Federal 
Government permitting or action from harming threatened and 
endangered species is the very least we can do to be good 
stewards of God's creation.
    Mr. Chairman, thank you, and I yield back.
    Mr. Labrador. I will now introduce today's witnesses.
    Mr. Doug Stiles is the General Manager for the Hecla Mining 
Company in Idaho, which is located in my district. Hecla is an 
important presence in our community, and I am really happy to 
welcome Mr. Stiles to this hearing.
    Mr. Ronald Calkins is the President of the American Public 
Works Association.
    Mr. Ya-Wei Li--I hope I pronounced that right--is the Vice 
President for Endangered Species Conservation, and Director of 
the Center for Conservation Innovation at Defenders of 
Wildlife.
    And Mr. Jonathan Wood is Staff Attorney with the Pacific 
Legal Foundation.
    Let me remind the witnesses that under our Committee Rules, 
oral statements must be limited to 5 minutes, but your entire 
written statement will appear in the hearing record.
    In regards to testimony and questions, our microphones are 
not automatic, so you will need to press the talk button before 
speaking into the microphone. When you begin, the lights on the 
witness table will turn green. When you have 1 minute 
remaining, the yellow light will come on. Your time will have 
expired when the red light comes on, and I will ask you to 
please conclude your statement.
    I will also allow the entire panel to testify before 
questioning the witnesses.
    The Chair now recognizes Mr. Stiles for his testimony.

    STATEMENT OF DOUG STILES, GENERAL MANAGER, HECLA MINING 
                 COMPANY, COEUR D'ALENE, IDAHO

    Mr. Stiles. Chairman Labrador, Ranking Member McEachin, and 
distinguished members of this Committee, my name is Doug 
Stiles, and I am the General Manager of Hecla Montana, a wholly 
owned subsidiary of Hecla Mining Company. I have worked in 
environmental compliance, permitting, and operations management 
for over 20 years. Hecla Mining Company is the oldest precious 
metals mining company in North America, and the largest silver 
producer in the United States. We successfully operate the 
Greens Creek Mine, which is located outside Juneau, Alaska, 
partially within the Admiralty Island National Monument.
    Today, I am testifying on behalf of Hecla Mining Company, 
owners of the Rock Creek and Montanore underground mining 
projects, located in the northwest corner of Montana. These 
projects have been in the Federal NEPA and ESA permitting 
process for over 30 years. These projects represent some of the 
largest undeveloped copper and silver mineral resources in the 
United States.
    Development of these resources has the potential to provide 
hundreds of middle-class wage jobs to an area that has led 
Montana in unemployment for decades. The projects are 
underground, with very clean ore bodies and small environmental 
footprints.
    Why this long, and what can be done to improve the process? 
Those are the topics of my testimony.
    From 1998 to 2011, the Rock Creek project received three 
biological opinions, one supplemental biological opinion, and 
five legal challenges. All but the first biological opinion 
came to the same no-jeopardy conclusion.
    The Ninth Circuit, which is widely known to give deference 
to wildlife, unanimously upheld the last biological opinion, 
stating that grizzly bears were better off with the mine than 
without it, given the robustness of the required mitigation 
plan.
    Today, the Fish and Wildlife Service is again completing a 
biological opinion on the project, even though the project plan 
has not changed substantially in 30 years, and is analogous to 
a neighboring mine which operated for 30 years without 
significant environmental impact.
    The Montanore project formal consultation began in 2009, 
and the final biological opinion was released 5 years later in 
2014. Findings here were the same as Rock Creek: no jeopardy.
    Combined permitting experience at both projects highlight 
four key impediments. One, constant litigation upon completion 
of any agency decision adds direct and indirect time and costs. 
The Rock Creek project litigation and fear of litigation were 
the prime drivers for completing three decisions that all came 
to the same no jeopardy conclusion, and it is the primary 
driver for why the project is currently in its fifth 
consultation.
    Two, projects mired in lengthy permitting review timelines 
get saddled with new information that triggers renewed ESA 
consultation and further delay. The unending permit-litigate-
permit loop.
    Three, there are no consequences for failure to adhere to 
statutory consultation time frames. In none of the five 
combined consultations did the Fish and Wildlife Service meet 
completion deadlines.
    And fourth, a single individual within the agency can have 
an outsized effect on the consultation process. The transfer of 
one biologist caused a 12-month delay in one biological 
opinion. And, in another case, the opinion of one agency 
biologist delayed consultation completion by years.
    Affirming ESA protection where it is needed, while 
encouraging responsible, timely project permitting, are not 
mutually-exclusive goals. We present the following policy 
considerations.
    First, legal reform--and this begins with Equal Access to 
Justice. The current system is abused by non-profit 
organizations pursuing procedural litigation on emotional 
issues in cases disconnected from the Act's original purpose. 
The guarantee of litigation following an agency decision has 
added decades to the permitting timeline and millions of 
dollars to permitting costs, with no benefit to the species.
    Second, more reliance on the action agency biological 
assessment conclusions. In our cases, the Fish and Wildlife 
Service has repeatedly came to the same conclusion as the 
action agency, the U.S. Forest Service, only years and millions 
of dollars later.
    Third, streamline reconsultation initiation. After reaching 
a decision, any changes that must be addressed should only 
focus on those specific items that changed, not the entire 
process anew.
    Fourth, inclusion of state experts in the consultation 
process, as they have valuable, firsthand knowledge of local 
species status and what does and does not work to protect them.
    We firmly believe that improved agency coordination in a 
more efficient permitting process can ensure the protection of 
threatened and endangered species and allow for responsible 
economic growth. These are not mutually exclusive goals. As 
observed by the Ninth Circuit, the Rock Creek project would 
provide more benefit to threatened and endangered species than 
the current status quo.
    Thank you for the opportunity to testify before you today.

    [The prepared statement of Mr. Stiles follows:]
  Prepared Statement of Douglas Stiles, General Manager, Hecla Mining 
                     Company, Coeur d'Alene, Idaho
                         introductory statement
    Chairman Labrador, Ranking Member McEachin and members of the 
Committee, I would like to sincerely thank you for inviting me to 
testify before you today on this very important issue. My name is Doug 
Stiles and I am General Manager for Hecla Montana, a wholly owned 
subsidiary of Hecla Mining Company. Hecla Mining Company (NYSE: HL) is 
the oldest precious metals mining company in North America and was 
established in 1891 in northern Idaho's Silver Valley. We are the 
United States largest primary silver producer, third largest producer 
of lead and zinc, and a leading gold producer. We currently have U.S. 
operations and projects in Alaska, Idaho, Colorado and Nevada and over 
the past 2 years completed the acquisition of the proposed Rock Creek 
and Montanore silver-copper mining projects in Montana.
    We appreciate this Committee's attention and willingness to listen 
to various perspectives on how the ESA consultation process is, or in 
some cases is not, working as intended. Hecla Mining Company, the 
people who depend upon natural resource extraction to support 
themselves, and the very species that the ESA was enacted to protect, 
are encouraged by possible policy changes to improve the consultation 
process. We firmly believe that improved agency coordination and more 
efficient permitting processes can ensure the protection of threatened 
or endangered species and allow responsible natural resource 
development; these are not mutually exclusive goals. For example, Hecla 
Mining Company's Greens Creek Mine in southeast Alaska is located 
partially within the Admiralty Island National Monument and adjacent to 
the Kootznoowoo Wilderness Area. The project is home to the largest 
density of brown bears in North America (ESA threatened grizzly bears 
in the lower 48) and five species of Pacific salmon. For 30 years, this 
mine has operated in harmony with, and had little impact on, the 
natural environment. We understand what it takes to operate in 
environmentally sensitive areas. It is with this backdrop that I will 
now describe the ESA consultation process has contributed to the 
tortuous permitting process that has befallen the proposed Rock Creek 
and Montanore mining projects in northwest Montana.
    The Rock Creek and Montanore projects have been in the permitting 
process for more than 30 years. Like our Greens Creek mine, these 
projects are in an environmentally sensitive area, home to ESA listed 
species grizzly bears and bull trout. The surface effects of both 
projects are adjacent to the Cabinet Mountains Wilderness area and 
partially located on land managed by the U.S. Forest Services (FS), 
with each project requiring consultation with the Fish and Wildlife 
Service (FWS) on threatened and endangered species. The consultation 
processes have been lengthy, topics of litigation and contributed 
significantly to the long permitting delays experienced with these 
projects. The case studies on the ESA consultation process from these 
two projects will be illustrative to the Committee and serve to 
highlight what we see as key consultation issues that, if properly 
addressed, could not only expedite the permitting process but also 
provide greater protection for local communities and the species that 
the ESA is supposed to protect.

    While each project has seen its own unique permitting challenges, 
the combined permitting experience highlights four key consultation 
deficiencies.

     There are no consequences for failure to adhere to the 
            statutory timeline. The statutory time frames for 
            completion of formal consultation and issuance of a 
            biological opinion were not met in either of the cases 
            described below.

     A single individual within the agency with a personal bias 
            or agenda can have an outsized effect on the consultation 
            process. As highlighted by the Rock Creek experience, the 
            transfer of one biologist resulted in almost a 12-month 
            delay in the consultation process. Other issues regarding 
            individual personnel and specific agendas are evident in 
            the Montanore record and other projects with which I have 
            been involved. The opinion of one person within the agency 
            can drive consultation biases which then require 
            significant time and resources to unwind, if that is even 
            possible.

     Projects mired in long permitting review timelines can get 
            further saddled with ``new information'' that triggers 
            renewed ESA consultation and yet further delay. This issue 
            applies to both ESA consultation and the National 
            Environmental Policy Act (NEPA) permitting process. This is 
            one of the key reasons why the Rock Creek project has been 
            in permitting for over 30 years despite the proposed action 
            not significantly changing and the agencies repeatedly 
            confirming a ``not likely to jeopardize'' threatened or 
            endangered species finding.

     The Rock Creek project highlights the damage our litigious 
            permitting process has inflicted. Near constant litigation 
            combined with the need to review anew all resource areas 
            every time any part of a decision is remanded, only 
            lengthens the process and brings fresh litigation fodder to 
            the table.

             rock creek--project description and background
    The Rock Creek Project (Rock Creek) is a proposed underground 
copper/silver mine located in Sanders County, Montana. Rock Creek was 
first proposed by Asarco in 1986 with the filing of a Plan of 
Operations with the U.S. Forest Service. This disturbance footprint is 
less than 500 acres with most (300+ acres) occurring on private 
property located within an existing disturbance and utility corridor.
    The ore body lies beneath the Cabinet Mountains Wilderness and was 
discovered prior to passage of the Wilderness Act of 1964. The Act 
provides the right to mine valid existing mining claims. The 
characteristics of the ore body are unique in that the host 
mineralization is quartzite or, after processing, beach sand. Rock 
Creek also is unique in that another mine (the Troy Mine) located 
approximately 14 air miles away within the same ore body, was 
permitted, constructed, and operated for almost 30 years with no 
significant environmental impacts. In fact, water quality from the Troy 
Mine shows no evidence of acidification and the closure plan that was 
updated and approved by both State and Federal agencies (including the 
EPA) does not require active water treatment. As with almost any 
natural resource development project in the United States, the Rock 
Creek project has been opposed by a collection of litigants almost 
since day one. The proposed project also has not changed substantially 
in the 30+ year permitting process.
    Formal ESA consultation on the Rock Creek mine began in 1998--
almost 20 years ago; however, the project record indicates that 
interagency communication regarding potential project effects to 
threatened species began as early as 1986. From this perspective, both 
the FS and FWS have been looking at the potential impacts to threatened 
and endangered species at Rock Creek for over 30 years. Given the 
length of time this project has been under review you may think that 
the project impacts must be significant. Nothing could be further from 
the truth. As described above, the mine is underground in a benign ore 
body with less than 500 acres of total surface disturbance, none of 
which is within the Wilderness and most is some 3 miles away from the 
wilderness boundary.
    In 2011, the Ninth Circuit Court of Appeals reviewed the 2007 
biological opinion. In their unanimous decision upholding the FWS 
decision, the Ninth Circuit stated that the mitigation plan was so 
robust that the Fish and Wildlife Service concluded that it ``would in 
fact improve conditions over the long-term over the existing 
conditions, ultimately promoting the recovery of the [local] grizzly 
bear population.'' Getting to this point; however, required decades of 
Agency review including numerous delays and litigation--all for a 
project which has not significantly changed in description since 
conceptually proposed in 1984 and formally proposed in 1987. A 
chronology of key ESA-related consultation and associated litigation 
follows.

     On July 31, 1998, the FS, as action agency, initiated 
            formal consultation with the FWS regarding effects on 
            grizzly bears and bull trout. On December 19, 2000 (2.5 
            years later) the FWS issued its first biological opinion 
            for the project. Only after repeated requests from the 
            company to the Montana congressional delegation, State 
            agencies, and FWS leadership did the FWS provide the staff 
            and resources necessary to complete the initial biological 
            opinion. Per historical documentation, at least 12 months 
            of this delay can be attributed to the transfer of one FWS 
            employee, the biologist leading the effort, and the lack of 
            FWS urgency in replacing that one individual. In the case 
            of the Rock Creek project, the statutory ESA requirement 
            for a 90-day consultation period was ignored.

     On May 9, 2003, the FWS issued a new biological opinion 
            resulting from threatened litigation which concluded no 
            jeopardy opinions for grizzly bear and bull trout. The 
            grizzly bear biological opinion included a mitigation plan 
            which required Rock Creek to acquire 2,450 acres of FWS 
            identified mitigation land to compensate for project 
            impacts, among other substantial mitigation measures. At 
            this point, consultation had been underway for almost 5 
            years without having seen the inside of a courtroom.

     On July 10, 2003, the same collection of litigants who 
            threatened to sue in 2001 again filed suit against the FWS. 
            This time; however, the FWS chose to defend their work and 
            the matter proceeded to the U.S. District Court for 
            Montana. On March 28, 2005, the court set aside and 
            remanded the 2003 BO back to the FWS for reconsideration.

     On October 11, 2006, the FWS re-issued a biological 
            opinion based on further consideration in accordance with 
            the 2005 court remand and considering ``new information'' 
            that became available since the previous 2003 biological 
            opinion was issued. In other words, the FWS not only 
            responded to issues raised by the court in the 2005 remand, 
            but they also included any ``new information'' that may 
            have been found since the 2003 biological opinion was 
            issued--a consistent and chronic cause of permitting delays 
            under both NEPA and the ESA.

     On September 2007, the FWS issued a supplemental 
            biological opinion which reiterated the previous ``no 
            jeopardy'' opinions and concluded that formal consultation 
            was not required.

     On March 26, 2010, the U.S. District Court upheld the FWS 
            biological opinion while remanding portions of the EIS back 
            to the FS for reconsideration. Plaintiffs subsequently 
            appealed to the Ninth Circuit Court of Appeals.

     On November 16, 2011, the Ninth Circuit unanimously upheld 
            the District Court decision affirming the 2007 opinion. 
            After three biological opinions, one supplemental 
            biological opinion, and five legal challenges (including 
            one trip to the Ninth Circuit which stated that grizzly 
            bears are better off with the proposed mining project), not 
            only did the conclusions not change, but the FWS 
            consultation history is not yet complete.

     On February 15, 2017, the FWS again initiated formal 
            consultation on the Rock Creek project because of ``new 
            information'' and an expansion of bull trout critical 
            habitat that happened in 2010. Both the ``new information'' 
            and expansion of critical habitat resulted from the lengthy 
            permitting time frames associated with project. Because the 
            last supplemental biological opinion was completed in 
            2007--10 years ago--without a Record of Decision, Rock 
            Creek is forced to undergo again another round of formal 
            consultation and new or supplemental biological opinion for 
            reasons related mostly to the length of time it has taken 
            the Agencies to complete project permitting.

    The latest round of ESA consultation resulted from a supplemental 
EIS process the FS began to address the District Court remand back in 
2010. In that 2010 ruling, the court found only four relatively minor 
issues that the FS were instructed to address. However, because the EIS 
was last completed in 2001, the FS decided it was necessary to update 
the impact assessment of all key resource areas. As one can imagine, 
technology and rules had changed during the preceding 10 years which 
has resulted in a supplemental EIS taking over 6 years--it began in 
2011 and is ongoing today--longer than most initial EIS's in spite of 
the fact that updated modeling (required only because of technological 
advances in computer modeling) showed less impacts to ground water 
quantity than the original EIS. This highlights one of the key issues 
with the permitting/litigation/permitting cycle prevalent in almost all 
natural resource projects today--even when projects have been assessed, 
updating impact assessments for no other reason than the passage of 
time frequently result in extended permitting time frames and fresh 
litigation fodder.
             montanore--project description and background
    The Montanore Project (Montanore) also is located in northwest 
Montana approximately 5 air miles from Rock Creek within the same, 
benign geological formation. Also like Rock Creek, Montanore is a 
proposed underground copper/silver mine with limited surface footprint 
and has been in the permitting process for decades. Project permitting 
has taken many regulatory turns resulting not from changes to the 
project's Proposed Action, but from changes in the position of the 
Agencies with respect to how impact analyses should proceed. While I 
understand the focus of this hearing is on the ESA consultation 
process, I would like to review some of the NEPA history and decisions 
made by the FS--the ESA action agency.
    The permitting process for the Montanore project began in 1989. In 
that year, Noranda (project proponent) obtained an exploration license 
from the state of Montana to conduct surface disturbance activities on 
18 acres of private property and construct underground exploration 
facilities. Work commenced soon after obtaining the exploration license 
and included the construction of limited buildings and approximately 
14,000 feet of an underground exploration tunnel. Construction ceased 
in 1991; however, project permitting efforts continued.
    In 1993, the FS issued a Record of Decision approving further 
exploration, construction, operation, and reclamation of the full 
mining project. To summarize, by the end of 1993, Noranda had received 
all key permits necessary to fully develop the Montanore mine, they had 
completed surface disturbance on 18 acres of private property and they 
had developed approximately 14,000 feet of an underground exploration 
tunnel. For reasons not exactly known, Noranda stopped project 
development in 1993 and let many of the acquired permits expire. In 
2002, Noranda notified the USFS that it was relinquishing its 
``authorization to operate'' (1993 Record of Decision) the Montanore 
Project.

     In January, 2005--only 3 years after the operating permits 
            were relinquished--new owners of the Montanore Project 
            submitted plans to both the FS and Montana DEQ to restart 
            exploration activities that had been halted in 1991. In 
            early August 2006, the FS determined that a road use 
            permit, and associated NEPA, would be needed to re-initiate 
            exploration activities on private property. The FS 
            determined that an Environmental Assessment (EA) would be 
            appropriate for the requested road use permit. The decision 
            to complete an EA on just the exploration activities 
            precipitated initial FWS ESA consultation, which is 
            chronicled below.

     On August 9, 2006, the FS began informal consultation with 
            the FWS on the pending Montanore project. Following several 
            meetings between the two agencies to discuss the project, 
            the FS submitted a biological assessment (BA) to the FWS.

     On October 16, 2006, the FS requested concurrence from the 
            FWS with their findings of ``not likely to adversely 
            affect'' either grizzly bear.

     On May 4, 2007, the FWS initiates formal consultation with 
            the FS on the Montanore project as the FWS did not agree 
            with the initial findings of the BA despite several 
            meetings between the two agencies from August to October. 
            In correspondence to the Forest Supervisor, FWS states that 
            a final biological opinion is due ``135 days later on 
            September 16, 2007.''

     On September 28, 2007, the FWS submitted a draft 
            biological opinion to the FS which found ``not likely to 
            jeopardize the continued existence of grizzly bear''--the 
            same conclusion reached by the FS 1 year earlier. At this 
            point, the opinion covered only the first phase of the 
            Montanore Project which evaluated activities occurring on 
            previously disturbed private property.

     On December 14, 2007, the FWS submitted a second draft 
            biological opinion which continued to find ``not likely to 
            jeopardize the continued existence of grizzly bear.''

     On May 23, 2008, the FWS submitted a third draft 
            biological opinion which continued to find ``not likely to 
            jeopardize the continued existence of grizzly bear.''

     Sometime in 2008, the FS determined that the entire 
            Montanore mining project was a ``connected action'', and 
            the best NEPA approach was to complete a new EIS on the 
            entire Montanore project--exploration, mine construction, 
            operation, and reclamation. Recall that an EIS and 
            associated Record of Decision was completed in 1993 on this 
            very same project. This decision by the FS led to a 
            stoppage of FWS consultation work following the May, 2008 
            biological opinion pending release of a draft EIS.

     In May 2009, informal consultation was initiated with FWS 
            comments on the Draft EIS.

     Between May 2009 and July 2011, at least eight meetings 
            and associated correspondence transpired between the 
            agencies as the FS consulted with the FWS in preparation of 
            its biological assessment (BA) which would kick-off the 
            formal consultation process.

     On July 5, 2011, the FS provided the FWS with a BA and 
            requested formal consultation on the Montanore project.

     On February 17, 2012 (7 months later) the FWS determined 
            that the BA supplied by the FS was inadequate, despite over 
            2 years of coordination with the FS in preparation of the 
            BA.

     On February 25, 2013, after at least seven additional 
            meetings between the agencies, the FWS accepted the BA and 
            began formal consultation.

     On March 31, 2014, the FWS released the final biological 
            opinion for the Montanore Project, almost 5 years since the 
            beginning of information consultation AFTER completing a 
            biological opinion on part of the project from 2006-2008.

    The regulatory processes described above have been complicated, 
expensive, and time consuming. The companies involved with these 
permitting efforts have spent millions of dollars and invested 
countless hours to permit these two projects as have the lead Federal 
agencies.

       key issues from rock creek and montanore esa consultation

    At this point, it is worth summarizing the key issues identified 
above as impediments to the Rock Creek and Montanore ESA consultation 
processes.

  1.  Although the ESA contains statutory time frames for completion of 
            formal consultation and issuance of a biological opinion, 
            they were not met in either of the cases described above. 
            There are no consequences to the agency for failure to 
            adhere to the statutory timeline. Both the ESA consultation 
            and NEPA processes need defined timelines with consequences 
            for not adhering to those timelines. The consultation 
            processes endured by our projects have spanned decades.

  2.  Individual technical staff within the FWS can have an outsized 
            effect on the consultation process as highlighted by the 
            Rock Creek experience, where the transfer of one biologist 
            resulted in almost a 12-month delay in the consultation 
            process. In both projects, the FWS came to the same 
            conclusions as the FS in determining no jeopardy, but it 
            required years of further review to get to that point. In 
            none of these processes were state agencies or project 
            proponents, who have strong scientific expertise and are 
            required to implement certain stipulations, involved in any 
            meaningful way. States possess broad trustee and police 
            powers over fish, wildlife and plans and their habitats. 
            Unless pre-empted by Federal authorities, states possess 
            primary authority and responsibility for protection and 
            management of fish wildlife and plants and their habitats.

  3.  The Rock Creek project highlights an issue for not only ESA 
            consultation but NEPA permitting as well: the requirement 
            to incorporate ``new information'' identified during an 
            active permitting process. The Rock Creek project has been 
            in permitting for over 30 years and in great part this is 
            due to the repeated consultation conducted under the ESA 
            because of ``new information.'' Nevertheless, the 
            conclusion of these assessments has not changed nor has the 
            proposed project. Arguably, the only change over the course 
            of the 30-year permitting process has been the passage of 
            time.
  4.  The Rock Creek project highlights the extreme economic damage 
            that our litigious permitting process has inflicted. A 
            study by SNL Metals (2016)\1\ shows that every 7- to 10-
            year delay in project permitting decreases the net present 
            value of a project by over 30 percent. Near constant 
            litigation with existing incentives to litigate combined 
            with the need to review anew all resource areas every time 
            any part of a decision is remanded by a court only 
            lengthens the process and brings fresh litigation fodder to 
            the table.
---------------------------------------------------------------------------
    \1\SNL Metals & Mining (2015). Permitting, Economic Value and 
Mining in the United States. Prepared for the National Mining 
Association.

                         policy considerations
    To address the issues highlighted above, we present the following 
recommended policy changes that we believe would significantly reduce 
impediments to economic and infrastructure development for the 
Committee's consideration.
Reform the Equal Access to Justice Act
    The one area that would have the greatest overall impact on 
improving and streamlining the permitting process is legal reform. 
While we present other recommendations for policy changes, almost every 
permitting challenge encountered is either directly or indirectly the 
result of litigation. The Rock Creek and Montanore case studies 
demonstrably illustrate how ESA process and litigation has been a 
detriment to both economic development and the species that the ESA is 
supposed to protect. A key driver to this litigation has been the Equal 
Access to Justice Act (Act). The Act was originally intended to present 
small business owners and individuals access to the court system, but 
has been abused by non-profit organizations pursuing procedural 
litigation on emotional issues in return for excessive attorneys' fees 
in cases totally disconnected from the Act's original purposes. The Act 
has been fuel for the fire to grind to a halt Federal agency decision 
making, wear out project proponents, and reduce much needed economic 
development. But the costs to the government for such litigation go 
beyond award of legal fees, and include staff resources in preparing 
and supporting litigation, re-doing environmental impact statements or 
ESA biological opinion, etc. A 2011 study found that for every $1.00 
paid out in fee award, the Department of Justice spend $1.83 in 
personnel and administrative costs.\2\ The costs to the action agency 
were not included in this estimate.
---------------------------------------------------------------------------
    \2\U.S. Gov't Accounting Office, GAO-11-650 (2011). Environmental 
Litigation; Cases Against EPA and Associated Costs Over Time. Cited in: 
Baier, Lowell E, (2012). Reforming the Equal Access to Justice Act, 
Journal of Legislation: Vol. 38: Iss. 1, Article 1. Available at http:/
/scholarship.law.nd.edu/jleg/vol38/iss1/1.

    While reforms to the Act have been proposed over the years, now is 
time to again consider changes to return the Act to its original 
---------------------------------------------------------------------------
intent. Congress should consider:

     Clarify direct and personal monetary interest in the 
            adjudication,

     Reduced exemptions to the statutory cap on attorneys' 
            fees, and

     Revise the net worth cap.

    These measures would put a serious damper on how much EAJA pays 
outs in cases while retaining a reasonable fee for most cases, 
including most EAJA uses such as small business, Social Security and 
Veteran's Claims claimants.
More Reliance on the Action Agency Biological Assessment Conclusions
    In many cases, the Action Agency's (the Forest Service in our case) 
initial biological assessments reach the same conclusion as the 
biological opinion well in advance. Like state wildlife agencies, the 
Action Agencies possess technical expertise with local, on-the-ground 
experience. In the Montanore example, the record indicates that 
significant consultation delay occurred because individuals with the 
FWS held firm beliefs the project should not move forward even though 
the FS experts had reached a different conclusion. More reliance on 
those Action Agency conclusions and expertise in concert with state 
inclusion would significantly shorten the consultation process and help 
to avoid situations where one person's beliefs impede timely project 
decision making. To remove impediments to economic and infrastructure 
development, Congress should consider:

     Requiring the consultation agency to follow the 
            conclusions derived from biological assessments. In cases 
            where the consultation agency may not agree with biological 
            assessment findings, the consultation agency should be 
            required to defend their position through a peer panel 
            which includes the Action Agency and state experts.

Streamline Re-initiation of Consultation
    In cases where an Agency has completed either a consultation 
process or NEPA assessment, any changes that must be assessed should 
only focus on those specific items that have changed. There should be 
statutory or regulatory prohibition on having to assess anew the entire 
project. In the cases described above, decades have been spent 
assessing impacts already evaluated and revisiting settled decisions 
simply because of the passage of time and Agency fear of litigation.
    In the cases described above, continued project permitting delays 
have negatively impacted both the rural communities of northwest 
Montana, but also the threatened species themselves.

    Recall that both the FWS and Ninth Circuit stated that the Rock 
Creek project grizzly bear mitigation plan is, in fact, a recovery plan 
that improves prospects for the species. To streamline the permitting 
process, Congress should consider:

     Requiring in statute that once project impacts have been 
            assessed through the issuance of a final NEPA document 
            (EIS, EA) and/or biological opinion, future assessments due 
            to legal remand or other administrative process need only 
            look at those specific items that were remanded or 
            otherwise administratively modified. Changes to the 
            proposed action by the project proponent would not be 
            subject to this exclusion.

     Reviews due only to the ``passage of time'' or ``fear of 
            litigation'' should not be valid reasons for further Agency 
            analysis.

Inclusion of States in the ESA Consultation Process
    In most cases, state wildlife agencies are charged with 
implementing ESA mitigation plans but have no meaningful input into the 
consultation process. The state wildlife agencies also have much more 
local, on the ground knowledge than their sister Federal counterparts; 
however, current ESA statute minimizes the involvement of state 
agencies in the consultation process. This not only leaves key 
consultation expediting resources off the table, but removes a valuable 
source of local species knowledge and mitigation plan implementation 
expertise. Congress could consider:

     Requiring the consultation agencies expand their policy on 
            state cooperation beyond the current scope. Presently, 
            state involvement during consultation is limited to 
            providing the consultation agency with an ``information 
            update'' prior to preparation of the final biological 
            opinion.

Improve the Overall Permitting Process
    Project permitting delays result from more than just the ESA 
consultation process. Meaningful permitting reform requires a holistic 
review of key permitting processes followed by the implementation of 
policy or legislation designed to strip system inefficiencies and 
incentivize timely completion of agency work. To that end, Congress 
should consider:

     Swift passage of The National Strategic and Critical 
            Minerals Production Act of 2017 which was introduced 
            earlier this year by Representative Mark Amodei (R-NV) in 
            partnership with Senator Dean Heller (R-NV).''

     Action Agency line officer annual performance review 
            should include timely processing and implementation of (1) 
            mining projects and (2) adherence to statutory process 
            completion deadlines. Neither are currently included in 
            annual review of FS line officers or district ranger 
            performance assessments when considering promotion or 
            raises.

                               conclusion
    Removing permitting impediments to economic and infrastructure 
development starts with litigation reform and continues through to 
streamlining the various agency permitting processes. As demonstrated 
by the Rock Creek and Montanore projects, natural resource project 
permitting in the United States is a broken system with devastating 
economic and species impacts. Hecla Mining Company and many other 
responsible miner operators continue to demonstrate that mining is 
compatible with the environment--we've been doing for 30 years at our 
Greens Creek Mine in Alaska and it was clearly demonstrated by the Troy 
Mine in northwest Montana.
    Society demands responsible stewardship of our natural resources 
and those demands are often carried over to project approval 
requirements--as demonstrated by the grizzly bear recovery program 
requirement for the Rock Creek project. In many cases, project approval 
would improve conditions for a threatened species while also bringing 
much needed economic development to rural America. Instead of providing 
these multifaceted societal benefits, these projects are mired in a 30-
year + permitting process. It is long past time to fix the broken 
natural resource permitting process.

                                 ______
                                 

Questions Submitted for the Record by Rep. Labrador to Mr. Doug Stiles, 
                 General Manager, Hecla Mining Company
    Question 1. Please respond to Ranking Member Grijalva's assertion 
that the Montanore and Rock Creek projects do not have the support of 
the community.

    Answer. Both projects have strong support of the local communities, 
members of the Montana State legislative delegations, and all Montana 
State Congressional members (attached). Project support is well 
documented during public project presentations and in the written 
comments received during the EIS public comment periods, with some key 
example project support letters attached.

                                 *****

The following documents were submitted as attachments to Mr. Stile's 
response. These documents are part of the hearing record and are being 
retained in the Committee's official files:

    --January 7, 2016 Letter to Steve Bullock, Governor of Montana from 
            Senator Daines and Congressman Zinke

    --April 13, 2016 Letter to Michael Huffine, Kootenai National 
            Forest from Senator Keenan

    --June 7, 2016 Letter to Chris Savage, Forest Supervisor, Kootenai 
            National Forest from Senator Tester, Senator Daines, and 
            Congressman Zinke

    --Letters of Support from City of Libby City Council Members; 
            Montana State Senators Curtiss, Bennett, and Vincent; 
            Lincoln County Commissioner Anthony Berget; Sanders County 
            Board of Commissioners; Libby School District; Lincoln 
            County Board of Commissioners; Mineral County Board of 
            Commissioners; and Ms. Carla M. Parks, Thompson Falls, MT

    Question 2. Please explain how these projects will or will not 
impact wildlife, water quality, and recreational opportunities in the 
region.

    Answer. Potential project impacts to wildlife, water quality, and 
recreational opportunities are well documented in the voluminous 
Environmental Impact Statements (EIS) developed for each project. 
First, it is important to keep the relative size of each of the 
projects in context with macro environment and understand the nature of 
the proposed projects.
Wildlife
    Both projects are underground mines with limited surface 
disturbance. The disturbance areas for the Montanore and Rock Creek 
projects are 1,565 acres and 445 acres, respectively. Both projects are 
in the Kootenai National Forest (KNF) which has a total area of 
2,200,000 acres. Combined, these projects will disturb approximately 
0.09 percent the land within the KNF. It should also be noted that 
approximately 400 acres of the Rock Creek disturbance occurs on private 
property which is located adjacent to an existing highway and railroad.
    Each project is also required to develop and implement monitoring 
and mitigation plans, including bull trout and Grizzly bear enhancement 
programs. This includes purchase of private lands for wildlife 
enhancement and mitigation. Combined, the projects are required to 
obtain 7,878 acres of private land to offset 1,609 acres of affected 
lands that will be designated as primary wildlife habitat. Most of the 
land designated for mitigation is currently productive timberland that 
will lose future timber production value and associated local economic 
benefit. Because of the substantial wildlife habit mitigation 
requirements, these projects will provide a net benefit to wildlife, 
including grizzly bears.
Water Quality
    Both projects are required to implement mitigation projects 
designed to enhance aquatic habitat and improve the existing system 
including the closure of existing roads which contribute significant 
sedimentation to area streams. Both projects will have surface water 
discharge permits issued pursuant to the Clean Water Act. Permit limits 
are very stringent and advanced water treatment is required. The 
Montanore EIS (Kootenai National Forest, 2016, p. 453) states ``The 
analysis presented in the BA (USDA Forest Service 2013a) concluded that 
potential impacts from peak flow changes, water quality changes, and 
fish passage were considered to be negligible or beneficial to bull 
trout habitat populations.'' For Rock Creek the currently projected 
discharge would be approximately 400 gallons per minute of treated 
water into about 8.9 million gallons per minute in the Clark Fork River 
(or a ratio of 1:20,000).
    The geochemistry of both projects is unique in that the host 
mineralization is mostly comprised of quartzite or hardened beach sand. 
The ore bodies are the same as the nearby Troy Mine which operated for 
the better part of 30 years with no significant environmental impacts. 
Mine water quality from the Troy Mine is very good with no indication 
of significant mineral oxidation. In 2012 an EIS was completed on an 
updated closure plan for the Troy Mine. The EIS concluded that 
perpetual, active water treatment would not be required (Kootenai 
National Forest, 2012, p. 12).
Recreational Opportunities
    As part of the required grizzly bear mitigation program, the 
closure of some open roads is a requirement of both projects. This 
could decrease vehicular access to some portions of the National Forest 
thereby reducing motorized recreational opportunities in favor of 
grizzly bear habitat. Neither project is visible from the Cabinet 
Mountains Wilderness (CMW) area and both are located several miles from 
the CMW boundary. No significant impact to the wilderness experience is 
predicted from either project.

    Question 3. Please explain where these projects currently stand in 
the state and Federal permitting processes.

    Answer. Neither project is currently authorized to commence work 
although both have been approved at some point in the past. At this 
time, we are working with the Agencies to complete the myriad of 
requirements (outlined in the referenced Record of Decisions (below)) 
necessary to begin the Evaluation Phase.
Montanore
    The latest round of permitting for the Montanore Project began in 
2005. The project received a Record of Decision (ROD) from the U.S. 
Forest Service (FS) and a separate ROD from the State of Montana in 
February 2016. A group of NGO plaintiffs filed lawsuits challenging the 
FS Record of Decision (ROD). And at the same time, a similar group of 
litigants (including Defenders of Wildlife) filed suit against the Fish 
and Wildlife Service (FWS) challenging the legality of their biological 
opinion (BO). Oral arguments in these two cases concluded on March 30 
of this year and we expect a ruling from the Federal District judge by 
mid-April 2017.
Rock Creek
    The Rock Creek Project is currently undergoing a third round of 
NEPA evaluation and a fifth round of FWS-ESA consultation. The FS is 
completing a Supplemental EIS (SEIS) for the Rock Creek Project, a 
process which began in 2011. As of April, 2017 the FS is anticipating 
release of the Final SEIS and draft ROD in early June 2017. This begins 
the FS Objection process (36 CFR 218) which is anticipated to take at 
least 6 months to complete. Should this schedule hold, we would expect 
to see a final SEIS and ROD for the Rock Creek Project in early 2018.

    As mentioned in my written testimony, the FWS has recently begun 
formal consultation for a fifth time. This process officially began on 
March 24 and, per statute, formal consultation should be completed on 
June 22, 2017 with written opinion completed on August 8, 2017. In 
recent conversations with the FWS, this schedule is not likely to be 
kept as they will not even start on the consultation work until the end 
of June, 2017 due to a lack of FWS staff resources and higher priority 
projects.

    Question 4. Please respond to Ranking Member Grijalva's assertion 
that ``significant differences'' in development of the projects over 
time have been so substantial as to require litigation.

    Answer. Neither project has changed substantially since they were 
first proposed in the late 1980s and early 1990s. The Rock Creek 
project 2001 EIS and associated ROD authorized the same project that is 
currently undergoing a supplemental EIS. There have been no significant 
changes to the project disturbance footprint or extraction methodology 
proposed by either the Agencies or Project Proponents. The SEIS was 
prepared by the FS to address three relatively minor deficiencies found 
by the U.S. District Court in 2010 on a legal challenge to the 2003 FS 
ROD. (Kootenai National Forest, 2015, p. i). The selected alternative 
in the SEIS is the same as was selected in the FS 2001 ROD.
    The Montanore project was originally approved by the FS in 1993. A 
revised project description was presented in 2005. Project changes 
approved in the ROD were largely focused on moving the tailings 
impoundment to reduce impacts to existing stream channels and 
elimination of land application of excess water in favor of treatment 
and discharge to surface waters. These changes were required by the 
Agencies and resulted in less project impacts at the expense of 
increased Project cost and longer permitting timeline. As with Rock 
Creek, there have been no significant changes to the project 
disturbance footprint or extraction methodologies by the project 
proponents.

    Question 5. You mentioned in your written testimony that your 
consultation took so long that it had to be reinitiated on your project 
due to the time elapsed. Can you explain what happened in greater 
detail, and any suggestions you may have to improve consultation re-
initiation requirements?

    Answer. This question seems to be referring to the Rock Creek 
project; therefore, the detailed response presented below will focus 
only on that project.
    In this case, the time lapse between consultation was the result of 
litigation and precipitating additional NEPA analysis. Prior to the 
current consultation, the most recent Rock Creek supplemental BO was 
issued in September 2007. The FS began the development of the Rock 
Creek SEIS in May 2011 in response to District Court remand of the ROD 
on NEPA grounds. The SEIS is still in process today.
    Since the 2007 BO, bull trout monitoring, mitigation, and general 
aquatic research has continued, all generating additional data. In 
addition, more robust groundwater modeling conducted to support the 
SEIS revealed potential impacts in drainage areas that were not 
specifically mentioned in the 2007 BO--although the overall potential 
impact from the updated modeling was significantly less than the 
potential impacts analyzed in both the 2001 EIS and 2007 BO. In early 
2015, the collection of Rock Creek litigants filed a petition with the 
FWS to re-initiate consultation based on the ``new information'' 
obtained by the ongoing area monitoring described above. In response to 
the litigant's petition, the WS stated that they would not reinitiate 
consultation at that time, but would wait for release of the draft SEIS 
to make a final re-initiation determination. During the draft SEIS 
public comment period, several groups submitted comments to the FS 
requesting that they ask the FWS to re-initiate consultation because of 
this ``new information.''
    In response to the comments received and after evaluating the ``new 
information'' the FS informed the FWS that they believed formal 
consultation was not required. The FS reasoned that the new information 
would not materially change the impact assessment and that the updated 
modeling results, showing significantly less overall impact, did not 
rise to the level necessary to reinitiate formal consultation. 
Ultimately, the FWS disagreed with the FS and chose to re-initiate 
formal consultation on the project in early 2017.
Recommendation
    From this experience a general ESA policy recommendation would be 
to eliminate the need for re-initiation of consultation if no material 
changes to the proposed project have been made by the proponent. The 
concept of ``freezing the design'' is employed in project management 
and construction. This means that at some point, all changes to the 
proposed plan are made and no further changes will be accepted so that 
final engineering can be completed. A similar concept would work for 
environmental analysis. Once a project plan has been finalized and 
accepted by the Agencies for analysis, all analysis work is based on 
both the accepted project AND environmental laws, regulations, and data 
in place at that time. Any ``new information'' or regulatory change 
occurring after project acceptance would not be evaluated against the 
project. Implementation of this concept would be only one tool to 
disincentivize litigants from constantly litigating projects simply to 
drag out the permitting process for seemingly unending analysis, 
eventually wearing-down project proponents.

    Question 6. In your opinion, do the Services make full use of the 
expertise and perspective of the states? Should Congress examine the 
possibility of involving states more in the listing, consultation, and 
management process?

    Answer. No, I do not believe that the Services currently make full 
use of state expertise or perspectives. Based on our experiences, more 
state involvement in listing, consultation, and management process 
would have likely streamlined the process. If nothing else, states have 
additional technical resources and local knowledge that the Services 
could take advantage of to expedite consultation processes.

                                 ______
                                 

    Mr. Labrador. Thank you, Mr. Stiles.
    The Chair now recognizes Mr. Calkins for his testimony.

  STATEMENT OF RONALD J. CALKINS, PRESIDENT, AMERICAN PUBLIC 
               WORKS ASSOCIATION, WASHINGTON, DC

    Mr. Calkins. Good morning and thank you, Chairman Labrador 
and Ranking Member McEachin for holding this hearing and 
inviting me to participate. My name is Ron Calkins. I was the 
Director of Public Works for Ventura, California for 17 years, 
and I am currently the President of the American Public Works 
Association.
    This is an organization dedicated to providing public works 
infrastructure and services to millions of people in small and 
large communities across our country. Our 29,000 members plan, 
design, build, operate, and maintain our Nation's vast 
infrastructure assets, which are essential to our economy and 
way of life. We are pleased to be here today to share with you 
some of the challenges the public works professionals face when 
dealing with the balance between protecting endangered species 
and protecting the health, safety, and welfare of our 
communities.
    Ventura has a population of 110,000; it is located on the 
coast, about 60 miles north of Los Angeles, and happens to be 
bordered by two rivers: the Ventura River and the Santa Clara 
River. In the early 2000s, Ventura was sued on one hand to keep 
water in the Ventura River, and about the same time was sued to 
remove water from the Santa Clara River, both in an attempt to 
protect the same endangered species, the steelhead trout. This 
dichotomy has been very confusing and sends many mixed 
messages.
    On the Santa Clara River, Ventura has discharged highly 
treated wastewater to the mouth of the river for over 50 years. 
The Santa Clara River has been designated as habitat for the 
steelhead. Studies show that our treated wastewater is of 
higher quality than the water that naturally occurs in the 
estuary.
    In 2008, the state began working on the renewal of our 
wastewater discharge permit. Due to pressure from a non-
governmental organization, ``Heal the Bay,'' the state was 
considering the discharges into the estuaries cease. However, 
NMFS and Fish and Wildlife were both concerned that an end to 
the discharge would threaten the steelhead trout. With 
conflicting views, Ventura was required to conduct even more 
studies. Since then, three rounds of multi-year scientific 
studies costing $4 million have lasted 9 years, and they are 
just now wrapping up. We are hoping to define the necessary 
project and start the NEPA process and ESA consultation later 
this year.
    On our other river, the Ventura River, it has provided 
drinking water to our community since the mission was founded 
in the late 1700s. Congress authorized the construction of 
Casitas Dam on Ventura River tributary in 1956 to provide the 
area with a more stable water supply. The lake capacity is 
254,000 acre-feet. A diversion channel was built to carry 
Ventura River water to the lake, since the lake is located on 
the tributary. In 1997, NMFS listed the steelhead trout as 
endangered on the Ventura River, even though it is on the 
southern fringe of the population habitat.
    In 1999, the consultation process started after a lawsuit 
by Cal Trout. Four years later, NMFS issued the biological 
opinion requiring construction of a fish ladder, which was 
completed in 2006, at a cost of $9 million.
    The biological opinion also requires a bypass of between 30 
and 150 cfs in various circumstances. The bypass requirement 
has resulted in a long-term average annual loss of 1,100 acre-
feet of drinking water each year. NMFS is expected to reopen 
the consultation process later this year, and many fear that 
this will require additional flows to be bypassed without any 
demonstrated benefit to the endangered species.
    In spite of a relatively wet winter in California, we are 
still in a severe drought, especially in Ventura and Santa 
Barbara Counties. Many years and millions of dollars have been 
spent to provide scientific data to accommodate what is 
required by the ESA. We fear additional water bypass will be 
required without any proven benefit for the species, 
particularly at a time when we are still in a severe drought.
    In closing, we need a better balance between the protection 
of endangered species and the ability to implement important 
public works and infrastructure projects, especially when 
public safety and health is threatened by lack of water supply.
    Public works professionals are up to the challenge of 
satisfying community needs with limited resources; and we offer 
to be a resource as the Committee considers modernizing this 
legislation to ensure scarce taxpayer funds are well spent and 
our communities are protected. Thank you.
    [The prepared statement of Mr. Calkins follows:]
  Prepared Statement of Ron Calkins, President, American Public Works 
                      Association, Washington, DC
    The American Public Works Association (APWA) is pleased to provide 
the following statement to the House Natural Resources Oversight and 
Investigations Subcommittee hearing on the Endangered Species Act 
Consultation Process.
    APWA is an organization dedicated to providing public works 
infrastructure and services to millions of people in rural and urban 
communities, both small and large. Working in the public interest, 
APWA's more than 29,500 members plan, design, build, operate and 
maintain our vast water infrastructure network, as well as other key 
infrastructure assets essential to our Nation's economy and way of 
life. We wish to offer our assistance to the Subcommittee and Full 
Committee on any matter related to public works and infrastructure.
    Healthy and prosperous communities require the construction and 
maintenance of infrastructure. As the stewards of infrastructure, we 
are concerned that the consultation process with Federal agencies, 
during Federal permitting, can prolong maintenance and repairs to 
critical public safety infrastructure. We support Federal protections 
of endangered species which balance the needs of the species with the 
need for public works professionals to build and maintain public safety 
infrastructure. Further, we support Congress modernizing the ESA so the 
public is protected from natural disasters while ensuring adequate 
protections for threatened species.
          the consultation process: inconsistent and wasteful
    Good morning, and thank you, Chairman Labrador and Ranking Member 
McEachin for holding this hearing and inviting me to participate. My 
name is Ron Calkins; I am formerly the Public Works Director for 
Ventura, California, and served in that role for 17 years. I am also 
the current President of the American Public Works Association. APWA is 
an organization dedicated to providing public works infrastructure and 
services to millions of people in small, large, rural, and urban 
communities across our country. Working in the public interest, APWA's 
more than 29,500 members plan, design, build, operate and maintain our 
Nation's vast infrastructure assets, which are essential to our 
Nation's economy and way of life. We are especially pleased to be here 
today to share with you some of the challenges that public works 
professionals face when dealing with the balance between protecting 
endangered species and implementing important public works and 
infrastructure projects to protect the health, safety and welfare of 
citizens of the United States. As I am sure you are aware, the 
Endangered Species Act, while well-intentioned, has had negative 
impacts from time to time on caring for our Nation's infrastructure.
    Ventura has a population of 110,000 on the Pacific coast and is 
located about 60 miles north of Los Angeles. Two rivers, the Ventura 
River and the Santa Clara River border the city. In 2003, Ventura was 
sued to keep water in the Ventura River, and at the same time was sued 
to take water out of the Santa Clara River--both in an attempt to 
protect the Steelhead Trout. As you can see this can be very confusing 
and sends many mixed messages.
    Ventura has discharged highly treated water to the mouth of the 
Santa Clara River for over 50 years. This estuary is habitat for both 
Steelhead Trout and the Tidewater Goby--both of which are on the 
endangered species list. Scientific studies have shown that the treated 
wastewater is of higher quality than the water that naturally occurs in 
this estuary. In 2008, the state of California began working on the 
renewal of the discharge permit. Due to pressure from a non-
governmental organization, Heal the Bay, the state was considering 
requiring that discharges into the estuary end. However, National 
Marine Fisheries Service (NMFS) and the U.S. Fish & Wildlife Service 
(FWS) were both concerned that an end to the discharge would threaten 
the Steelhead Trout. With conflicting views, Ventura was required to 
conduct a study. Three rounds of multiyear scientific studies costing 
$4 million lasted 9 years, and are just now being wrapped up. After 9 
years of study, Ventura is just now hoping to define this project and 
start the National Environmental Protection Act (NEPA) review and 
Endangered Species Act (ESA) consultation processes later this year.
    Another illustration of how the ESA has caused confusion, delays 
and increased costs to important public works and infrastructure 
projects deals with drinking water. The city of Ventura faces 
significant challenges with its drinking water source from Lake 
Casitas. Congress authorized the construction of Casitas Dam on Coyote 
Creek in 1956 to provide the area with a stable water source and has a 
capacity of 254,000 acre-feet. The Los Robles Diversion Channel was 
built to carry Ventura River water to the lake since the lake is 
located on a tributary of the main river. In 1997, NMFS listed the 
Steelhead Trout as endangered on the Ventura River, even though the 
river is on the southern fringe of the population habitat. In 1999, the 
consultation process started after a lawsuit was filed by Cal Trout. 
The process did not end until 2003 when NMFS issued the biological 
opinion, requiring the construction of a fish ladder to allow upstream 
travel of the steelhead to the habit. The passage was completed in 2006 
at the cost of $9 million.
    As part of the biological opinion, the district was required to 
bypass 50 cubic feet per second, down from the standard 170 cubic feet 
per second during the ``initial period.'' This bypass requirement has 
resulted in a long-term average annual loss of 1,100 acre-feet of 
drinking water each year. NMFS has extended this time beyond the 
initial 5 years because of the drought. NMFS is expected to reopen the 
consultation process later this year. Many in the community fear that 
this consultation process will require that additional flows be 
bypassed without any demonstrated benefit to the endangered species.
    In spite of a relatively wet winter in CA, we are still in a severe 
drought, especially in Ventura and Santa Barbara counties. Many years 
and millions of dollars have been spent to provide scientific data to 
accommodate what is required by the Endangered Species Act. The process 
is so lengthy that the circumstances influencing the water levels vary 
considerably, leading to agencies making decisions without the most 
relevant scientific data. We fear additional ``take'' without any 
proven benefit for the species, particularly in a time when we are 
still in severe drought.
    Further, aside from the increase in costs, are the risks to human 
life. In 1986, Reclamation District 784 (RD 784) in California 
attempted to repair a levee along the Feather River and Federal 
approval was needed to proceed. In 1990, the Army Corps of Engineers 
agreed, but 6 years passed before approval would be granted for 
construction to start. RD 784 spent more than $10 million on ESA 
mitigation for the elderberry beetle before the bidding process began. 
On January 2, 1997, the levee broke, killing three people and flooding 
25 square miles. RD 784 determined that the lag in repairs and the 
mitigation itself contributed to the levee's failure. The mitigation 
for the beetle stopped maintenance of the levee, such as crack repair 
and clearing brush.
    Last, another example of increased costs in complying with the ESA 
happened in 2012 when the Texas Department of Transportation planned to 
build an underpass connecting Loop 1604 and Texas Highway 151 in San 
Antonio. Unfortunately, biologists working at the site found a spider 
listed as endangered, the Braken Bat Cave Meshweaver. FWS listed the 
spider as endangered in 2000. Texas Department of Transportation (DOT) 
had to halt the project for 2 years as changes were made. The final 
cost for the needed changes totaled $44 million. The original project 
cost was $15.1 million. A nearly $30 million increase in costs is a 
significant expense at a time when the Highway Trust Fund is insolvent.
                      modernization is imperative
    APWA believes that we need to modernize the Endangered Species Act 
in a way that balances species protection with the need to care for 
essential public works services and infrastructure. Such legislation 
should contain full integration of sound scientific and economic 
principles which ensure that habitats and species can be preserved in 
harmony with critically needed public projects. Reform legislation 
should respect the original intent of the Act, which is the protection 
and recovery of species. APWA strongly supports environmental 
preservation and protection of species determined to be threatened or 
endangered by balanced, integrated approaches that are applied openly 
with equity, prudence, and foresight. APWA believes it is imperative 
that varying interests work smarter together, to develop and implement 
open, collaborative strategies for achieving balance among the many 
competing demands of modern life. In the public policy arena relating 
to endangered species, APWA encourages complete consideration of the 
social and economic, as well as the environmental, impacts of habitat 
designations and preservation strategies.
    There is a need to balance endangered species and habitat 
preservation with the infrastructure development, operation, and 
maintenance needs of local citizens. Such a local, balanced approach 
will provide the best options for preservation, growth, and management 
of our invaluable natural resources, as we continue to work together to 
carry out the mandates required of us all to serve the needs of 
American citizens. The implementation of programs has resulted in a 
process that has caused delays, prohibitions, and added costs for 
infrastructure development, operations, and maintenance. Local or 
municipal infrastructure projects sometimes, of necessity for safety, 
health, and the welfare of citizens, affect habitat relating to fish, 
wildlife, and species that may be determined to be threatened or 
endangered. In some cases, municipalities have been prevented from 
operating, managing, and maintaining their infrastructure and other 
municipal facilities in a timely and efficient manner. Also, in some 
cases, critically needed infrastructure projects are stalled or 
prohibited entirely because of bureaucratically imposed processes that 
fail to achieve goals mandated by legislation. At issue is the need to 
reform the Endangered Species Act to build stronger partnerships, to 
reduce delay and uncertainty for states, local governments, private 
industry, and individuals; and to provide greater administrative 
flexibility that minimizes disruption and harmful socio-economic 
effects while continuing to conserve and preserve America's priceless 
environmental heritage.

    In detail, APWA specifically recommends the following:

     That the process for resolving appeals be reformed to 
            encourage timely resolution. We support the inclusion of 
            specific administrative time limits in the reform 
            legislation.

     That the law open all aspects of the decision process to 
            verifiable peer review, improved data collection and field 
            testing of data--to tap the country's best wisdom in 
            resolving these issues. Endangered species decisions must 
            be based on verifiable, sound, and objective scientific 
            data.

     That national priority is given to aggressive pre-listing 
            incentives for affected governments and landowners, to 
            avoid negative impacts of the act and to improve 
            conservation.

     That the post-listing consultation and decision-making 
            process include full partnership for affected states, local 
            governments, and private property owners--including habitat 
            designations, conservation, and recovery plans, so that 
            decisions can be made with full collaboration and 
            cooperation.

     That the law allow the existing Federal exemption process 
            to allow interested parties consultation with the U.S. 
            Department of the Interior to determine whether a proposed 
            action will jeopardize a species. If the species is 
            determined to be in jeopardy, economically feasible and 
            prudent alternatives for its preservation should be 
            considered.

     That preservation programs make effective use of limited 
            public and private resources by focusing on groups of 
            species dependent upon the same habitat.

     That public education programs be required at all levels 
            to provide various stakeholders with an understanding of 
            the issues.

     That species relocation is permissible so that 
            constructions can go forward in a prudent fashion.

     That an exception to waive studies when building, 
            maintaining, or operating critical infrastructure is 
            provided to protect public health and safety in dire 
            situations.

                             in conclusion
    We need a better balance between the protection of endangered 
species and the ability to implement important public works and 
infrastructure projects--especially when public safety and health is 
threatened by a lack of water supply. These resources belong to the 
people, and local needs should drive their management. Public Works 
professionals are up to the challenge of satisfying community needs 
with limited resources. We offer to be a resource as the Committee 
considers modernizing this legislation to ensure scarce taxpayer funds 
are well-spent and communities are protected. Thank you.

                                 ______
                                 

   Questions Submitted for the Record by Rep. Labrador to Mr. Ronald 
         Calkins, President, American Public Works Association
    Question 1. Please elaborate on the impact that consultation and 
other Endangered Species Act related processes have upon maintenance of 
our Nation's infrastructure. Can maintenance be deferred because of 
consultation hurdles, and how does such deferred maintenance impact 
public safety?

    Answer. Extended consultation processes delay much-needed repairs 
of critical infrastructure systems and greatly increase costs, at a 
time when there isn't enough money available to adequately invest in 
the economic health and safety of our communities.
    The ability to repair and/or replace damaged or aging groundwater 
wells that extract shallow groundwater from Ventura River have been 
problematic. We have been unable to build replacement wells along the 
river bank and/or to install new conveyance pipelines that cross the 
Ventura River that are necessary to continue our historical water 
extractions. It is nearly impossible to acquire the necessary permits 
and to get all the environmental clearances. The potential loss of this 
supply source along with competition over other sources (depleted 
groundwater basins) is forcing us to look to other resources such as 
Potable Reuse in the near term and potentially desalination in the 
future. These are very expensive capital projects. Potable Reuse alone 
will cost at least $152 million to design and construct. The per unit 
cost to produce this water is also about two to three times more 
expensive than water from river and groundwater extraction.
    Last, I have received the following responses to issues of deferred 
maintenance from the American Public Works Association's members. I 
have kept their responses as they provided:

    From a member in Florida: Repaving of a roadway (450-feet long) in 
southern Sarasota County has been held up due to a Gopher Tortoise 
(listed as threatened in Florida) burrow in the ROW of a road that has 
been in place for 50 years. Although, the burrow does not appear to be 
an active one, Florida Fish and Wildlife (FFWCC) is requiring that we 
excavate the burrow and relocate any tortoise found prior to paving. 
The delay (4 weeks) and cost (less than $3k) for this one road is 
relatively minor. However, when this gets multiplied by the hundreds of 
roads that we will be resurfacing in this area (platted home sites, but 
prime Gopher Tortoise habitat) in the near future, the costs and the 
delays become significant. Our resurfacing contracts generally run in 
the $2 to $3 million range and last for 3 months. It is estimated that 
the delay may add 6 to 9 months to the contracts. Increased costs have 
not been fully estimated, but are expected to add 40 to 50 percent to 
the overall costs and will include:

     Staff and consultant time to coordinate with the FFWCC

     Time and expense for excavation and relocation for 
            individual burrows

     Costs for additional mobilization and demobilization 
            events for the piecemeal work that the repaving contractor 
            will be doing

     Extended inspection time

     Higher material costs for smaller irregular volumes

    Another example is replacement of an existing 90-year old bridge 
within 300-feet of a Bald Eagle nest in a highly urbanized area limited 
to having construction occur outside the nesting period (October 1 to 
May 15). Florida removed the Bald Eagle from the state list of 
threatened species in 2008. However, there are still many regulations 
that need to be followed. Due to protracted negotiations for access 
easements with adjacent landowners, we have had to delay the start of 
the project from last year to this year. Since the bridge is 
structurally deficient and serves an isolated area, this puts the 
residents in danger of having their access to home eliminated if the 
bridge were to fail prior to replacement.

    From a member in Colorado: ``Having worked as a State environmental 
regulator for 20+ years with the Colorado Department of Public Health 
and Environment in the 1980s and 1990s, and then another 15 years with 
the Colorado Department of Transportation through 2015, I've been on 
both sides of Endangered Species Act issues. In my experience, project 
delays--including maintenance activity delays are more related to human 
impacts, political debates and lack of funding than compliance with the 
Endangered Species Act. In my opinion, the current overall regulatory 
framework is necessary and reasonable. However, maintaining individual 
competence and availability has been an issue--on both sides of the 
fence. When regulatory agencies have responsibilities that overwhelm 
their ability to respond, or involve issues they have no detailed 
guidance or training on--delays occur. When project proponents have 
little or no understanding of the regulations--or a desire or 
motivation to comply with them--delays occur. To me, the answer is 
education, being provided with adequate resources, and a devotion to 
guiding principles for all involved. As a professional engineer, one of 
my guiding principles is to protect and maintain public health, safety 
and welfare. For me and many others, that includes helping to insure we 
preserve a healthy and diverse environment for ourselves and future 
generations. Human beings are capable of exterminating species--we have 
witnessed this--and there is no coming back from extinction. We should 
not allow ourselves to feel pressured into going backwards in time--or 
neglecting or forgetting the progress we have made on so many fronts. 
We can work together to make processes more efficient.''

    From a member in Texas: ``In 1969-70 while serving as Asst. 
Director of Public Works in Texarkana, Texas I participated in 
permitting one of the early COE newfangled permits for working in the 
floodplain. The field work and permit application was carried out by me 
and two guys from the COE. We walked and surveyed the Swampoodle and 
Boggy Creek floodplain identifying flora and fauna that may be impacted 
by improving the floodway so no more people would get killed.
    In about 12 months all the engineering and permitting work was done 
and we began to seek funding for the approved process. With the 
leadership of the Mayor and Council over the years, guided by the COE, 
improvements were made and no more people died in our studied and 
designed floodplain. That's the way things worked 47 years ago. Instead 
of 1 year, we now take 10 to 15 years to make that same decision in 
similar circumstances throughout the United States.''

    From a member in Illinois: ``In my 25 years of experience working 
in northeast Illinois, most infrastructure maintenance projects are not 
delayed by endangered species act consultation. By definition, 
maintenance is performed on existing infrastructure assets that will 
have little to no further impact on endangered species. That's not to 
say that there won't be situations where endangered species will delay 
some larger, more elaborate maintenance projects, but as long as the 
risk to the endangered species is real, we need to ensure that 
infrastructure projects are performed with as minimal impact as 
possible. The biggest challenge I have seen comes when there are 
lengthy studies needed to verify the existence or threat to an 
endangered species. Perhaps in areas where endangered species are 
thought to exist, and lengthy studies are needed to verify it, the 
Federal or State government could perform these studies in advance to 
help minimize the time delays when a project comes up.''

    From a member in California: ``Thank you for reaching out and 
asking the Engineering community to share their experience with the 
Endangered Species Act. Out here in Riverside County (Southern 
California) we have the Department of Fish and Wildlife that acts 
similarly to the ESA. Fish and Wildlife was created in California to 
protect game and other animals. But now it is used in regulating 
development and maintenance impacts to existing ephemeral streams 
(flows only during rain events). Oftentimes, these drainage courses are 
dry 95 percent of the time. Fish and Wildlife informed us that a 
``maintenance permit'' is required in order to remove vegetation that 
is blocking the inlets and outlets of the culvert crossings. As a 
result, the culverts have silted out and have lost up to 90 percent of 
their capacity. The estimated cost of obtaining and paying annually is 
hundreds of thousands of dollars per year. Cites across America do not 
have funds for maintenance permits let alone maintenance of their 
existing infrastructure. Cities in Southern California must also obtain 
regulatory permits for impacts to ephemeral streams from Army Corp of 
Engineering (401 permit) and California Regional Water Quality Control 
Board (Regional Board 404 permit). These three regulatory permits can 
add hundreds of thousands of dollars and delay projects (public and 
private) 18 months. Plus add 5 years of maintenance and monitoring for 
replacement habitat that must be created at 3:1 ratio and higher. Any 
relief from the current administration would be greatly appreciated. It 
is a huge concern and development impact that must be addressed. 
Government has over-regulated the ESA to the point where we have 
allowed insignificant impacts to be deemed significant.''

    From a member in Tennessee: ``I have a current specific issue that 
is important relative to this topic. Our city has a significant amount 
of sanitary sewer systems, primarily our main interceptors that are 
gravity systems. This means that most were constructed to run parallel 
to streams and other natural storm water conveyances in the 1970s and 
1980s long before the wetland designations existed. Given the 
importance and financial significance of this infrastructure and with 
other recent developments, such as the 96-inch interceptor failure at 
S. Cypress Creek and the subsequent discharge into McKellar Lake, it is 
then critical that Public Works has sufficient, dedicated, and 
maintainable forms of ingress/egress/accessibility so that we can 
reasonably inspect, survey, maintain, and make repairs to this 
infrastructure.''

    From a member in Kansas: ``We have a current bridge replacement 
project over a river which straddles the state line between Kansas and 
Missouri. The bridge has been closed for about 7 years due to damage 
caused by a truck. Due to a couple of endangered bat species being 
found in Missouri, tree removal was required during the winter. The 
project will not be ready to begin construction until late summer, so 
the City had to hire a tree removal company to do the tree removal 
outside of the construction contract. Interestingly, no tree removal 
limitation was required on the Kansas side of the river, apparently the 
state line acts as a fence. This is an example of how the Endangered 
Species Act impacts construction/maintenance projects either in timing 
or additional contracting effort.''

    From a member in Oregon: ``I work as a consultant with a county in 
Oregon. They were threatened with a lawsuit under ESA requirements for 
damaging habitat critical to the Fenders Blue Butterfly. I have copied 
sections of the final report, prepared by the County's consultant 
below. The County's Road Maintenance Habitat Conservation Plan (HCP) 
was developed for the U.S. Fish and Wildlife Service (USFWS) by the 
County to allow the County to receive an incidental take permit under 
the Endangered Species Act Section 10(a)(1)(B) for Fender's Blue 
Butterfly (Icaricia Icarioides Fenderi) and Kincaid's Lupine (Lupinus 
oreganus), a host plant for the butterfly. These two species, which are 
listed under the Endangered Species Act, could be affected by the 
County's road maintenance activities and would be covered under this 
HCP. An incidental take permit would allow the County to continue to 
perform its otherwise lawful road maintenance activities, which have 
the potential to affect the covered species (Fender's Blue Butterfly 
and Kincaid's Lupine). The incidental take permit will be in effect for 
30 years.
    Fender's Blue Butterfly is an endangered species of butterfly that 
only occurs in the Willamette Valley, in which the County is situated. 
Fender's Blue Butterfly is dependent on the presence of the threatened 
Kincaid's Lupine, which the butterfly uses as a host plant. In this 
county, Fender's Blue Butterflies lay eggs only on Kincaid's Lupine, 
and the young caterpillars remain on the lupine to feed.
    Road maintenance activities are conducted pursuant to the County's 
mission to provide essential services to the residents, businesses, and 
visitors of the County specifically, to maintain county roadways to 
protect public safety and to enhance the quality of life in the 
community. The County right-of-way is divided into two distinct 
sections based on the activities performed in these sections of right-
of-way: (1) the first 1.52 meters (5 feet) from the shoulder of the 
road to the back of the ditch, referred to as the ``Potential Impact 
Zone'' and (2) the remaining 4.57 meters (15 feet) from the back of the 
ditch to the end of the right-of-way, referred to as the ``No Impact 
Zone.'' The Potential Impact Zone represents the area where normal 
maintenance activities occur. The No Impact Zone represents the area 
where normal maintenance is not performed.
    The effects analysis identifies activities that may result in both 
direct and indirect effects on the covered species. Fender's Blue 
Butterfly and Kincaid's Lupine could be affected by county maintenance 
activities. Although Fender's Blue Butterfly could be directly affected 
(e.g., death) by encounters with equipment or trampling, most of the 
effects of the covered activities would likely be indirect effects 
associated with effects on Kincaid's Lupine and other plant species 
used as nectar sources. Direct effects on the Fender's Blue Butterfly 
could result from larger road improvement projects. Depending on 
project timing, adult Fender's Blue Butterfly, caterpillars, or larvae 
could be affected. Mowing and herbicide application have the greatest 
opportunity to directly adversely affect listed plants and therefore 
indirectly adversely affect Fender's Blue Butterfly.
    Mowing and herbicide application activities also have the greatest 
potential to benefit plant species indirectly by removing competition 
and increasing sunlight on the ground. Brushing can also have positive 
effects since it allows more sunlight to reach the plants. Selective 
vegetation management would benefit listed plants and prairie habitat 
by reducing competition and promoting the expansion of Kincaid's Lupine 
and prairie habitat. This potential expansion of Kincaid's Lupine and 
prairie habitat would indirectly benefit the Fender's Blue Butterfly.
    Other activities, including tree and shrub removal, hand seeding, 
drainage activities, cleaning or replacing culverts, emergency earth 
removal, or sign posting operations may affect Kincaid's Lupine by 
trampling or disrupting plants in a confined area where the disturbance 
occurs. Road improvement projects, such as widening and bike path 
development, would have effects similar to those described above. 
However, these effects would encompass a larger footprint. Dust 
abatement and de-icing are conducted at specific locations on County 
roads. Information on lignosulfonates, used for dust abatement, 
indicates that it can be harmful to plants, stunting growth and turning 
leaves brown (EPA 2002). Only small sections of the road are treated 
with lignosulfonates. Sanding would be unlikely to result in effects to 
the listed species due to the very low proportion of salt included in 
the sand mixture. Deicing and dust abatement may affect listed plants 
and butterfly habitat near the edge of the shoulder or from the ditch 
to the road; however, this is not an area where Kincaid's Lupine are 
generally found. As surveys were conducted, some plants were found in 
this area, but it is not expected to support large numbers of prairie 
plants or covered species.
    The County considered a No Action Alternative, which included not 
pursuing an incidental take permit for road maintenance. Under the No 
Action Alternative, the County would not be able to perform road 
maintenance activities along roadsides or complete road improvement 
projects that could result in potentially adverse effects on the 
covered species. This alternative was not selected because, over time, 
lack of maintenance could lead to dysfunctional, unsafe and/or 
impassable roads.
    The County is now committed to maintaining special maintenance 
zones (restricting timing and types of activities), as well as regular 
re-inspections of the county to monitor the spread of Lupine on County 
roads.''

    Question 2. Not only does protracted consultation and litigation 
draw Federal taxpayer money away from conservation and other government 
functions, but it also negatively impacts taxpayers and communities at 
the local level. How much did your city spend on preparing and 
undergoing consultation and litigation? Did this expenditure cause 
financial strain on the city?

    Answer. Yes, there has been a tremendous strain on our City both in 
terms of costs and delays. Regarding the treated wastewater discharge 
to the Santa Clara River, the debate between the Feds and the State on 
whether the discharge should continue (to protect the Steelhead) or 
cease resulted in 9 years of additional scientific studies at a cost of 
$4 million. We have also spent roughly $600,000 in litigation costs in 
response to a lawsuit from Heal the Bay and the Wishtoyo Foundation 
that aims to eliminate our discharge to the estuary.
    On the Ventura River, we have spent roughly $1.4 million in 
litigation costs defending our water rights that go back over 100 
years. Santa Barbara Channel Keepers is trying to curb our water 
extraction rights in response to the ESA. Litigation is ongoing and the 
ultimate cost for litigation is expected to increase.
    Yes, these expenses have caused financial strain to the city of 
Ventura. Water and wastewater rates have and will continue to increase 
significantly--not only to pay for these costs but to build and operate 
new water supply projects as a result.

    Question 3. In your written testimony, you mentioned Santa Barbara 
and Ventura counties spending a significant amount on scientific data 
to satisfy Endangered Species Act requirements. Can you elaborate more 
on what that has entailed and the burden that has placed on those 
localities?

    Answer. Both Ventura and Santa Barbara counties are struggling with 
diminished water supplies due to a severe drought. Northern California 
has seen marked improvement in drought conditions this winter, but not 
this part of the state.
    The need for increasingly comprehensive scientific studies seems to 
be never-ending. A non-governmental agency or permitting agency is 
always requesting that more data be collected and for more analysis to 
be conducted. The design and construction of infrastructure projects is 
the quick and easy part. Getting all the environmental approvals and 
permits is simply taking too long (many years or even decades) because 
it's very difficult to satisfy or ``convince'' regulatory agencies that 
impacts to endangered species can and will be mitigated for a project.

    Question 4. The city of Ventura's consultation issues are 
representative of issues encountered by your membership nationwide. Can 
you elaborate on challenges facing public works projects in America as 
they relate to the Endangered Species Act, and explain any suggestions 
you may have for improving the process.

    Answer. One thing that comes to mind is that regulatory agencies 
need to staff themselves more appropriately for better turn-around 
time. Many agencies are understaffed and/or they have difficulties in 
recruiting and retaining qualified and experienced employees that can 
do a better job of assisting agencies in successfully acquiring the 
necessary permits.
    Also, consultation decisions are often delayed by requests for more 
scientific studies, and then decisions have been made by NMFS that seem 
to ignore the very data that was required. Peer review would make sure 
that restrictions on agencies really do benefit the endangered species 
rather than halting projects for other motives, such as stopping 
development.

                                 ______
                                 

    Mr. Labrador. Thank you. The Chair now recognizes Mr. Li 
for his testimony.

   STATEMENT OF YA-WEI (JAKE) LI, VICE PRESIDENT, ENDANGERED 
    SPECIES CONSERVATION; DIRECTOR, CENTER FOR CONSERVATION 
       INNOVATION, DEFENDERS OF WILDLIFE, WASHINGTON, DC

    Mr. Li. Mr. Chairman, Mr. Ranking Member, and other members 
of the Subcommittee, thank you for inviting me to testify 
today. I am Jake Li, the Vice President of Endangered Species 
Conservation at the Defenders of Wildlife.
    I have worked on the ESA for the regulated community and 
now for a conservation organization. In my experience, 
consultations have helped to conserve endangered species by 
reducing the harmful effects of Federal projects on listed 
species and their habitats; and they have done so without being 
unduly burdensome, as a whole.
    These conclusions are supported by a study that my 
colleague and I completed and published in the Proceedings of 
the National Academy of Sciences in 2015. That study is the 
most comprehensive ever conducted on U.S. Fish and Wildlife 
Service consultations. We analyzed the results of all 88,290 
consultations recorded by the Fish and Wildlife Service from 
2008 through April of 2015, and we found that nearly 93 percent 
of all consultations were informal. In other words, they did 
not require the more extensive formal consultations reserved 
for projects that are deemed likely to harm species.
    We also found that no project was stopped because of the 
Service concluding that a project would jeopardize a species or 
adversely modify critical habitat. In fact, the Service worked 
with Federal agencies to avoid finding jeopardy or adverse 
modification in all but two consultations; and even those 
projects could proceed. So, an astonishing 99.9977 percent of 
all consultations ended without jeopardy or adverse 
modification.
    What we have is a system that is almost always able to 
avoid irresolvable conflicts. This is a real testament to the 
ESA's inherent flexibility to find mutual solutions through the 
administrative process.
    The duration of consultations is another debated issue. Our 
study found that, from the time a Federal agency provides the 
Service with enough information to start a consultation, the 
median duration of informal consultations was 13 days; and for 
formal consultations, 62 days. Both are much less than the 135 
days allowed by regulation without a mutual extension.
    This is a remarkable accomplishment, if you consider the 
insufficient funding for the Service's consultation program. In 
fact, on a per-species basis, and after accounting for monetary 
inflation, congressional funding for the consultation program 
was lower in 2015 than in 2001.
    Of course, not every consultation fell within the 135-day 
time frame. Nearly 1,400 exceeded that time frame, but there 
are often good reasons for this. Some involve very complex 
projects with hundreds of species. Sometimes a NEPA assessment 
is intertwined with the ESA consultation.
    I also have, right here, examples of consultations that 
were delayed because of erroneous information provided by 
applicants, or because of the Fish and Wildlife Service needing 
to wait around for comments from an applicant or a Federal 
agency.
    Let's also put those 1,400 consultations into context. They 
represent less than 2 percent of all 80,290 consultations. So, 
for a law that has been chronically under-funded, a departure 
of only 2 percent is downright remarkable. Defenders sees no 
reason that Congress needs to amend Section 7 to address the 
issues that we have heard about today. There is no systematic 
flaw with how Section 7 is laid out. In fact, I have heard 
nothing today, other than examples of some of the most complex 
or controversial consultations.
    But, by and large in our study, those consultations do not 
represent the vast majority of projects that undergo Section 7 
consultations. And for those minority of projects with 
extensive delays or heightened conflicts, Congress can, in 
fact, help. It can properly fund the Service so that the agency 
can do two really important things: the first is to fully staff 
the Section 7 program and provide better management direction 
to its staff for highly controversial or highly complex 
projects; the second is to develop the next generation of 
Section 7 policies, rules, and day-to-day practices that work 
even better for wildlife and people.
    Thank you, and I would be happy to answer questions.
    [The prepared statement of Mr. Li follows:]
  Prepared Statement of Ya-Wei Li, Vice President, Endangered Species 
    Conservation and Director, Center for Conservation Innovation, 
                 Defenders of Wildlife, Washington, DC
    Chairman and members of the Subcommittee, thank you for the 
invitation to testify today about Section 7 of the Endangered Species 
Act (ESA). I am Ya-Wei Li, the Vice President of Endangered Species 
Conservation and the Director of the Center for Conservation Innovation 
at the Defenders of Wildlife, an organization dedicated to protecting 
and restoring imperiled animals and plants in their natural 
communities. For 70 years, Defenders has pursued this goal by working 
with partners in the field; securing and improving state, national, and 
international policies that conserve wildlife; and upholding legal 
safeguards for wildlife in the courts. We represent more than 1.2 
million members and supporters.
    I have worked on Section 7 consultations from several vantage 
points. Before coming to Defenders, I was an attorney in private 
practice handling Federal and State environmental matters, including 
under Sections 7 and 10 of the ESA. At Defenders, I have continued 
working on Section 7 issues by helping to ensure that consultations 
serve their conservation goal effectively and efficiently. In my 
experience, consultations have generally worked as they should. They 
have played a vital role in promoting the recovery of ESA-listed 
species by reducing and even offsetting the adverse effects of Federal 
projects on those species and their habitats. Consultations are thus 
indispensable to fulfilling the ESA's mandates of preventing extinction 
and achieving recovery. Further, there is no compelling evidence that 
these conservation gains have come at the expense of jobs or the 
economy at the national level. With rare exceptions, Federal agencies 
have completed consultations in a reasonable time frame by adopting 
conservation measures that are economically and technologically 
feasible to implement.
    These conclusions are supported by a peer-reviewed study my 
colleague and I published just over a year ago in the Proceedings of 
the National Academy of Sciences.\1\ That study is the most 
comprehensive ever conducted on U.S. Fish and Wildlife Service (FWS) 
consultations. We evaluated the results of all 88,290 consultations 
recorded by FWS from 2008 through April 2015, and found that no project 
was stopped because of FWS concluding that a project would 
``jeopardize'' a species or ``destroy or adversely modify'' critical 
habitat--the two prohibitions of Section 7. In fact, FWS worked with 
Federal agencies to minimize impacts on species and to avoid finding 
jeopardy or destruction/adverse modification in all but two 
consultations (and even those projects were ultimately approved). Put 
differently, an astonishing 99.9977 percent of consultations ended with 
neither of these findings. Further, and as explained in detail later, 
nearly 93 percent of the projects required only ``informal'' 
consultation rather than the more extensive ``formal'' consultation 
reserved for projects that are likely to harm a species or its critical 
habitat. For most consultations, all the coordination, review, 
evaluation, negotiation, and document preparation was completed in a 
timely manner. We found that from the time a Federal agency provided 
FWS with enough information to initiate a consultation, the median 
duration of informal consultations was 13 days and formal consultations 
was 62 days--both considerably less than the 135 days allowed by 
regulation without the agreement of the consulting agency.
---------------------------------------------------------------------------
    \1\Malcom J, Li Y-W (2015) Data contradict common perceptions about 
a controversial provision of the U.S. Endangered Species Act. Proc Natl 
Acad Sci USA 112(52):15844-15849.
---------------------------------------------------------------------------
    Although there are always opportunities to improve how laws are 
implemented, any refinements to the consultation process can be 
accomplished solely through administrative reform made possible by 
fully funding the endangered species programs of FWS and the National 
Marine Fisheries Service (NMFS). There is no need for legislative 
change for Section 7 to achieve its important purpose or avoid major 
economic impacts.
                an overview of the consultation process
    Because of its intricacies, the consultation process is often 
misunderstood. At the heart of the process is the requirement that all 
Federal agencies ensure that the actions they fund, authorize, or carry 
out are not likely to ``jeopardize'' a species or ``destroy or 
adversely modify'' critical habitat. Depending on the species involved, 
Federal agencies consult with FWS or NMFS to fulfill this mandate. 
Consultations typically start as discussions between the Service and a 
Federal agency if the agency has determined that its proposed action 
``may affect'' a listed species or designated critical habitat. This 
informal consultation ends if the Service determines that the activity 
is ``not likely to adversely affect'' a species. Otherwise, formal 
consultation is required.
    During formal consultation, the Service evaluates whether the 
proposed action will violate the prohibitions on jeopardy/adverse 
modification. If neither of these outcomes is likely but incidental 
``take'' is expected, the Service will offer ``reasonable and prudent 
measures'' to minimize the harmful effects of the action. If jeopardy/
adverse modification is likely, the Service must suggest ``reasonable 
and prudent alternatives''--conservation measures that avoid jeopardy/
adverse modification by reducing or partly offsetting the harm from the 
proposed action. In the rare instances where these alternatives are 
unavailable, Section 7(g) allows a project proponent to ask a special 
Endangered Species Committee (also known as the ``God Squad'') to 
exempt the project from complying with the jeopardy/adverse 
modification prohibitions. Formal consultations end with a Service 
``biological opinion,'' which must be finalized within 135 days after 
formal consultation begins, unless an extension is agreed on.
     the vital role of section 7 consultations for species recovery
    The goals of the ESA are to protect species from potential 
extinction, and to recover those species so that they no longer need 
the protections of the ESA. For many species, these goals are 
impossible to achieve without managing the human activities that 
threaten their survival. Section 7 is vital to this regulatory 
framework because it provides the legal backstop against Federal 
activities that are likely to jeopardize species or destroy or 
adversely modify critical habitat. These protections are especially 
important for the hundreds of species found mostly on Federal lands and 
for plants, which now make up 57 percent of all U.S. listed species and 
which are not protected by the ``take'' prohibition in Section 9 of the 
ESA. Without Section 7, most of these plants would receive very limited 
protections under the ESA.
    The destruction or adverse modification prohibition deserves 
special recognition because it is the ESA's only protection for 
critical habitat. The Services have designated thousands of square 
miles of critical habitat, and the prohibition transforms those 
polygons on a map into tools for recovery. Because habitat loss and 
fragmentation affect over 80 percent of U.S. listed animal species and 
over 70 percent of U.S. listed plant species, critical habitat can play 
a vital role at controlling this primary threat. And as climate change 
becomes a larger impediment to recovery, unoccupied habitat will become 
increasingly important to help species adapt to shifting ranges and 
habitat. The adverse modification prohibition is one of the few tools 
in the ESA that can protect unoccupied habitat. If properly 
implemented, Section 7 can help preserve options for recovery decades 
from now.
      the esa is flexible enough to avoid irreconcilable conflicts
    There is no compelling argument that legislation is needed to 
resolve a specific conflict under Section 7 or to make Section 7 more 
effective for wildlife and people. There are three main reasons for 
this. First, the ESA is among our most concise and flexible 
environmental laws. The statute provides the Services with ample 
discretion to devise rules, policies, handbooks, and other tools to 
help Federal agencies fulfill their mandates of preventing extinction 
and recovering species, while accommodating development consistent with 
those goals. Safe harbor agreements, candidate conservation agreements, 
and habitat conservation plans are all examples of innovations that 
arose from the ESA's flexibility. Section 7 has similarly benefited 
from this flexibility. An example is the use of programmatic 
consultations, which enhances conservation by allowing the Services to 
evaluate the cumulative effects of all projects nested under a Federal 
program. Programmatic consultations are also more efficient: in our 
study of FWS consultations, we found that project-level formal 
consultations covered by a programmatic consultation had a median 
length of 24 days compared to 62 days for all other formal 
consultations. Other examples of flexibility include the Services' 
ability to define key concepts such as jeopardy, and key processes such 
as the standards for triggering informal consultations.
    Another reason legislation is unnecessary is that the ESA 
administrative process provides ample opportunities to resolve 
conflicts. Section 7 is called ``interagency cooperation'' for a 
reason: Federal agencies are expected to work cooperatively with the 
Services to find mutual outcomes for species and project proponents. 
During informal consultations, for example, an agency is encouraged to 
work with FWS to develop measures to avoid, minimize, and offset the 
effects of its proposed project. In nearly 93 percent of FWS 
consultations, this process succeeded at averting the need for formal 
consultation. In the remaining 7 percent of consultations where formal 
consultation was necessary, FWS was nearly always able to negotiate 
additional conservation measures to avoid jeopardy/adverse 
modification.
    The administrative process offers the flexibility not only to 
forestall irreconcilable conflicts on individual consultations, but 
also to constantly improve the entire consultation program. One 
especially promising approach is to incentivize Federal agencies to 
carry out their duty under Section 7(a)(1) of the ESA to help conserve 
listed species. Some Federal agencies have recently expressed interest 
in this approach, which would involve the agencies using Section 
7(a)(1) to implement conservation measures before they would need to 
consult with FWS under Section 7(a)(2). The benefits from these early 
measures can reduce the need for subsequent formal consultation and 
even avoid jeopardy/adverse modification findings. An excellent example 
is the Army Corps of Engineer's 2013 Conservation Plan for the Lower 
Mississippi River. The document describes a host of conservation 
actions that the Corps could implement under Section 7(a)(1) to avoid, 
minimize, and offset the adverse impacts of its flood management and 
ship navigation activities on three listed species. On its own, the 
Conservation Plan does not oblige the Corps to do anything. But 5 
months after the plan was finalized, the Corps committed to implement 
the conservation measures as part of its Section 7(a)(2) consultation 
on the same flood management and navigation activities. That 
consultation resulted in an expedited biological opinion, in which FWS 
treated the Section 7(a)(1) conservation measures as a component of the 
Section 7(a)(2) activities. Because of this direct connection between 
Sections 7(a)(1) and 7(a)(2), FWS concluded no jeopardy/adverse 
modification. If other Federal agencies follow this approach, they too 
could reduce or avoid conflicts during subsequent consultations while 
contributing to species recovery.
    The third reason the administrative process is appropriate and 
adequate is that Congress has already created off-ramps within Section 
7 to avoid irreconcilable conflicts. As an initial matter, a Federal 
activity that results in the ``incidental take'' of a species can 
proceed if it implements the reasonable and prudent measures described 
in the biological opinion. In those rare circumstances where the amount 
of take would jeopardize a species or adversely modify critical 
habitat, the Service develops reasonable and prudent alternatives that, 
if implemented, allow a project to proceed without violating the ESA. 
By regulation, those alternatives must be ``economically and 
technically feasible'' for the project proponent to implement. If 
alternatives are not available, the God Squad may exempt a project from 
complying with Section 7. This exemption has existed for nearly 40 
years, but the God Squad has convened only three times and granted an 
exemption twice. The rarity of exemptions suggests that Federal 
agencies are almost always able to defuse conflicts using the normal 
consultation process.
                       consultations in practice
    Ever since the Supreme Court in 1978 decided TVA v. Hill, which 
temporarily halted the completion of the Tellico Dam on the Little 
Tennessee River, Section 7 has garnered a reputation as a blunt hammer 
that has halted countless projects and upheaved local communities. But 
does this reputation reflect reality? Have anecdotal accounts, cherry-
picked case studies, and outliers driven the public dialogue? My 
colleague and I have provided the most comprehensive answer to this 
question in our peer-reviewed paper analyzing the results of all 88,290 
FWS consultations from 2008 through April 2015. We found that a 
staggering 92.3 percent of those projects were resolved through 
informal consultations; only 7.7 percent required the detailed analysis 
of formal consultations. That is, most projects required nothing more 
than a relatively cursory analysis by FWS to comply with Section 7. Of 
those projects that required formal consultation, only two (0.0023 
percent) resulted in jeopardy, one of which also resulted in 
destruction/adverse modification of critical habitat. That consultation 
involved a U.S. Forest Service proposal to apply fire retardants on 
national forests. After the project was revised, FWS concluded no 
jeopardy/adverse modification. The second consultation with a jeopardy 
conclusion focused on the effects to the delta smelt from a water 
management project in California's Central Valley. But even that 
project could proceed if the permittees adopted reasonable and prudent 
alternatives to minimize and partially offset the adverse effects of 
the project. Thus, no project was stopped because of FWS finding 
jeopardy/adverse modification during the nearly 7.5-year study period.
    Our findings are similar to those from two earlier studies. The 
first evaluated all 73,560 FWS consultations from 1987 to 1991.\2\ That 
study found only 2,000 projects requiring formal consultation and 350 
jeopardy findings, 63 percent of which were attributable to two 
consultations. Of those 350 projects, only 18 were ultimately blocked, 
canceled, or terminated because of Section 7. Most of the remaining 
jeopardy opinions applied to projects that complied with Section 7 by 
adopting reasonable and prudent alternatives or other conservation 
measures. The second study analyzed 4,048 biological opinions for fish 
species from both Services between 2005 and 2009, and likewise found 
that jeopardy/adverse modification conclusions were rare (7.2 percent 
and 6.7 percent of formal consultations, respectively).\3\ These 
results help explain why no agency has invoked the God Squad since 
1992.
---------------------------------------------------------------------------
    \2\Barry D, Harroun L, Halvorson C (1992) For conserving listed 
species, talk is cheaper than we think: The consultation process under 
the Endangered Species Act.
    \3\Owen D (2012) Critical habitat and the challenge of regulating 
small harms. Fla L Rev 64: 141-199.
---------------------------------------------------------------------------
    Another debated issue is the duration of consultations. Some 
consultations do require years to complete, but they are often for 
highly complex projects and may involve hundreds of species. Time is 
needed to gather data about the species, negotiate conservation 
measures, and draft a comprehensive biological opinion that is 
scientifically sound and legally defensible. Often, an environmental 
impact statement under the National Environmental Policy Act is also 
required for the proposed project. The criticisms of consultations 
often focus on these types of projects because they are amenable to 
soundbites loaded with sweeping generalizations about the entire ESA. 
But our study found that those consultations are outliers. From the 
time a Federal agency provides FWS with enough information to initiate 
a consultation, the median duration of informal consultations was 13 
days and formal consultations was 62 days. Only 1,381 formal 
consultations (20 percent) exceeded the 135-day limit prescribed in 
Services regulations, and many of those had agreed upon extensions. 
Even programmatic consultations, which are extensive consultations on 
program-level projects or plans, had median durations of 13 days for 
informal consultations and 82 days for formal consultations. Although 
some consultations (probably appropriately) required far more time than 
others to complete, most were finalized in a reasonable time frame. 
This is a remarkable accomplishment considering the inadequate funding 
for FWS's consultation program. In fact, on a per species basis after 
adjusting for inflation, congressional funding for the program has 
declined since 2011 and was lower in 2015 than in 2001.\4\
---------------------------------------------------------------------------
    \4\https://cci-dev.org/analysis/ESA_funding/#funding_trends.
---------------------------------------------------------------------------
    The near absence of jeopardy/adverse modification findings 
discredits many of the claims about the onerous nature of 
consultations, but also raises some question about whether Federal 
agencies are applying this tool rigorously enough to conserve listed 
species. To some extent, the low number of jeopardy/adverse 
modification findings is likely the result of Federal agencies learning 
to plan and propose projects that minimize harm to listed species. Some 
agencies are indeed proposing projects with reduced impacts because 
they are coordinating more closely with FWS to shape the projects well 
before consultations begin, as I noted above. This approach is 
desirable because it can reduce conflicts without diluting conservation 
outcomes. But it is difficult to believe that this explanation applies 
to all consultations conducted over the 7-year period we studied, 
considering that some involve highly controversial projects proposed by 
organizations concerned primarily with achieving their project 
purposes. In those situations, I am concerned that FWS--in the face of 
persistent budget cuts, increasing workload, and mounting political 
pressure to minimize the economic impacts of endangered species 
conservation--may be approving projects that should have been further 
altered to comply with the conservation standards of the ESA. There may 
also be internal pressure within the agency to avoid jeopardy/adverse 
modification findings. But such concerns with agency practice can be 
addressed through proper management or administrative direction, and do 
not warrant legislative change.
  investing in administrative improvements to the consultation process
    We know that endangered species recovery has been woefully 
underfunded and that funding is a critical component of ESA success.\5\ 
If Congress wants consultations to work better for wildlife and the 
regulated community, it needs to properly fund the Services to 
implement the ESA and carry out administrative reforms. In recent 
years, the agencies have already completed several key rulemakings. 
These include revisions to the rule on programmatic consultations. 
Increased funding will enable other improvements to expedite 
consultations and enhance their conservation effectiveness. Below are 
just four examples from dozens I could offer:
---------------------------------------------------------------------------
    \5\Gerber, LR. (2016) Conservation triage or injurious neglect in 
endangered species recovery. Proc Natl Acad Sci USA 113(13):3563-3566.

     Implement the two recommendations of the Government 
            Accountability Office to improve FWS's institutional 
            knowledge and understanding of the effects of Section 7 
            projects on species: create databases to track all 
            monitoring reports required from consultation and 
            cumulative take for all species affected by formal 
            consultations.\6\ Current technologies allow the agency to 
            implement these recommendations at a significantly reduced 
            cost and to make the information publicly available. 
            Besides improving FWS's knowledge, these databases can 
            simplify planning and reporting by project proponents.
---------------------------------------------------------------------------
    \6\Governmental Accountability Office (2009) The U.S. Fish and 
Wildlife Service Has Incomplete Information about Effects on Listed 
Species from Section 7 Consultations.

     Develop better maps of where species are likely to occur 
            so that project proponents have enough information to 
            decide whether and how to avoid and minimize impacts to 
            species before they begin a consultation. This upfront 
            planning will expedite consultations by giving proponents 
            the option to propose projects with reduced impacts on 
---------------------------------------------------------------------------
            species.

     Expand the use of programmatic consultations to expedite 
            project-level consultations and to improve the Services' 
            ability to assess the cumulative effects of those 
            consultations. In our study of FWS consultations, we found 
            that although program-level consultations take slightly 
            longer than standard consultations (82 days vs. 62 days), 
            subsequent formal consultations on project-level 
            consultations require far less time than standard formal 
            consultations (24 days vs. 62 days).

     Finish developing the FWS Information, Planning, and 
            Consultation (IPaC) System, which will expedite informal 
            consultations by automating certain aspects of the process. 
            Given that over 90 percent of consultations are informal, a 
            functional IPaC system could save the government vast 
            resources in the long term and improve the consistency of 
            informal consultations.

    The Services do not need to carry the weight of these 
administrative reforms on their own. Many conservation organizations 
and other stakeholders are ready and able to help the agencies with 
this effort. At Defenders of Wildlife, for example, we recently created 
the Center for Conservation Innovation, which focuses on using 
technology, science, and interdisciplinary approaches to pioneer 
pragmatic, innovation solutions to endangered species conservation. 
Advances in data storage and management, satellite imagery, and other 
technologies can make most of these four recommendations cheaper and 
easier to implement than ever before. Rather than legislation, these 
and other promising approaches will make consultations more effective 
for wildlife and people.
                          a role for congress
    Section 7 is often considered the most important component of the 
ESA because it prohibits Federal agencies from threatening a species' 
existence while offering the built-in flexibility to resolve the 
overwhelming majority of potential conflicts with human activities. 
This combination has contributed to the increasing number of species 
achieving recovery without the need to stop infrastructure projects or 
convene the God Squad. Can Congress help improve Section 7 
implementation? Absolutely, but not by changing the ESA. Instead, 
Congress can fully fund the ESA, including the Section 7 consultation 
program, so that this visionary law can realize its full potential.

                                 ______
                                 

Questions Submitted for the Record to Mr. Ya-Wei Li, Vice President of 
         Endangered Species Conservation, Defenders of Wildlife

                  Questions Submitted by Rep. Labrador

    Question 1. Please disclose all Endangered Species Act related 
cases that Defenders of Wildlife has filed, and/or been party to, since 
2005.

    Answer. To the best of my knowledge, our ESA-related cases are as 
follows. For some cases, I have included additional information from 
our internal databases.

2005/2006

     Tulare Lake Basin Water Storage District v. United States 
            of America (state water rights/ESA)

     Defenders of Wildlife v. Middle Rio Grande Conservancy 
            District, State of New Mexico, U.S. Fish and Wildlife 
            Service, Army Corps of Engineers and Bureau of Reclamation 
            (Silvery Minnow/Rio Grande/ESA)

     Spirit of the Sage Council, et al. v. Norton (No Surprises 
            Assurance/ESA)

     Center for Biological Diversity v. Norton (California 
            Spotted Owl ESA Listing)

     Castlewood Products, et al. v. Norton (CITES/ESA-Illegal 
            Logging amici curiea--DC)

     Defenders v. Norton (Lethal Take Permits Issued under ESA 
            Section 10(a)(1))

     Defenders v. NMFS (North Atlantic Right Whale)
2007

     Defenders v. Hall, Norton (Exclusion of Three Species of 
            African Antelope from ESA Prohibitions)

     Defenders of Wildlife v. Norton (Lynx listing/critical 
            habitat)

     Home Builders Association of Northern California, et al. 
            v. U.S. Fish and Wildlife Service, et al. (Critical habitat 
            for vernal pool species)

     Defenders v. U.S. Army Corps of Engineers, Environmental 
            Protection Agency and U.S. Fish and Wildlife Service 
            (Cactus Ferruginous Pygmy Owl)

     Defenders, et al. v. National Park Service, et al. (Off-
            road vehicle use at Cape Hatteras National Seashore)

     Tucson Herpetological Society v. Norton (Flat-Tailed 
            Horned Lizard Listing)

     Northwest Ecosystem Alliance v. Norton (Cascades Grizzly)

2008

     National Association of Home Builders et al., v. Babbitt 
            (Cactus Ferruginous Pygmy-Owl/Listing and Critical Habitat 
            Challenge)

     Defenders of Wildlife v. Hall (Northern Rockies Wolf 
            Delisting)

     Defenders of Wildlife v. Schafer, Civ. No. 08-2326 (N.D. 
            Cal)

     Sierra Forest Legacy v. Pendleton, Civ No. 08-4240 (N.D. 
            Cal)

     Save San Onofre Coalition v. Gutierrez, Civ No. 08-1470 
            (S.D. Cal.)

     Defenders of Wildlife v. Martin, Civ No. 05-248 (E.D. 
            Wash.)

2009

     Defenders v. NMFS (ESA Violations from Right Whale ship 
            strikes)

     Center for Biological Diversity, et al. v. Kempthorne 
            (Challenge to Section 7 ESA Rules)

2010

     Save San Onofre Coalition v. Gutierrez (S.D. Cal. 08-1470)

     In re: Polar Bear ESA Listing and 4(d) Rule Litigation 
            (Multidistrict litigation docket No. 1993)

     TWS et al. v. Dep't of the Interior

     Defenders v. Schafer, Civ No. 08-2326 (N.D. Cal)

     Sierra Forest Legacy v. Pendleton, Civ No. 08-4240-SC (ND 
            Cal)

     Colorado Envtl Coalition v. Kempthorne, 09-cv-00085-JLK 
            (D. Colo)

2011

     Defenders v. Minerals Management Service, No. 10-254-WS-C 
            (S.D. Al)

     Defenders v. BOEMRE, No. 11-12598-F (11th Cir.)

2012

     Defenders v. NPS, FWS

     In re: Polar Bear ESA Listing (D.C. Cir. No. 11-5353)

     Sierra Club et al. v. Kenna et al., No. 2:12-cv-00974-JAM-
            DAD (E.D. Cal.)

2013

     Defenders, et al. v. BP P.L.C. et al. (MDL-2179)

     Defenders, et al. v. Jewell et al. (1:13-cv-00919-RC)

     In re: Polar Bear ESA Listing and 4(d) Rule Litigation 
            (1:08-mc-00764-EGS)

     In re: Polar Bear ESA Listing (11-5353)

     Citizens for Balanced Use, et al. v. Maurier, et al. 
            (Montana Supreme Court, DV-2012-1)

     Defenders of Wildlife, et al. v. BLM, et al. (2:12-cv-
            02578-CAS-DTB)

     Friends of the Swainson's Hawk and Defenders v. County of 
            Fresno (CA Superior Court in Fresno County)

     Cape Hatteras Access Preservation Alliance v. Salazar 
            (2:13-cv-00001-BO)

     Defenders v. NPS, FWS (2:07-cv-00045-BO)

     Northwest Coalition for Alternatives to Pesticides, et al. 
            v. EPA (Western District of Washington, 10-01919-TSZ)

     Dow AgroSciences, LLC v. NMFS (4th Circuit, No. 11-2337)

     Sierra Club, et al. v. Kenna, et al. (9th Circuit, 13-
            15383) (Golden eagle and California condor)

     Red Wolf Coalition v. N.C. Wildlife Resources Commission 
            (Wake County Superior Court, 12-CV-012626)

     Defenders, et al. v. Jewell, et al. (US District Court for 
            the Middle District of TN, 2:13-cv-00039)

     Defenders v. Salazar (D.C. District Court, 1:12-cv-01833-
            ABJ)

     The Aransas Project v. Texas Commission of Environmental 
            Quality (5th Circuit Court of Appeals 13-40317)

2014/2015

     Defenders, et al. v. Jewell (Eastern District of 
            Tennessee, 3:13-cv-00698)

     Black Warrior Riverkeeper v. U.S. Army Corps of Engineers, 
            et al. (Northern District of Alabama, 2:13-cv-02136)

     Defenders, v. U.S. Fish and Wildlife Service, et al. 
            (1:14-cv-150-CKK)

     Defenders, et al. v. Jewell (D.C. District Court, 1:13-cv-
            00919-RC)

     Sierra Club, et al. v. Kenna, et al. (9th Circuit, 13-
            15383)

     Center for Biological Diversity v. EPA, (DC Circuit, 14-
            1036)

     The Aransas Project v. Shaw, et al., (5th Circuit, 2:10-
            CV-75)

     Center for Biological Diversity v. Kelly (District of 
            Idaho, 1:13-cv-00427)

     Oceana v. BOEM (12-0981-RC)

     Friends of the River, et al. v. U.S. Army Corps of 
            Engineers, et al. (Eastern District of California, 2:11-cv-
            01650-JAM-JFM)

2015/2016

     Georgia Aquarium v. Pritzker, et al. (N.D. Georgia, 1:13-
            cv-03241-AT)

     Defenders, et al. v. Jewell, et al. (N.D. Oklahoma, 1:14-
            cv-1025)

     Defenders, et al. v. U.S. Army Corps of Engineers, et al. 
            (D. Montana, Great Falls, 4:15-cv-00014-BMM)

     Center for Biological Diversity, et al. v. Jewell, et al. 
            (D. Arizona, 4:14-cv-02506-RM)

     Center for Biological Diversity, et al. v. EPA (DC 
            Circuit, 15-1054)

     U.S. Fish and Wildlife Service, et al. v. People for the 
            Ethical Treatment of Property Owners (10th Circuit, 14-
            4151)

     Defenders v. Jewell (N.D. California, 3:15-cv-04351-THE)

     Defenders v. U.S. Fish and Wildlife Service, 5:16-cv-1993 
            (LHK); Sierra Club v. CDFW, BS 161458

    Question 2. Please disclose the amount of attorneys' fees paid to 
the Defenders of Wildlife under the Equal Access to Justice Act, or the 
Justice Fund, for each case filed, and/or each case for which Defenders 
of Wildlife has been party to, since 2005.

    Answer. Defenders does not maintain an archive that tracks the 
amount of reimbursements associated with any particular case. As a 
result, we can provide only the date and amount of reimbursements. 
Further, we only have records starting from 2009 because we did not 
formally track our reimbursements before then.
    If outside counsel represented us in a case, reimbursement fees 
typically go to them. If our in-house staff attorneys represented us in 
a case, reimbursement fees typically offset their salary. Many of the 
amounts listed below represent attorneys' fee awards, but some 
represent reimbursements for expenses paid by Defenders and our co-
plaintiffs before or during litigation.

 
 
 
             DATE                              AMOUNT
              2/20/2009                    $15,908.00
              2/20/2009                      9,231.00
              2/20/2009                     71,548.00
              3/23/2009                        321.42
              4/29/2009                      1,500.00
              4/29/2009                     13,214.43
              6/15/2009                     37,000.00
              6/19/2009                      5,500.00
              7/21/2009                         45.68
             10/02/2009                      1,643.61
             10/15/2009                     16,375.00
             10/15/2009                        514.64
              1/20/2010                        853.75
              1/20/2010                     27,271.00
              1/22/2010                      1,748.38
              3/15/2010                        669.35
              3/18/2010                        939.74
             11/30/2010                     15,000.00
              3/08/2011                        281.55
              4/04/2011                     22,834.35
              4/15/2011                     21,000.00
             11/07/2011                     39,000.00
              3/14/2012                     10,000.00
              8/31/2012                     10,500.00
              9/14/2012                     61,119.50
             11/28/2012                      8,095.00
             11/28/2012                         66.61
             11/28/2012                      3,238.00
             11/28/2012                         26.65
             11/28/2012                      4,857.00
             11/28/2012                         39.97
              1/17/2013                     16,517.67
              1/17/2013                      6,607.06
              1/17/2013                      9,910.60
              1/25/2013                     13,825.50
              1/25/2013                      5,530.20
              1/25/2013                      8,295.30
              2/06/2013                      7,856.82
              2/06/2013                      3,142.73
              2/06/2013                      4,714.09
              8/06/2013                        153.91
              8/06/2013                         61.56
              8/06/2013                         92.34
             10/23/2013                     10,000.00
             12/02/2013                     30,000.00
              1/30/2014                      5,533.00
              4/11/2014                     28,319.82
              5/01/2015                      1,060.74
             11/20/2015                      5,548.00
              3/31/2016                     15,424.21
              5/19/2016                         39.33
              8/31/2016                        799.67
              9/22/2016                     68,171.30
             10/31/2016                     75,879.72
             10/31/2016                        681.78
             12/16/2016                      1,163.80
                                      -----------------
 
             Total                        $719,671.78
 


    Question 3. Please disclose whether your 2015 study incorporated 
formal consultations that were terminated or withdrawn prior to the 
conclusion of consultation. If so, how did you address these 
consultations when calculating duration averages? Please disclose the 
number of terminated or withdrawn formal consultations were there?

    Answer. There were 33 formal consultations (0.5 percent of formal 
consultations) recorded as withdrawn in the FWS Section 7 database that 
we obtained. Of those, 25 were recorded as concluded on time, 4 were 
recorded as not on time, and 4 were unknown. The duration calculations 
included these consultations, which, because there were so few, had no 
effect on the estimates.

    Question 4. In the methodology for your paper you state that: 
``[t]o evaluate the factors most likely to influence consultation 
duration, we removed 2,468 consultations (2.8 percent) with duration 
above the 98th percentile of all durations; these extreme values are 
strongly influenced by factors other than those recorded in [the] TAILS 
[database], and their removal dramatically improved the fit of the 
models.'' Regarding these removed consultations:

    4a. Is it correct that these consultations were not included in 
your calculations of the median duration of informal and formal 
consultations? [Specifically, the calculations described in your 
methodology as follows: ``We calculated median consultation durations 
and approximate 95 percent CIs of the median after removing missing 
data. Standard analysis of variance was used to test for differences in 
means among categories.'']

    Answer. No, that is not correct: all consultations were used in the 
median duration calculations. The 98th percentile consultations were 
excluded only from the linear model that associated predictor variables 
with consultation duration.

    4b. Were the removed consultations taken from the universe of 
formal consultations, the universe of informal consultations, or the 
universe of informal and formal consultations combined?

    Answer. The universe of all consultations.

    4c. What were the ``other factors'' that contributed to these 
consultations with an ``extreme'' duration value?

    Answer. The primary factor was whether a consultation was a 
reinitiation, but a small number may have been long-running 
consultations.

    Question 4d. How were you able to determine the ``other factors?''

    Answer. By FOIA requests and by asking FWS biologists.

    4e. How removed consultations with ``extreme'' values account for 
each of the ``other factors'' you identified?

    Answer. The question is unclear. A basic tenet of any analysis is 
that the process generating the data is stable.

    4f. Do the removed consultations, relative to those consultations 
retained, tend to be larger in scope and/or scale? If so, how many 
would fit this description?

    Answer. We do not know the relative sizes of the consultations and 
cannot answer this question. To the best of our knowledge, these 
consultations are mostly reinitiations of prior consultations.

    Question 5. In the dataset linked to your paper there were over 
11,000 informal consultations with the elapsed time of 0 (zero) days. 
There were over 6,000 other informal consultations for which the 
elapsed time was 1 (one) day.

    5a. Do these consultations reflect automated responses to IPAC 
queries, NLAA concurrences or some other factors? Can you provide a 
breakdown regarding the major factors that account for these 0-1 day 
informal consultations?

    Answer. The number of automatic IPAC responses is likely very 
small: FWS has only recently started small pilots of the system in the 
southwest. The most likely cause is that there are no listed species 
present in the action area. A second cause may be actions that are 
clearly not likely to adversely affect listed species or their critical 
habitat, and thus can complete consultation immediately.

    5b. How was it determined that they concluded in 1 day or less?

    Answer. By looking at the data provided in TAILS.
    Question 6. In the dataset linked to your paper there were over 827 
formal consultations with ``NA'' recorded for the duration or 
``elapsed'' time. (Excluded from the 827 are about 21 formal 
consultations that had a ``NA'' value and that were also were recorded 
as ``emergency consultations.'')

    6a. Why do these formal consultations have no elapsed time?

    Answer. Because the start of formal consultation or the conclusion 
date were not recorded. In some cases, these were missing because the 
consultation had not yet concluded (and some missing dates were 
included with a later data update from FWS).

    6b. If these were formal consultations, how were they accounted for 
in your determination of duration?

    Answer. They were excluded from summary calculations using the 
parameter `na.rm = TRUE' in R's `median' function.

    6c. If these 827 records were determined not to be formal 
consultations, why and how so?

    Answer. We did not conclude that the consultations were not formal, 
so the latter clause of the question does not apply.
                  Questions Submitted by Rep. Grijalva
    Question 1. It was stated that the EAJA cap on attorneys' fees of 
$125 does not apply to environmental groups. Please explain under what 
circumstances the cap for attorneys' fees can be lifted. Does it apply 
only to environmental litigants? Does the court have the authority to 
reduce an attorney's fee award?

    Answer. The Equal Access to Justice Act (EAJA) embodies our 
Nation's values of protecting legal rights, access to courts, and the 
rule of law, and is not limited to environmental litigants. In enacting 
EAJA, Congress recognized that individuals and organizations should 
```not be deterred from seeking review of, or defending against, 
unjustified governmental action because of the expense involved.'''\1\ 
Parties may seek attorneys' fees under EAJA only when bringing cases 
not covered by a fee-shifting provision in another Federal law.\2\
---------------------------------------------------------------------------
    \1\Marbury v. Madison, 5 U.S. 137,163 (Marshall, C.J.) (``The very 
essence of civil liberty certainly consists in the right of every 
individual to claim protection under the laws, whenever he receives an 
injury. One of the first duties of Government is to afford that 
protection . . .. The government of the United States has been 
emphatically termed a government of laws, and not of men. It will 
certainly cease to deserve this high appellation, if the laws furnish 
no remedy for the violation of a vested legal right.'')
    \2\28 U.S.C. Sec. 2412(a)(1).
---------------------------------------------------------------------------
    The $125 hourly cap on attorneys' fees does apply to environmental 
groups. EAJA allows courts to lift the fee cap only in limited 
circumstances. Courts have discretion to consider whether ```a special 
factor, such as the limited availability of qualified attorneys for the 
proceedings involved, justifies a higher fee.'''\3\ General legal 
competence or even extraordinary but generalized litigation experience 
does not alone justify a higher fee.\4\ Special factors require a 
strong showing, such as an identifiable practice specialty like patent 
law or foreign language skills necessary for the litigation.\5\ In 
these situations, the EAJA fee was based on the reasonable market rate 
for the lawyers in that specialty.\6\ Any EAJA fee can be reduced if 
the prevailing party's conduct was unduly and has unreasonably 
protracted the final resolution of the matter in controversy.\7\
---------------------------------------------------------------------------
    \3\Sierra Club v. Secretary of the Army, 820 F.2d 513, 517 (1st 
Cir. 1987) (quoting 28 U.S.C. Sec. 2412(d)(2)(A)).
    \4\Pierce v. Underwood, 487 U.S. 552, 572 (1988).
    \5\Id.
    \6\See Nat'l Wildlife Fed'n, 870 F.2d at 547.
    \7\28 U.S.C. Sec. 2412(d)(1)(C).

    Question 2. Who sets the reimbursement rates for attorneys' fees 
under the ESA citizen suit provision? Is Defenders of Wildlife allowed 
---------------------------------------------------------------------------
to ``charge'' whatever rate it wants, or have the courts set limits?

    Answer. Congress long ago recognized that the government needs the 
public to help enforce America's laws, including those protecting civil 
rights, voting rights, and the environmental. Citizen suit provisions, 
including those in the ESA, serve this purpose. Private citizen, 
nonprofit organizations, and businesses from across the political 
spectrum can seek reimbursements under the ESA citizen suit provision.
    Recognizing that such specialized cases can only be brought with 
the expertise of competent counsel, Congress has provided for 
``reasonable'' market-based reimbursements of attorneys' fees for 
prevailing parties. These fees are thus limited by law, generally 
vetted by the courts, and based on prevailing market rates.\8\ Thus, 
Defenders of Wildlife cannot seek reimbursements of whatever rate it 
wants.
---------------------------------------------------------------------------
    \8\See, e.g., 5 U.S.C. Sec. 552(a)(4)(E)(i) (freedom of 
information); 15 U.S.C. Sec. 2060(c) (consumer-product safety); 29 
U.S.C. Sec. 794a(b) (disability rights); 29 U.S.C. Sec. 2617(a)(3) 
(workers' rights); 42 U.S.C. Sec. 1988(b)(civil rights); 42 U.S.C. 
Sec. 5207(c)(3) (gun rights); 42 U.S.C. Sec. 7604(d) (clean air).
---------------------------------------------------------------------------
    The importance of the fee-recovery provisions lies beyond dispute. 
As the U.S. Supreme Court has recognized, if a citizen ``does not have 
the resources'' to pursue an enforcement action, ``his day in court is 
denied him; the congressional policy which he seeks to assert and 
vindicate goes unvindicated; and the entire Nation, not just the 
individual citizen, suffers.''\9\
---------------------------------------------------------------------------
    \9\City of Riverside v. Rivera, 477 U. S. 561, 575 (1986).

    Question 3. A Republican Member stated that the ``DOI doesn't have 
a mechanism to track awards of attorneys' fees.'' Can you please 
---------------------------------------------------------------------------
explain why and when that reporting mechanism was abolished?

    Answer. Before 1995, EAJA required both the Administrative 
Conference of the United States (ACUS) and the Department of Justice 
(DOJ) to report data on EAJA awards from administrative and court 
proceedings, respectively. These reporting requirements were broadly 
supported but, as applied to the DOJ, eliminated by the Republican-
controlled Congress in 1995.\10\ EAJA had required the DOJ to report 
``the amount of fees and other expenses awarded during the preceding 
fiscal year'' and to disclose ``the number, nature, and amount of the 
awards, the claims involved in the controversy, and any other relevant 
information.''\11\
---------------------------------------------------------------------------
    \10\See Pub. L. No. 104-66, 109 Stat. 707 (1995).
    \11\5 U.S.C. Sec. 504(e) (reporting requirements for the ACUS); 28 
U.S.C. Sec. 2412(d)(5) (1994) (reporting requirements for DOJ).

    Question 4. Will you please explain the value of the citizen suit 
provision for ESA? Does litigation benefit species conservation, 
contrary to assertions by Republican Members and witnesses? Does 
---------------------------------------------------------------------------
Defenders of Wildlife ``profit'' from environmental litigation?

    Answer. As explained in my response to Question 3, Congress long 
ago recognized the importance of enabling the public to help enforce 
certain Federal laws. ESA citizen suits help ensure that FWS listing, 
recovery, consultation, and incidental take permitting decisions 
further the ESA's goals of preventing extinction and recovering 
species. For example, when a conservation organization successfully 
challenges a Section 7 decision, the proposed project is sometimes 
modified to adopt stronger conservation measures. Those measures can 
directly reduce threats to affected species and expedite their 
recovery.
    Some observers have claimed that citizen enforcement cases have 
derailed the ESA, but the most recent former director of the U.S. Fish 
and Wildlife Service, Dan Ashe, has rejected such claims.\12\ ``On the 
scale of the challenges that we face implementing the Endangered 
Species Act, litigation doesn't even show up on the radar screen,'' 
according to Ashe.\13\
---------------------------------------------------------------------------
    \12\Laura Peterson, Lawsuits Not Hurting Endangered Species Act--
FWS Director, GREENWIRE (July 5, 2012).
    \13\Id.
---------------------------------------------------------------------------
    Fee reimbursements make up only a small fraction of Defenders' 
overall budget. Our organization is in no way motivated by ``profit'' 
when deciding whether to pursue ESA litigation. Nothing in our 
litigation approval process even hints at profit, nor have I ever heard 
anyone mention this factor in our internal discussions about proposed 
litigation.

    Question 5. Mr. Wood's written testimony states that the Ninth 
Circuit Cottonwood decision requires the ``Forest Service to redo all 
of its comprehensive programmatic consultation complicating all timber 
projects related to it.'' Could you please elaborate? Is it as 
``complicating'' as the witness would lead us to believe? How many 
industry projects have been halted as a result of programmatic 
consultation? What impact will Cottonwood have on future land 
management planning and endangered species conservation?

    Answer. The Cottonwood decision requires the U.S. Forest Service to 
reinitiate Section 7 consultation on forest plans implicated in the 
revision of critical habitat for the Canada lynx. It is inaccurate to 
portray the consultation as a ``redo'' of the previous programmatic 
consultation because that consultation did not evaluate whether the 
relevant forest plans would violate the Section 7 prohibition on 
``destruction or adverse modification'' of critical habitat on National 
Forest lands. Further, the reinitiation would not literally ``redo'' 
the entire programmatic consultation because many parts of that 
consultation can remain the same.
    The reinitiation would not be as complicated as Mr. Wood claims. My 
understanding is that the Forest Service and FWS should be able to 
complete the reinitiation without significant resource commitments. 
Limiting consultation to project-level actions, as some have suggested 
in response to the Cottonwood case, fails to capture the risks that may 
accrue to listed species and their habitat at broader spatial and 
temporal scales. It is thus a less effective and riskier way to 
implement the ESA.
    We are not aware of any projects being halted because of a 
programmatic consultation. In fact, between 2008 and April 2015, FWS 
had found jeopardy on only two projects and adverse modification on 
only one project. Each of those projects, however, could proceed 
without violating the ESA if it adopted ``reasonable and prudent 
alternatives.''
    FWS can manage the reinitiation of a programmatic consultation so 
that it results in little to no delay of individual projects. In 
addition, programmatic consultations often lead to more efficient 
project-level consultations. In our study of FWS consultations, my 
colleague and I found that the median duration of project-level formal 
consultation covered by a programmatic consultation was 24 days, 
compared to 62 days for all other formal consultations. This efficiency 
indicates that although a programmatic consultation may require more 
time to complete than a standard consultation, subsequent project-level 
consultations are often considerably faster than standard 
consultations.
    The Cottonwood decision reinforces the value of smart planning 
under the ESA and is consistent with how FWS has interpreted for years 
the reinitiation provision of its Section 7 regulations. For these 
reasons, the decision is unlikely to dramatically change how the ESA 
applies to future land planning decisions. The current process for 
reinitiating programmatic consultations is designed to help create more 
effective and durable conservation outcomes for listed species and 
expedite project-level consultations.

    Question 6. Mr. Stiles claimed in his testimony that state wildlife 
agencies have much more local, on the ground knowledge than Federal 
agencies, and recommends expanding the involvement of state agencies in 
the consultation process. Would this help Mr. Stiles get the Rock Creek 
Mine approved? Is it true that the Montana Department of Fish Wildlife 
and Parks believes that the Rock Creek Mine may jeopardize Bull trout 
in the Lower Clark Fork River?

    Answer. Expanding the involvement of the Montana Fish, Wildlife, 
and Parks (MFWP) might actually impede the approval of the Rock Creek 
Mine project. MFWP has identified major defects in the environmental 
analysis for the project, particularly the omission of important 
information about the impacts of the project on bull trout. MFWP 
provided comments on the project's Draft Supplemental EIS (SEIS) 
pertaining to fisheries and wildlife resources.\14\ Those comments 
critiqued the FWS's 2007 Biological Opinion for the Rock Creek Mine 
that covered the bull trout and the Forest Service's reliance on this 
document in its SEIS, highlighting the Federal agencies' failure to 
analyze more recent scientific information and their omission of 
several key issues related to bull trout impacts. For instance, MFWP 
questioned the Forest Service's suggestion in the SEIS that longer and 
more severe stream dewatering in Rock Creek (leading to more 
intermittent flows) would benefit the bull trout. MFWP also questioned 
the biological opinion's conclusion that the preferred alternative 
would not jeopardize the Lower Clark Fork core area bull trout 
population, as the project would harm critical habitat in the only two 
bull trout populations in the Cabinet Gorge Reservoir reach of the 
Lower Clark Fork core area. MFWP stated that ``the Rock Creek project 
has potential to negatively impact Bull Trout in the [Lower Clark Fork 
River]. Negative impacts are predicted for critical habitat in the only 
two remaining Cabinet Gorge Reservoir Bull Trout populations.'' Because 
of these concerns, MFWP concluded that neither the biological opinion 
nor the SEIS has ``adequately addressed potential Bull Trout impacts by 
not including recent research results, accepting uncertainties 
associated with limited modeling results, and approving likely 
ineffective mitigation measures,'' and recommended that the Federal 
agencies ``re-evaluate these impacts.'' In short, while MFWP provided 
insightful comments based on its ``local, on the ground knowledge'' of 
bull trout, its expanded involvement would not necessarily increase the 
chances of Federal approval of the Rock Creek Mine.
---------------------------------------------------------------------------
    \14\See MFWP, Rock Creek Project Draft SEIS Comments (Apr. 18, 
2016).

    Question 7. Mr. Stiles also claimed that the Endangered Species Act 
is unnecessarily delaying the Montanore Mine. Yet, the FWS consultation 
process resulted in a ``no jeopardy'' finding. Further, the state of 
Montana has determined that it can't approve the full Montanore mine 
because it would violate state non-degradation laws that preclude the 
degradation of wilderness rivers and streams. Nevertheless, he 
recommends that the ESA be changed to ``reduce impediments to economic 
and infrastructure development.'' Given that the ``no jeopardy'' 
finding essentially gives the mining project the green light with 
respect to ESA, and it is in fact state permitting that is preventing 
the project from moving forward, are changes to the ESA necessary to 
---------------------------------------------------------------------------
address Mr. Stiles' problem?

    Answer. Mr. Stiles's testimony appears to present a contradiction. 
The ESA did not delay the Montanore Mine approval, as FWS issued two 
biological opinions in March 2014 that concluded the project would not 
jeopardize the bull trout or grizzly bear. A coalition of concerned 
citizens and organizations have challenged the no-jeopardy findings, 
but neither that challenge nor the consultation has delayed the 
project. Instead, as Rep. Grijalva notes, the state of Montana's non-
ESA related concerns about water quality in the Cabinet Mountain 
Wilderness area are preventing project approval. In fact, the Montana 
Department of Environmental Quality refused to permit the project 
because the agency lacked enough data to determine whether the project 
would violate state water quality and non-degradation standards. 
Further, even if the pending challenge to FWS's no-jeopardy decisions 
under the ESA were to succeed, the state's concerns over water quality 
violations would still stand as an independent obstacle to permitting 
the project.

    Question 8. The state of Montana calls comparison of the Rock Creek 
Mine proposal with the Greens Creek Mine ``inaccurate and misleading.'' 
Mr. Stiles' testimony seems to contradict the state, a Federal court 
decision that I submitted for the record, and a Fish and Wildlife 
Service memo that I also submitted for the record. Do you agree with 
Mr. Stiles that the environmental impacts of the projects are 
comparable given the evidence to the contrary?

    Answer. Defenders agrees with the state of Montana that comparisons 
between the two mines are ``inaccurate and misleading.'' Greens Creek 
Mine is an underground silver mine on Admiralty Island in southeast 
Alaska. It is surrounded by the Kootznoowoo National Monument and 
Wilderness Area. The similarities end there. As MFWP has noted, the 
wilderness on Admiralty Island ``is over 10 times the size of the 
Cabinet Mountains [sic] Wilderness and contains hundreds of spawning 
salmon populations'' of which only a small number are impacted by the 
mine.\15\ In contrast, the smaller Cabinet Mountain Wilderness contains 
only two viable bull trout populations, both of which are directly 
impacted by the Rock Creek Mine's proposed operations.\16\
---------------------------------------------------------------------------
    \15\Id.
    \16\Id.
---------------------------------------------------------------------------
    Another difference is the mitigation requirements. The Greens Creek 
Mine was required to build and maintain a fish passage allowing 
anadromous fish (coho salmon) to access upper Greens Creek, as 
mitigation for the mine's destruction of important habitat in the 
headwaters reach of Tributary Creek. In contrast, the Rock Creek Mine 
Biological Opinion and SEIS contain limited mitigation measures (e.g., 
reducing non-native fish populations, improving stream habitat, and 
removing culverts). MFWP reviewed the proposed actions and concluded 
that, because of practical constraints and local conditions, ``[t]he 
mitigation activities discussed . . . are outdated, likely ineffective, 
and unsupported by recent research results.'' MFWP thus recommended 
that the Forest Service reconsider the proposed mitigation measures for 
impacts to the only two remaining bull trout populations in the Cabinet 
Mountain Wilderness.
    Similarly, the bear population on Admiralty Island far outstrips 
that in the Cabinet Mountain Wilderness. The Tlingit name for Admiralty 
Island, Kootznoowoo, means ``Fortress of the Bear''--the island has one 
of the densest populations of brown bears in the world, at one bear per 
square mile (with 1,600 total bears). In contrast, the Cabinet-Yaak 
Ecosystem, which encompasses the Cabinet Mountain Wilderness, contains 
as few as 42 individual grizzly bears.\17\ The Montanore Grizzly Bear 
biological opinion cautioned that this population of grizzly bears 
``remains vulnerable to extirpation because of small population size.''
---------------------------------------------------------------------------
    \17\FWS, Final Biological Opinion on the Effects to Grizzly Bears 
from the Montanore Mine, 39 (March 31, 2014) (``Montanore Grizzly Bear 
BiOp'').
---------------------------------------------------------------------------
    Finally, the Greens Creek Mine is the only mine with environmental 
impacts in its action area. The Rock Creek Mine and Montanore Mine, on 
the other hand, would represent twin mines on opposite edges of the 
Cabinet Mountain Wilderness boundary, effectively bookending the 
wilderness area. HECLA owns and would operate both mines, and its 
characterization of the Rock Creek Mine as a standalone project 
comparable to Greens Creek Mine is misleading. Based on the information 
about Greens Creek Mine, Rock Creek Mine would have very different 
effects on the wilderness character of the Cabinet Mountain Wilderness 
and the ESA-listed species there.

    Question 9. Majority witnesses and Members claimed that individual 
employees at FWS with personal agendas were single-handedly holding up 
the consultation process and development and infrastructure projects? 
Is there any real evidence of this? How can personnel issues, to the 
extent that they exist, be addressed?

    Answer. Although it is possible for certain FWS employees to hold 
up consultations, the Majority Members grossly mischaracterized our 
Section 7 study when they claimed that the study revealed a widespread 
problem with individual employees delaying consultations. This error is 
attributable to a misunderstanding of statistics. Our study shows that 
the identity of a consultation biologist accounts for, on average, only 
0.25 percent of the variation in consultation duration. This is 
calculated using the mean-square column (MS) of Table 1 in our study. 
The Majority Members mistakenly used the sum-of-squares (SS) column for 
their conclusion. Let me illustrate this error through a more familiar 
example. Imagine you must decide which of two batters to use in a 
baseball game. One has had 20 hits in 20 at-bats, while the other has 
had 50 hits in 100 at-bats. You would want to choose the batter with 
fewer hits but a batting average of 1.00, not the batter with more hits 
but an average of 0.5. Using the average allows you to account for the 
total number of times a batter was at-bat. The same logic applies to 
interpreting the Section 7 data. You want to use MS because it accounts 
for the total number of FWS employees (over 1,200) who completed 
consultations. Using this method, we found that approximately 97 
percent of the variation in consultation duration is attributable to 
whether a consultation was formal.
    Any personnel issues can be handled by management direction, as is 
currently done. That only 0.25 percent of the variation in consultation 
duration is attributable to employee identity strongly suggests that 
the current practices work well.

    Question 10. Majority witnesses and members claimed that ESA 
litigation has no benefit for species. Is that accurate? Can you give 
us examples of species that have been protected and are recovering 
because of litigation?

    Answer. That claim is inaccurate. Successful citizen suits to 
enforce the ESA have delivered tremendous benefits to not only 
imperiled species but also local communities by maintaining a healthy 
environment. Examples include the following:

     ESA litigation targeting extensive road building and 
            clearcutting on the Flathead, Targhee, and Gallatin 
            National Forests in the 1990s established the key principle 
            that road construction in grizzly habitat harms bears. This 
            principle has been integral to managing habitat for the 
            species in the Northern Rockies and has allowed its 
            population to increase toward recovery.

     Recovery of the reintroduced wild population of Mexican 
            wolves was derailed by Federal agency removal of wolves 
            that predated on livestock. The removals were mandatory 
            under what the U.S. Fish and Wildlife Service called 
            ``Standard Operating Procedure (SOP) 13.'' An ESA lawsuit 
            resulted in a settlement that eliminated SOP 13 and allowed 
            for more flexible management of wolves and for populations 
            to grow again.

     ESA litigation has also brought tremendous benefits to 
            West Coast salmon populations and the thousands of fishing 
            jobs and Native American tribes that depend on healthy 
            salmon runs. In fact, commercial fishermen and tribes are 
            often plaintiffs in cases to enforce ESA protections for 
            salmon because they understand that these protections are 
            needed for their livelihoods. ESA litigation was key to 
            successfully listing Columbia/Snake River salmon and 
            Central Valley salmon (winter-run and spring-run Chinook) 
            and then litigation to compel vital changes in dam and 
            water export operations. Without this litigation, many of 
            the salmon runs would likely have disappeared.

     In Hawaii, ESA litigation has helped catalyze vital ESA 
            protections for hundreds of Hawaiian plants and dozens of 
            Hawaiian and Mariana Islands animals. Litigation has also 
            protected ESA-listed species in Hawaii from unauthorized 
            ``take'' under Section 9 of the statute.

     In the Pacific Northwest, southern resident killer whales 
            have benefited greatly from ESA litigation--first from 
            litigation to catalyze much-needed ESA protections and more 
            recently for protections to protect the whales from harmful 
            human interactions and excessive sound.

    Question 11. In his testimony, Mr. Calkins made light of the fact 
that conservation of two separate ESA listed species in the same river 
system necessitated different and sometimes conflicting strategies. 
Steelhead is a species managed by NMFS. Tidewater goby is a species 
managed by FWS. The perceived conflict between the Services is the 
result of potential habitat area for tidewater goby versus steelhead 
relative to discharge amounts. The life history of these two species 
are different in that tidewater goby thrive in shallower environments 
(less discharge), while steelhead require, among other things, a 
minimum depth of water (relatively more discharge volume). In a 
complicated situation like this, does the ESA Section 7 consultation 
process lead to better outcomes? Why? Is it true as Mr. Calkins 
testified that consultation has provided no demonstrable benefit for 
these species?

    Answer. Contrary to the suggestion in this question, the habitat 
requirements of tidewater goby and steelhead are compatible. In many 
areas in California, both species evolved side-by-side in coastal 
lagoons, and both continue to thrive in those environments. Although 
the species have slightly different water-depth requirements, the 
amount of habitat for both species tends to increase with increased 
water discharge. Further, habitat depth in coastal lagoons is not 
always closely related to discharge levels. Narrow lagoons can be deep 
with low discharge and broad lagoons can be shallow despite much larger 
discharge. Tidewater goby and steelhead can continue to exist in the 
same environments, and managing to meet the needs of both species does 
not create an irreconcilable conflict.
    While there is no conflict between the habitat needs of tidewater 
goby and steelhead, the species do have complex and interacting 
requirements. Section 7 consultations can be most valuable in a 
complicated situation like this. Consultation enables informed decision 
making based on the best available science, allowing agencies to 
understand and meet the needs of multiple species. And because Section 
7 applies to all Federal agencies, it often brings stakeholders to the 
table in contentious situations where compromise or collaboration would 
otherwise be absent.
    Where necessary, NMFS and FWS will each consult on the same 
proposed action, and the two agencies are generally adept at 
coordinating their efforts. For example, the consultations for the 
water operations in the Bay Delta show reasonably good coordination 
despite the extremely complicated and controversial nature of the 
operations. In most other consultations that involve both agencies, we 
never hear of problems because the agencies are coordinating 
effectively with each other.
    I am not intimately familiar with the consultations that Mr. 
Calkins discussed, so it is difficult for me to assess how the species 
responded in that instance. In general, however, consultations are 
effective at preventing Federal agencies from threatening the survival 
of ESA-listed species. Consultations accomplish this goal in several 
ways. Before a consultation ever begins, many Federal agencies and 
their applicants plan projects with built-in measures that minimize and 
even offset the harmful effects of the projects. During informal 
consultations, the impacts of projects are often further minimized. 
Projects that require formal consultation are even further refined to 
ensure that they do not violate the jeopardy and adverse modification 
prohibitions. These refinements come in the form of ``reasonable and 
prudent measures'' and, for projects that trigger the jeopardy/adverse 
modification prohibitions, ``reasonable and prudent alternatives.'' 
Partly because of the benefits of consultations, FWS recommended 
downlisting the tidewater goby in its 2007 5-year status review for the 
species.

    Question 12. In his testimony, Mr. Calkins blamed consultation 
between FWS and the Texas Department of Transportation for 
significantly increasing the cost of a highway project. However, two 
letters from FWS to TXDOT show that TXDOT agreed to take voluntary 
conservation measures to avoid damaging the only known habitat of the 
endangered Braken Bat Cave Meshweaver, and that these measures made the 
project unlikely to affect the species. Further, it is clear from TXDOT 
documents that additional features unrelated to the consultation were 
added to the project, which accounted for a large part of the cost 
increases. Is this a case of the ESA being blamed for a problem it did 
not cause? Even if the ESA did result in some cost increases, should 
TXDOT be responsible for covering those instead of passing them along 
to society by driving a species into extinction? Why?

    Answer. This is an example of project proponents not heeding 
warnings about the presence of an endangered species on a project site. 
Two years before the meshweaver (Circurina venii) was discovered in the 
Clandestine Cupola Cave complex during highway construction, the Alamo 
Regional Mobility Authority mentioned the following in a public 
slideshow presentation:

        Of the species found [in the cave complex], one specimen is 
        believed to be an unlisted blind cave spider . . .. However, 
        because genetic data do not exist for the federally listed and 
        protected species, it is possible that the spider found could 
        be Circuina (sic) venii, a federally listed species. Therefore, 
        based on this data, it is possible the project may affect, but 
        is not likely to adversely affect, Circuina venii.\18\
---------------------------------------------------------------------------
    \18\http://www.valleymorningstar.com/news/local_news/
article_9ebfe67c-d313-11e2-b44e-001a4 bcf6878.html.

    In a December 2011 environmental document for the highway project, 
the project was again mentioned as ``may affect, not likely to 
adversely affect'' the species.\19\ Despite these acknowledgments of 
the meshweaver's possible presence, road construction continued without 
adequate measures to avoid impacting the species. Had the project 
proponents planned more carefully for the species, the cost and 
duration of the project would have deviated less from original 
estimates. In discussing the consultation process with Federal 
agencies, I have found that incorporating conservation measures into 
the early phases of a project can often reduce the duration of 
consultations, avoid the need for formal consultation, and reduce the 
complexity of consultations.
---------------------------------------------------------------------------
    \19\Id.
---------------------------------------------------------------------------
    As for who should bear the costs of conserving the meshweaver, 
Section 7(a)(2) places the responsibility on Federal agencies to ensure 
against jeopardy and adversely modification. Thus, the ESA reflects the 
normative judgment that Federal agencies or project applicants should 
absorb the costs of conservation measures that safeguard the survival 
of ESA-listed species. I agree with this judgment because it avoids 
creating an environmental ``externality'' by shifting the cost of 
extinction to society. In fact, economists often advise governments to 
adopt policies that ``internalize'' an externality, so that the cost of 
an activity falls on the person who chooses to carry out the activity.
    Congress should also remember that the costs of complying with 
Section 7 are generally feasible for project proponents. ``Reasonable 
and prudent measures'' to minimize the extent of incidental take ``can 
include only actions that occur within the action area'' and ``involve 
only minor changes to the project.'' In the rare event that FWS finds 
jeopardy or adverse modification, any ``reasonable and prudent 
alternatives'' must be ``economically and technologically feasible'' to 
implement.

                                 ______
                                 

    Mr. Labrador. Thank you very much.
    I will now recognize Mr. Wood.

   STATEMENT OF JONATHAN WOOD, STAFF ATTORNEY, PACIFIC LEGAL 
                FOUNDATION, ARLINGTON, VIRGINIA

    Mr. Wood. Thank you, Chairman Labrador, Ranking Member 
McEachin, and Full Committee Chairman Bishop, for the 
opportunity to testify on behalf of Pacific Legal Foundation on 
the impacts of ESA consultation on economic and infrastructure 
development. I submitted a longer written statement for the 
record, but I want to stress three points in my remarks today.
    First, because consultation applies to every project that 
requires any sort of Federal permit or funding assistance, the 
impacts of consultation inevitably increase as the Federal 
Government grows.
    Second, much of the delay and expense of the consultation 
process happens in so-called pre-consultation, which does not 
get counted by the agencies toward meeting those deadlines that 
were mentioned by the previous witness.
    And third, the intuition that stopping or delaying activity 
inevitably helps endangered species is wrong. Often, 
consultation delays or discourages activities that would 
actually benefit species, including necessary maintenance to 
infrastructure.
    On the first point, the extensive delays caused by 
consultation are a clear result of the increase in the number 
of state and private activities that the Federal Government 
regulates, permits, and funds. As the Federal Government grows, 
more and more projects must go through consultation, placing 
even greater strains on the limited budgets that Federal 
agencies have available.
    Unfortunately, the problem is going to get worse, not 
better, as recent regulations further increase the number of 
projects that must go through consultation. And many of those 
projects are the kinds that you were just hearing about, where 
they have a relatively narrow or limited Federal nexus and 
minor environmental impacts. But by putting so many of them 
through consultation, you sap agency resources and put even 
more traffic in the system, distracting the agency from being 
able to focus and timely process those major projects that 
really deserve further scrutiny. Adding more cars to already 
gridlocked traffic is no way to speed things up. The same is 
true with consultation.
    For my second point, much of the delay in consultation 
occurs during pre-consultation. Although the statute sets firm 
deadlines by which the process must be completed, agencies do 
not count most of the time spent toward the deadline. A recent 
report from the University of Texas' Kay Bailey Hutchison 
Center for Energy, Law, & Business found that pre-consultation 
lasts 18 months or more, far in excess of the statute's 135-day 
deadline.
    As an example, the Tule wind project in Southern 
California, which was designed to provide renewable energy to 
60,000 homes, was held up for 10 months in pre-consultation and 
11 months in formal consultation. Combined, that delay is 
almost five times the limit that Congress imposed.
    The final point I wish to make is that delaying or 
preventing projects can actually harm species. PLF client, Save 
Crystal River, has a project to restore habitat for manatee in 
Florida. That project had to go through consultation, which 
delayed it for several months, and the result was to put limits 
on the work that could be done that made it more expensive. 
Delays and burdens like this sap resources that could be better 
put to species recovery, and discourage the types of voluntary 
activity we desperately need to actively recover and manage 
endangered species.
    Delaying infrastructure maintenance can also harm species. 
Last month, we all watched nervously as the Oroville Dam in 
Northern California nearly burst during a period of heavy 
flooding, threatening the lives and property of 200,000 people 
living below. Thankfully, that crisis was averted, but that 
situation should remind all of us that infrastructure 
maintenance and upgrades are necessary for public safety.
    They are also necessary to protect the environment. As the 
flood waters receded, we learned of the full environmental 
impacts of that situation, including substantial erosion 
downstream and the stranding of endangered salmon. If the dam 
had failed, those impacts would have been worse. Yet, when the 
state began planning to repair and upgrade the dam, which would 
prevent similar environmental impacts in the future, Federal 
agencies immediately raised consultation as an obstacle, 
threatening to delay or perhaps entirely discourage that 
necessary work.
    Across the country, we have many dams, bridges, roads, and 
other infrastructure that are approaching the end of their 
engineered lives, and will soon need to be repaired or upgraded 
and go through consultation. So, now really is the time for 
this Committee and for the agencies to look at all of the tens 
of thousands of projects that go through consultation, despite 
the fact that they have a very minor Federal nexus and limited 
environmental impacts, so that the agency's limited resources 
really can be focused on those major Federal projects that are 
vital to our public safety and pose some threat to the 
environment.
    Otherwise, if we allow these infrastructure projects not to 
be done, it is a threat both to public safety and the 
environment, because you will see some of this infrastructure 
fail.
    Thank you again for the opportunity to present my views on 
this important subject, and I look forward to any questions 
from the Committee.
    [The prepared statement from Mr. Wood follows:]
     Prepared Statement of Jonathan Wood, Attorney, Pacific Legal 
                    Foundation, Arlington, Virginia
    The Endangered Species Act is known as the ``pit bull'' of 
environmental law.\1\ For good reason. As many economic-development and 
infrastructure project proponents have learned the hard way, once the 
Endangered Species Act sinks its teeth into you, it does not let go 
easily.
---------------------------------------------------------------------------
    \1\See Timothy Egan, Strongest U.S. Environment Law May Become 
Endangered Species, N.Y. Times (May 26, 1992), http://www.nytimes.com/
1992/05/26/us/strongest-us-environment-law-may-become-endangered-
species.html?pagewanted=all (quoting Donald Barry of the World Wildlife 
Fund describing the ESA as ``the pit bull of environmental laws'' 
because ``[i]t's short, compact and has a hell of a set of teeth'').
---------------------------------------------------------------------------
    The ESA consultation process, which applies to any project 
requiring Federal agency approval or funding and that ``may affect'' a 
listed species, is no exception.\2\ The burdens of this process rise in 
lockstep with the growth of the Federal Government. As the number of 
activities the Federal Government regulates, permits, and funds 
increases, more projects must undergo consultation, straining agency 
resources, and slowing everything down. The statute and regulations 
forbid the commitment of resources until consultation concludes, 
meaning delays in the consultation process are delays for the 
project.\3\
---------------------------------------------------------------------------
    \2\16 U.S.C. 1536(a)(2).
    \3\16 U.S.C. Sec. 1536(d); 50 C.F.R. Sec. 402.09.
---------------------------------------------------------------------------
    Consequently, consultation is a significant obstacle to economic 
development and much-needed public-safety projects, imposing both 
delays and additional costs. By putting off projects, consultation can 
undermine public safety and ultimately harm species dependent on 
proactive conservation efforts or threatened by crumbling 
infrastructure.
    Last month, for example, we all watched as Oroville Dam's main 
spillway failed during a period of extreme flooding in Northern 
California. It looked like the emergency spillway would fail too, 
threatening the lives and property of nearly 200,000 people living 
below the dam.\4\ Thankfully, the emergency spillway held and that 
crisis was averted. But the experience should have brought home the 
importance of infrastructure maintenance and upgrades.
---------------------------------------------------------------------------
    \4\See Samantha Schmidt, Derek Hawkins, & Kristine Phillips, 
188,000 evacuated as California's massive Oroville Dam threatens 
catastrophic floods, Wash. Post. (Feb. 13, 2017), available at https://
www.washingtonpost.com/news/morning-mix/wp/2017/02/13/not-a-drill-
thousands-evacuated-in-calif-as-oroville-dam-threatens-to-flood/.
---------------------------------------------------------------------------
    After the flood receded, California announced plans to repair and 
improve the aging dam. Immediately, Federal bureaucrats raised the 
specter of consultation, threatening to slow the repairs down, increase 
their costs, or block them entirely.\5\ However, the environmental 
damage caused by the spillway failure shows that delaying 
infrastructure projects does not necessarily protect species. Delaying 
maintenance and upgrades can also threaten species and the environment 
by increasing the risk of serious infrastructure failure.\6\
---------------------------------------------------------------------------
    \5\Letter from Rep. LaMalfa to President Trump re: Oroville Dam 
(Mar. 15, 2017), reproduced at http://www.gridleyherald.com/article/
20170315/NEWS/170319778 (criticizing the demand for consultation and 
work restrictions because they ``would delay repairs immeasurably and 
place workers at risk'').
    \6\See Peter Fimrite, Measures save young salmon after failure of 
Oroville Dam spillway, SF Gate (Mar. 21, 2017), available at http://
www.sfgate.com/science/article/Measures-save-young-salmon-after-
failure-of-11015659.php (the Oroville Dam spillway catastrophe 
threatened nearly a billion endangered salmon); Kurtis Alexander & Tara 
Duggan, Riverbanks collapse after Oroville Dam spillway shut off, San 
Fran. Chron. (Mar. 4, 2017), available at http://www.sfchronicle.com/
bayarea/article/Riverbanks-collapse-after-Oroville-Dam-spillway-
10976144. php (describing the environmental damage in the wake of the 
near-collapse of the Oroville Dam).
---------------------------------------------------------------------------
    As the Oroville Dam situation demonstrates, the intuition that 
species always benefit from stopping or shrinking human activity is 
wrong. When small towns put off maintenance of a dam, bridge, or road 
because the ESA would substantially increase costs and delay completion 
by several years, the environment can suffer more damage when that 
infrastructure fails than from the work it would have taken to fix it.
the burdens of the consultation process grow along with the size of the 
                           federal government
    As demonstrated below, consultation delays much-needed projects and 
increases their costs, often in cases where potential impacts on a 
listed species are minimal. But, before getting to that issue, it is 
helpful to identify the most significant cause of the problem: the 
ever-growing size of the Federal Government.
    Section 7(a)(2) of the ESA requires consultation for every ``action 
authorized, funded, or carried out by'' a Federal agency that may 
affect a listed species.\7\ Therefore, the impact of the consultation 
process inevitably increases along with the number of state and private 
projects that require some type of Federal permit or funding 
assistance. The agencies that administer the ESA cite their limited 
resources as a cause of consultation delays.\8\ However, delays are not 
simply a question of agency resources but also what demands are placed 
on those resources. Those demands increase as ever more projects are 
subject to consultation based on minor Federal involvement.
---------------------------------------------------------------------------
    \7\16 U.S.C. 1536(a)(2).
    \8\See Presentation by Kay Davy, NMFS, Endangered Species Act 
Section 7 Consultation Process (2017), available at http://asbpa.org/
wpv2/wp-content/uploads/2017/01/Kay-Davy-NMFS-Protected-Resource-
Division.pdf (explaining that backlog of informal consultations 
prevents NMFS from timely reviewing significant, formal consultation 
requests).
---------------------------------------------------------------------------
    Today, a wide variety of private and state projects undergo 
consultation for precisely this reason. Even environmental groups 
acknowledge that the number of relatively harmless projects undergoing 
consultation delays the process for more significant projects.\9\ The 
only long-term solution to this problem is to reduce the size of 
government or the types of activities subject to consultation, so that 
the agencies can focus on and quickly review those major Federal 
projects that most significantly affect species.
---------------------------------------------------------------------------
    \9\See Wildlife Society, Practical Solutions to Improve the 
Effectiveness of the Endangered Species Act for Wildlife Conservation, 
Technical Review 05-1, 7-8 (2005), available at http://wildlife.org/wp-
content/uploads/2014/05/ESA05-11.pdf (explaining that delays are 
largely due to the increase in the number of projects that must undergo 
consultation, despite very minor impacts).
---------------------------------------------------------------------------
    Unfortunately, the trend is going in the opposite direction. Both 
the agencies that administer the ESA and other Federal agencies have 
expanded their regulatory reach, increasing the number of projects 
subject to consultation. For instance, the U.S. Fish and Wildlife 
Service recently adopted a regulation that significantly increases the 
number of areas designated as critical habitat.\10\ That regulation 
makes it even easier to designate lands that are unoccupied by a 
species and unsuitable to it as ``critical habitat.''\11\ Since any 
project that may affect habitat undergoes consultation, this regulation 
threatens to increase further the number of projects that subject to 
consultation.
---------------------------------------------------------------------------
    \10\See 81 Fed. Reg. 7,214 (Feb. 11, 2016). A coalition of 18 
states have challenged this regulation under the ESA. See Dennis 
Pillion, Alabama, other states challenge Endangered Species Act 
critical habitat rules, AL.com (Nov. 30, 2016), available at http://
www.al.com/news/index.ssf/2016/11/alabama_challenges_endangered.html.
    \11\Six judges from the Fifth Circuit recently criticized the 
practice of designating unoccupied, unsuitable lands as ``critical 
habitat,'' observing that these lands could not properly even be 
considered habitat. See Markle Interests, LLC v. U.S. Fish & Wildlife 
Serv., No. 14-31008 (Feb. 13, 2017) (Jones, J., dissenting).
---------------------------------------------------------------------------
    Other recent innovations (some would say power-grabs) by the 
Service threaten to expand the burdens of consultation even more. For 
instance, the recent spate of listings of healthy species based on 
potential impacts of climate change has led environmentalists to call 
for consultation for any project that affects emissions.\12\ The ESA is 
poorly suited to address climate change risk. Nevertheless, they want 
projects to undergo the ``apparently pointless and paralyzing duty to 
consult on emissions with a Federal nexus'' because it would be so 
burdensome that it might further other political ends.\13\ Something 
has gone terribly awry when consultation has become a political chip to 
be played precisely because it burdens projects without benefiting 
species.
---------------------------------------------------------------------------
    \12\See Holly Doremus, Polar Bears in Limbo, Slate.com (May 20, 
2008), available at http://www.slate.com/articles/health_and_science/
green_room/2008/05/polar_bears_in_limbo.html.
    \13\See id.
---------------------------------------------------------------------------
    The Fish and Wildlife Service is not alone in extending its reach 
and thereby increasing the burdens of consultation. Anytime any other 
agency expands its power over private activity, it spills over into 
more projects undergoing consultation. For instance, the Waters of the 
United States (WOTUS) rule interpreting the reach of the Clean Water 
Act would increase the number of activities subject to permitting under 
Section 404 of that statute, which applies to any activity in areas 
deemed wetlands.\14\ Already, many private development projects are 
substantially delayed because they require a Federal 404 permit, which 
triggers consultation.\15\ This problem could be avoided if it were 
easier for states to take over this permitting authority, eliminating 
the need for Federal involvement any time a property owner builds a 
home, a farmer plows his field or builds a pond.\16\ But in the 45 
years since the Clean Water Act was enacted, only two states have 
successfully navigated the process to take over this authority.\17\
---------------------------------------------------------------------------
    \14\The President recently issued an executive order calling for 
the reconsideration of this rule, so these impacts are presently only 
theoretical. See President Trump, Executive Order on Restoring the Rule 
of Law, Federalism, and Economic Growth by Reviewing the ``Waters of 
the United States'' Rule (Feb. 28, 2017), available at https://
www.whitehouse.gov/the-press-office/2017/02/28/Presidential-executive-
order-restoring-rule-law-federalism-and-economic.
    \15\Builders caught in crossfire of gnatcatcher habitat listing--
Needless plan could delay or kill new housing and imperil species 
protection, Nossaman.com (June 1, 2000), available at http://
www.nossaman.com/builders-caught-crossfire-gnatcatcher-habitat-listing-
needless.
    \16\See Jonathan Wood, How to promote federalism and reduce Clean 
Water Act abuse, LibertarianEnvironmentalism.com (Mar. 13, 2017), 
available at https://libertarian environmentalism.com/2017/03/13/404-
federalism/.
    \17\See VA Department of Envtl. Quality Report, Study of the Costs 
and Benefits of State Assumption of the Federal Sec. 404 Clean Water 
Act Permitting Program (Dec. 2012), available at http://
www.deq.virginia.gov/Portals/0/DEQ/LawsAndRegulations/
GeneralAssemblyReports/404_ Feasibility_Study_2012.pdf (citing 
uncertainty over whether Federal agencies would approve state 
assumption as an obstacle).
---------------------------------------------------------------------------
    Similarly, the increased Federal role in funding local projects 
expands the burdens of consultation. Although federalizing the funding 
of local roads, local bridges, and other local public-safety projects 
raises substantial federalism concerns, the Supreme Court has generally 
upheld it from constitutional attack.\18\ However, Congress should 
consider carefully whether it wants to subject every local 
infrastructure project to consultation based on this funding 
arrangement.
---------------------------------------------------------------------------
    \18\But see Nat'l Fed. Of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 
2601-08 (2012) (striking down provisions of Obamacare as too coercive)
---------------------------------------------------------------------------
 consultation imposes delays and higher costs on economic development 
                       and public-safety projects
    The ESA requires consultation to be completed within 135 days.\19\ 
Even if that deadline were always met, consultation would still be a 
significant barrier for economic development and infrastructure 
projects. In a world where time is money, 5-month delays in 
construction are no small cost.
---------------------------------------------------------------------------
    \19\See 16 U.S.C. 1536(b), (c).
---------------------------------------------------------------------------
    But consultation often takes more time than Congress intended, 
affecting a wide range of economic activity and public-safety projects. 
In a survey of Interstate Natural Gas Association of America members, 
nearly 70 percent cited the ``timing or length of consultation 
process'' as the biggest area of concern for ESA application and 
administration.\20\ A few examples highlight the scope of the problem.
---------------------------------------------------------------------------
    \20\See Suggestions on How to Improve the Endangered Species Act, 
INGAA Foundation 15 (2007), available at http://www.ingaa.org/
File.aspx?id=5691.
---------------------------------------------------------------------------
    In Oklahoma, the consultation process held up a project between 
Muskogee County and the Cherokee Nation to straighten and improve a 
windy, dangerous road. The reason for the hold up: a single American 
burying beetle was found in the 50-acre project area.\21\ The 
consultation is expected to add $1,000,000 to the project's price tag 
and delay construction for a year, during which time the county's 
residents and the tribe's members will be stuck with the road's 
current, dangerous layout. The beetle is threatening human health in 
other ways too, since it has obstructed another Oklahoma project to 
build a road to a hospital.\22\
---------------------------------------------------------------------------
    \21\See Endangered American Burying Beetle delays $6.5 million road 
project in Muskogee County, Oklahoma, KJRH.com (Aug. 24, 2016),     
available at      http://www.kjrh.com/news/ state/endangered-american-
burying-beetle-delays-65-million-road-project-in-muskogee-county-
oklahoma; D.E. Smoot, Road project delayed after endangered beetle 
found, Muskogee Phoenix (Aug. 7, 2016), available at http://
www.muskogeephoenix.com/news/road-project-delayed-after-endangered-
beetle-found/article_22ec52ca-aebb-50d0-bdf5-192cb4874d78.html.
    \22\See Darren DeLaune, After beetles are accommodated, road to 
hospital begins, MvskokeMedia.com (Mar. 3, 2017), available at http://
mvskokemedia.com/after-beetles-are-accommodated-road-to-hospital-
begins/.
---------------------------------------------------------------------------
    In California, the Valley elderberry longhorn beetle obstructed the 
Sutter Butte Flood Control Agency's efforts to upgrade 41 miles of 
levees along the Feather River. Because elderberry bushes grew along 
the river's edge, consultation had to be completed before the repairs 
could be made. Through consultation, the agency was required to 
undertake mitigation that cost $4,250,000--enough to fund an entire 
mile of levee improvements.\23\ These costs were imposed even though 
the U.S. Fish and Wildlife Service determined in 2006 that the beetle 
had recovered and should no longer be listed.\24\ Yet, 10 years and 
several lawsuits later, the Valley elderberry longhorn beetle remains 
on the list and continues to obstruct flood control projects and 
increase their costs.\25\
---------------------------------------------------------------------------
    \23\See http://www.regulations.gov/#!documentDetail;D=FWS-R8-ES-
2011-0063-0037.
    \24\See http://ecos.fws.gov/docs/five_year_review/doc779.pdf.
    \25\The Valley elderberry longhorn beetle is not unique in this 
regard. The Service routinely ignores its scientists' determinations 
that species no longer merit listing. Forcing affected businesses and 
property owners to sue the agency as many as 3 or 4 times over many 
years to get the agency to finally act. See Jonathan Wood, PLF files 
suit over caribou petition, the sequel, PLF Liberty Blog (Mar. 14, 
2014), available at http://blog.pacificlegal.org/plf-files-suit-
caribou-petition-sequel/.
---------------------------------------------------------------------------
    Consultation has also interfered with scientific research aimed at 
increasing public safety. In 2012, an expedition to map a major 
earthquake fault line off the Pacific Coast was delayed and had to be 
scaled back because of consultation.\26\ The goal of that project was 
to increase our knowledge of the fault line and thereby better predict 
tsunami risks. Although NOAA initially approved the project, the agency 
withdrew its permission at the last minute to require consultation 
based on potential impacts to whales.
---------------------------------------------------------------------------
    \26\See Keith Seinfeld, Endangered orcas cause delays for major 
earthquake research, KNKX.org (June 15, 2012), available at http://
knkx.org/post/endangered-orcas-cause-delays-major-earthquake-research.
---------------------------------------------------------------------------
    Consultation for projects in which the action agency has no direct 
interest can raise unique problems. Take, for instance, the experience 
of Liberty Mining.\27\ In 1989, the company submitted a mining 
development plan to the Forest Service, which required consultation. In 
1990, the Fish and Wildlife Service completed that consultation and 
informed the Forest Service that the project would not jeopardize the 
northern spotted owl. However, the Forest Service (which had no stake 
in the project) did not inform the company of this for 2 years, at 
which point consultation had to be reinitiated because of changes to 
the owl's habitat. The second consultation took another 2 years, again 
concluding that the mining project would not jeopardize the owl. The 4-
year delay cost the company $22.5 million, which it was unable to 
recover from the agencies.
---------------------------------------------------------------------------
    \27\Aloisi v. United States, 85 Fed. Cl. 84 (2008).
---------------------------------------------------------------------------
    Although the ESA imposes deadlines for consultation, the 
Congressional Research Service has identified one of the ways that 
Federal agencies skirt this requirement.\28\ According to U.S. Fish and 
Wildlife Service practice, the deadline only begins to run when the 
agency determines a submission is complete. If the Service wants more 
information, it can demand it and thereby put off the statutory 
deadlines indefinitely. As the CRS Report found, ``Repeated requests 
for additional data have led to great frustration among Action Agencies 
and the non-Federal parties relying on them for permits, loans, sales, 
licenses, etc.''
---------------------------------------------------------------------------
    \28\Kristina Alexander & M. Lynne Corn, Proposed Changes to 
Regulations Governing Consultation Under the Endangered Species Act 
(ESA), Congressional Research Service Report RL34641 (Sept. 23, 2008), 
available at http://nationalaglawcenter.org/wp-content/uploads/assets/
crs/RL34641.pdf.
---------------------------------------------------------------------------
    A recent report from the University of Texas at Austin's Kay Bailey 
Hutchison Center for Energy, Law, & Business found that this ``pre-
consultation'' process entails significant delays.\29\ In interviews 
for that study, Fish and Wildlife Service staff self-reported that pre-
consultation lasts 18 months or more, depending on the project (well in 
excess of the statute's outer limit of 180 days).\30\ Despite this 
lengthy process, the Service chooses not to count this time toward the 
consultation deadline.\31\ The report identifies several projects that 
were tied-up in pre-consultation for extended periods.
---------------------------------------------------------------------------
    \29\See Taylor, et al., Protecting Species or Endangering 
Development? How Consultation Under the Endangered Species Act Affects 
Energy Products on Public Lands, Kay Bailey Hutchison Center for 
Energy, Law & Business Paper NO. 2016-03 (Aug. 2016), available at 
https://repositories.lib.utexas.edu/bitstream/handle/2152/40956/
2016_08_03_Protecting_Species_ Endagering.pdf?sequence=2&isAllowed=y.
    \30\See id. at 8.
    \31\See id. at 36 (conceding that the Service's calculations 
``underestimate the total length of the consultation process'').
---------------------------------------------------------------------------
    Take, for instance, the Tule Wind Project in Southern California, a 
renewable energy project intended to power 60,000 homes. The pre-
consultation period lasted 10 months, during which the Fish and 
Wildlife Service requested a survey of the area for Quino checkerspot 
butterflies. But that was only the beginning of the project's delays. 
Once the Service deemed the submission complete, formal consultation 
took another 335 days. At the end of that protracted process, the 
Service determined the project was not likely to jeopardize the 
species.\32\
---------------------------------------------------------------------------
    \32\See id. at 65.
---------------------------------------------------------------------------
    Or consider the Black Hills Western Properties Master Development 
Plan, an oil and gas development project. Although the Service reports 
that consultation officially took only 106 days, including the pre-
consultation period shows that the actual delay was more than 250 
days.\33\
---------------------------------------------------------------------------
    \33\See id. at 71.
---------------------------------------------------------------------------
    The full extent of pre-consultation delays is unknown. This is 
because the Service declined a Government Accountability Office 
recommendation to develop data on pre-consultation.\34\ But the problem 
is widely acknowledged.
---------------------------------------------------------------------------
    \34\GAO, Endangered Species Act: Many GAO Recommendations Have Been 
Implemented, but Some Issues Remain Unresolved 3 (2008), available at 
http://www.gao.gov/new.items/d09225r.pdf (reporting that FWS & NMFS 
have not tracked the delays caused by ``preconsultation'' despite GAO 
recommendation).
---------------------------------------------------------------------------
    In practice, the demands for evermore information during pre-
consultation reflects how the agency uses the ``best scientific and 
commercial information available'' standard inconsistently. This is the 
same standard used to make decisions whether to list a species under 
the ESA. Yet, at that step, the Service does not consider lingering 
uncertainty an obstacle to asserting regulatory authority over a 
species. But when the same standard is used for consultation or 
delisting a species, the Service relies on uncertainty to delay its 
response or avoid giving up regulatory control.\35\
---------------------------------------------------------------------------
    \35\See 81 Fed. Reg. 59,962 (Aug. 31, 2016) (declining to delist 
the California gnatcatcher despite two scientific studies supporting 
delisting, which were prepared at the Service's suggestion, because of 
lingering uncertainty).
---------------------------------------------------------------------------
    The evidence that consultation results in substantial delays and 
expense is clear. However, in 2015, two Defenders of Wildlife employees 
released a paper claiming to debunk the argument that consultation 
burdens economic development and infrastructure projects.\36\ The 
headline from that report was that zero of the 88,290 consultations 
over the previous 7 years resulted in a project being denied, which the 
authors interpreted as evidence that consultation is no big deal.\37\ 
The paper also acknowledged that one out of every five formal 
consultations exceed the deadlines set by Congress.\38\
---------------------------------------------------------------------------
    \36\See Jacob W. Malcom & Ya-Wei Li, Data contradict common 
perceptions about a controversial provision of the U.S. Endangered 
Species Act, 112 Proceedings of the National Academy of Sciences 15844 
(Dec. 29, 2015), available at www.pnas.org/content/112/52/15844.full.
    \37\This finding is similar to previous studies, which have 
consistently found that the vast majority of projects delayed by 
consultation are ultimately found not to be a threat to the species. 
See James Salzman, Evolution and application of critical habitat under 
the Endangered Species Act, 14 Harv. Envtl. L. Rev. 311 (1990) 
(reporting that ESA consultations only find that a project could 
jeopardize a species in 0.7% of the time).
    \38\See Malcolm & Li, supra note 36.
---------------------------------------------------------------------------
    Although the press touted the paper as proving consultation is not 
burdensome, the study is omits a great deal, giving an incomplete 
picture of the issue.\39\ First, it omits delays during pre-
consultation, a point which the authors implicitly conceded.\40\ This 
is a significant defect because, as a published criticism explains, 
``the Service has unilateral authority to determine when a consultation 
package is complete, and therefore when formal consultation 
commences.'' The authors of that criticism, who are experienced ESA 
lawyers, explained ``in our experience, substantial time and resources 
frequently are expended before the Service agrees to initiate formal 
consultation.''\41\ Second, the Defenders of Wildlife paper looks only 
at projects rejected at the end of consultation and additional costs 
imposed at that late stage. However, this myopic focus ignores the 
projects that are pre-emptively abandoned or made more expensive by 
conditions imposed earlier, including in pre-consultation.\42\
---------------------------------------------------------------------------
    \39\See Douglas Main, Study erases misconceptions about Endangered 
Species Act, raises questions about enforcement, Newsweek (Dec. 17, 
2015), available at http://www.newsweek.com/study-erases-
misconceptions-about-endangered-species-act-raises-questions-406553 
(criticizing the Defenders of Wildlife study for failing to take 
account of the delays caused by consultation and the costs tied to 
changes that are made in response to consultation).
    \40\See Weiland, et al., Analysis of data on endangered species 
consultation reveals nothing regarding their economic impacts, 113 
Proceedings of the National Academy of Sciences E1593 (Mar. 22, 2016), 
available at http://www.pnas.org/content/113/12/E1593.full.pdf 
(pointing out this problem with the paper); Malcolm & Li, Reply to 
Weiland et al.: The point is to bring data to inform policy, not to 
rely solely on anecdotes, 113 Proceedings of the National Academy of 
Sciences E1594 (Mar. 22, 2016), available at http://www.pnas.org/
content/113/12/E1594.extract (failing to respond to the point).
    \41\Weiland, et al., supra note 36.
    \42\See Taylor, et al., supra note 2529 at 36 (explaining that most 
project modifications are imposed during ``pre-consultation'').
---------------------------------------------------------------------------
    The Defenders of Wildlife paper's limitations aside, the conclusion 
its authors draw is largely a matter of perspective rather than 
evidence. Another way to interpret the results is that, during the 
first 7 years of the Obama administration, nearly 100,000 projects had 
to undergo time-consuming and expensive consultation even though none 
of them would likely jeopardize a listed species or its habitat. Making 
matters worse, nearly 1,300 major projects were delayed for more time 
than the law permits, even though they too would not likely jeopardize 
a species or its habitat. Looking at it from this perspective, the 
results reported in the paper hardly seem worth celebrating.
   the impacts of delays are compounded because consultation must be 
                    reinitiated if anything changes
    Delays resulting from consultation are doubly harmful to project 
proponents because they increase the risk that consultation must be 
reinitiated. Anytime there is a change in the project area, because a 
new species has been listed, habitat designated, or information about a 
species discovered, consultation must be redone. As the example above 
of Liberty Mining demonstrates, reinitiated consultation can be just as 
burdensome and time-consuming as the original consultation.
    Many projects, particularly timber harvesting, are repeatedly held 
up by reinitiated consultation.\43\ For example, Lone Rock Timber 
Company was unable to exercise a timber contract for 3 years because 
consultation had to be reinitiated three separate times.\44\ Another 
timber project was delayed nearly a year and a half because of 
reinitiated consultation based on a new listing.\45\
---------------------------------------------------------------------------
    \43\See Jeremy Brian Root, Limiting the Scope of Reinitiation: 
Reforming Section 7 of the Endangered Species Act, 10 Geo. Mason. L. 
Rev. 1035 (2002).
    \44\See Lone Rock Timber Co. v. U.S. Dep't of Interior, 842 F. 
Supp. 433 (D. Or. 1994).
    \45\See Precision Pine & Timber, Inc. v. United States, 596 F.3d 
817 (Fed. Cir. 2010).
---------------------------------------------------------------------------
    The prospect of delaying projects by forcing consultation to be 
reinitiated creates bad incentives that encourage frequent change to 
the ESA species lists and critical habitats, as well as litigation from 
groups who oppose development projects. Unfortunately, the courts have 
largely sided with those bringing these lawsuits. In 2015, the Ninth 
Circuit ruled against the Obama administration in Cottonwood 
Environmental Law Center v. USFS,\46\ and ordered reinitiation of 
consultation based on new developments where an agency action was 
already complete. The result: the Forest Service had to redo its 
comprehensive programmatic consultation, complicating all timber 
projects related to it. The group that brought the lawsuit, on the 
other hand, will likely turn a tidy profit, as it will be entitled to 
seek its attorneys' fees.
---------------------------------------------------------------------------
    \46\789 F.3d 1075 (9th Cir. 2015).
---------------------------------------------------------------------------
    consultation also holds up projects that benefit the environment
    As costly as delays from consultation are, many people intuitively 
assume that those delays benefit listed species. However, the intuition 
that preventing activity always helps species is wrong. Consultation 
also delays environmental regulation\47\ and projects that would 
benefit species, depletes agency resources that could be better put to 
proactive recovery efforts, and saps economic growth that could unleash 
even more resources for conservation.
---------------------------------------------------------------------------
    \47\Jesse Greenspan, FWS, NMFS Sued for ESA Consultation Delays, 
Law360.com (Aug. 3, 2010), available at https://www.law360.com/
articles/184967/fws-nmfs-sued-for-esa-consultation-delays 
(environmentalists challenging consultation delays in approving water 
quality standards).
---------------------------------------------------------------------------
    For instance, consultation has frustrated PLF client Save Crystal 
River's efforts to restore manatee habitat in Florida. Save Crystal 
River is spending $50 million dollars to restore 80 acres of habitat 
that have been harmed by invasive algae growth, which crowds out the 
sea grass on which the manatee feeds. Consultation delayed this 
environmentally friendly project by months and imposed conditions that 
forbid Save Crystal River from working during much of the year, which 
unduly raises the project's costs.
    Save Crystal River's experience is no anomaly. Several years ago, I 
attended a presentation by a U.C. Davis Ph.D. student who was pursuing 
an experiment to recover California's endangered salmon. That project 
encourages rice farmers to permit salmon to occupy their flooded fields 
for crucial months during the species' migration to the ocean.\48\ By 
giving young salmon access to more food at a crucial time in their 
development, the project led to much healthier salmon populations. When 
asked whether it was difficult to get farmers to cooperate, for fear 
that it might subject them to ESA regulation, the student responded 
``no.'' Instead, the biggest hurdle for the project was navigating the 
ESA regulatory process, including consultation.
---------------------------------------------------------------------------
    \48\See Jacques Leslie, The Sushi Project: Farming Fish and Rice in 
California's Fields, E360.com (Oct. 29, 2015), available at http://
e360.yale.edu/features/the_sushi_project_farming_ 
fish_and_rice_in_californias_fields.
---------------------------------------------------------------------------
    Even infrastructure projects can be environmentally friendly if you 
compare them to what would happen if infrastructure were not properly 
maintained.\49\ I began my remarks with the near-collapse of the 
Oroville Dam. In the weeks following the flood, the environmental 
impacts continued to mount. These impacts include substantial bank 
erosion downstream and stranded endangered salmon.\50\ If the dam had 
burst, these impacts would have been even more significant.
---------------------------------------------------------------------------
    \49\See John Siciliano, House tees up fight to limit endangered 
species rules, Wash. Examiner (Mar. 1, 2017), available at http://
www.washingtonexaminer.com/house-tees-up-fight-to-limit-endangered-
species-rules/article/2616049; Jamie Johansson, Oroville shows need for 
flood-control projects, Monterey Herald (Mar. 4, 2017), available at 
http://www.montereyherald.com/article/NF/20170304/LOCAL1/170309920.
    \50\See Peter Fimrite, Measures save young salmon after failure of 
Oroville Dam spillway, SF Gate (Mar. 21, 2017), available at http://
www.sfgate.com/science/article/Measures-save-young-salmon-after-
failure-of-11015659.php (the Oroville Dam spillway catastrophe 
threatened nearly a billion endangered salmon); Kurtis Alexander & Tara 
Duggan, Riverbanks collapse after Oroville Dam spillway shut off, San 
Fran. Chron. (Mar. 4, 2017), available at http://www.sfchronicle.com/
bayarea/article/Riverbanks-collapse-after-Oroville-Dam-spillway-
10976144. php (describing the environmental damage in the wake of the 
near-collapse of the Oroville Dam).
---------------------------------------------------------------------------
    Across the country, we have many dams, bridges, and roads that are 
approaching the end of their engineered life. If the slow, burdensome 
consultation process causes communities to delay necessary upgrades and 
improvements, then the environment and endangered species could 
ultimately pay the price when that infrastructure fails.\51\
---------------------------------------------------------------------------
    \51\See Nicola Ulibarri, Oroville Dam's close call shows regulatory 
need to account for climate change, Sac. Bee (Mar. 5, 2017), available 
at http://www.sacbee.com/opinion/op-ed/soapbox/article136339743.html 
(acknowledging that the 10-year delay in reauthorizing and repairing 
Oroville Dam is due in part to the consultation process).
---------------------------------------------------------------------------
                               conclusion
    We all want to see endangered species recover. The question, 
really, is how effective and efficient is consultation at contributing 
to that recovery. The evidence shows that consultation is a significant 
strain on economic development and public-safety projects, even though 
all or nearly all the projects do not jeopardize species. That suggests 
too many projects, particularly state and private projects with a de 
minimis Federal nexus, undergo consultation, sapping the resources of 
the agencies that administer the ESA. Because those resources cannot 
keep up with demand, consultation for major Federal infrastructure 
projects takes more time than Congress intended, much of that time 
hidden in so-called ``pre-consultation.''
    When necessary infrastructure maintenance and upgrades are put-off 
because of these delays and costs, that can significantly harm species 
and the environment. The damage from infrastructure crumbling and 
failing can be far higher than the modest impacts of repairs and 
upgrades.
    Ultimately, we need to rethink some of our assumptions about 
protecting species. The intuition that stopping human activity always 
benefits species is wrong. On the contrary, economic growth unleashes 
more resources for proactive conservation and recovery efforts. 
Regulations and consultations that restrict that growth without 
benefiting species are therefore doubly harmful.

                                 ______
                                 

    Questions Submitted for the Record to Mr. Jonathon Wood, Staff 
                   Attorney, Pacific Legal Foundation
                  Questions Submitted by Rep. Labrador
    Question 1. Please explain how the Endangered Species Act 
consultation process impacts the ability to maintain infrastructure, 
and to respond to emergencies involving infrastructure.

    Answer. The ESA consultation handbook\1\ generally forbids FWS from 
obstructing any effort to respond to an emergency, especially where 
human lives are at stake. FWS can make recommendations so that adverse 
impacts to species can be avoided. But, unlike for most other projects, 
the emergency response proceeds without delay.
---------------------------------------------------------------------------
    \1\See Fish & Wildlife Serv., Final ESA Section 7 Consultation 
Handbook, Ch. 8 (Mar. 1998), available at https://www.fws.gov/
endangered/esa-library/pdf/chapter8.pdf.
---------------------------------------------------------------------------
    Thus, rather than preventing emergency responses, the ESA 
consultation process likely affects emergencies by making them more 
likely. As I explained in my earlier written testimony, we have aging 
infrastructure around the country nearing the end of its engineered 
life. To avoid that infrastructure failing--and the emergency that 
failure would create--it is imperative that timely repairs and upgrades 
are done. However, the slow, bureaucratic consultation process 
discourages pre-emptive maintenance and upgrades, by making them more 
expensive and take longer to complete.
    To ensure that this much-needed work can be done in a timely and 
cost-effective manner, ESA consultation should focus on those major 
Federal projects that require additional scrutiny. Every Federal agency 
has an independent obligation to ensure their actions do not jeopardize 
listed species or adversely modify habitat.\2\ For small projects with 
a trivial Federal nexus and minor environmental impacts, this first 
layer of scrutiny is enough.\3\ ESA consultation should be an 
additional look by FWS at major Federal projects with commensurately 
greater environmental impacts. It should not be a redundant layer of 
red tape applied to every project.
---------------------------------------------------------------------------
    \2\16 U.S.C. Sec. 1536(a)(2).
    \3\See Jacob W. Malcom & Ya-Wei Li, Data contradict common 
perceptions about a controversial provision of the U.S. Endangered 
Species Act, 112 Proceedings of the National Academy of Sciences 15844 
(Dec. 29, 2015), available at www.pnas.org/content/112/52/15844.full 
(acknowledging that hundreds of thousands of projects must go through 
consultation even though they do not jeopardize species).
---------------------------------------------------------------------------
    The burdens of consulting on every project that requires a Federal 
permit or funding add up. Consider, for instance, how difficult it is 
to timely complete a significant project while also monitoring an 
endless stream of e-mails. Although no individual e-mail eats up much 
of your time, the large number of minor distractions add up to make 
completing the significant project impossible. So to with consultation. 
FWS cannot quickly complete consultation for major projects because 
they are also doing consultations for an endless stream of minor 
projects with only a trivial Federal nexus and few environmental 
impacts. Individually, those consultations may not seem like much. But, 
like the e-mails, they are a significant drain on the Service's ability 
to focus on those relatively few projects that really require the 
additional layer of scrutiny.

    Question 2. In your experience, what kind of challenge is presented 
when new listings require changes, such as the construction of a fish 
ladder, to infrastructure that was designed and built decades ago?

    Answer. Modifying an existing structure is generally more expensive 
and difficult than changing the design of a new structure. 
Environmental law has long struggled with this difficulty, across many 
contexts. The Clean Air Act, for instance, treats existing pollution 
sources differently than new sources, precisely because it is more 
difficult and expensive to modify an existing plant than to incorporate 
fresh technologies in the design of a new plant.\4\
---------------------------------------------------------------------------
    \4\See Richard L. Revesz & Allison L Westfahl Kong, Regulatory 
Change and Optimal Transition Relief, 105 Northwestern U. L. Rev. 1581 
(2011).
---------------------------------------------------------------------------
    The same is true of modifications required after consultation. 
Ordinarily, this issue would not arise since the ESA forbids committing 
resources to a project that would make accommodating species concerns 
difficult until consultation concludes.\5\ However, the recent 
expansion in the need for reinitiated consultation makes it more likely 
that consultation will require expensive and time-consuming after-the-
fact modifications.
---------------------------------------------------------------------------
    \5\See 16 U.S.C. Sec. 1536(d).

    Question 3. In your written testimony, you mentioned Cottonwood 
Environmental Law Center v. U.S. Forest Service, in which the court 
determined that the Forest Service broke the law by not reinitiating 
consultation on an already-completed agency action. Given this 
interpretation of the ESA, can an agency ever really consider the 
consultation process over? What kind of effect might this potentially 
never-ending requirement to reinitiate consultation have upon agency 
planning capabilities and private investment in infrastructure 
---------------------------------------------------------------------------
projects?

    Answer. The Cottonwood Environmental Law Center v. U.S. Forest 
Service decision will make consultation more burdensome and time-
consuming by requiring more projects to go through additional 
consultations.\6\ Tellingly, even the Obama administration opposed that 
decision, likely because it recognized the consequences a broad duty to 
reinitiate consultation would have for projects and Federal agencies. 
In my written testimony, I analogized the problems ESA consultation 
faces as a gridlock highway trying to add even more cars. More 
reinitiated consultations will further increase traffic and make 
consultation slower and more burdensome.
---------------------------------------------------------------------------
    \6\789 F.3d 1075 (9th Cir. 2015).

    Question 4. In your written testimony you mentioned several 
instances in which consultation had to be reinitiated and the well-
being of species or people were jeopardized as a result. Can you 
elaborate a bit more about situations in which reinitiated consultation 
was more harmful than helpful and do you have suggestions about how to 
improve reinitiated consultation processes? Do you believe lapse of 
---------------------------------------------------------------------------
time is an adequate basis for reinitiated consultation?

    Answer. It makes sense to consider newly listed species or changes 
to critical habitat when those changes occur at a time when a project 
can reasonably be modified to accommodate them. But the economic impact 
of late modification--which, as explained above, will be greater for 
projects that have already been constructed--must also be considered. 
Ultimately, the most effective way to streamline consultation is to 
consider carefully how many of the hundreds of thousands of projects 
that currently go through it really need to. If consultation was 
limited to major projects, and thus only those projects were subject to 
reinitiated consultation, FWS could focus its limited time and 
resources where they could do the most good.
                  Questions Submitted by Rep. Grijalva
    Question 1. For the last 5 years, how much of Pacific Legal 
Foundation's annual operating revenue was comprised of attorneys' fee 
awards or awards of costs? Please explain the hourly attorney rate that 
PLF requested from the court in each case and, if applicable, please 
note the hourly rate the court award or approved through settlement and 
why.

    Answer. As the cover page notes, PLF's funding comes from its 
nearly 10,000 supporters, the vast majority of which are individual 
donors contributing in small amounts. PLF does not receive a 
substantial amount of attorneys' fees for its ESA litigation, largely 
because attorneys' fees are rarely available to individuals challenging 
illegal or excessive regulation. However, they are routinely given to 
groups seeking to expand ESA regulation.
    Typically, PLF only receives attorneys' fees under the ESA when it 
sues Federal agencies to force them to act on their own scientists' 
recommendations that a species be downlisted or delisted. The U.S. Fish 
and Wildlife Service routinely ignores its own biologists' 
determinations that a species' status should be changed. In Coos County 
Board of County Commissioners v. Kempthorne, PLF challenged this 
practice, arguing that the Service must act on those determinations 
without requiring someone to go through the unnecessary exercise of 
filing a petition and follow-up lawsuits.\7\ If the Ninth Circuit had 
agreed with PLF, this litigation would be unnecessary and PLF would not 
receive even these minimal fees. But, alas, it didn't.
---------------------------------------------------------------------------
    \7\531 F.3d 792 (9th Cir. 2008).

    Question 2. I have submitted for the record a stipulated settlement 
agreement filed on August 25, 2014 in the U.S. District Court for the 
Middle District of Florida that awards the Pacific Legal Foundation 
attorneys' fees and costs in connection with its lawsuit against the 
U.S. Fish and Wildlife Service under the Endangered Species Act. There 
are also many examples of PLF being awarded attorneys' fees under the 
Equal Access to Justice Act. How much in attorneys' fees has PLF 
collected under either the Endangered Species Act, the Equal Access to 
Justice Act, Federal Rule of Civil Procedure 54(d) or any other 
---------------------------------------------------------------------------
applicable fee award relief applicable in environmental lawsuits?

    Answer. Over the last 5 years, PLF has filed four such lawsuits, 
which the government did not defend (since it couldn't) and PLF 
received nominal fees. In 2016, for instance, PLF sued the Service for 
its failure to delist the black-capped vireo, a full 10 years after the 
Service's own biologists determined that it should.\8\ As I explained 
in my written testimony, the Service's practice of ignoring its 
scientists unnecessarily subjects projects to consultation for species 
that no longer require the ESA's protections and, in some cases, 
haven't for years.
---------------------------------------------------------------------------
    \8\See Press Release, Pacific Legal Foundation, PLF suit prods feds 
to recognize black capped vireo's recovery (Dec. 16, 2016), available 
at https://www.pacificlegal.org/releases/release-12-16-16-new-mexico-
cattle-growers-association-v-jewell-12-622.

    PLF has not received a substantial amount of attorneys' fees\9\ for 
ESA litigation in any of the past 5 years:
---------------------------------------------------------------------------
    \9\These fees were negotiated as part of the settlement for each 
case. The settlements only include a total amount; they do not separate 
attorneys' fees from costs or set an hourly rate.

     In 2016, PLF received a paltry $4,457.69 in attorneys' 
            fees under the ESA, which was a mere 0.05 percent of PLF's 
---------------------------------------------------------------------------
            funding.

     In 2015, PLF received no attorneys' fees for ESA 
            litigation.

     In 2014, PLF received $8,700 combined for two ESA 
            lawsuits, including the manatee case mentioned in the 
            question. This was less than 0.07 percent of PLF's revenue 
            that year.\10\
---------------------------------------------------------------------------
    \10\See Press Release, Pacific Legal Foundation, Prodded by PLF 
suit, feds agree to reconsider the manatee's ``endangered'' status 
(July 2, 2014), available at https://www.pacificlegal.org/releases/7-2-
14-Prodded-by-PLF-suit-feds-agree-to-reconsider-the-manatees-
endangered-status; Jonathan Wood, FWS finally acknowledges its illegal 
caribou listing, PLF Liberty Blog (May 7, 2014), available at http://
blog.pacificlegal.org/fws-finally-acknowledges-illegal-caribou-
listing/.

     In 2013, PLF received no attorneys' fees for ESA 
---------------------------------------------------------------------------
            litigation.

     In 2012, PLF received $6,100 in ESA attorneys' fees, which 
            was less than 0.07 percent of its revenue in 2012.

    The meager amount of attorneys' fees that PLF has received from ESA 
litigation during each of the last 5 years accurately reflects how 
little PLF has historically received under this statute. Over the last 
10 years, less than 0.2 percent of PLF's funding has come from ESA 
attorneys' fees. Simply put, PLF owes its ability to pursue its work to 
the generosity of its thousands of individual donors, not profit from 
excessive ESA attorneys' fee awards.

                                 ______
                                 

    Mr. Labrador. I thank the witnesses for their testimony. I 
would like to remind the Members that Committee Rule 3(d) 
imposes a 5-minute limit on questions.
    To begin questioning, I recognize myself for 5 minutes.
    Mr. Stiles, thank you for traveling out here from Idaho to 
testify. It is always good to see you. Even though Hecla is 
based in Idaho, you have operations throughout the United 
States. I understand you are currently working on projects in 
Montana. How many jobs would your projects bring to rural 
Montana?
    Mr. Stiles. Thank you for the question, Chairman. Our 
projects combined we estimate would bring about 600 to 1,000 
full-time jobs to northwest Montana, once in operation. 
Probably, to begin with, 50 to 60 each--a significant number of 
jobs in an area that leads the state of Montana in----
    Mr. Labrador. You also testified that your project would 
actually help grizzly populations in that area. Is that 
correct?
    Mr. Stiles. Correct. The mitigation plans for these 
projects require us to purchase thousands of acres of 
mitigation land for grizzly bear. And, like I mentioned, the 
Ninth Circuit actually ruled on the Rock Creek project and 
stated--concurred, actually, with the Fish and Wildlife 
Service--that the mitigation plans required by the projects are 
actually recovery plans. And if the company didn't provide the 
funds for those, then there essentially was no other funding 
available for it.
    Mr. Labrador. Would the production from your projects also 
help Montana boost our domestic metal production and our 
economy?
    Mr. Stiles. Absolutely, yes.
    Mr. Labrador. Is it correct to say that Montana residents, 
grizzlies, and indeed, our Nation have missed out on 30 years 
of benefits that these projects would have generated, due to 
consultation delays and incessant litigation?
    Mr. Stiles. I think that is a fair statement, yes.
    Mr. Labrador. Mr. Stiles, have mining companies been 
deterred from developing projects in that region, due to the 
regulatory burdens imposed by the ESA? And are they instead 
choosing to invest in projects overseas?
    Mr. Stiles. Yes, the regulatory uncertainty in certain 
areas of the United States is simply too much for large-scale 
projects.
    Mr. Labrador. Delays and consultation can jeopardize public 
safety, as well. In fact, Committee staff met with individuals 
from Williamson County in Texas to discuss how their booming 
population has been impacted by ongoing delays in consultation 
for roads due to endangered spider.
    Mr. Wood, you also referred to this situation in your 
written testimony. Can you elaborate on how delays have 
impacted this and other public health and safety projects?
    Mr. Wood. Sure, absolutely. Any time you have a significant 
public safety project, it will have to go through consultation 
if the Federal Government is involved. And one of the points I 
stress in my written testimony is that that process cannot move 
quickly, and routinely exceeds the statutory deadline because 
the agencies have to process so many of these minor projects.
    So, if you have a major highway project, a dam, a bridge, 
that is going to take far longer than it has to because of the 
excessive demands put on agency resources.
    Mr. Labrador. Thank you. Mr. Calkins, you mentioned that 
the late consultation on a levee resulted in the death of three 
people and massive amounts of property damage. Is that correct?
    Mr. Calkins. That was not part of my testimony. No, sir.
    Mr. Labrador. OK, that was in the written testimony.
    Mr. Calkins. Oh, I am sorry. Yes.
    Mr. Labrador. How has protracted consultation impacted your 
members across the Nation? Do you have specific examples of 
other cases in which drawn-out consultation impacted your 
members' ability to serve the public?
    Mr. Calkins. Yes, sir. We have 29,000 members across the 
United States, and a lot of public works professionals all over 
the states have had difficulty with the time and the cost 
delays.
    The examples I am mostly familiar with, of course, are from 
the Ventura County area. But we would be happy to provide more 
specifics for the Committee.
    Mr. Labrador. OK. Last year, a Federal judge mandated that 
the entire system undergo a 5-year NEPA analysis, costing 
taxpayers and Pacific Northwest ratepayers some $40 million, 
and suggesting that removal of some of the dams is a potential 
outcome. And yesterday, a Federal judge granted some relief in 
yet another chapter of this litigation.
    Mr. Wood, is this an example of ESA Section 7 consultation 
success?
    Mr. Wood. Absolutely. Litigation is a big part of all of 
the problems we see in the Endangered Species Act. It really 
has become a make-work for lawyers.
    Mr. Labrador. OK. Mr. Li, do you agree with Mr. Calkins? At 
the end of his testimony he said that we need a better balance 
between the protection of endangered species and the ability to 
implement important public works and infrastructure projects. 
Do you agree with him?
    Mr. Li. I disagree that we need a better balance. I think 
the Endangered Species Act provides an adequate process to 
balance those two objectives.
    Mr. Labrador. That is what I thought. I just wanted to get 
that on the record. Thank you. I now recognize Mr. Grijalva.
    Mr. Grijalva. Mr. Calkins, in your testimony you repeat the 
fable that the endangered species protections for the Valley 
longhorn elderberry beetle caused the failure of the levee on 
the Feather River in 1997. The creator of that story, a former 
Chairman of this Committee, began those misleading and 
unpopular attacks on the ESA back then.
    The Department of the Interior, the Army Corps of 
Engineers, the Center Delta Water Agency, and the California 
Department of Fish and Game all rejected the idea that the 
levee failure had anything to do with the Endangered Species 
Act. Despite this overwhelming evidence to the contrary, do you 
still stand by the claim that ESA was responsible for the 
levee's failure? A yes or no answer, if you don't mind, sir.
    Mr. Calkins. A contributing factor.
    Mr. Grijalva. So, that is a yes or a no?
    Mr. Calkins. Yes.
    Mr. Grijalva. Thank you. Mr. Li, will you please briefly 
discuss why misleading assertions in this case and similar 
cases, the ones around the most recent incident at the Oroville 
Dam, get the whole picture of ESA consultation all wrong?
    Mr. Stiles referred to litigants opposing and holding up 
Hecla's Rock Creek and Montanore mines in Montana. I believe 
Mr. Stiles is referring to the Clark Fork Coalition, the Save 
Our Cabinets group, Rock Creek Alliance, the Montana 
Environmental Information Center, community and regional groups 
opposed to actions that would irreparably harm local drinking 
water, fishing streams, wildlife, and recreation opportunity 
near these proposed mines.
    For three decades, companies have been attempting to 
develop silver and copper deposits under the Cabinet Mountains 
in northwest Montana. And for three decades, company after 
company has failed to secure the support of the local 
communities and the necessary permits to operate Rock Creek and 
Montanore mines.
    At the current time, the Rock Creek mine is held up because 
a judge ruled that the Forest Service approval did not comply 
with the agency's mining regulations. The Montanore mine, the 
state of Montana says the mine cannot be developed without 
violating state water quality requirements. While the 
Endangered Species played a role in the permitting process, and 
it rightfully should, it is clear that there are numerous other 
issues regarding mining impacts to water quality, wilderness, 
and local recreation that prevented the construction and the 
operation of these mines.
    Why do you think it is easier for some to blame the ESA and 
the consultation process, instead of acknowledging that many of 
the concerns and reasons for the delay is the potentially 
destructive mining operation?
    Mr. Li. That is a great question. In my experience, the 
Endangered Species Act is often a convenient scapegoat for 
other environmental problems. It is the law of last resort, and 
there is all this pressure to prevent extinction that falls on 
the Endangered Species Act because upstream laws and programs 
at the state and sometimes at the Federal level are not working 
adequately to prevent species from falling into risk of 
extinction. That is why I think we see a lot of that pressure 
on the ESA.
    The other thing we also see is that it is not just 
endangered species issues, as you said. There are other 
environmental problems that sometimes are at play: clean water, 
clean air, and land for recreation. Oftentimes, the blame is on 
the Endangered Species Act, but there are these other factors 
that are also a problem.
    Mr. Grijalva. And, while it is easy to categorize the group 
that is opposing them as merely litigants, this is a broad-
based community opposition of magnitude and duration. And like 
you said, it suggests reasons beyond the ESA consultation that 
have, thus far, for three decades prevented the operation of 
these mines.
    Mr. Chairman, if I may, I have three unanimous consent 
requests.
    I ask unanimous consent to enter into the record a comment 
letter from the state's draft water pollution permit and the 
Fish and Wildlife Service memo to the Montana ore mine which 
shows, contrary to what we heard today, the current project 
proposal is significantly different from previous proposals 
with distinct applications for the Endangered Species Act and 
other water resources.
    Also, an excerpt from the State Record of Decision in 
Montana in a court case which shows no project delays have 
occurred as a result of ESA. And, in fact, the state has 
determined that the project could not proceed past evaluation--
--
    Mr. Labrador. Without objection, so ordered. I don't think 
we need to make an editorial----
    Mr. Grijalva. It wasn't an editorial, it was an 
explanation.
    Mr. Labrador. Thank you.
    Mr. Grijalva. You are welcome. I yield back.
    Mr. Labrador. I now recognize Mr. Johnson for 5 minutes.
    Mr. Johnson. Thank you, Mr. Chairman. I apologize for being 
a little late this morning. I had another meeting. I would ask 
unanimous consent that the text of my opening statement be 
entered into the hearing record.
    Mr. Labrador. Without objection, so ordered.
    [The prepared statement of Mr. Johnson follows:]
   Prepared Statement of the Hon. Mike Johnson, a Representative in 
                  Congress from the State of Louisiana

    Thank you, Mr. Chairman and thank you to our witnesses for being 
here today. On its face, Section 7 of the Endangered Species Act seems 
pretty straightforward--it provides clearly defined timelines the 
Federal agencies tasked with implementing the ESA must follow in order 
to advance projects that have a Federal nexus, which includes funding 
and permitting.

    However, as you will hear today, Section 7's real-world operation 
is anything but straightforward. Through Section 7, the Fish and 
Wildlife Service or the National Marine Fisheries Service can delay 
projects indefinitely, years in many cases, simply by continually 
requesting additional information before allowing the formal 
consultation process to proceed. In addition, outside interest groups, 
often fundamentally opposed to development, use the courts as an 
offensive weapon, routinely suing the implementing agencies in order to 
further frustrate project development and drain taxpayer money away 
from conservation efforts.

    The Section 7 consultation process has cost companies millions of 
dollars, deprived local economies of countless jobs, held up projects 
that were undertaken to protect public safety or to further species 
conservation goals, and in some cases dissuaded companies from even 
proposing a project in the United States--sending jobs and production 
efforts overseas.

    This is not how the Endangered Species Act was intended to 
function. The Act can and should be modernized, and it should be 
implemented with transparency. I am confident that these goals can be 
accomplished through the work of this Committee.

    I am looking forward to hearing from our witnesses today and to 
hear their suggestions for improving the Section 7 consultation 
process. Thank you once again for holding this very important hearing, 
Mr. Chairman, and I yield back the balance of my time.

                                 ______
                                 

    Mr. Johnson. Thank you, and thank all you gentlemen for 
being here this morning. Mr. Wood, the Defenders 2015 article 
that we have in the record says this, ``Consultations often 
require months or years to complete because of inadequate data 
on species which may suspend FWS's analysis until better data 
are collected and provided.''
    The question I have is, who decides whether an adequate 
level of data exists so that a consultation can proceed?
    Mr. Wood. The Fish and Wildlife Service.
    Mr. Johnson. And the Defenders 2015 article also concluded 
that duration of consultation varied by region, and that the 
identity of the lead biologist on a consultation is the best 
predictor of variation in duration of consultation.
    The question is, in your experience, is that a correct 
statement?
    Mr. Wood. I think that is right. Which bureaucrat you have 
reviewing your project makes a huge difference.
    Mr. Johnson. OK. Well said. All right.
    Mr. Stiles, you stated in your written testimony that a 
change in the local Fish and Wildlife Service employee resulted 
in a delay of more than a year. I am just wondering if you can 
elaborate on how the local office and its personnel impacted 
your project's consultation.
    Mr. Stiles. Yes. On that particular project--and this was 
going back several, several years, on one of the first 
consultations--the biologist who was working on that particular 
consultation was transferred to a different region or district. 
And it took the Service over 12 months, with repeated requests 
from the company to congressional delegation folks, to the Fish 
and Wildlife Service themselves, to replace that individual. 
And it just didn't happen. So, in that case, the consultation 
just sat there.
    Mr. Johnson. Thank you.
    Mr. Wood, another one for you. In your experience, did 
local personnel, such as a lead biologist, have too great of an 
impact on the duration of a consultation? I am curious if you 
feel like one person can jeopardize a project based on their 
personal dislike of a project.
    Mr. Wood. They certainly have the ability to delay, because 
of the way they flexibly interpret the evidentiary standard, 
which I will note is the same one used for listing decisions. I 
think everyone would be outraged if the Service used this same 
sort of argument to refuse to make a determination whether to 
list an endangered species, citing the need for even more 
evidence. The same standard applies to both, yet the Service is 
interpreting it differently, depending on what is going to 
happen.
    Mr. Johnson. Let me ask you. What consequences do either 
FWS or the National Marine Fisheries face if they fail to meet 
any of the ESA's statutory consultation deadlines?
    Mr. Wood. There is the possibility to sue if they take an 
exceedingly long period of time, but a project proponent would 
be ill-advised to do that, as it might anger the agency and 
perhaps impose more restrictions or preclude the project.
    Mr. Johnson. Mr. Calkins, this one is for you. How was your 
relationship with local Service personnel? In your view, did 
they impact the duration of the project's consultation?
    Mr. Calkins. Yes, absolutely. And the passion to protect 
the species, I think they were either unwilling or unable to 
really look at the scientific data carefully and to balance the 
needs of the community.
    Mr. Johnson. Thank you.
    Mr. Li, I have one for you. You said this morning in your 
testimony that there is a chronic under-funding problem. I 
think those were your words. The question I have for you is 
kind of a criticism. I am sure you have heard it before. But 
from some things I read yesterday, your organization and its 
allies have filed more than 300 lawsuits since the Endangered 
Species Act was last reauthorized, and you have collected an 
estimated $21 million in legal fees, which are taxpayer 
dollars, of course. Sometimes it amounts to about $850 an hour 
for each of those attorneys.
    Of course, that drains money away from conservation, as we 
all would recognize. The question is--by the way, you all have 
been accepting Federal grants at the same time--so I am just 
wondering how you respond to that criticism when you hear it.
    Mr. Li. Sure. Our lawsuits are all designed to further 
conservation objectives. And we only get paid when we win. We 
do not file frivolous lawsuits, because it is not a good use of 
our resources.
    As far as our grants from the Federal Government, in 
particular Fish and Wildlife Service, that actually goes to on-
the-ground collaborative conservation, working with ranchers 
and others to find ways for human activities to co-exist with 
endangered species conservation.
    Mr. Johnson. I am very familiar with prevailing party 
attorneys' fees, because I was a religious liberty litigator 
for almost 20 years. But I never charged, ever, in any case, 
more than probably $300 an hour, because I knew, ultimately, 
that was taxpayer dollars. You think $850 an hour for one of 
your attorneys is fair, when you are so concerned about 
conservation funding?
    Mr. Li. I don't know the exact amount that we charge, and 
we would have to look into whether that is $850. I certainly 
don't get that much money at Defenders. So, we would have to 
get back to you on that amount, but that does not sound right.
    Mr. Johnson. I would encourage you to talk to your 
attorneys, because I think that is not quite fair. I will 
yield.
    Mr. Labrador. Thank you. I recognize Mr. McEachin for 5 
minutes.
    Mr. McEachin. Thank you, Mr. Chairman.
    Mr. Wood, although I have the privilege of being the 
Ranking Member, I am a rookie here. I am a freshman Member. I 
am not that familiar with your organization, so I would like to 
ask you a few questions about it, starting off with is it true 
that the Pacific Legal Foundation sues the Federal Government 
over its implementation of the Endangered Species Act?
    Mr. Wood. Yes.
    Mr. McEachin. Is it also true that your organization has 
received funding from the Koch Brothers?
    Mr. Wood. I am not aware of that. I know that less than 1 
percent of our funding comes from big businesses.
    Mr. McEachin. Is it true that you have received funding 
from ExxonMobil?
    Mr. Wood. I believe we have received some donations in the 
past, but I don't know whether they give today.
    Mr. McEachin. How about this group--the American Enterprise 
Institute?
    Mr. Wood. I don't know whether they give any money to PLF.
    Mr. McEachin. OK. Mr. Chairman, I would like to submit for 
the record documentation supporting affirmative answers to 
these questions.
    Mr. Labrador. Without objection, so ordered.

    [The information follows:]

                  Pacific Legal Fund Contributor List

    While most of the Pacific Legal Fund's (PLF) contributors are 
unknown, several major conservative funders have reported contributions 
to them, including the Koch Network, the Exxon/Mobil Foundation, the 
Adolf Coors Foundation, Dunn's Foundation for the Advancement of Right 
Thinking, and the Sarah Scaife Foundation.
Just a Few of the Pacific Legal Fund's Ultra Conservative and Corporate 
        Donors . . .
        
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
        

    The organizations that give PLF money have a history of donating to 
groups that advocate for extreme pro-business and conservative views. 
For example, the Union of Concerned Scientists has highlighted ten 
organizations as ``Global Warming Skeptics.''\1\ The conservative 
foundations that support PLF's work were also the key funders for each 
of the groups that the Union of Concerned Scientists identified as 
having a history of denying the existence of--or undermining 
demonstrable evidence for--climate change.
---------------------------------------------------------------------------
    \1\http://www.ucsusa.org/global_warming/solutions/fight-
misinformation/global-warming- skeptic.html#.WMgd_W8rJFE.

    The same foundations that contributed money to the Pacific Legal 
Fund donated a whopping $193 million dollars to nonprofit organizations 
who advocate against global warming.\2\ PLF's funders clearly wish to 
pollute the public debate with misinformation about environmental 
issues. The PLF and its ultra conservative and corporate donors want 
the same thing--to amplify a message that puts the interests of big 
business first and gives little thought to what will happen to 
America's treasured natural places.
---------------------------------------------------------------------------
    \2\Calculated using all IRS 990 nonprofit tax forms available for 
the organizations identified as global warming skeptics by the Union of 
Concerned Scientists. 990 IRS data includes contributions from 1985 to 
2014 and was tabulated by conservativetransparency.org/.

---------------------------------------------------------------------------
                                 ______
                                 

    Mr. McEachin. Sir, do you believe it is hypocritical for 
you to criticize other organizations for suing the government 
to keep ESA protections in place, while your organization is 
busy trying to tear them down?
    Mr. Wood. I don't believe that is what we are trying to do. 
But the answer to your question is no, because we rarely get 
attorneys' fees when we successfully sue the government. The 
way it works is, essentially, only environmental groups get 
that. If you are representing a property owner or someone 
unfairly burdened, attorneys' fees are not available.
    Mr. McEachin. Mr. Li, the Majority likes to complain that 
Federal agencies are not completing consultations fast enough, 
but at the same time denies those agencies the resources they 
need to get the job done.
    The latest example is this sign-on letter to House 
Appropriations requesting that they ignore Donald Trump's 
proposal to slash the budgets of the Interior and Commerce 
Departments, and instead fully fund the ESA-related work that 
these Departments do. The letter has been circulated widely to 
Members on both sides of the aisle for several weeks, and now 
has 66 co-signers. Sadly, not a single one is a Republican.
    I would like to submit this letter for the record.
    Mr. Labrador. Without objection, so ordered.
    Mr. McEachin. Thank you, Mr. Chairman.

    [The information follows:]

MEMORANDUM

From: The Honorable Donald S. Beyer, Jr.

Date: March 27, 2017

          Support Funding for Endangered Species Conservation

                           closing cob today

Current Signers (66): Grijalva, DeFazio, Tsongas, Pingree, Polis, 
Huffman, Eshoo, Connolly, Eleanor Holmes Norton, McNerney, Foster, Wm. 
Lacy Clay, Norcross, Pascrell, Keating, Moulton, Garamendi, Cleaver, 
Yarmuth, Quigley, Heck, Brownley, Soto, Conyers, Napolitano, Schiff, 
DeGette, Kind, Speier, Matsui, Danny K. Davis, Sires, Welch, Wasserman 
Schultz, Velazquez, Lieu, Lewis, Barbara Lee, Cohen, Schneider, 
Lawrence, Beatty, Cicilline, Shea-Porter, Schakowsky, Cardenas, 
Langevin, Doggett, Adam Smith, Payne, Lowenthal, Capuano, Cummings, 
Levin, Lofgren, Pocan, Nadler, Plaskett, Sanchez, Carolyn B. Maloney, 
Butterfield, Boyle, Costa, Hank Johnson

Dear Colleague:

Please join us in requesting that the House Appropriations Committee 
fully fund the endangered species functions of the U.S. Fish and 
Wildlife Service (FWS) and the National Marine Fisheries Service 
(NMFS), the agencies responsible for implementing the Endangered 
Species Act (ESA).

We are deeply concerned by the trend of underfunding ESA 
implementation, hampering the ability of FWS and NMFS to perform the 
critical task of preventing the permanent loss of species and of 
ensuring depleted species' recovery. Inadequate funding jeopardizes the 
nation's ability to conserve the ecosystems upon which endangered and 
threatened species depend. It also fails to provide the infrastructure 
sufficient to both effectively recover federally-listed species and 
prevent the need to list newly-depleted species. Quite simply, 
continued underfunding will delay species protection, make recovery 
harder and more expensive, and result in more litigation.

Adequate funding and staffing are crucial to support timely decision-
making based on the best scientific information and with effective 
public involvement They are also crucial to minimizing the risk of 
litigation regarding missed deadlines. Ultimately, full funding is 
necessary to protect the spectacular biological diversity we currently 
enjoy for many generations to come.

For additional information or to sign on, please contact Greg 
([email protected]) in Rep. Debbie Dingell's office or Kate 
([email protected]) in Rep. Don Beyer's office.

            Sincerely,

        Debbie Dingell,               Don Beyer,
        Member of Congress.           Member of Congress.

Attachment: Letter

                                 *****

                                                     March XX, 2017

Hon. Ken Calvert, Chairman,
Hon. Betty McCollum, Ranking Member,
House Subcommittee on Interior, Environment, and Related Agencies,
House Committee on Appropriations,
Washington, DC 20515.

Hon. John Culberson, Chairman,
Hon. Jose Serrano, Ranking Member,
House Subcommittee on Commerce, Justice, Science and Related Agencies,
House Committee on Appropriations,
Washington, DC 20515.

    Dear Chairman Calvert, Chairman Culberson, Ranking Member McCollum, 
and Ranking Member Serrano:

    As you begin to consider fiscal year 2018 Interior and Commerce, 
Justice, Science Appropriations, we urge you to support robust funding 
for Endangered Species Act (ESA) listing, planning and consultation, 
species conservation and restoration, and recovery process.
    In enacting the Endangered Species Act of 1973, Congress recognized 
that imperiled species of wildlife, fish, and plants ``are of esthetic, 
ecological, educational, historical, recreational, and scientific value 
to the Nation and its people.'' The U.S. Fish and Wildlife Service 
(FWS) and the National Marine Fisheries Service (NMFS) employ, to great 
effect, a suite of mechanisms to carry out the law's aim of conserving 
endangered and threatened species and the habitat upon which they 
depend. Their efforts have successfully prevented the extinction of 99 
percent of all species listed as threatened or endangered under the 
Act.
    However, developing, coordinating, implementing, and managing all 
the recovery tools and partner activities in a cohesive and effective 
manner for species' recovery requires significant commitment and 
resources. Strong funding for Ecological Services supports FWS's work 
with partners at the state and local level both to recover listed 
species and to conserve candidate species and their habitats so that 
the need for listing is reduced or even eliminated. Similarly, funding 
for NMFS Protected Resources Science and Management program is crucial 
for the protection and recovery of imperiled marine species.
    The need for increased recovery funding is evident from the over 
400 U.S. listed species that lack recovery plans. Congressional 
appropriations for both recovery and consultation, already 
insufficient, have not kept pace with the number of listed species. 
Inadequate funding not only puts at risk the recovery of threatened and 
endangered species and conservation of their habitats; it also impedes 
FWS and NMFS's ability to apply the best scientific knowledge available 
in a timely review of listing decisions for species in need of 
protection. If Congress does not provide the funding increases 
necessary for FWS and NMFS to carry out their statutory obligations, 
the agencies may face greater exposure to litigation. More importantly, 
our Nation could lose even more of our precious wildlife heritage.
    We request robust funding for ESA listing, planning and 
consultation, species conservation and restoration, and recovery in FY 
2018. This is critical to recover and conserve our Nation's imperiled 
species and ultimately protect America's natural heritage.

            Sincerely,


                                 ______
                                 

    Mr. McEachin. Mr. Li, while we know that Section 7 
consultations save endangered species and rarely slow up 
development or infrastructure projects in any meaningful way, 
does the fact that the Congress keeps cutting agency budgets 
influence the time it takes Federal agencies to complete these 
and other crucial tasks?
    Mr. Li. Emphatically, yes. As I said earlier, on the per-
species basis, the Fish and Wildlife Service has received less 
and less funding to carry out consultations. That means less 
staff and less resources to complete the consultations within 
the desired time frame.
    Mr. McEachin. And, Mr. Li, do you support additional 
funding for the Fish and Wildlife Service and the National 
Marine Fisheries Service to increase the agency's capacity to 
process consultation requests?
    Mr. Li. We not only support it, we think it is absolutely 
vital to ensure that the ESA is functioning as it should to 
protect endangered species and to work for regulated entities.
    Mr. McEachin. Mr. Li, we have heard about the pre-
consultation process from some other witnesses. Can you explain 
your understanding of this process and how it relates to 
informal consultations?
    Is it reasonable to expect the Services to do this work in 
the absence of a complete consultation package from the action 
agency within the statutory timelines for formal consultation?
    Mr. Li. No, it is not reasonable to expect the Service to 
do many informal and formal consultations without some level of 
pre-consultation discussion. Pre-consultations are the back-
and-forth discussion prior to consultations to ensure that the 
paperwork and the necessary surveys are available, so that the 
consultation can be expedited and streamlined.
    So, pre-consultations are not recorded as part of that 
official consultation duration, because it is more of a matter 
of an extension of the tactical assistance that occurs under 
Section 7.
    Mr. McEachin. And then very quickly, because our time is 
running out, Mr. Li, in your research have you found situations 
where consultations are delayed for reasons unrelated to the 
ESA?
    Mr. Li. Absolutely. And there are many examples. Sometimes, 
other Federal laws are involved, NEPA--they are intertwined 
with the Section 7 process. In other instances, we have errors 
or delays on the part of applicants. They provide the wrong 
information to the Fish and Wildlife Service, so the Service 
has to start over. There are many reasons beyond the ESA for 
delays.
    Mr. McEachin. Thank you, Mr. Li.
    Mr. Chairman, I yield back.
    Mr. Labrador. Thank you. I recognize Mrs. Radewagen for 5 
minutes.
    Mrs. Radewagen. I want to thank you all for testifying 
today before this Subcommittee. Thank you, Chairman Labrador 
and Ranking Member McEachin, for holding this hearing, and our 
Full Committee Chairman Bishop.
    I represent American Samoa, a jewel of the Pacific some 
2,500 miles south of Hawaii. We have many rare species of 
animals only found in our archipelago. These animals are 
important to the identity of American Samoa.
    I have also seen firsthand what happens when bureaucrats 
from Washington, DC, seek to impose their rules on American 
Samoa, the other territories, and on Native American tribes 
without consulting the local Native population. A recent 
example of this, the Sauk-Suiattle Tribe near Darrington, 
Washington is very concerned with the impacts of grizzly bear 
reintroduction on their treaty fishing resources.
    So, Mr. Li, your organization supports this reintroduction, 
in spite of the tribe's concerns. Is that correct?
    Mr. Li. I would have to get back to you on our exact 
position. But for the purposes of the question, I can proceed 
assuming that it is yes.
    Mrs. Radewagen. And, Mr. Wood, given the impact the 
reintroduction may have on subsistence and other cultural needs 
of entities, such as the populations of the territories, do you 
think that the Endangered Species Act is at odds in some cases 
with our Nation's trust responsibility toward the territories 
and the people that live there?
    Mr. Wood. I think that is true for both the territories and 
the states. The ESA does federalize a lot of policy that was 
previously done at that lower level.
    Mrs. Radewagen. Thank you, Mr. Chairman. I yield back.
    Mr. Labrador. Thank you. I now recognize Mr. Huffman for 5 
minutes.
    Mr. Huffman. Thank you, Mr. Chairman. Mr. Calkins, I just 
wanted to ask you a quick question about the Ventura River.
    As you know, the reason the Ventura River lost its 
steelhead run, which used to be an iconic steelhead run in 
Southern California, was the construction of Matilija Dam in 
1947, which provided no fish passage. I know that as Public 
Works Director for the city, you at one point supported removal 
of the dam. I just wanted to inquire as to whether you still 
support removing that dam.
    Mr. Calkins. Absolutely.
    Mr. Huffman. Thank you. Do you believe, if the ESA had 
existed in 1947, that project would have proceeded a little 
more thoughtfully, and incorporated fish passage?
    Mr. Calkins. Yes, I do, and I wish it had.
    Mr. Huffman. Yes. Mr. Li, would you agree that if the ESA 
and its consultation processes were in effect in 1947, we would 
have a more functioning water system and natural environment on 
the Ventura River today?
    Mr. Li. Absolutely. I think the ESA would have acted as a 
look-before-you-leap type of law, and would have allowed for 
fish passages and fish ladders.
    Mr. Huffman. Thank you.
    Mr. Li, I want to stay with you for a moment. Some long-
time advocates of repealing the ESA have recently resorted to 
something we see a lot: falsely scapegoating the ESA in 
emergency situations. We have seen this in the past with 
wildfires. We sometimes hear claims that the ESA is somehow 
preventing emergency responders from savings lives and 
property. After the fact, when we fact-check these things, they 
are always bunk. But it comes up time and again.
    And recently, it has come up in connection with the 
Oroville Dam spillway problem in California. Some folks have 
argued that the National Marine Fisheries Service and the ESA 
have hampered the emergency repair, the emergency response. 
There is a letter going around that says this is a prime 
example of how the Endangered Species Act elevates fish and 
wildlife above human life and public safety, the usual stuff we 
hear.
    However, this is completely false. The Department of Water 
Resources in California recently sent a letter confirming that 
ESA consultations have not in any way delayed emergency 
repairs. So, I just want to ask you, is it true, this claim 
that the ESA has somehow stood in the way of emergency repairs 
at Oroville Dam?
    Mr. Li. It is emphatically not true. I have right here the 
letter from the California Department of Water Resources saying 
that, ``The correspondence between NMFS and FERC did not affect 
the Department of Water Resources' ability to focus on health 
and safety.''
    If you read the NMFS letter, it provides mere 
recommendations that the Department of Water Resources was 
already planning to adopt.
    Mr. Huffman. In fact, during an emergency like this, the 
Endangered Species Act actually provides for consultation. But 
are the recommendations from that consultation even binding on 
the action agency?
    Mr. Li. No, they are not. In fact, the Fish and Wildlife 
Service regulations specifically say, as does the handbook, 
that addressing the emergency response takes priority over 
addressing endangered species issues. After the emergency is 
handled, that is when the formal consultation or any other 
consultation would be resumed.
    Mr. Huffman. Yet, we continue to see these myths swirling 
about almost every time there is an emergency. So, instead of 
asking a question of the witnesses, I want to actually make a 
suggestion, a friendly suggestion, and maybe ask a question of 
the Chair.
    As we go forward with this Endangered Species Act debate, 
it seems to me that we should try our best to do it on the 
basis of real facts, and not let this Subcommittee, or the main 
Committee, become an echo chamber of these myths, and these 
false scapegoating exercises. There is a way to do that.
    When folks come in here with stories blaming the ESA for 
this or that, whether it is a levee failure or Oroville Dam 
repair delays that are not true, or any number of things, let's 
engage the Congressional Research Service. It is an 
independent, non-partisan entity that works for us to answer 
questions. Let's ask them to just fact-check stuff. Let's make 
sure that, as we go forward, let's have a great debate, but 
let's have it on the basis of facts, and not become an echo 
chamber for these myths and false scapegoating exercises. Would 
you agree to that?
    Mr. Labrador. Why don't you ask the witnesses? You have a 
couple of witnesses that could actually disagree with Mr. Li.
    Mr. Huffman. I am more interested in the integrity of this 
Committee not dignifying a bunch of myths and falsehoods. We 
can do better than that.
    Mr. Labrador. We have----
    Mr. Huffman. There is an easy way to do that.
    Mr. Labrador. I think you have some witnesses who might be 
able to answer your question----
    Mr. Huffman. Could I ask Chairman Bishop, maybe, since I am 
not getting a response from the Subcommittee Chair--could we 
institute this simple fact-checking protocol, so that we can 
make policy on the basis of reality and facts?
    Mr. Labrador. Your time has expired. Thank you very much.
    Mr. Bergman.
    Mr. Bergman. Thank you, Mr. Chairman, for holding this 
hearing; and thanks to the witnesses for taking time to be here 
today to talk about this relevant issue.
    My first question is for Mr. Wood. Mr. Wood, the Endangered 
Species Act is intended to facilitate population recovery for 
listed, threatened, or endangered species. Is that correct?
    Mr. Wood. That is correct.
    Mr. Bergman. When species recover, such occasions are 
considered a success of the Endangered Species Act. Recoveries 
are examples of the law actually working. Is that correct?
    Mr. Wood. Yes, among other things.
    Mr. Bergman. States are responsible for managing non-listed 
wildlife within their borders. Is that correct?
    Mr. Wood. Yes.
    Mr. Bergman. The Rocky Mountain Gray Wolf is an Endangered 
Species Act success story, at least in part. The wolf quickly 
exceeded population recovery goals, and the wolves were 
delisted by the Fish and Wildlife Services. The wolves, once 
delisted, were to be managed by the states under federally 
approved management plans that would allow populations to 
continue to thrive. Again, this is an example of the law 
working.
    Yet, the Defenders of Wildlife launched a lawsuit that 
stopped management of the recovered wolves from being 
transitioned to the states. In fact, Congress had to pass a law 
in order to allow Montana and Idaho to manage their fully 
recovered wolf populations; and litigation still presents state 
management in Wyoming and the Western Great Lakes.
    And this is only one such example of ongoing attempts by 
organizations, such as Defenders of Wildlife, to stop the law 
from being a success, to drain taxpayers' funds away from 
conservation and stewardship of our wildlife, and to line the 
pockets of their staff attorneys.
    Mr. Wood, in your opinion, do these litigious organizations 
believe the Endangered Species Act is only a success if species 
are never delisted?
    Mr. Wood. Obviously, you would have to ask them that, but I 
think it does seem to fit with the model. The ESA litigation 
has become a profit process for many of these groups.
    Mr. Bergman. Mr. Wood, what do you believe motivates 
constant litigation on the part of these groups, particularly 
when the law has worked as intended?
    Mr. Wood. Part of it, I am sure, is a concern for the 
environment. Also it is to increase or maintain Federal 
control.
    One other point might be that profit incentive. As Mr. Li 
said earlier, he does not get paid as a member of the 
organization, what they charge the Federal Government in 
attorneys' fees. They are recovering more than the litigation 
costs groups like this.
    Mr. Bergman. What suggestions do you have to improve the 
delisting process?
    Mr. Wood. I think the cleanest one is to demand that the 
Service begin actively acting on its own determinations from 
its scientists that species should be delisted. Under the 
current system, the Service ignores its own scientists when 
they call for removing Federal restrictions.
    Mr. Bergman. OK. And this is for any panelist. In your 
testimony, all of you discuss the problems with the formal 
consultation process, and how the 135-day limit can be somewhat 
ambiguous. Do you think, if there were clearly defined start 
times for the consultation process, meaning that the clock 
starts at a specific time, regardless of how many additional 
documents are needed, that that change would significantly 
affect the overall consultation process? If yes, how so?
    Mr. Stiles. I am not sure, Congressman. Based on my 
experience, I think the real issue has been the length of time 
in consultation, and just the ignoring of the statutory 
requirements with no consequence. I think you need some 
consequence for not adhering to some of those statutory 
completion times. I think what you are suggesting would 
absolutely help, but I don't think it would cure the problem.
    Mr. Li. I will offer a quick perspective. I think, through 
administrative and policy improvements, if there is ambiguity 
about the start time of consultations, that can certainly be 
clarified very easily through public notice and comment 
rulemaking.
    Mr. Wood. I think it could clarify to fix a start time. And 
I think consultation--the evidentiary standards should work the 
same way for consultation as it does for listing decisions. As 
I said earlier, it would be an outrage if the Service did in 
listing decisions what it does in consultation and say, ``We 
need more and more and more data in order to avoid making a 
determination.''
    Mr. Bergman. Thank you.
    Mr. Chairman, I yield back.
    Mr. Labrador. Thank you. I now recognize Mr. Beyer.
    Mr. Beyer. Thank you, Mr. Chairman.
    Mr. Li, in Mr. Wood's written testimony, he blames the 
Endangered Species Act for delaying work to restore the habitat 
for the Florida manatee. However, there are documents from the 
U.S. Army Corps of Engineers, one I would like to submit for 
the record, without objection.
    Mr. Labrador. Without objection, so ordered.
    [The information follows:]

                        DEPARTMENT OF THE ARMY,    
          Jacksonville District Corps of Engineers,
                                       Gainesville, Florida

                                                     April 30, 2015

Save Crystal River
209 Southeast Paradise Point
Crystal River, FL 34429

Attn: Robert Mercer

               CEASE AND DESIST NOTIFICATION AND WARNING

    Dear Mr. Mercer:

    The Corps of Engineers (Corps) has obtained information from a 
complaint received on March 10, 2015 and subsequent investigation 
indicating unauthorized excavation activities are being conducted 
within Kings Bay and the Kings Bay canal systems. The activity is 
ongoing within Kings Bay and the canal systems connected to Kings Bay, 
in Crystal River, Citrus County, Florida.

    As District Engineer it is my responsibility to protect the 
integrity of waters of the United States, including wetlands. The 
purpose of this letter is to notify you that the Corps has information 
indicating that you are responsible for the excavation of ``muck'' 
resulting in an increase in the navigable capacity of Waters of the 
United States conducted without the required Department of the Army 
authorization, and to warn you to cease and desist conducting such 
activity pending a resolution. It is also the purpose of this letter to 
inform you of the consequences for engaging in unauthorized activity 
and the potential options for resolving this matter.

    Section 404 of the Clean Water Act, 33 U.S.C. Sec. 1344, prohibits 
discharges of dredged or fill material into waters of the United States 
unless the work has been authorized by Department of the Army permit. 
Use of an aquatic harvester does not always result in a clean removal 
of material; some discharges take place with this method of work. The 
use of an aquatic harvester may result in more than incidental fallback 
that could result in a Section 404 violation. Section 10 of the Rivers 
and Harbors Act of 1899, 33 U.S.C. Sec. 403, prohibits the placing of 
any structure in, under, or over navigable waters of the United States 
and excavating from or depositing material into such waters unless the 
work has been authorized by a Department of the Army permit. Kings Bay 
and the connected canal systems are subject to the ebb and flow of the 
tides and are therefore Section 10 waters of the United States. The 
dredging of ``muck'' from Kings Bay and the connected canals 
constitutes work within a water of the United States.

    In accordance with 33 CFR 326.3(c)(3), I am notifying you of 
potential consequences for violating these laws. Under the Clean Water 
Act you may incur civil penalties up to $37,500 per day of violation. 
Criminal penalties under the Clean Water Act include fines up to 
$50,000 per day of violation and imprisonment. Violation of the Rivers 
and Harbors Act of 1899 could result in criminal penalties (up to 
$100,000 for individuals and up to $200,000 in fines for corporations) 
and up to 1 year imprisonment, or both. Injunctive relief, such as 
restoration of the area affected by your activity, may also be granted 
for violations of either the Clean Water Act or the Rivers and Harbors 
Act.

    On April 24, 2014 representatives of the Corps met with you and 
other representatives from Save Crystal River and witnessed very 
specific techniques to harvest living lyngbia algae from the bottom of 
a canal. Those specific techniques resulted in very low turbidity and 
little to no change in the navigable capacity of the canals. 
Furthermore, the type of material removed was living lyngbia algae and 
not ``muck.'' Based on the specific harvesting techniques witnessed on 
April 24, 2014, the Corps sent Save Crystal River a policy letter, 
dated May 1, 2014, stating the lyngbia harvesting techniques shown 
during the April 2014 visit would not require a permit.

    The May 1, 2014 letter also stated that ``in the event that Save 
Crystal River is unable to utilize these specific techniques, or 
conditions arise that would cause these techniques to result in 
dredging/excavation or greater than de minimus discharge, a Department 
of the Army Permit may be required to continue working.'' Based on 
photographs and other information received by the Corps your ongoing 
work exceeds the scope of the activity described in the above 
referenced letter. Thus, if you wish to continue work that involves 
dredging or excavating those activities will require a Department of 
the Army permit.

    It is in your best interest to halt the unauthorized activity 
immediately upon receipt of this notification and warning. If further 
activity is performed after receipt of this cease and desist 
notification and warning, I will seek the assistance of the Department 
of Justice to take immediate legal action to halt such activity. 
Although compliance with this notification and warning will result in a 
more favorable resolution of this matter than otherwise, compliance 
will not foreclose the Government's options to initiate appropriate 
legal action or to later require the submission of a permit 
application.

    In order to help expedite resolution of this matter, please provide 
within 15 days of receipt of this notification and warning information 
concerning your activity in light of the requirements of the Clean 
Water Act and the Rivers and Harbors Act. Please provide any permits, 
exemptions, or other information or correspondence from other local, 
State and Federal agencies you may have obtained relevant to the 
activities referenced above. The Corps will request comments from 
appropriate Federal and State agencies in order to better evaluate your 
activity. In accordance with a Memorandum of Agreement between the 
Department of the Army and the U.S. Environmental Protection Agency 
(EPA) concerning federal enforcement of Section 404 of the Clean Water 
Act, a copy of this notification is being sent to the EPA for review 
and coordination. Further information may be requested from you, as 
needed, in the future.

    The information obtained from you and other agencies will be used 
to evaluate the activities for compliance with the above mentioned 
statutes and to determine the appropriate course of action to resolve 
any violations, including legal action, restoration of the affected 
area, and/or issuance of an after-the-fact permit in accordance with 33 
CFR 326.3(e). If an after-the-fact permit is issued, you may appeal the 
permit and the jurisdictional determination in accordance with 33 CFR 
331.

    If you have any questions, please contact Shaun Gallagher in 
writing, via electronic mail at [email protected], 
regular mail at the letterhead address, or by telephone 352-372-9625.

            Sincerely,

                                              Alan M. Dodd,
                                              Colonel, U.S. Army,  
                                                 District Commander

Enclosure

                                 *****

                         MEMORANDUM FOR RECORD

CESAJ-RD-PE (1200A)
31 July 2015
SUBJECT: SAJ-2015-00706 Save Crystal River
Project Location:  Canals connected with Kings Bay, Crystal River, 
        Citrus County, Florida

1. Background:
    The Corps received a request by Save Crystal River, Inc. (SCR) on 
March 13, 2014 regarding activities in man-made residential canals in 
Kings Bay/Crystal River. The request was for the Corps to provide a 
written determination regarding whether SCR's Lyngbya algae harvesting 
activities would require a Department of the Army Permit pursuant to 
Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) and/or 
Section 404 of the Clean Waters Act (33 U.S.C. 1344).

    On April 24, 2014 the Corps staff accompanied SCR's representatives 
to a proposed worksite to observe the Lyngbya harvesting operations. 
Corps staff observed the operation of a modified mechanical vegetation 
harvester utilizing a device known as a bubbler bar to harvest the 
Lyngbya algae from the canal bottom. Corps staff noted that the bubbler 
bar, which emits compressed air, is attached to the front of the 
harvester conveyor belt where the harvester's cutting blade is 
typically located. The harvester operator then lowered the bubbler bar 
below the surface of the water where the compressed air emitted from 
the bubbler bar loosened and re-suspended the algal material. The 
conveyor belt on the harvester then removed the algae from the water 
column to the harvester's hopper. The harvester operator emptied the 
harvester hopper loads onto a waiting dump truck which would then haul 
the harvested algae to an upland location. Corps staff further noted 
that the turbidity associated with the harvesting activity was limited 
to a small plume in the vicinity of the bubbler bar, and that any 
disturbance and/or redeposit of bottom sediment associated with the 
harvesting activity was not visible.

    Based on the April 24, 2014 site visit the Corps determined that no 
permit under Section 404 of the Clean Waters Act would be required as 
long as the material removed was not discharged into a Water of the 
United States. The Corps also decided that the Lyngbya harvesting 
techniques would not require a Department of the Army Permit pursuant 
to Section 10 of the Rivers and Harbors Act, as long as, the specific 
harvesting techniques and canal conditions viewed on April 24, 2014 
were consistent though out the project scope. The Crystal River, Kings 
Bay and the connected canal systems are subject to the ebb and flow if 
the tides and are jurisdictional under Section 10 of the Rivers and 
Harbors Act. On May 1, 2014 the Corps sent a letter to SCR outlining 
these decisions.

2. Unauthorized activity:
    On March 10, 2015 the Corps received a complaint from Mr. Pat Rose 
of Save the Manatee that Save Crystal River (SCR) was performing dredge 
operations within the canal systems connected to Kings Bay. Corps staff 
contacted Mr. Rose to obtain further information about the complaint 
and received several pictures of waste bins containing material removed 
by SCR's contractor. Corps staff contacted Citrus County and performed 
a public records search on March 12, 2015 to gather information on the 
project and received pictures of material placed in bins that were 
submitted to Citrus County for payment under a contract between SCR and 
Citrus County.

    On March 31, 2015 the Corps contacted Mr. Bob Mercer with SCR by 
phone to discuss the project and that a complaint was received. An 
email was sent to Mr. Mercer on April 1, 2015 requesting information 
that demonstrated the ongoing work was in accordance with the Corps' 
May 1, 2014 letter. The email warned SCR that any work not specifically 
allowed by the May 1, 2014 letter may need a Department of the Army 
permit, but work being performed under the May 1, 2015 letter could 
continue. SCR responded to the request by letter dated April 16, 2015, 
stating that the work being performed the material being removed were 
the same as seen during the April 24, 2014 site visit. Mr. Mercer also 
included a copy of a turbidity monitoring report sent to the Florida 
Department of Environmental Protection.

    Corps staff reviewed the information provided by Save the Manatee 
and Citrus County and decided that work requiring a Section 10 permit 
was performed by SCR. A Cease and Desist Notification letter was sent 
to SCR on April 30, 2015. The Warning letter informed SCR the ongoing 
work exceeded the scope of the activity described in the May 1, 2014 
letter and if SCR wished to continue dredging or excavating activities 
a Department of the Army permit would be required. The Warning letter 
requested SCR to provide, within 15 days of receipt, notification of 
the Warning letter and any permits received for the project. SCR 
responded by letter, received on May 13, 2015, requesting: 1) The Corps 
definition of ``muck,'' 2) The names of individuals and entities that 
files the complaint, 3) The dates, times, and locations in which this 
activity was reported, 4) A copy of any other information that is being 
judged to be in support of these claims, 5) copy of any scientific 
verification of the nature of the samples provided, 6) The evidence 
that was provided to the Corps and 7) Any information regarding any 
actions the claimant may have taken to address the issue with SCR prior 
to contacting the Corps.

    Corps representatives meet with representative of SCR on June 9, 
2015 to discuss the Warning letter, SCR's request, educate SCR on the 
Corps' jurisdiction in regards to Section 10 of the Rivers and Harbors 
Act and Section 404 of the Clean Waters Act (CWA) and to visit SCR's 
dewatering site. During the June 9th meeting the Corps also provided 
SCR with pictures of the bins and material. The Corps informed SCR 
during the meeting that no evidence was found showing a violation of 
Section 404 of the CWA occurred. However, the Corps did inform SCR that 
a Section 10 violation did occur since the level of work that was 
performed was inconsistent with what Corps representatives witnessed 
during the April 24, 2014 site visit. SCR felt that, per the Florida 
Fish and Wildlife Commission aquatic plant removal permit, they could 
remove up to three feet of material from the canals. Corps 
representatives noted conditions in the canal showed during the April 
24, 2014 meeting did not show up to three feet of material. The 
decision not to require a Section 10 permit for the Lyngbya removal was 
based on a representative canal with sparse mats of Lyngbya. SCR staff 
agreed that any work not specifically covered by the May 1, 2014 letter 
had ceased and would not be performed again unless a Department of the 
Army permit was issued.

    Corps staff and representatives from SCR visited the dewatering 
site after the meeting and a sample of the material SCR removed was 
taken by the Corps. The material witnessed at the dewatering site was 
comprised of Lyngbya and mineral deposits.
3. Pictures obtained from Citrus County and Save the Manatee:

         Representative material removed by County contractors
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


           Representative material removed by SCR contractor
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

4. Resolution:
    The Corps concluded its investigation and resolved the Section 10 
violation by letter dated June 16, 2015. The letter outlined the Corps' 
decision and informed SCR that any future proposed work in a Section 10 
body of water would require a Department of the Army permit.

                                         Shaun E. Gallagher
                               Project Manager, Enforcement Section

                                 ______
                                 

    Mr. Beyer. Thank you, Mr. Chairman. That includes a cease-
and-desist order issued to the organization that was conducting 
the habitat work that clearly showed it was the organization's 
failure to seek a permit from the Army Corps of Engineers, 
rather than the ESA, that delayed the project.
    Can you give us your perspective on this incident?
    Mr. Li. Yes. Thank you for the question. Our Florida office 
actually worked specifically on this issue. And Save the 
Crystal Rivers did not have a Clean Water Act permit for the 
dredging. The original method of dredging also used this 
aquatic plant harvester, and that was very problematic, because 
it actually caused a lot of muck to be stirred up in the water 
column and increased the turbidity, which is not good for the 
aquatic life.
    There are certainly better methods to carry out the 
restoration, including the use of filtration that reduces the 
sedimentation.
    Mr. Beyer. Mr. Li, I have a long question for you based on 
Mr. Calkins' very thoughtful testimony. He offered a number of 
specific policy suggestions that I read as an attempt to 
balance these concerns about delays in projects with the 
overall intent of the Endangered Species Act. Let me just throw 
three of them at you, Mr. Li, for your response.
    The first is that there are no consequences to the agency 
for failure to adhere to the statutory timeline, with a 
suggestion that there should be consequences. And to my friends 
on the panel, I suggest there might be consequences for failing 
to pass a budget on time, or appropriations bills, or other 
things.
    The second piece is that it would require the consultation 
agency to follow the conclusions derived from the biological 
assessments. For example, there is a difference between what 
the Forest Service said and what the Fish and Wildlife Service 
said. And in cases where the consultation agency may not agree 
with the biological assessment findings, the consultation 
agency should be required to defend it through a peer panel.
    And then third, that once a project's impacts have been 
assessed through the issuance of a NEPA document, an EIS, or an 
EA, or a biological opinion, that future assessments should 
only look at those specific items that were remanded or 
otherwise administratively modified, rather than opening up the 
entire thing again and starting the process all over.
    How would you, from Defenders of Wildlife, answer those 
objections or those specific policy proposals? I mean what is 
wrong with them?
    Mr. Li. Let me start with the second one on peer review. If 
folks are concerned about the length of consultations right 
now, you can only imagine what a peer review process would do 
to increase that length. So, I am not sure that is going to 
actually further the objectives of the other witnesses here.
    As far as future assessments and opening up those 
assessments, the bottom line is that, if you look at most 
reinitiations, it is not true that the entire consultation is 
opened up. The Fish and Wildlife Service certainly has better 
things to do than spend its time doing unnecessary analysis. 
What is actually re-evaluated is the newly-listed species or 
new critical habitat, as it is affected by whatever portion of 
the project, which may not be an entire project. And it is only 
those impacts that are typically evaluated.
    As far as the first recommendation on the dates, there are, 
to some degree, consequences for exceeding the 135-day time 
frame. According to regulations there needs to be a mutual 
extension, and the Fish and Wildlife Service does not have in 
its self-interest dragging on consultations forever. It needs 
to move on to other things.
    Mr. Beyer. OK. Well, thank you. Mr. Calkins, one of the 
other suggestions you had was reform of the Equal Access to 
Justice Act. On page 7, you talk specifically about excessive 
attorneys' fees and totally disconnected from the Act's 
original purposes.
    I basically understand the work of most of the 
environmental agencies, like Defenders of Wildlife--the purpose 
of the lawsuits is very much connected to their agency's 
original purpose, which is to respect, defend, and protect 
those endangered species. How do you make the argument that 
their work is disconnected from the Act's original purposes?
    Mr. Calkins. I think it is the extreme. I mean we have had 
an example where, in order to settle a lawsuit, Ventura had to 
agree to $55 million to settle a lawsuit that was just dragging 
the decision on and on and on.
    So, I think, even though you have heard that these are very 
rare examples, they happen over and over again. And the cost is 
prohibitive, and it really marginally goes to protecting the 
species, as far as I am concerned.
    Mr. Beyer. Thank you. I yield back, Mr. Chair.
    Mr. Labrador. Thank you. And now the Chair recognizes Miss 
Gonzalez-Colon.
    Miss Gonzalez-Colon. Thank you, Mr. Chairman.
    Mr. Li, in your testimony, you state, ``From the time a 
Federal agency provided Fish and Wildlife Services with enough 
information to initiate a consultation, the medium duration of 
informal consultations was 13 days and formal consultations was 
62 days.'' Does the relevant Service have the discretion to 
determine what constitutes as a satisfactory amount of 
information?
    Mr. Li. I am sorry, I didn't hear the last part of your 
question because the door was opening and closing.
    Miss Gonzalez-Colon. Does the relevant Service have the 
discretion to determine what constitutes as a satisfactory 
amount of information?
    Mr. Li. Yes. The Service has in its discretion the ability 
to determine how much information is presented in order to 
start a consultation. And that should be the right way things 
work. Because every species is different, every project is a 
little bit different, and it is a case-by-case analysis.
    Miss Gonzalez-Colon. So, therefore, is it possible also 
that the Service can delay the triggering of the formal 
consultation timeline by continually asking for more 
information related to a project?
    Mr. Li. If the initial information is not adequate to start 
a consultation, that can happen. But, by and large, those are 
outliers. Those are not representative of most consultations.
    Miss Gonzalez-Colon. That will be just discretional?
    Mr. Li. I am sorry?
    Miss Gonzalez-Colon. That will be just discretional?
    Mr. Li. Discretional to start the formal consultation? 
There is quite a bit of discretion there, correct.
    Miss Gonzalez-Colon. I yield back.
    Mr. Labrador. Thank you. And now the Chair recognizes Ms. 
Tsongas.
    Ms. Tsongas. Thank you, Mr. Chairman, and thank you for 
allowing me to join this Subcommittee for this hearing. I 
appreciate it.
    I believe the Endangered Species Act--and this is why I 
asked to be here today--has served as one of our Nation's 
bedrock environmental statutes for over 40 years. The bald 
eagle, the brown pelican, and the grizzly bear are just a few 
examples of iconic species that have survived, thanks to 
protections provided by this law, and whose survival is greatly 
appreciated and deeply valued by Americans across this country.
    Instead of working to erode this law, I believe Congress 
should be doing more to give the Fish and Wildlife Service and 
the National Marine Fisheries Service more tools in the toolbox 
to not only complete Section 7 consultations as efficiently as 
possible, but enable them to work proactively with states and 
local stakeholders to prevent species from needing to be listed 
in the first place.
    This brings me to my first question for you, Mr. Li. Who is 
first and foremost in charge of wildlife management, the 
Federal Government or the states?
    Mr. Li. It would be the states.
    Ms. Tsongas. So, the states have the flexibility to manage 
wildlife populations as they see fit, according to their own 
goals and priorities. What species are typically given top 
priority by state wildlife agencies?
    Mr. Li. Typically, what we see across the board are game 
species.
    Ms. Tsongas. Why would that be?
    Mr. Li. It is oftentimes because funding for those state 
agencies comes from revenues for fishing and hunting.
    Ms. Tsongas. So, they encourage the revenue, the hunting 
for revenue.
    So, as states are taking a lead role on wildlife management 
and choosing where to allocate their resources, what 
circumstances would trigger protections provided by the 
Endangered Species Act--in other words, invoking Federal 
legislation?
    Mr. Li. The ESA only needs to step in when control of a 
species under state management is to the point where the 
species is at risk of going extinct, right? When the species 
meets the definition of a threatened or endangered species.
    Ms. Tsongas. And what are the factors you would consider?
    Mr. Li. Factors include pollution, habitat loss and 
fragmentation, invasive species, a whole series of human and 
natural activities.
    Ms. Tsongas. So, would you categorize the Endangered 
Species Act as a law that is only used in emergency situations, 
as you describe? A last resort to protect species from going 
extinct, as opposed to one that is routinely invoked to just 
create problems?
    Mr. Li. Absolutely. It is the last safety net for species 
that are going to blink out.
    And there is also quite a bit of effort under the 
Endangered Species Act to incentivize states to do more to 
conserve at-risk species, so that those species do not need to 
be listed under the ESA. Defenders of Wildlife emphatically 
supports that approach.
    Ms. Tsongas. Well, I thank you for those responses, because 
it seems clear to me that, instead of eroding the Endangered 
Species Act and increasing the likelihood of species going 
extinct--and we all know, once gone, we don't know what we have 
lost if we can't see them--we should be doing all we can to 
prevent species from needing emergency protections in the first 
place.
    And we have examples of this approach successfully working. 
The most well-known example is a collaboration between 11 
western states and local stakeholders to protect the greater 
sage-grouse. And in New England, where I come from, we saw a 
similar successful conservation effort for another iconic 
species, the New England Cottontail, especially relevant as we 
come close to Easter.
    The Fish and Wildlife Service worked together with the 
states, local communities, foresters, conservationists, private 
landowners, and other key stakeholders to prevent the New 
England cottontail from being listed under the ESA. Those on-
the-ground partnerships created a strategy that responsibly 
balances conservation of the species and its habitat with the 
needs of people whose economic livelihoods depend on healthy 
New England forests. So, we know we have models that have 
really been win-wins, all around.
    Then, Mr. Li, I would like to ask another question. As we 
know, Section 7 reviews ensure that the Federal Government 
fully understands the impacts of a specific project on a 
threatened or endangered species, a ``look-before-you-leap 
requirement.'' How could landscape-level conservation planning 
and early stakeholder engagement improve the Section 7 review 
process in the event that a species is put on the endangered 
species list?
    Mr. Li. Well, landscape-scale conservation allows 
conservation to be carried out more efficiently, which is 
something I think is of great interest to everyone in this room 
today, by looking at the impacts across the entire landscape, 
and strategically placing mitigation in areas that further 
recovery.
    As far as additional collaboration with stakeholders, 
stakeholders could actually adopt better conservation measures 
at the start of a consultation, so that the consultation is 
easier and more streamlined.
    Ms. Tsongas. Thank you and I appreciate your testimony. I 
yield back.
    Mr. Labrador. Thank you, and I recognize Mr. Clay for 5 
minutes.
    Mr. Clay. Thank you, Mr. Chair. Let me start with a 
statement and say to the general public and those viewers who 
are watching us on CSPAN, we are headed down a slippery slope 
here. If the intent is to tinker around the edges of the 
Endangered Species Act or to try to attempt to destroy it, to 
attempt to destroy a law that has worked for years is 
dangerous, and you need to be exposed for what you are trying 
to do to our country and the environment, and should be ashamed 
of yourself.
    Let me share. In some of the testimony I have heard, you at 
the table should be ashamed of yourselves, too. Let me share 
with you what the Ranking Member has written about the 
Endangered Species Act. By any reasonable measure, the ESA has 
been a remarkable success. The law has prevented the extinction 
of more than 99 percent of the plants and animals that have 
received this protection. Few laws in American history have so 
thoroughly achieved their goals.
    Nor has the law stifled economic growth, as its detractors 
claim. Since it was enacted in 1973, the U.S. economy has more 
than tripled in size, from just over $5 trillion to more than 
$16 trillion in GDP.
    He also goes on to say--and this kind of blows your 
theories out of the water--that, rather than drawing obvious 
conclusions, that species recovery takes time, especially when 
unsustainable development has wiped out wildlife habitats like 
old-growth forests, wetlands, and native prairie.
    And he said weakening the ESA would allow for sensitive 
wildlife habitats to be open to mining, oil, and gas drilling, 
and commercial logging, activities that Republican orthodoxy 
supports, regardless of the cost to the environment and the 
millions of Americans who enjoy wildlife-watching and outdoor 
activities in our public lands.
    Mr. Li, in reading through today's testimony I am having 
trouble identifying whether opponents of the ESA want new 
information that comes to light during a consultation to be 
included or excluded from an active consultation and permitting 
process. In your opinion, is there value in incorporating new 
information regarding a species' critical habitat or anything 
else into an active consultation process?
    Mr. Li. Absolutely. First off, the Endangered Species Act 
requires the best available science be used. And if best 
available science is new science, then that should be used.
    More importantly, species--threats change over time. 
Species' biology change over time. Their status changes over 
time. And why would we not want to use the best science 
available to conserve species in the most efficient manner 
possible?
    Mr. Clay. So, those who want to erode the effectiveness of 
the ESA are really--I guess we would call them science deniers?
    Mr. Li. That is one way to put it.
    Mr. Clay. OK. And dealing with an alternative reality or 
alternative fact. Is that it?
    Mr. Li. That is right.
    Mr. Clay. OK. Do the impacts of climate change increase or 
decrease the value of examining new information during the 
consultation process?
    Mr. Li. They increase it overall. That is because more and 
more species are being imperiled by climate change. Climate 
change is a bigger impediment to species recovery, so it 
absolutely is a vital consideration in permitting.
    Mr. Clay. Thank you. And Mr. Wood's written testimony 
states that the Cottonwood decision requires the Forest Service 
to redo all of its comprehensive programmatic consultation, 
complicating all timber projects related to it. Could you 
please elaborate? Is it as complicating as the witness would 
lead us to believe?
    [No response.]
    Mr. Clay. It is to Mr. Li.
    Mr. Labrador. Your time has expired.
    Mr. Clay. Oh.
    Mr. Labrador. Yes. Thank you very much. I turn the time 
over to Mr. Bishop now.
    The Chairman. But it was fun while it lasted. I want to 
thank you all for having the courage to be here and to say that 
there is a problem that we need to address in some way.
    Let me try and go through these questions as quickly as I 
possibly can.
    Mr. Stiles, let me do this very quickly. In your opinion, 
do organizations that are philosophically opposed to energy 
development use litigation as an offensive weapon sometimes to 
prolong the process for projects?
    Mr. Stiles. Absolutely.
    The Chairman. So, do you think, in your situation, has the 
agency reinitiated consultation due to either litigation or 
fear of litigation?
    Mr. Stiles. Absolutely.
    The Chairman. All right. Let me hit on something Mr. 
Johnson came up with very quickly. Defenders of Wildlife have 
done 300 lawsuits since ESA was reauthorized. You did 18 in 
2015.
    So, Mr. Wood, in the Equal Access to Justice Act, 
attorneys' fees are capped at $125 an hour. However, attorneys' 
fees and lawsuits initiated by organizations such as Defenders 
of Wildlife are not subject to those caps. Is that correct?
    Mr. Wood. That is my understanding.
    The Chairman. And Mr. Johnson also said that costs the 
government $21 million in fees that have been paid, which also 
may be inaccurate, since the Department of the Interior does 
not have the mechanisms to track that kind of information of 
what is actually paid. That $21 million goes to attorneys, 
rather than going to the goal of conservation.
    So, Mr. Wood, in your opinion, is the profit that is gained 
through attorneys' fees a driving mechanism behind 
environmental organizations that initiate lawsuits?
    Mr. Wood. Yes, the profit motive is an unfortunate 
incentive for more and more litigation.
    The Chairman. All right. Well, let's go to this. Mr. Li's 
paper--when he came up with 13 days and 62 days, that was the 
median, the mean. It was not an average. You said medium, 
correct? All right.
    So, here is the problem in the paper of Mr. Li's. Even 
though that may be the medium, we found that there were 606 
formal consultations that lasted twice the statutory 135 days, 
110 formal consultations that lasted more than 2 years, 58 
formal consultations that lasted between 1,000 and 4,000 days, 
213 informal consultations that lasted longer than 2 years. And 
that figure is magnified by project postponements that go 
through the informal consultation and then formal consultation, 
not to mention the pre-consultation.
    In fact, that is one of the things that is so maddening, 
sitting up here, is to realize you have pre-consultation, and 
then informal consultation, and then formal consultation, and 
then litigation that will drag things out for years after years 
after years.
    Mr. Wood, do you find those statistics in the study 
surprising, that the consultation process takes this long?
    Mr. Wood. Not at all, and it is unfortunate that the study 
omits the pre-consultation period.
    The Chairman. Which drastically skews the results of those.
    Mr. Wood, I have one other question I can ask you. Can you 
just clarify the burdens that consultation places upon 
emergency actions such as those at the Oroville Dam?
    Mr. Wood. I think it makes it more likely that you will see 
emergencies like that, because someone who wants to repair or 
upgrade a dam might put that off because they realize the 
process is going to be more expensive and take longer than it 
should.
    The Chairman. I just want to--I have like a minute left 
here--just give one concept here. There were some things about 
state management of species which I felt were unfortunate. 
Because if I go back to the most recent species that was 
initiated in my state, each state was told they were supposed 
to come up with a management plan that was then rejected by the 
Department of the Interior after those management plans were 
invented.
    Those state plans solved the problem, and yet were denied 
the ability of going into place, except for one state. And that 
is a sad situation, which the Federal Government seems to pre-
empt and think that only somebody here in Washington has the 
intellectual ability to come up with a management plan, and 
states cannot do it, and states do not care. That is wrong, 
that is inaccurate, that is simply an unfair statement to go on 
there, especially when we are talking about this bedrock Act.
    Not even the Flintstones like this bedrock Act, but it is 
still there, nonetheless.
    I appreciate the witnesses being here. This is a 
significant issue. One of the issues I want to address this 
year is really talking about what consultation is. It is in the 
law, it has to be done, but no one has really defined it. And, 
therefore, the agencies are all over the board on how they 
define it, how they work with it, what is the result of that. 
This is something that needs a clear definition so we can 
actually find out when that clock needs to start ticking, and 
who actually gets to consult, and in what manner those 
consultations need to be addressed and considered by the 
Federal agencies going in there. And with that, I appreciate 
you all being here.
    I don't think we probably have enough time for a second 
round of questions, but I thank you for holding this hearing. I 
think it is a significant one, and I will yield back.
    Mr. Labrador. Thank you, Mr. Chairman. And I thank the 
witnesses for their testimony today and the Members for their 
questions.
    Development of our infrastructure and resources is critical 
to the health, safety, economic growth, and stability of our 
Nation. As we turn our attention in the coming months to 
examining our infrastructure and resource needs, we must 
address the unnecessary regulatory burdens and delays that will 
impact any projects we choose to undertake.
    I have found interesting some of the comments from some of 
the Members today. Apparently the GDP grew over the last 25 
years because of the ESA, not in spite of the ESA.
    [Laughter.]
    Mr. Clay. That is not what I said.
    Mr. Labrador. But that is the conclusion that one can lead 
to.
    The examples we heard today are representative of thousands 
more critical projects that are mired in years of bureaucratic 
delays and litigation. We know that between 2008 and 2016 
almost 600 formal consultations with the Fish and Wildlife 
Service lasted twice the statutory 135 days, over 100 formal 
consultations lasted more than 2 years, and over 50 lasted more 
than 1,000 days. We also know that 70 percent of National 
Marine Fisheries Service consultations are not completed in a 
timely fashion. And none of these egregious statistics include 
the years and years of informal consultation that these 
projects have to undergo, nor do they represent the years of 
litigation that can serve to further delay a project.
    Delay and uncertainty in the case of the Endangered Species 
Act consultations can jeopardize human health and safety, harm 
our economy, and prevent good stewardship of the very species 
we are trying to conserve. The Services must strive to increase 
consistency between regions, adhere to timelines, and hold 
their employees accountable for completing consultations in an 
efficient, timely, and effective manner.
    I now ask unanimous consent that the following document be 
entered into the hearing record: a letter to Chairman Bishop 
from the Williamson County Conservation Foundation in Texas.

    [The information follows:]

         WILLIAMSON COUNTY CONSERVATION FOUNDATION,
                                             Leander, Texas

                                                     March 27, 2017

Hon. Rob Bishop, Chairman,
House Committee on Natural Resources,
Subcommittee on Oversight and Investigations,
1324 Longworth House Office Building,
Washington, DC 20515.

    Dear Chairman Bishop:

    Thank you for this opportunity to provide comments to the Natural 
Resources Subcommittee on Oversight and Investigations. We hope to 
provide some locally based insights on how critical infrastructure 
projects often face delay, uncertainty, and significant cost increases 
due to the inefficiencies of complying with the Endangered Species Act 
(ESA). We also have included some suggestions for program improvements 
for the ESA and implementation by the U.S. Fish and Wildlife Service 
(USFWS).
    Williamson County in central Texas has for over a decade been one 
of the top 10 fastest growing counties in the nation. Because of its 
location in an ecologically rich part of the state, as well as its 
close proximity to the city of Austin, the County must often deal with 
the important task of balancing environmental quality--including 
preservation of species listed under the ESA--with the needs of a 
rapidly growing population and accompanying economic development. 
Approximately two decades ago, the County began negotiations with USFWS 
that culminated in USFWS' issuance of a County-wide incidental take 
permit (Permit) and approval of the County's Habitat Conservation Plan 
(HCP) under the ESA. The Permit was issued in 2008, and for some 
projects, use of the permit and HCP has been successful. The HCP has, 
in many circumstances, allowed the County and its citizens to move 
forward in providing infrastructure and other necessities to the 
community, while also protecting over 900 acres of habitat for five 
listed species. Moreover, pursuant to its obligations under the Permit 
and HCP, the County is contributing to the scientific community's 
understanding of an elusive and newly listed salamander species. 
However, even with the permit and HCP in place, the County has 
encountered significant inefficiencies, delays, and inconsistent 
direction from USFWS in obtaining clearance for critical infrastructure 
projects.
    Our proactive and hands on approach to dealing with the endangered 
species in the area has given us unique insight into some of the 
challenges and obstacles presented by the current application of the 
ESA by the USFWS. These comments focus specifically on administrative 
and legislative improvements we believe could save money and time for 
both USFWS as well as the regulated entities.
STUMBLING BLOCKS
    Most of the inefficiencies, delays, and cost escalations Williamson 
County has faced in complying with the ESA fall into one (or more) of 
the following categories: (1) uncoordinated and unlimited project 
review by multiple federal agencies; (2) failure of federal agency(ies) 
to follow existing statutory deadlines or lack of deadlines for review; 
(3) USFWS policies, guidance, and protocols can change while project is 
under review; (4) projects with a federal nexus are not permitted to 
receive coverage under the Permit and HCP, which creates long delays 
and increases costs for all parties.

(1) Uncoordinated project review by federal agencies

    One common roadblock experienced by the County is the lack of 
coordinated, concurrent federal agency review for roads and other 
projects. Under Section 7 of the ESA, any project authorized, carried 
out or funded by a federal agency that ``may affect'' listed species or 
habitat designated by USFWS as critical must undergo consultation 
between USFWS and the relevant ``action agency'' [e.g., U.S. Army Corps 
of Engineers (Corps) or Federal Highway Administration (FHWA)]. 
Consultation generally means a back-and-forth between, for example, the 
Corps and the USFWS, requiring submission of a biological assessment by 
the action agency, the Corps, which then receives comments by USFWS, 
and then additional revisions by the Corps, in a seemingly never-ending 
cycle until the issues ultimately are resolved and USFWS issues a 
biological opinion. While the ESA prescribes deadlines for some aspects 
of consultation, often, these deadlines are missed or the action agency 
and USFWS delay initiation of the formal process that begins the clock. 
This process is complicated further when multiple federal agencies are 
involved in a project (e.g., a road project is funded fully or 
partially with federal funds, and also requires a Clean Water Act 
section 404 authorization). All the while, the County must wait until 
this consultation process is complete.

    The problem can be simply stated in the following way: 
uncoordinated Federal agency reviews with no or unenforced deadlines 
create unnecessary consultation delays and indeterminate time frames 
for decisions. These delays create extra costs, not just for the 
regulated entity or project, but unnecessarily cause inefficiencies of 
both personnel and budget for the Federal agencies.

(2) Lack of deadlines or adherence to deadlines

    While section 7 of the ESA contains mandatory deadlines for 
completion of various aspects of the consultation process, these 
timeframes are often not met and consultations frequently drag on long 
past the expiration of the deadline prescribed by ESA section 7. Some 
statutory and regulatory frameworks do not have deadlines at all.
(3) USFWS changes the rules during the game
    While the ESA, its regulations, and relevant case law are 
relatively clear, USFWS operates largely on its own guidance and 
policies, which may be changed without public notice or comment and 
which can have a significant impact on communities. For example, 
several of the species listed in Williamson County are karst 
invertebrate species. At the beginning of a transportation improvement 
project on IH 35 in our County, USFWS karst survey protocol required 
three inspections of the cave to check for species. After construction 
on the project had begun, this policy was revised to 14 inspections 
without input by the affected public and despite the existence of its 
HCP. Williamson County must nevertheless comply with this burdensome 
new policy in order to remain in compliance. The County had 
construction crews on site when this change occurred, resulting in the 
County having to pay hundreds of thousands of dollars in delay damages 
to the construction company and costs for the additional biological 
surveys.
(4) Projects with a federal nexus are not permitted to utilize the 
        permit and HCP
    When Williamson County was in negotiations with USFWS regarding the 
details of its Permit and HCP, there was an understanding among the 
parties that projects with a federal nexus would be able to use the 
County's HCP so that the consultation process would be streamlined 
significantly. This made sense, because the County's HCP is based on 
USFWS' own recovery standards for the certain species covered. 
Moreover, other USFWS offices in both southern and northern California 
have embraced this model. Nevertheless, the USFWS office that oversees 
the Williamson County's Permit and HCP has been unwilling to allow 
projects subject to ESA section 7 to use the HCP, even though 
participation in the HCP would, in most cases, benefit the relevant 
species to a greater degree than not participating. Neither the species 
nor the County's citizens benefit from this position. The species 
receives less conservation than it would if the ``federal'' project 
could participate in the HCP, while the project is subjected to months 
or years of delay, increased costs, or abandonment. This result is 
absurd.
    Two road projects in Williamson County were particularly affected 
by one or more of the stumbling blocks described above. US Highway 195 
is a major transportation corridor providing a logistical link for the 
U.S. Army's Fort Hood to coastal port facilities, and is a major 
regional link for private and commercial ground transportation. Despite 
the existence of the County-wide HCP that would have made compliance 
with the ESA a simple process encompassing a matter of weeks, 
interagency consultation on improvements to this road was complex. This 
resulted in the need to set aside two additional cave preserve areas at 
a direct cost of $1.8 million and caused the County to incur many 
millions of dollars in costs due to delays, redesign, reevaluation and 
consultation. Increased construction costs were incurred over the 
approximate ten-year period while obtaining environmental clearance and 
during this time there were numerous car crashes, many involving 
soldiers from nearby Ft. Hood, including several fatalities.
    Likewise, US Highway 183 is a multi-state, regional and local 
transportation artery that was being widened. The project involved no 
environmentally sensitive areas and replaced an existing bridge over a 
river. The time to complete the consultations should have taken no more 
than six months. The Federal Agency ``ping pong'' and associated delays 
with multiple ESA section 7 consultations on various portions of this 
highway drug this project on for three and one half years, resulting in 
increased of right-of-way costs, rising from $10 million to $37 
million. A cost borne completely by the local tax payers.
    Clearly this brief commentary cannot provide all the details and 
travails of these two projects, but are a few examples of the 
inefficiencies caused by the administration of the ESA.
POTENTIAL SOLUTIONS
    In short form here is our local perspective on solutions and 
remedies:

     Require review deadlines and concurrent reviews by Federal 
            Agencies. For instance a ``scoping'' meeting provision for 
            all agencies and stakeholders which would determine the 
            level of environmental review and establish deadlines.

     Projects should be ``entitled'' upon Federal notification 
            and submission, subject to rules and policies in place at 
            the time negotiations begin unless jointly agreed for cost 
            and efficiency.

     Allow regional incidental take permits and HCP's to be 
            utilized for projects regardless of the source of funding 
            or the agencies involved.

     Allow portions of the incidental take permits and HCPs to 
            be amended without opening the entire HCP and Permit for 
            review and revision, particularly when the level of species 
            conservation and level of impacts authorized do not change 
            significantly. This would prevent the need for additional 
            NEPA process and the risk of opening up existing permits 
            and HCP's to a new round of third party litigation.

    Again, thank you for this opportunity to provide you and the 
subcommittee brief examples of our experiences with the ESA and our 
suggestions for improvement. We have enclosed additional suggestions 
which were provided by Williamson County to Members of Congress, and 
their staff persons, as well as to and committee staff in meetings we 
held with them last week while we were in Washington D.C. We stand 
ready to provide additional information, data, and suggestions 
pertinent to your deliberations and decision making.

            Respectfully,

                                Commissioner Valerie Covey,
                                                         President.

                                 Commissioner Cynthia Long,
                                                    Vice President.

Enclosure

                                 *****
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]

                 Regulatory Reform Relating to Federal

                      Agency Environmental Review

                          and Approval Process

                             And comprising

                 Legislative and Administrative Topics

                                  for

                       Department of Interior and

                      US Fish and Wildlife Service

                    Williamson County, Texas and the

               Williamson County Conservation Foundation

March, 2017

Administrative

1. ENDANGERED SPECIES ACT SECTION 7

    The ESA section 7 process should be simplified. First, where a U.S. 
Fish and Wildlife Service-approved (the ``Service'') Habitat 
Conservation Plan (``HCP'') covers the project (or project area) 
nominally subject to a section 7 consultation, the consultation should 
be truly and significantly streamlined. The Service would already have 
conducted a jeopardy analysis when it considered whether to issue the 
Incidental Take Permit (ITP) in the first place. [Scope of review 
issue: Sierra Club v. U.S. Army Corps of Engineers, 803 F.3d 31 (D.C. 
Cir. 2015)]
    Secondly, there currently exists a disconnect between the scope of 
review the Service undertakes for linear projects and that undertaken 
by the U.S. Army Corps of Engineers. At present, even where the Corps 
takes narrow jurisdiction over a linear project (e.g., a single and 
discrete crossing of a wetland or stream). the Service often assumes a 
much broader jurisdiction (e.g., the entire roadway or pipeline). The 
result is often that the Service's consultation involves analyzing the 
effects of the entire linear project on the relevant species, but the 
incidental take statement (i.e., the ITP) issued by the Service only 
covers the discrete crossing over which the Corps has taken 
jurisdiction. This causes situations where a project proponent cannot 
move forward because take authorization is needed for the areas outside 
Corps jurisdiction and the ITP application and approval process is 
moving at a snail's pace. In summary, there should be no overreach by 
the Service, and the Service and Corps should be required to conduct 
congruent reviews so that issues may be identified early in the review 
process and to ensure that statutory deadlines prescribed by the ESA 
are met. (Similar situations for section 7 are encountered with other 
federal agencies.)
2. CONCURRENT REVIEW

    Require concurrent review process among all relevant agencies. Like 
the problem in number 1, above, projects are often delayed because 
there are multiple agencies--federal and state--that must review the 
project under various statutory schemes. These agencies are not 
required to conduct their reviews concurrently and, frequently, do not 
have any hard deadlines to complete such a review. Requiring all 
federal reviewing agencies to coordinate and establish a concurrent 
review process and schedule during the planning stage of the project, 
with hard, time limited deliverables, would increase efficiency among 
all agencies and provide the regulated community much-needed certainty. 
Further, reviewing agencies should be provided one opportunity for 
review and comment; rather than a never-ending loop of multiple 
reviews, drafts, and deliverables.
3. CRITICAL HABITAT RULES

    Reconsider the critical habitat rules and policy adopted in the 
last administration and revert rules consistent with existing caselaw. 
The use of critical habitat designations, particularly where HCPs are 
in effect doing little or nothing to affect conservation of a species, 
only further complicate the considerations regarding federalized 
projects. (See also the sections on simplifying the Section 7 process 
and on implementing a concurrent review process.) Much of this could be 
accomplished as part of a settlement of the 20-state lawsuit pending in 
Alabama. The current rules work to increase the likelihood that the 
Service will designate as critical habitat areas currently unoccupied 
by the species, as well as areas that are only infrequently or 
sporadically used. The newest policy also establishes various 
requirements an existing habitat conservation plan must satisfy for the 
plan area to qualify for an exclusion from critical habitat 
designation, as well as factors that the Service will consider when 
making the threshold determination of whether to engage in an impact 
analysis at all. Finally, recent guidelines for inclusion of climate 
change considerations introduce specious and unquantifiable 
discussions. Climate change models are in themselves subject to 
continuing scientific debate, conjecture and adjustments and should not 
be the basis for additionally compounding critical habitat or 
mitigation and conservation guidelines. [Rules: 50 C.F.R. 424 
(available at 81 Fed. Reg. 7413-40 (Feb. 11, 2016)); and 50 C.F.R. 
402.02 (81 Fed. Reg. 7214-26 (Feb. 11, 2016)). Policy: Policy Regarding 
Implementation of Section 4(b)(2) of the Endangered Species Act, 81 
Fed. Reg. 7226 (Feb. 11, 2016). Lawsuit: State of Alabama, et al. v. 
National Marine Fisheries Service, Civ. Action No. 16-593, Case 1: 16-
cv-00593-N (S.D. Ala. Nov. 29, 2016)]
4. NO SURPRISES RULE

    Clarify ``No Surprises'' rule in administrative guidelines. Provide 
Guidance and amend ``No Surprises'' rule to provide that amendments to 
one aspect of an HCP (e.g., addition of one species to the list of 
``covered species'') do not re-open the entire HCP for review by the 
Service or to challenge by a third party. The rule should further be 
amended to make clear that when an HCP is amended such that the 
amendment provides additional benefit to a species or no changes to the 
plan goals (e.g., set-asides, preserve acquisition), the HCP will not 
be re-opened. [50 C.F.R. 17.22(b).] As it is, fully active and 
effective HCPs are reticent to suggest even species positive actions 
due to uncertainty of Service proposals to modify the existing plan. 
See also this topic under the Legislative section.
5. FEDERAL HIGHWAY ADMINISTRATION POLICY

    Repeal or Amend Federal Highway Administration (FHWA) policy 
requiring that NEPA documents comply with Metropolitan Transportation 
Plan and Transportation Improvement Program or State Transportation 
Improvement Program, as applicable. The effect of this policy is that 
the final NEPA decision cannot occur unless the project scope, limits, 
and cost correspond with the Metropolitan Transportation Plan and 
Transportation Improvement Program or, as applicable, the Statewide 
Transportation Improvement Program. If the NEPA document is not 
consistent with these plans, then the plans must be amended--a process 
that can take months to complete. Throughout the development of any 
given project, it is common that the scope, limits and estimated cost 
change. This confines deliberations on projects to and unwarranted 
extent. For example, an engineering and traffic needs assessment might 
warrant additional lanes or modified interchanges. While these changes 
sometimes are captured in regular updates of the plans, where a change 
is late in the process, the final NEPA decision must be postponed until 
the requisite plans are updated. No statute or regulation ties 
compliance with transportation requirements to the environmental review 
process established by NEPA. This policy is contrary to the agency's 
own rules and needlessly delays environmental approvals. FHWA should 
rescind the January 28, 2008 policy memo and decouple the NEPA review 
process from the requirements in the transportation process. [FHWA's 
NEPA regulations: 23 C.F.R. pt. 771; Council on Environmental Quality's 
NEPA regulations: 40 C.F.R. pts. 1500-1508; FHWA Policy regarding 
transportation planning and NEPA review: https://www.fhwa.dot.gov/
planning/tpr_and_nepa/]
6. DELISTING PROCESS AND LISTING IN ERROR

    Streamline and prioritize delisting petition process and adopt a 
reasonable definition of ``listing in error.'' At present, the Service 
is operating under deadlines to list and delist species established by 
settlement agreements in various cases brought by environmental groups 
well-versed in ``sue and settle'' tactics. Going forward, the Service 
should develop and put forward for public review and comment a policy 
that would prioritize certain species for delisting, particularly those 
that may have been listed in error. For example, the Service could 
establish a formula whereby a species whose known locations increase by 
a certain percentage over the number of locations known at the time of 
listing would automatically be placed in the front of the line for 
delisting actions.

    Further, the Service should propose and adopt, through the required 
public notice and comment procedures, a clear, reasonable, and concise 
definition of what it means for a species to be ``listed in error.'' 
Current regulations explain that delisting may be appropriate where 
``[s]ubsequent investigations may show that the best scientific or 
commercial data available when the species was listed, or the 
interpretation of such data, were in error.'' 50 C.F.R. 424.11(d)(3). 
Where a party has petitioned the Service to delist a species, the ESA 
requires that the petition presents ``substantial scientific or 
commercial information indicating that the petitioned action may be 
warranted'' in order for the Service to reach positive 90-day and 12-
month findings on the petition. Service regulations finalized in 2016 
revised the definition of the ``substantial information'' standard and, 
significantly, now require that the ``substantial information'' 
standard be applied ``in light of any prior reviews or findings'' the 
Service has made regarding a species' status (e.g., 5-year status 
reviews and species' recovery plans). The same regulations indicate:

        [w]here the prior review resulted in a final agency action, a 
        petitioned action generally would not be considered to present 
        substantial scientific and commercial information indicating 
        that the action may be warranted unless the petition provides 
        new information not previously considered.

50 C.F.R. Sec. Sec. 424.14(h)(1)(i),(ii).

The Service should revise the delisting petition regulations to require 
delisting of a species on any ``substantial scientific and commercial 
information'' regardless of whether the Service previously has reviewed 
that information in a different context (e.g., 5-year status review or 
species' recovery plan). [ESA provisions regarding petitions: 16 U.S.C. 
Sec. 1533(b)(3); General delisting regulation found at 50 C.F.R. 
424.11(d)(3); Delisting petition regulations found at 50 C.F.R. 
Sec. Sec. 424.14(h)(1)(i),(ii).]
7. CONSISTENCY

    Consistent application of law, regulation, and policy among Service 
offices. Currently, the Service operates in eight relatively 
disjunctive regions with each region having numerous field offices. 
Within the field offices, there is often little oversight given to 
individual staff persons responsible for reviewing applications for 
ITPs, draft HCPs, and consultation-related documents. Thus, ESA 
permitting and approval processes often vary widely among the various 
Service offices. Because of this, the regulated community operates with 
significant uncertainty as to how a given project might be treated by 
the Service. Providing more direction from Service headquarters--
provided such direction is submitted for public review and comment--
could give both Service staff and the regulated community much-needed 
stability, predictability, and accountability.
8. MITIGATION POLICY

    Withdraw and reconsider the various recently adopted mitigation 
policies, including particularly the compensatory mitigation policy 
focused on Endangered Species Act. The prior policies focused on 
mitigation to the maximum extent possible. Recently adopted rules 
greatly complicated the process by trying to follow wetlands-style 
minimization of impacts and mitigation based on the remaining, possible 
habitat areas. In general, these rules were overbroad and would likely 
increase the burden on those required to provide mitigation under the 
Endangered Species Act (``ESA''). Additionally, the rules could be 
interpreted to require mitigation under the Migratory Bird Treaty Act 
and other statutes which do not, themselves, require mitigation for 
impacts to relevant resources. [Final Endangered Species Act 
Compensatory Mitigation Act Policy, 81 Fed. Reg. 95316 (Dec. 27, 2016). 
Overarching mitigation policy, U.S. Fish and Wildlife Service 
Mitigation Policy, 81 Fed. Reg. 83440 (Nov. 21, 2016)]
9. USE OF SOLICITORS

    Solicitors should be involved early in project planning and as part 
of the concurrent review process. The Service should make clear to its 
field office and regional staff persons that solicitors are there to 
advise the Service on legal matters--including whether a habitat 
conservation plan satisfies the criteria established by ESA section 10 
or whether an action is ``likely to adversely affect'' a species that 
is the subject of ESA section 7 consultation. If a concurrent review 
process is established among relevant agencies (see number 2, above), 
involving Service solicitors at that stage would be extremely 
beneficial.
10. MITIGATION GUIDANCE

    Provide guidance and training on the Constitutional limits on 
mitigation asks. Service requests for mitigation under the ESA and 
other statutes are subject to the Constitutional limits on takings of 
private property and the limitation on ``exactions''--preconditions to 
an agency's approval--as explained in a series of rulings by the 
Supreme Court. The Service should, in consultation with its attorneys, 
develop and put forth for public review and comment, guidance for its 
staff that explains the Constitutional limitations on requests or 
demands for mitigation, as elucidated by the Supreme Court. [U.S. 
Constitution, Amendment V; Koontz v. St. John's River Management 
District, 133 S. Ct. 2586 (2014); Nollan v. California Coastal Comm'n, 
483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994).]
11. HABITAT CONSERVATION PLANNING HANDBOOK

    Initiate a rewrite of the new Habitat Conservation Planning 
Handbook (``HCP Handbook''). Among the many points to be made is that 
it should be clear that amendment of one aspect of an HCP does not open 
the entire HCP to reconsideration under whatever are deemed to be 
current standards. Additionally, and much like the mitigation policies 
referenced in number 10, above, the revised HCP Handbook makes an 
incidental take permit (``ITP'') application and approval process 
exceedingly complex and potentially costly, particularly with respect 
to the mitigation requirements set forth therein (and coupled with 
those laid out in the Service's mitigation policies). [Joint U.S. Fish 
and Wildlife Service and National Marine Fisheries Service Habitat 
Conservation Planning Handbook, 81 Fed. Reg. 93702 (Dec. 21, 2016)]

Legislative

1. SECTION 7 CONSULTATION

    Revise ESA section 7 to streamline the consultation process for 
activities already covered by a Service-approved HCP. Section 7 should 
be amended to require that where a Service-approved HCP covers the 
project subject to section 7 consultation, the Service must consider 
and adhere to the consultation that has already taken place pursuant to 
the Service's intra-agency section 7 consultation associated with 
issuance of the existing incidental take permit (ITP). This is 
appropriate because, absent listing of a new species or designation of 
new critical habitat since the time of the ITP issuance, the Service 
would already have considered the project's potential effects on listed 
species and critical habitat. [ESA consultation provisions: 16 U.S.C. 
1536; ESA ITP provisions: 16 U.S.C. 1539.]
2. CONCURRENT REVIEW

    Codify a concurrent review process requirement for agencies dealing 
with environmental clearance. Projects are often delayed because there 
are multiple agencies--federal and state--that must review the project 
under various statutory schemes. These agencies are not required to 
conduct their reviews concurrently and, frequently, do not have any 
hard deadlines to complete such a review. Requiring all federal 
reviewing agencies to coordinate and establish early on for the project 
a review process and schedule, with hard, time limited deliverables, 
would increase efficiency among all agencies and provide the regulated 
community much-needed certainty. Further, reviewing agencies should be 
provided one opportunity for review and comment; rather than a never-
ending loop of multiple reviews, drafts, and deliverables.
3. CRITICAL HABITAT

    Codify a more reasoned interpretation of critical habitat or repeal 
the concept of critical habitat. Provisions concerning exclusions from 
critical habitat should be strengthened. For example, the Service 
currently has discretion to include areas in a critical habitat 
designation even where the Service's required cost-benefit analysis 
indicates the cost of inclusion is greater than the benefit derived. 
Requiring the Service to exclude such areas would remove unnecessary 
discretion in making the decision. The need for revision to the 
critical habitat provisions of the ESA is particularly relevant given 
the recent Fifth Circuit decision to deny a rehearing of the dusky 
gopher frog critical habitat case. There, the Service designated as 
critical habitat areas currently unoccupied by the frog that also were 
not shown as likely to be habitable in the foreseeable future. [16 
U.S.C. 1533(b)(2); Markle Interests, L.L.C. v. U.S. Fish and Wildlife 
Service, No. 14-31008 (5th Cir. June 30, 2016).]
4. SCIENTIFIC STUDIES, PEER REVIEW AND STATISTICAL TRANSPARENCY

    ESA should be amended to include a definition of ``best available 
science.'' 16 U.S.C. 1532. This definition should require use of 
reliable, peer-reviewed data and models and should account for known or 
potential sources of error. The accumulation and evaluation of any such 
information should be achieved through means that are transparent, 
replicable, using data sets that are publicly available, (to the extent 
required by law, especially for publicly funded research) and should 
not contain a requirement that it err on the side of the species. This 
point is especially important with respect to considerations of climate 
change in listing, delisting or down-listing, and critical habitat 
decisions, as well as in the Service's review of incidental take 
permits under ESA section 10, biological assessments under ESA section 
7, and proposals for mitigation actions.
5. LITIGATION REFORM, MAINTAINING STATUTORY PRINCIPLES

    Address ``sue and settle'' litigation under ESA section 11. ESA 
section 11 should be amended to eliminate the potential for recovery of 
legal fees, which would vastly reduce the number of organizations who 
make a lucrative practice of suing the Service and collecting legal 
fees when the Service is unable to meet its statutorily-imposed 
deadlines. Section 11 should also be amended to make the Service's lack 
of funding a defense to litigation brought because the Service failed 
to meet its statutory deadline. [16 U.S.C. 1540.]
6. NO SURPRISES RULE

    Codify no surprises rule. [50 C.F.R. 17.22(b)]. Codifying the ``no 
surprises'' rule would make it much harder for any given administration 
to dispense with the no surprises requirement. At present, the Service 
may modify the rule by going through the public rulemaking process. If 
the ``no surprises'' rule were codified, changing or dispensing with 
the rule would take an act of Congress. This is directly related to the 
Administrative item #4. At present the Service maintains a 
discretionary role which was likely not a part of the original (1973) 
ESA considerations.
7. LISTING CHANGES BY RULE OR GUIDANCE

    No technical listings or listing changes on taxonomic revisions. 
The Service should always be required to conduct a full-scale 
determination as to whether a species should be listed, even where a 
species is being taxonomically split from one species into two (or 
more). With respect to taxonomic revisions, the Service often accepts a 
taxonomic split for a given species and then indicates which of the 
species will be recognized as a listed entity. There appears to be no 
basis in law allowing the Service to treat species listings in this 
manner. For example, in 2012, the Service published in the Federal 
Register a proposed rule to accept a taxonomic split of the western 
snowy plover into three distinct species and to recognize as the listed 
entity one of the three species. The Service also proposed in that 
Federal Register notice to revise critical habitat for the species. 
While there was significant space dedicated to examining the proposed 
critical habitat designation, there was almost no discussion of the 
taxonomic revision. Likewise, in 1993, the Service made a taxonomic 
revision to a listed karst invertebrate species, Texella reddell; (also 
known as the Bee Creek Cave harvestman). Pursuant to the taxonomic 
revisions, the Bee Creek Cave harvestman became two listed species--the 
Bee Creek Cave harvestman and the Bone Cave harvestman (Texella 
reyesi)--and the Service conducted no additional analysis as to whether 
the ``new'' species met the standards for listing in the first place. 
[Western snowy plover proposed rule: 77 Fed. Reg. 2243 (Feb. 16, 2012); 
Bee Creek Cave harvestman final rule: 56 Fed. Reg. 43818 (Aug. 18, 
1993).]
8. SUNSET PROVISIONS

    Include sunset provision for listings. Many species have been 
listed without sufficient science indicating that they meet the 
requirements set forth in ESA section 4. Perhaps the best example of 
this circumstance is the Bone Cave harvestman in central Texas--a 
species that was known from only a handful of caves at the time it was 
listed, but is now found in nearly 200. The Service is currently 
reviewing a petition to delist this species based on the claim that it 
was listed in error, and a 90-day finding is due at the end of March 
2017. A sunset provision in section 4 could require that species are 
automatically removed from the list of threatened and endangered 
species after a time certain (e.g., 20 years), but could go back 
through the relisting process if the best available science at that 
time supported relisting. [16 U.S.C. 1533; List of threatened and 
endangered species: 50 C.F.R. 17.11 and 17.12.)
9. STATE AND LOCAL GOVERNMENT ROLE

    Strengthen role of state and local governments under section 6. 
Although the ESA already contains provisions aimed at encouraging 
states to take actions to conserve listed species, states' efforts to 
conserve species (such as the multi-state conservation effort aimed at 
the lesser prairie chicken) are often derailed because of third parties 
(or even the Service itself). ESA section 6 could be amended so that 
these kinds of efforts are encouraged to a greater degree (e.g., 
requiring that the Service place significant weight on such efforts 
when determining whether to list or delist a species) and so that these 
kinds of efforts are less likely to face challenge by third party 
groups whose interests are often misaligned both with the Service and 
the states. [ESA section 6: 16 U.S.C. 1535; Lesser Prairie Chicken 
Range-wide Plan: http://www.wafwa.org/initiatives/grasslands/
lesser_prairie_chicken/range-wide_ conservation_plan/]

The Williamson County Conservation Foundation (WCCF) was established in 
December 2002 to provide for conservation of endangered species in 
Williamson County while helping to promote responsible development.

Williamson County is one of the fastest growing counties in the 
country. Rapid growth necessitates a regional approach to balancing 
development needs with the needs for conservation.

                                 ______
                                 

    Mr. Clay. Mr. Chairman, in response to your comments, I am 
from Missouri. If you want to be in denial about the 
effectiveness of the ESA, that is on you; but in Missouri, you 
can put lipstick on a pig if you want, but it is still called a 
pig.
    Mr. Labrador. Yes, but in Idaho we actually look at the 
reality of what is happening and how it is affecting the 
economy.
    I thank the witnesses for their valuable testimony and the 
Members for their questions. The members of the Committee may 
have some additional questions for the witnesses, and we will 
ask you to respond to these in writing.
    Under Committee Rule 3(o), members of the Committee must 
submit witness questions within 3 business days following the 
hearing, and the hearing record will be held open for 10 
business days for these responses. If there is no further 
business, without objection, the Committee stands adjourned.

    [Whereupon, at 11:31 a.m., the Subcommittee was adjourned.]

[LIST OF DOCUMENTS SUBMITTED FOR THE RECORD RETAINED IN THE COMMITTEE'S 
                            OFFICIAL FILES]

Submitted by Rep. Grijalva

    EARTHJUSTICE, September 28, 2015 Letter to DEQ 
            Permitting & Compliance Division regarding Proposed 
            MPDES Permit for the Montanore Mine Project Permit 
            No. MT0030279

    U.S. Fish and Wildlife Service, June 20, 2013, Memo 
            from Noreen Walsh, Regional Director, Region 6 to 
            Dan Ashe, Director regarding Montanore Mine Project

    Submission for the Record which includes excerpts 
            from the following documents:

            -- Montana Department of Environmental Quality, 
        February 12, 2016 Letter

            -- Record of Decision, Montanore Project, February 
        2016 by the Montana Department of Environmental Quality

            -- Court Case: Rock Creek Alliance v. U.S. Forest 
        Service, 703 F.Supp.2d 1152 (2010)

            -- Online article: Bonner County Daily Bee, January 
        22, 2017, Rock Creek Mine Fight `Not a Done Deal'