[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.
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\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.
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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.
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\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.
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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.
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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.
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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'').
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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.
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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.
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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).
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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\
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\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).
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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.
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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).
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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'