[Senate Hearing 115-5]
[From the U.S. Government Publishing Office]



 
                      OVERSIGHT: MODERNIZATION OF
                       THE ENDANGERED SPECIES ACT

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

                                HEARING

                               before the

                              COMMITTEE ON
                      ENVIRONMENT AND PUBLIC WORKS
                          UNITED STATES SENATE

                     ONE HUNDRED FIFTEENTH CONGRESS

                             FIRST SESSION

                               __________

                           FEBRUARY 15, 2017

                               __________

  Printed for the use of the Committee on Environment and Public Works
  
  
  
  
  
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               COMMITTEE ON ENVIRONMENT AND PUBLIC WORKS

                     ONE HUNDRED FIFTEENTH CONGRESS
                             FIRST SESSION

                    JOHN BARRASSO, Wyoming, Chairman
JAMES M. INHOFE, Oklahoma            THOMAS R. CARPER, Delaware
SHELLEY MOORE CAPITO, West Virginia  BENJAMIN L. CARDIN, Maryland
JOHN BOOZMAN, Arkansas               BERNARD SANDERS, Vermont
ROGER WICKER, Mississippi            SHELDON WHITEHOUSE, Rhode Island
DEB FISCHER, Nebraska                JEFF MERKLEY, Oregon
JERRY MORAN, Kansas                  KIRSTEN GILLIBRAND, New York
MIKE ROUNDS, South Dakota            CORY A. BOOKER, New Jersey
JONI ERNST, Iowa                     EDWARD J. MARKEY, Massachusetts
DAN SULLIVAN, Alaska                 TAMMY DUCKWORTH, Illinois
RICHARD SHELBY, Alabama              KAMALA HARRIS, California

              Richard M. Russell, Majority Staff Director
               Gabrielle Batkin, Minority Staff Director
               
               
                            C O N T E N T S

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                                                                   Page

                           FEBRUARY 15, 2017
                           OPENING STATEMENTS

Barrasso, Hon. John, U.S. Senator from the State of Wyoming......     1
Carper, Hon. Thomas R., U.S. Senator from the State of Delaware..     3
Johnson, Hon. Ron, U.S. Senator from the State of Wisconsin, 
  prepared statement.............................................   207

                               WITNESSES

Freudenthal, David D., former Governor, State of Wyoming.........     8
    Prepared statement...........................................    11
    Response to an additional question from Senator Barrasso.....    36
    Responses to additional questions from:
        Senator Carper...........................................    37
        Senator Capito...........................................    38
    Response to an additional question from Senator Wicker.......    42
Myers, Gordon S., Executive Director, North Carolina Wildlife 
  Resources Commission; President, the Southeastern Association 
  of Fish and Wildlife Agencies..................................    44
    Prepared statement...........................................    47
    Responses to additional questions from:
        Senator Barrasso.........................................    55
        Senator Carper...........................................    56
        Senator Capito...........................................    57
Holte, James, President, Wisconsin Farm Bureau Federation........    63
    Prepared statement...........................................    65
    Responses to additional questions from Senator Carper........   117
    Response to an additional question from Senator Wicker.......   118
Rappaport Clark, Jamie, President and CEO, Defenders of Wildlife.   119
    Prepared statement...........................................   121
    Responses to additional questions from Senator Carper........   131
    Response to an additional question from Senator Wicker.......   132
Ashe, Dan M., President and CEO, Association of Zoos and 
  Aquariums......................................................   134
    Prepared statement...........................................   136
    Response to an additional question from Senator Barrasso.....   141
    Response to additional questions from Senator Carper.........   142

                          ADDITIONAL MATERIAL

Statement from the National Endangered Species Act Reform 
  Coalition......................................................   208
Statement from the American Road & Transportation Builders 
  Association....................................................   214


         OVERSIGHT: MODERNIZATION OF THE ENDANGERED SPECIES ACT

                              ----------                              


                      WEDNESDAY, FEBRUARY 15, 2017

                                       U.S. Senate,
                 Committee on Environment and Public Works,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:06 a.m. in 
room 406, Dirksen Senate Building, Hon. John Barrasso (Chairman 
of the Committee) presiding.
    Present: Senators Barrasso, Inhofe, Capito, Boozman, 
Fischer, Moran, Rounds, Ernst, Sullivan, Shelby, Carper, 
Booker, and Harris.

           OPENING STATEMENT OF HON. JOHN BARRASSO, 
             U.S. SENATOR FROM THE STATE OF WYOMING

    Senator Barrasso. I will call this hearing to order.
    I would like to start by welcoming the newest member of the 
committee, Senator Richard Shelby from Alabama, who has been 
appointed to the Committee with the confirmation of Jeff 
Sessions from this Committee to be the Attorney General.
    Welcome, Senator Shelby.
    Senator Shelby. Thank you. Mr. Chairman, I am here to 
support you and do some good things for the environment, right?
    Senator Barrasso. Yes, sir.
    Senator Shelby. And for jobs.
    Senator Barrasso. Then you are on the right committee. 
Appreciate you being here.
    Senator Shelby. No. 1, support the Chairman, right?
    Senator Barrasso. As we discussed before and as Governor 
Freudenthal can attest, I do not need your support when I am 
right.
    Senator Shelby. I know. We understand. I will be with you 
when you are right.
    Senator Barrasso. Thank you, so much. Welcome to the 
Committee.
    I call this hearing to order.
    The Endangered Species Act, which is the topic of this 
discussion, was enacted to conserve species identified as 
endangered or threatened with extinction and to conserve 
ecosystems upon which those species depend.
    Those of us from Wyoming know the important role the 
Endangered Species Act plays in responsible environmental 
stewardship. Wyoming is one of the most beautiful States in the 
Nation. We are home to Yellowstone and Grand Teton National 
Parks, numerous national forests, pristine lakes, and scenic 
waterways.
    Our wildlife is diverse and abundant. We have thriving 
populations of grizzly bears, wolves, elk, and bison, to name a 
few. People travel from around the world to come to Wyoming 
because our State's natural resources are spectacular.
    We in Wyoming are not alone in our natural bounty or in our 
resolve to conserve species within our borders. Every State in 
our Nation works hard and invests heavily to protect the unique 
species of that State.
    States throughout the west are collaborating tirelessly 
with stakeholders to conserve species like the sage grouse 
throughout the west, the Arctic grayling fish in Montana, the 
El Segundo blue butterfly in California, and the Columbian 
white-tailed deer in the Pacific Northwest.
    The Great Lakes region--like the west--grapples with the 
gray wolf. In the southeast, specifically in North Carolina, it 
is the red wolf; in the Great Plains, the lesser prairie-
chicken; in the south and elsewhere, the northern long-eared 
bat; and in the Northeast and Midwest, the rusty patched 
bumblebee.
    99.4 percent of counties in the United States are home to 
at least one species listed as endangered. That is according to 
a recent analysis of Fish and Wildlife Service data done by the 
National Association of Counties.
    Here is the problem. The Endangered Species Act is not 
working today. We should all be concerned when the Endangered 
Species Act fails to work.
    States, counties, wildlife managers, home builders, 
construction companies, farmers, ranchers, and other 
stakeholders are all making it clear that the Endangered 
Species Act is not working today.
    A major goal of the Endangered Species Act is the recovery 
of species to the point that protection under the statute is no 
longer necessary. Of 1,652 species of animals and plants in the 
United States listed as either endangered or threatened since 
the law was passed in 1973, only 47 species have been delisted 
due to recovery of the species.
    In other words, the Fish and Wildlife Service has concluded 
that less than 3 percent of species in the United States under 
the protection of the Endangered Species Act have recovered 
sufficiently to no longer necessitate the protection of the 
statute. As a doctor, if I admit 100 patients to the hospital 
and only 3 recover enough under my treatment to be discharged, 
I would deserve to lose my medical license.
    The Western Governors' Association, the Association of Fish 
and Wildlife Agencies, and other stakeholder groups have been 
working to identify challenges with the Endangered Species Act 
and opportunities to make the statute work better. The 
Bipartisan Association of Western Governors has taken on this 
cause because the Endangered Species Act has not been updated 
in any significant way for almost 30 years. Wyoming's current 
Governor, Matt Mead, has played an especially important role by 
leading the WGA's Species Conservation and Endangered Species 
Act Initiative.
    Governor Mead has worked with other western States to 
develop an Endangered Species Act policy for the WGA, including 
specific recommendations for improvements to species 
conservation and to the Endangered Species Act. The western 
Governors unanimously adopted the Endangered Species Act policy 
at the WGA meeting last June.
    This year, the Western Governors' Association continues to 
lead efforts to identify consensus-based solutions to modernize 
statutes, regulations, and policies to make the Endangered 
Species Act work better for wildlife and for people.
    As our Committee explores the need to modernize the 
Endangered Species Act, I hope we can emulate the 
bipartisanship leadership that we had here on this Committee 
and that the WGA has demonstrated in this Act.
    When I talk about the bipartisanship in this Committee, I 
hope we can replicate last year's bipartisan success when the 
entire Committee joined together--Republican and Democrat--to 
modernize the Toxic Substances Control Act, achieving the first 
major environmental reform in that area in roughly 40 years.
    With that, I would like to turn to the Ranking Member, 
Senator Carper, for his testimony.

          OPENING STATEMENT OF HON. THOMAS R. CARPER, 
            U.S. SENATOR FROM THE STATE OF DELAWARE

    Senator Carper. Thank you, Mr. Chairman.
    It is great to be with all of you this morning. To the 
current Governors and other special guests, thank you for 
joining us from across the country.
    I have a statement I am going to read in just a minute, but 
I want to preface it by saying this. Unfortunately, on the 
Democratic side, we have some emergency meetings that have been 
called, and we will be in and out of the hearing.
    I apologize for that. It is not something we had planned, 
but we value your testimony and are going to participate as 
much as we can.
    Coming in, I spoke with the Governor and with Matt who 
works for our Chairman, behind me is Christophe Tulou who when 
I was Governor was our Secretary of Natural Resources and 
Environmental Control, someone I worked with for many years. We 
have some very smart people at the desk, Dan and Jamie and our 
other guests.
    A question I would like us to ask is why do we have the 
ESA? Why do we have the Endangered Species Act? Why did we 
create it all those years ago? Do we still need it? Is it 
perfect? Is it written in stone?
    I have been reading through the Old Testament, and they 
talk about tablets and stone. Well, it is not in stone.
    Everything I do I know I can do better. I think that is 
true for all of us. It is probably true for most statutes, but 
I want to make sure that at the end of the day the original 
purpose for the Endangered Species Act to preserve the species 
that the good Lord put on this planet to share this planet with 
us, that we have done them no harm.
    At the same time, going back to our new member, Richard 
Shelby, just a kid here, welcome aboard.
    To make sure that while we make some improvements to the 
Endangered Species Act, we do so in a way that is true to the 
original intent of the law.
    I am also always interested in how we create a more 
nurturing environment for job creation and job preservation. I 
know he is, too. All of us are. I hope we will be true to that, 
too.
    Here is my statement.
    According to the International Union for the Conservation 
of Nature, better known as IUCN, almost one-third of all known 
species of plants and animals, 22,784 species, are currently at 
risk of extinction.
    According to Harvard conservation biologist E.O. Wilson, 
one of the world's preeminent scholars on biodiversity, if we 
continue on our current path half of all species worldwide are 
likely to go extinct in the next century.
    That is a troublesome warning that if allowed to become 
reality would have tremendously detrimental implications for 
our global ecosystem.
    There is much talk in the halls of Congress these days 
about ``modernizing'' the Endangered Species Act and a host of 
other environmental protections. In each case we need to be 
very thoughtful about what modernization means, the proposals 
we review, and the consequences they would inflict.
    Nowhere is that exercise of wisdom and humility more 
appropriate than when we explore changes to the Endangered 
Species Act, a lifeline that Congress first extended in 1973 to 
species struggling to adapt to a world forever altered by the 
presence of one species in particular--us, human beings.
    The House Committee on Merchant Marine and Fisheries, on 
which I once served a long time ago when Richard and I were in 
the House together, soberly noted in its report to accompany 
the original Endangered Species legislation: ``If the blue 
whale, the largest animal in the history of this world, were to 
disappear, it would not be possible to replace it, it would 
simply be gone, irretrievably forever.''
    The value of this law, however, is not just the inherent 
value of the animals and plants that share this planet with us 
but also the benefits we gain from protecting the places where 
they live and thrive.
    The National Fish and Wildlife Foundation estimate that the 
natural habitats we have protected in the lower 48 States alone 
provide a total roughly of $1.6 trillion per year in benefits. 
I had to look twice at that number, $1.6 trillion per year in 
benefits.
    It comes as little surprise, then, that the Endangered 
Species Act passed Congress in the 1970s nearly unanimously. 
While much has changed over the past 40-plus years, apparently 
our desire for thriving species and healthy habitats has not.
    As we consider our witnesses' views on the need to 
modernize the Act, we should also keep in mind its purpose: to 
prevent the extinction of species and to do our best to restore 
those at risk. I, for one, am reluctant to do anything to 
compromise the successes we have achieved.
    Another observation is: it has been a long time since we in 
Congress last reauthorized the Endangered Species Act. What I 
find interesting is that given the opportunity to make changes, 
the compulsion over time was not to weaken but rather to 
strengthen the law, to make it more effective in protecting 
species in peril.
    For example, Congress adopted an amendment to address the 
position of the Reagan administration and ensure that listing 
decisions were based solely on biological and scientific 
factors, not economic calculations. That was in the Reagan 
administration.
    At that same time Congress also saw fit to set deadlines to 
ensure that Federal agencies made responsive and timely 
determinations in response to the listing petitions they 
received.
    As a former Governor I will be especially interested in our 
witnesses' perspectives on the proper role and the success of 
States in managing species so they do not end up on threatened 
and endangered species lists.
    Along those lines I am particularly curious whether all of 
our government agencies at all levels have the resources they 
need to protect species and help them recover if they end up in 
peril.
    I have a unanimous consent request, Mr. Chairman, that the 
rest of my statement be entered for the record. I ask unanimous 
consent to also offer for the record a letter we received from 
31 conservation organizations highlighting their support for 
the Endangered Species Act.
    Chairman Barrasso. Without objection, they are entered into 
the record.
    [The prepared statement of Senator Carper was not received 
at time of print. The referenced letter follows:]

[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]


    Senator Carper. With that, I say thank you all, and 
welcome.
    Senator Barrasso. As Senator Carper mentioned, there are 
some additional meetings that members may have to get to, and 
there are two roll call votes. Members may be coming and going 
throughout the testimony, but I want to thank all the witnesses 
for being here today.
    As you know, your entire statement will be included in the 
record. We ask that you try to keep your statements to 5 
minutes so that we may have time for questions.
    I would like to start by first introducing the first guest, 
Hon. David Freudenthal, who served as the Democratic Governor 
of Wyoming from 2003-2011. Governor Freudenthal served as U.S. 
Attorney for Wyoming from 1994 to 2001 and before that as an 
attorney in private practice.
    Governor Freudenthal has returned to his roots and 
currently serves as an attorney providing legal counsel on 
domestic and international environmental and natural resource 
issues.
    In each of his positions, Governor Freudenthal has 
accumulated a wealth of experience with the Endangered Species 
Act. I hope that Governor Freudenthal will tell us about his 
extensive leadership in balancing stakeholder interests from 
across the political spectrum to effectively and efficiently 
address challenges posed by the grizzly bear, the wolf, the 
sage grouse and other species.
    Governor Freudenthal, it is a distinct honor to welcome you 
here today as a witness before the Environment and Public Works 
Committee so that we might benefit from your years of 
experience and your insight on this important topic.
    As a Democrat, your presence underscores the bipartisan 
opportunity that we have to modernize the Endangered Species 
Act.
    Thank you for traveling to Washington today. We look 
forward to hearing your testimony.
    Senator Carper. Mr. Chairman, may I just add, how does a 
Democrat with a name like Freudenthal get elected Governor of 
Wyoming? I was hoping you would address that in your opening 
remarks.
    Senator Barrasso. We can start with his overall strength--
his wife, Nancy; his talent; the upbringing he had in 
Thermopolis, Wyoming, where my wife is from as well.
    Senator Carper. I have heard a lot of good things about 
Thermopolis.
    Senator Barrasso. It is Hot Springs County down to the 
roots.
    Senator Carper. That explains it.
    Senator Barrasso. He is a beloved figure and many say the 
best Governor in the history of the State of Wyoming.
    Senator Carper. Are you going to sit there and take that?

              STATEMENT OF DAVID D. FREUDENTHAL, 
               FORMER GOVERNOR, STATE OF WYOMING

    Mr. Freudenthal. Mr. Chairman, Ranking Member, and members 
of the Committee, thanks for the opportunity to appear.
    It really does offer a tempting rebuttal but in the 
interest of the economy of time, I will move on to the 
substance of the matter. However, he is correct that his best 
asset and mine are our spouses. As you know, politics is a team 
sport.
    When I was younger, in law school I wrote a Law Review 
article extremely critical of the ESA. This would have been 
about the time of TVA v. Hill, one of the early acts, the snail 
darter.
    Over time, I have significantly changed my view in that I 
think we need a statement about the preservation of species. I 
think it is important that we do it, but it is equally 
important that we do it in a way that functions properly.
    You read the goals, and they are very noble, and the 
language is very noble, yet Congress gave an incredibly broad 
grant of authority which has been sort of used and abused over 
the period of time by different Administrations and by court 
decisions.
    Now we have this mechanism that by and large has sand in 
the gears, I think, in terms of making it work. As much as a 
member of the executive branch, it offends me to have to ask 
for legislative action; I actually believe that we have to 
amend it in a way that protects the original goals but makes it 
so that it functions.
    As you can tell from my testimony I have war stories as 
long as my arm, but I want to summarize the basic points I 
think need to be looked at.
    First of all, I think the listing process has to be 
disciplined. One of the reasons that the system does not work 
is it is just too flooded. The gate for getting in is too low. 
We do not require enough information from somebody filing a 
petition to invoke the power of the Federal Government.
    It not only affects the species, but it affects the rights 
of a lot of other people, both property rights and personal 
rights. That threshold for invoking the power of the Federal 
Government should be raised.
    I do not mean that it should be raised that it becomes 
prohibitive, but it needs to be more than what occurs now. I 
give Mr. Ashe credit. They have offered some rules which were 
pretty strong, but by the time they were adopted by their own 
response and the comments it essentially said, this is the 
status quo.
    They inserted some things that I think are valuable, one 
species per petition, but they lost a lot of the ground they 
had in terms of the nature of the requirements of a petition, 
in part because a lot of that is not defined in the statute and 
the case law has been fairly fluid.
    They also abandoned what I thought were some of the best 
components of the original rewrite of the listing process which 
was to empower the States because even though all wisdom 
resides in DC, all knowledge resides in the field.
    The local game and fish people not only know the biology 
and the species, but they know the ground. That gives them a 
different perspective. It is not perspective as anybody who has 
been Governor can tell you, game and fish agencies are not 
stooges for economic development. They are advocates for those 
interests; you appoint people to those agencies because they 
believe in that mission.
    Yet somehow that gets discounted as it works its way 
through the system and the decisionmaking is centralized in DC.
    I also think that this vagueness in the statute leads to 
what I call moving the goalpost. We went through it on wolves; 
we went through it on grizzly bears; and we went through it on 
the sage grouse. You think everything is done and is fine, and 
then here comes somebody with a new theory, and Fish and 
Wildlife moves the goalpost.
    As you can tell from my testimony, we have been at bears 
forever, and we have been at wolves forever. The sage grouse, I 
will tell you, while they ended up not listing it, by the time 
they were through integrating it into the Federal land plans we 
may have been better off with the listing because at least the 
rules were clear. You knew what you could do under section 7 
and section 10 of the statute.
    I am hopeful that it will work out, but there are days--
both when I was Governor and since then in private practice--
that you wonder whether or not at least with listing you had 
some kind of a framework.
    I also think that you need to rethink warranted but 
precluded which has to do with this kind of I call it wildlife 
purgatory. You are either listed, or you are not, so you are 
just hanging out there.
    What happens then, particularly for public land States 
because remember public land States are hit most severely by 
this because of the interaction of NEPA, ESA and all of the 
land planning because nearly everything involves Federal action 
which triggers the application of the statute.
    What happens is that the Land Management Agency has 
essentially become a species management agency by virtue of--
for the Forest Service it is called species of concern, and for 
BLM it is called the sensitive species. They, in effect, impose 
listing standards on the management of those species because 
there are candidate species.
    The other thing is I have come to believe, particularly 
when I was Governor, we required mitigation for a couple of 
large, significant oil and gas developments where the spacing 
was such and some of that stuff was on 5-acre spacing. That 
clearly has an impact on the habitat.
    The mistake we made, not that I made many mistakes when I 
was Governor, I made a lot, but one of them was that we allowed 
the resource to be dissipated into what I call postage stamp 
chunks. We did not think about the species life cycle to make 
sure it was preserved so mitigation became kind of watered 
down.
    I have become a big believer that mitigation that is the 
preservation of the very best of the habitat and the very best 
of the species on a genetically diverse basis is really 
important. It will only occur if you guys amend this statute to 
place some kind of discipline in what it is going to be.
    Our course I cannot leave as a former Governor without 
endorsing the work of the Western Governors' Association. 
Remember that is a group made up of both coastal States and 
inland States. It deserves serious consideration as you move 
forward on bipartisan basis, particularly on the funding aspect 
because there is no free lunch. ESA is as large an unfunded 
mandate as you have out there.
    We learned that both as Governor and then again as a member 
of the blue ribbon panel which I reference in my testimony.
    With that, I look forward to the dialogue and the 
questions.
    [The prepared statement of Mr. Freudenthal follows:]
    
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]    
    
        
    Senator Barrasso. Thank you very much, Governor 
Freudenthal.
    Senator Carper. I want to again thank you very much for 
what you said, Governor.
    You mentioned Richard Nixon. You also mentioned as 
Governor, you did not make many mistakes. We know that is not 
true. We have another recovering Governor over here who knows 
that.
    Not many Democrats quote Richard Nixon. I do. One of the 
things that Richard Nixon said is the only people who do not 
make mistakes are the people who do not do anything. As we take 
up his work we want to be careful that we do not make any 
significant mistakes. Maybe some tiny ones would be OK, but we 
want to make sure that we are temperate in that.
    There are no Democrats here. That is very unusual, 
especially on an issue like this which is especially important 
to all of us. We are going to be in and out of our other 
meetings as quickly as we can, so do not take our absence as we 
are not interested.
    You will get questions for the record, a number of those, 
and I will just telegraph a picture if I can.
    One of the things I always look for in a diverse panel like 
this where we have a contentious issue is to try to develop 
within the panel consensus. What can we agree on? To the extent 
we can keep that in mind in the context of your testimony, 
questions and answers to questions and certainly to questions 
for the record, I would really appreciate it.
    Thank you all so much. I apologize.
    Senator Barrasso. Thank you, Senator Carper.
    Our next witness is Gordon S. Myers, Executive Director, 
North Carolina Wildlife Resources Commission and President of 
the Southeastern Association of Fish and Wildlife Agencies.
    Thank you so much, Mr. Myers, for joining us. We look 
forward to hearing your testimony.

    STATEMENT OF GORDON S. MYERS, EXECUTIVE DIRECTOR, NORTH 
    CAROLINA WILDLIFE RESOURCES COMMISSION; PRESIDENT, THE 
     SOUTHEASTERN ASSOCIATION OF FISH AND WILDLIFE AGENCIES

    Mr. Myers. Thank you very much for the opportunity to be 
here.
    Good morning, Chairman Barrasso, Ranking Member Carper, and 
Committee members.
    I am Gordon Myers, Executive Director of the North Carolina 
Wildlife Resources Commission. Thank you for this opportunity 
to testify on modernizing the ESA on behalf of my fellow State 
Fish and Wildlife directors.
    The States appreciate the value of the ESA as a landmark 
Federal law to protect and recover imperiled species. After 
nearly half a century of implementation, we have learned much 
about the conservation of listed species, their recovery needs, 
and how to facilitate and not proscribe private landowner 
involvement.
    The ESA gives explicit direction on how Congress expected 
the Federal-State jurisdictional relationship to work. Section 
6 states, ``In carrying out the program, the Secretary shall 
cooperate to the maximum extent practicable with the States.'' 
Unfortunately, the section 6 authorities available to the 
States have never been fully realized.
    Attached to my written statement is the Association of Fish 
and Wildlife Agencies' general principles for improving 
implementation of the ESA. AFWA continues to actively 
participate in the Western Governors Species Conservation and 
ESA Initiative led by Governor Matt Meade of Wyoming.
    As a general observation, the States believe that 
addressing life needs and habitat requirements of declining 
species before triggering ESA protection is the most prudent, 
economical, and biologically sound approach to managing species 
tending toward listing.
    We are working with Congress to identify permanent and 
dedicated funding sources to build much needed capacity for the 
species of greatest conservation need. Today I will share six 
recommended improvements to the ESA and briefly highlight 
examples that demonstrate State-led conservation delivery.
    First is to increase opportunities for Fish and Wildlife 
agencies to take a more formal and active role to fully 
participate in all aspects of ESA implementation as intended by 
Congress.
    Second is to restore the distinction between threatened and 
endangered species to reflect original congressional direction, 
thereby providing greater flexibility to manage these 
categories differently.
    Third is to improve the listing process, making sure to 
consider a more realistic timeframe for listing decisions, how 
to best utilize available science, give weight to State data 
and its interpretation by the States, and to prove the quality 
of petitions that are submitted.
    Fourth is to require recovery teams to develop science-
based recovery plans for listed species and further require 
that after recovery plan population or habitat objectives are 
reached, the Secretary must initiate delisting process.
    Fifth is to relocate critical habitat designations to the 
recovery plan development process and give the Secretary more 
discretion to designate or not designate critical habitat.
    Finally, sixth is to expedite the process for down or 
delisting of recovered species.
    Throughout the Nation, States are leading or supporting 
many innovative efforts to keep common species common, prevent 
declines of at risk species, and recovery of threatened and 
endangered species.
    I will share two examples. The first focuses on the Tar 
River spinymussel, a federally endangered mussel restricted to 
the Tar and Neuse River Basins in North Carolina. Between 2014 
and 2016 the State, along with our partners, augmented existing 
populations by introducing more than 9,500 Tar River 
spinymussels propagated at one of our State conservation 
aquaculture facilities.
    Follow up surveys indicate high survival and growth rates 
as well as suggest propagation and stocking into best available 
habitat--including unoccupied habitat--have tremendous 
potential to assist in species recovery.
    However, potential ESA regulatory impacts associated with 
introductions form a barrier to gaining support.
    Let me also share an example of how the States are 
coordinating and focusing resources on at risk species. 
Following the 2010 mega-petition filing that covered 404 
aquatic species across the Southeast, the States developed the 
Southeast At-Risk Species Program in partnership with the Fish 
and Wildlife Service Southeast Region Office.
    This broad partnership among the States, the Fish and 
Wildlife Service, universities, corporate and private partners 
focuses surveys, monitoring, and research on priority at-risk 
species. It integrates and documents voluntary conservation 
actions all the while working across jurisdictional boundaries 
throughout the Southeast.
    To date the outcomes have been extraordinary. Four species 
have been listed as threatened rather than endangered, eight 
species have been down-listed to threatened, and 93 species 
have been precluded from listing.
    These range-wide conservation partnerships are capable of 
remarkable conservation outcomes. After all, many hands make 
light work.
    Much has changed since the ESA was enacted 44 years ago. We 
cannot do the same thing over and over and expect different 
results. To realize the greatest potential of our partnerships, 
it is time to make substantial investments in capacity while 
also modernizing the ESA to fully engage our States and private 
partners to conserve and recover at-risk and listed species.
    Thank you once again for this opportunity this morning.
    [The prepared statement of Mr. Myers follows:]
    
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    Senator Barrasso. Thank you very much, Mr. Myers.
    Our next witness is James Holte, who is President of the 
Wisconsin Farm Bureau Federation.
    Mr. Holte, thanks so much for joining us. We look forward 
to your testimony.

             STATEMENT OF JAMES HOLTE, PRESIDENT, 
                WISCONSIN FARM BUREAU FEDERATION

    Mr. Holte. Good morning, Chairman Barrasso, Ranking Member 
Carper, and members of the Committee.
    My name is Jim Holte. I am a beef and grain farmer from Elk 
Mound, Wisconsin. I also serve as President of the Wisconsin 
Farm Bureau Federation and as a member of the American Farm 
Bureau Federation Board of Directors.
    I appreciate the opportunity to speak with you today about 
the Endangered Species Act and specifically one of the listed 
species that impacts many farmers throughout the State of 
Wisconsin, the gray wolf.
    I included many pertinent statistics about Wisconsin's 
population in my written testimony which I hope you will take 
some time to review. Today, I would like to share with you a 
story of one of our young farm families from Medford, 
Wisconsin, which has experienced devastating wolf depredation.
    I have heard many personal stories from farmers about the 
loss of livestock and how it has impacted their farms, lives, 
and their families. These stories are powerful, emotional, and 
very real.
    The story of fourth generation farmers Ryan and Cheri 
Klussendorf takes place in June 2010. They own and operate a 
100-cow rotationally grazing dairy farm and had just moved a 
group of young calves out to pasture for the summer.
    In early July they received a call in the middle of the 
night from a local county sheriff that a large group of young 
cattle were out in the roadway not far from their farm. This 
occurred several more times over the next 2 months as passing 
motorists knocked on their door in the middle of the night 
because cattle were out and agitated.
    In late August there was another middle of the night visit 
from the local sheriff resulted in a citation for animals at 
large.
    Ryan was able to start farming at the age of 21 because he 
was able to keep costs low by grazing cattle. Now, the 
liability he faced every night while his cattle were on pasture 
was a serious public safety hazard with potentially devastating 
impacts to his life.
    They asked the local district attorney and sheriff's office 
for help but were told ``There is nothing we can do for you. 
Buy a gun.''
    On the morning of November 7, 2010, the family started 
chores. Some of the cows were already in the barnyard to be 
milked, which was rather unusual because they normally are 
brought in from the pasture.
    As Ryan headed to the pasture to bring in the rest of the 
cows, he found what was left of cow 2042. The gruesome scene 
told the story of the deadly attack on this 3-year-old cow. She 
was bitten in the back of the leg until all the tendons and 
ligaments were severed, she was dragged down from behind after 
she could no longer stand, and the pack of wolves started 
eating her alive.
    The pasture was a blood bath, and her corpse was 
unidentifiable other than the tags from ears were found 100 
feet away. This was the worse summer of Ryan's life. His 
stomach sinks every time the phone rings late at night; he 
sleeps with a window open no matter the time of the year so he 
can listen to the traffic on the road.
    He springs out of bed at night thinking there is a knock at 
the door when it is only the icemaker in the kitchen. This 
happened more than 6 years ago, and yet the events during the 
summer of 2010 impact every decision the Klussendorfs make for 
their cattle and their farm management practices.
    All of Ryan and Cheri's cows are now within 200 feet of 
their farmyard at night. Calves are no longer put on pasture. 
The cost has been burdensome, but the emotional toll, the 
increased stress on the family and the animals has been 
tremendous.
    Ryan was a husband, a father, and a farmer. Right now, he 
cannot protect his cows and his family's livelihood without the 
risk of being prosecuted because it is illegal to shoot a wolf 
in Wisconsin. The graphic images of this incident are included 
in my written testimony.
    The Klussendorfs are not the only farmers who have been 
impacted, which is why the Wisconsin Farm Bureau continues to 
support the decision to delist the gray wolf and allow State 
wildlife officials to manage wolf populations.
    Interactions between farmers, their livestock, rural 
residents, and wolves continue to escalate without a remedy in 
sight. During the last 15 years the gray wolf's endangered 
status has undergone numerous changes. Many have not been based 
on scientific evidence that the population numbers for this 
species have been met and exceeded but flaws in the Act make 
these decisions prone to politics and legal battles.
    While the recovery status of the gray wolf in the Western 
Great Lakes Region continues to be fought in courtrooms and 
determined by Federal judges, Wisconsin farmers continue to 
have their hands tied when it comes to protecting their 
livestock and their livelihoods.
    Congressional action needs to occur, and our farmers 
continue to lobby Congress for this change. The ESA has been 
successful for species recovery, but it has failed to remove 
the species once the population adequately recovered.
    Congress intended for the ESA to protect species from 
extinction. However, it prioritizes species listing over actual 
recovery and habitat conservation. The law fails to provide 
adequate incentives for working land species conservation and 
imposes far reaching regulatory burdens on agriculture.
    Reform of the ESA should include a focus on species 
recovery and habitat conservation that respects landowners. 
Coordination with other State and Wildlife agencies to leverage 
private incentive-based conservation efforts can better achieve 
long term conservation goals.
    I appreciate the actions and efforts by this Committee to 
address needed reforms to the Endangered Species Act and the 
serious nature of the gray wolf situation in Wisconsin.
    Thank you for your time. I would be happy to answer any 
questions you may have.
    [The prepared statement of Mr. Holte follows:]
    
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    Senator Barrasso. Thank you very much, Mr. Holte, for your 
compelling testimony. We appreciate you sharing your story.
    Our next witness is Hon. Jamie Rappaport Clark, President 
and CEO of Defenders of Wildlife.
    Thank you very much for joining us today. We look forward 
to your testimony.

              STATEMENT OF JAMIE RAPPAPORT CLARK, 
            PRESIDENT AND CEO, DEFENDERS OF WILDLIFE

    Ms. Rappaport Clark. Thank you, Mr. Chairman, Ranking 
Member Carper, and other members of the Committee.
    I am Jamie Rappaport Clark, President and CEO of Defenders 
of Wildlife, a national, nonprofit conservation organization 
dedicated to the protection of all native animals and plants 
and their natural communities.
    From 1997 to 2001 I served as Director of the U.S. Fish and 
Wildlife Service under former President Bill Clinton. For 16 
years prior to that I was a wildlife biologist for both the 
Department of Defense and the Department of the Interior.
    Thank you for the opportunity to present the views of 
Defenders at today's oversight hearing on modernizing the 
Endangered Species Act.
    For almost 45 years now the Endangered Species Act has 
protected our most imperiled species helping bring back the 
bald eagle, the American alligator, the Steller sea lion, the 
peregrine falcon, and many others from the brink of extinction.
    It is a law that once enjoyed amazing bipartisan support. 
It passed the Senate in 1973 unanimously. It is a law that 
American people still support. A national poll conducted just 
last December found that 81 percent of voters believed that 
saving at risk wildlife from extinction is an important goal 
for the Federal Government.
    It is a law that many other countries look to as a model 
for expressing their own commitment to future generations.
    When President Nixon signed the Endangered Species Act into 
law, it represented the collective determination of the 
American public that we would not sit by and watch our species 
go extinct. It is a law that embodies a lofty vision of 
protection and preservation of species grounded in clear 
conservation principles.
    Simply put, the Endangered Species Act works. It is 
important to remember that the Act is a tool of last resource 
to save species, the final measure when all others have failed 
to protect plants and animals on the brink of extinction.
    It is an alarm bell that sends a warning signal about the 
state of our natural world, giving us an opportunity to find 
ways to save imperiled species and their habitat, plan for 
their recovery, and be responsible stewards of our environment.
    Endangered species and the plants put in place to restore 
them are increasingly presented as barriers or annoyances to 
unfettered development or unchecked planned use activities. The 
Act has become a lightning rod for those who want less 
oversight and less protection from government.
    That is not what the American people want for our wildlife, 
which brings us to today's oversight hearing. In my over 35 
years of experience, talk of modernizing the Endangered Species 
Act has amounted to one thing--a euphemism for undermining and 
weakening the statute.
    In just the past 2 years in this Congress we have seen over 
130 bills or riders proposed that all without exception would 
have weakened or undermined the Act and its purposes veering 
away from the American value of conservation and protection for 
future generations.
    The Endangered Species Act is not broken. It does not need 
to be fixed. In fact it is enormously flexible. It has been 
improved by continuous administrative reforms that have made 
the law work better, both for the species it is designed to 
protect and for the landowners and other stakeholders affected 
by its provisions.
    Federal agencies have made significant advances in 
implementing the Act from habitat conservation plans that 
integrate development and species conservation to candid 
conservation agreements with assurances that provide upstream 
solutions and regulatory certainty to landowners. That process 
is continuing.
    Defenders is deeply engaged in thinking through new ways to 
make the Act work better and to make it more transparent for 
all stakeholders.
    It is also important to remember that for many species 
recovery occurs not over years or months but over decades. We 
cannot rush nature toward recovery, but we can rush its 
destruction by weakening the single greatest tool we have to 
protect it.
    The Act's strength is in its simple purpose, to prevent the 
extinction of threatened and endangered species and to promote 
their recovery. Local, State, tribal, and Federal agencies 
working with interested stakeholders continue to do some 
innovative, cutting edge work that guarantees the best chance 
for species survival.
    The biggest problem the Endangered Species Act faces is not 
a need for modernization. It is a need for funding. Conflict 
surrounding the Act arises when government agencies lack the 
resources to fully implement the law.
    Starving the Federal and State agencies that are committed 
to preventing species extinction and providing for the 
diversity of life across our country seriously undermines the 
goals of the law.
    This debate should not be about the law. Rather, it should 
be about our commitment to its purposes and goals. Once a 
species is gone, it is gone forever. Let us not be the 
generation that bears the inglorious reputation of condemning 
our species to irrevocable extinction. We can and must do 
better for our children and grandchildren. They deserve it.
    Thank you.
    [The prepared statement of Ms. Rappaport Clark follows:]
    
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    Senator Inhofe [presiding]. Thank you, Ms. Rappaport Clark.
    What you are witnessing right now is we are swapping the 
Chair back and forth between Senator Barrasso and me because we 
are in the middle of two votes right now. I have already voted 
on the first, and that is what he is doing now.
    Before we hear from Dan Ashe, we know the next witness but 
we know him in a different life. Why don't you take just a 
moment and tell us a little bit about your incarnation before 
your presentation?
    Mr. Ashe. Thank you, Senator Inhofe.
    It is a joy to be back here once again. From 2011 to 
January 2017 I served as Director of the United States Fish and 
Wildlife Service. My confirmation was considered in a hearing 
by this Committee.

  STATEMENT OF DAN M. ASHE, PRESIDENT AND CEO, ASSOCIATION OF 
                       ZOOS AND AQUARIUMS

    Mr. Ashe. Today I sit here as President and Chief Executive 
Officer of the Association of Zoos and Aquariums, or as we 
affectionately call it, AZA. AZA represents 232 accredited 
aquariums, nature centers, science centers, and zoos that 
annually host more than 186 million visitors, generating more 
than $17 billion in economic activity and employing over 
175,000 Americans.
    I believe we bring a somewhat unique perspective to this 
important discussion. We are a partner with our governments in 
species conservation, but we are also a directly and 
significantly regulated party.
    As a partner, AZA members contributed over $186 million to 
conservation in 2016 alone.
    Senator Inhofe. Are you into your presentation? What are 
you doing now?
    Mr. Ashe. I am making my presentation.
    Senator Inhofe. Yes, go ahead. You are going to have to get 
out to Tulsa and see, where you least expect them, spectacular 
aquariums. We have them.
    Mr. Ashe. I will be there.
    Senator Inhofe. I will look for you.
    Mr. Ashe. We support more than 1,000 field conservation and 
research projects here in the U.S. and in more than 100 other 
countries. From this practitioner perspective the law is 
working to save species. It is a catalyst for organizations 
like ours and our members to participate in conservation.
    A good example is the partnership between AZA accredited 
zoos, the Federal and State governments, and other 
organizations to conserve the California condor. Without that 
effort, the California condor would be extinct today.
    It began with a bold decision to remove all California 
condors from the wild back in the early 1980s. Like so many 
other efforts to recover endangered species, it has required 
continuous effort and extraordinary dedication. The Los Angeles 
Zoo, the San Diego Zoo, the Oregon Zoo, and many others have 
played integral roles in that effort.
    AZA accredited aquariums and zoos have supported recovery 
of Florida manatees, spending over $6 million in the last 5 
years alone. Tampa's Lowry Park Zoo, Sea World, the Mote Marine 
Laboratory and Aquarium have long partnered to rescue, 
rehabilitate, and release injured and ill Florida manatees and 
conduct crucial research that is answering questions about 
manatee biology, health, and behavior so that we can better 
understand the species and inform management decisions and the 
public.
    Especially since Senator Barrasso is the new Chairman, I 
have to mention the effort to recover black-footed ferrets 
which were once believed extinct and were rediscovered near 
Matesee, Wyoming, in 1981.
    Last July I had the privilege to join Wyoming rancher 
Christina Hogg and her family and many others in reintroducing 
35 ferrets to this incredible landscape. Christina Hogg sent me 
this little cardholder which I keep in my office until today to 
remind me of the importance of partnership with private 
landowners and what we can do when we work together with 
private landowners.
    We are proud of our history, zoos and aquariums, but we are 
far from done. Building on the success of existing conservation 
and species preservation efforts, AZA and its members are 
launching a new effort we call SAFE, Saving Animals From 
Extinction.
    Through SAFE we are challenging ourselves to provide urgent 
leadership and create a collective movement that is strong 
enough to turn the tide against the massive wave of animal 
extinctions.
    As regulated parties, our members, their 186 million 
visitors, and their communities depend upon an efficient and 
effective regulatory structure within the U.S. Fish and 
Wildlife Service and the National Marine Fisheries Service.
    As any regulated party from time to time, we have 
frustrations, but overall the process is professional and 
predictable as evidenced by the vibrant economy surrounding AZA 
aquariums and zoos. It works.
    Mr. Chairman, as you and Committee members consider the 
future of this great law, I would suggest careful consideration 
of context. Scientists estimate that the total number of 
mammals, birds, reptiles, amphibians, and fish has declined by 
more than 50 percent since 1970, leading many to conclude that 
we are living amidst the planet's sixth mass extinction event.
    It is being driven by the ability of human beings to change 
the very physics underlying the earth's ecology, the molecular 
composition of the atmosphere, the moisture of soil, and the 
temperature and acidity of oceans.
    Mr. Chairman, saving species from extinction is very 
challenging. It will become increasingly challenging in the 
future. The Endangered Species Act is the world's gold 
standard. It has helped us to achieve miracles.
    It is not perfect, and we can make it better, but as this 
Congress considers its future, your goal should be to make it 
stronger, faster, and better for the 21st century because life 
literally depends upon it.
    Thank you, Mr. Chairman, as always, for the opportunity to 
be here with you. I look forward to a dialogue with you.
    [The prepared statement of Mr. Ashe follows:]
    
    
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    Senator Inhofe. It is nice to have you back. I would say 
when you made the statement that when you work on a partnership 
basis, as you personally came out on two occasions to western 
Oklahoma and discovered that the landowners want the pristine 
environment the same as you might from another perspective.
    It is easy to sit in Washington and talk about how 
everything is working well, but when you are out in the States 
is where you really have problems.
    I am going to start the questions since I am the only one 
here. I am not going to be encumbered by any short timeline.
    Why don't you ask your questions first?
    Senator Barrasso [presiding]. Thank you, Senator Inhofe, 
for holding down the fort as people are back and forth with the 
votes. There are two votes so some of the members are waiting 
for that second vote to start. As a result, they will be back.
    I would like to start with Governor Freudenthal, if I may.
    In 1973 the Congress was controlled by the Democrats, but 
with a Republican President they enacted the Endangered Species 
Act as we discussed earlier. Cliff Hansen, former Governor of 
Wyoming and then Senator for Wyoming, supported it.
    The last significant amendments took place in 1988, almost 
30 years ago. Since that time a lot has changed. Do you agree 
with the stakeholders who argue that the time really has come 
to modernize the Endangered Species Act? Would you give us your 
thoughts on that?
    Mr. Freudenthal. Senator, the world has changed. This Act 
has just too much sand in the gears to get where it needs to 
go. Some of these things need congressional adjustment so that 
we actually get where we want to go as Dan Ashe indicates in a 
more efficient, more logical kind of fashion and employ the 
resources that are there.
    There is a history, as you know. There have been a couple 
of times when they have tried to redo the ESA, and it got lost 
in two sides wanting the whole loaf. I think the opportunity 
now is to arrive at some compromises that address the portions 
that could function better.
    There is no suggestion that it not be continued, at least 
not in the Senate so far, but if we think it is going to 
function in the way we wanted it we are going to have to change 
it. The proof of that is when everybody talks about how much is 
not being done. We forget maybe we could do more if we did it 
right, faster, and better, and frankly if we employed the 
resources of the State.
    Senator Barrasso. Senator Inhofe.
    Senator Inhofe. Thank you, Mr. Chairman.
    Let me say from our experience, I had the opportunity to 
chair this Committee for a number of years. We have had 
problems, and some have been pretty serious. I categorize them 
in three groups.
    One is that the States during this process seemed to be 
ignored. The second thing is the delisting just never happens. 
We talk about it, and it never comes about. Third, the 
stakeholders and the landowners are pretty much ignored.
    I will start with you, Governor. In Oklahoma, we set in 
motion--and you will remember this, Dan Ashe, because you were 
there at the time--a 5-State partnership with New Mexico, 
Colorado, Kansas, and Texas.
    We got together and spent a lot of time on this. We sat 
down and decided what we were going to do with the problems 
facing the lesser prairie-chicken by bringing all the States 
together, the agencies together, industries, conservation 
groups, and private landowners.
    Despite this the Fish and Wildlife listed the species as 
threatened. That listing was so wrong that the courts reversed 
it. Yet Fish and Wildlife continued moving forward.
    As a former Governor of a State, isn't this a little 
frustrating when you go to this much work? That is not an easy 
thing to do, to get five States all in one room for a long 
period of time.
    Mr. Freudenthal. Senator, I am familiar a bit with the 
lesser prairie-chicken. Obviously it is complicated. From my 
experience I would say they ought to be required at the outset 
if they are going to list to tell you what is required to get 
it delisted so that does not continue to move.
    Second, they need to recognize that if they want to do this 
on a scale that does something for the species, multi-State 
cooperation is difficult, and it is expensive to put together. 
At some point they have to become a partner with the States.
    The problem with the Act is it has the cooperation 
component, but it has this role where they are also judge and 
jury. At some point those two roles have to be reconciled. If 
you are going to be partners in putting together a recovery 
effort, yet you have to be guarded.
    As I say, they would always come and talk to us about the 
wolf, the bear, and that and say, we really cannot say anything 
because that would be pre-decisional. We have to somehow 
reconcile the fact that cooperation means people actually can 
sit down and work together.
    The problem I have with it is that they are judge and jury 
and at the same time they want to be a cooperator. We have to 
reconcile those two roles, because what happens now is 
cooperation with the States is clearly secondary because the 
decisionmaking role is so subject to judicial review.
    Senator Inhofe. Excellent.
    Mr. Myers, getting back to the delisting dilemma that we 
sometimes face, in 1989 Fish and Wildlife listed the American 
burrowing beetle. This was the hardest thing for me to explain 
back home, not just to road builders and farmers, about why 
they cannot do something because there is a bug down there 
because it had disappeared from its former range. That was the 
reason for doing it in the first place.
    It seems the information relied on for the listing was 
based on anecdotal historical evidence and poorly performed 
surveys, yet nearly 30 years later the beetle is a thriving and 
stable species, but we are still not delisting.
    Mr. Myers, how could that system be improved?
    Mr. Myers. I guess I would mention a couple of things. One 
is I do not know the specifics of the case, but I would first 
mention that many States, in fact, have very good data on 
species. I think it is important to assure integration of State 
data into any decisions.
    Relative to the delisting, I think, as Governor Freudenthal 
pointed out, specific triggers are very important. I think 
integration of those triggers up front in the listing process 
is also key, but once those triggers obtained, whether they are 
habitat or population objectives, that should key and bring 
forward the delisting process.
    Of course often the courts end up becoming a very big 
problem in moving along those decisions.
    Senator Inhofe. What I hear from both of you is that maybe 
a system should be set up that when a listing goes into place, 
state at that point the conditions and the timeline of 
delisting, and then expand that even further and go into others 
that are already listed because there are many on that list 
right now.
    The last question I have, Mr. Chairman, would be for Mr. 
Holte. Our Oklahoma farmers and ranchers are just now learning 
about a petition to list the monarch butterfly under the 
Endangered Species Act.
    They were not aware that there was a problem. They did not 
know anything about it until they woke up and found that was 
going on. The monarchs need milkweed to breed, yet milkweed is 
poisonous to cattle. It is clear that a listing will directly 
affect our agricultural community, yet they were left in the 
dark.
    We are talking about modernizing now. Changes are going to 
be made.
    What are your thoughts about that, Mr. Holte?
    Mr. Holte. I would respond that I think the communication 
to farmers and others might be enhanced by a better line of 
communication with general farm organizations, commodity 
groups, and State Departments of Natural Resources.
    I would admit that when I, my neighbors or colleagues arise 
in the morning, the first thing we think about is not the 
Endangered Species Act. It is producing our livelihood in 
production of food and fiber.
    Opportunity to share that information and concerns before 
they are actually listed and then the opportunity to work with 
States with incentive-based programs could maybe solve the 
situation before we get to a listing situation. Those processes 
could be very helpful, I believe.
    Senator Inhofe. Thank you very much.
    Senator Barrasso. Thank you, Senator Inhofe. I appreciate 
it.
    Governor Freudenthal, I wanted to talk about Wyoming and 
the time you were Governor. The wolf population really has 
exceeded recovery goals I think since about 2002. The 
Yellowstone population of the grizzly bears has exceeded 
recovery goals for a decade. They both remain listed.
    In the case of the grizzly bear, it is not because of 
scientific judgment of Fish and Wildlife, but because of 
litigation. Can we talk about that in terms of is the 
Endangered Species Act working when species have exceeded the 
recovery goals for a decade and continue to be listed?
    Mr. Freudenthal. Mr. Chairman, the numbers are correct. 
Everyone agrees it is a robust population. The bear is hung up, 
I think, in part, over concern from the Fish and Wildlife 
Service that they want to engage in post-delisting management. 
Under the statute that is not contemplated.
    The problem I see is that the language that is in the 
statute was intentionally broad. As lawyers we are very good at 
taking broad language and creating new law, particularly law 
that works to whatever client we have.
    I think if we could end up with a clarifying in the statute 
as to when those targets are hit, and they need to be 
established at the time of listing, and then if they are going 
to deviate from those targets later, which is what they tended 
to do.
    If you look at the history of both those species, the area 
over which there were management prescriptions imposed grew 
significantly over the decades involved. Each of those was 
really unreviewable. At some point we had to say this is what 
is needed. The courts have to be bound by that. They only way 
they will be is if the language of the statute is modified.
    The rules and regulations vary over Administrations, and 
then the administrative judgments vary. Nobody argues that the 
wolf population is not robust. I would argue that if we did it 
right, and thought again about distinct population segment, and 
thought about that as part of the State management, they would 
not have needed the rider to allow Montana and Idaho to 
proceed. In Wyoming we were still in dispute with the Fish and 
Wildlife Service.
    There has to be reconciliation between the nobility of the 
goals and the implementation. The perfect examples are the wolf 
and the grizzly bear.
    I sympathize with Mr. Holte because I was the prosecutor in 
some of those cases, not in your district, and people are 
defending their livelihood. I think we have not understood that 
if we can structure it right, they would be equally interested 
in defending the wolves.
    It is not that people are against having the wolf present. 
Some are; as you know, some of our friends are. Most people 
say, look, I can live with this, but I have to know what the 
rules are, and I have to have some assurance that in the 
context of those rules whatever judgment I execute will be 
respected both in terms of prosecution and in terms of 
recovery.
    Senator Barrasso. So we need to improve the certainty?
    Mr. Freudenthal. Absolutely.
    Senator Barrasso. Mr. Ashe, last summer, the Western 
Governors' Association unanimously passed a policy resolution 
to modernize the Endangered Species Act. There was an article 
in E&E last June. In your comments you remarked about the 
Western Governors' Association saying, ``I think the resolution 
is a great place to begin a dialogue. If we can continue that 
dialogue, and if we can keep it bipartisan and then start to 
take the resolution and build that into more specific 
principles and legislative language, then I think it represents 
the best opportunity that we have had in a long time to think 
about reauthorization of the Endangered Species Act.''
    Do you still agree that the Endangered Species Act needs to 
be modernized and that the Western Governors' Association 
bipartisan policy resolution represents a decent place to start 
the discussion?
    Mr. Ashe. I do agree that the WGA resolution represents a 
good step forward. The statement you made earlier about a 
bipartisan effort on this Committee, I think obviously is what 
is going to happen or needs to happen if we are going to have 
an effective debate about the future of the Endangered Species 
Act.
    Hats off to Governors Mead and Bullock and the leadership 
of the WGA, and the U.S. Fish and Wildlife Service under my 
leadership supported that effort. We supported it financially, 
and we supported it by providing our expertise.
    I would encourage bipartisan communication and discussion 
about the future of this law. It cannot be premised, I do not 
think, Senator, on a notion that the law is broken. I believe 
that the law is working well. I will mirror Senator Carper's 
remark saying can it be better, can it work better? Of course 
it can. I do not think a debate, the starting point of debate 
should be that the law is broken.
    Senator Barrasso. Ms. Rappaport Clark, you said in your 
testimony, ``The ESA is not broken.'' You went on to say, ``It 
does not need to be fixed.''
    In 2013 you authored an article in BioScience titled, ``The 
Endangered Species Act at 40, Opportunities for Improvement.'' 
In the article you argued for modernization of the Endangered 
Species Act. You highlighted five areas for reform. You 
concluded that these ideas were ``just the tip of the 
iceberg.'' The vast majority of Americans, I think, agree with 
you.
    There was actually a poll conducted by Morning Consult in 
2015 that said 63 percent of registered voters favor updating 
and modernizing the Endangered Species Act. Only 10 percent 
oppose modernization.
    While we may not agree precisely on what changes need to be 
made to the Endangered Species Act, it does sound like we do 
agree that some changes are needed. Are you willing to work 
with the Committee on ESA modernization?
    Ms. Rappaport Clark. Thank you, Senator Barrasso, for that 
question.
    There are a couple of things.
    I would echo what I am hearing on this panel that certainly 
the Endangered Species Act could work better, absolutely. 
Before I get too far into my response, yes, I am happy to work 
with this Committee, for sure, as I have for years.
    Again, the Endangered Species Act--as we stay focused on 
the purposes and the goals and the objectives, what we end up 
debating are the implementation mechanics. I think you have 
heard a lot of that conversation today.
    I believe I have seen it happen through both Democratic and 
Republican Administrations. A lot of the challenges we are 
hearing conversation about I believe can be fixed 
administratively. There is a lot more rigor that can go into 
the Endangered Species Act.
    I remain concerned about these times given the 100-plus 
amendments that occurred in the last Congress which seemed 
disconnected from the purposes and goals. I believe the 
American public enjoys and supports this law. As long as we are 
working to strengthen its ability to achieve its goals and 
vision, absolutely, it can work better.
    A huge issue though which I think undercuts a lot of the 
frustration you are hearing is this law is starving. I have 
watched it happen since my time as director through Dan's time 
as director, the chipping away of the funding fabric and the 
ability of the Federal and State agencies to save species at 
risk of extinction is very dire.
    To the degree this committee can work with the 
appropriators to adequately fund, I think you will see a lot of 
this frustration begin to erode.
    Senator Barrasso. Thank you.
    Senator Boozman.
    Senator Boozman. Thank you, Mr. Chairman. We appreciate you 
and Senator Carper for holding such an important hearing. It 
really is important to the people of Arkansas.
    Thank all of you for being here. We do appreciate your 
testimony.
    This is not a question, Ms. Clark, but I think the reason 
we are seeing so much backlash in the sense of people 
introducing legislation in an effort to kind of push things 
back the other way is I think we have had instances where 
things have, sometimes rightfully, sometimes wrongfully, 
appeared pretty heavy handed in the sense of using the power of 
the Endangered Species Act.
    Arkansas is a natural State. It is so important for so many 
different reasons, including $1.55 billion to the State, 25,000 
jobs annually in the case of sports people. However, I and many 
others, as we have heard today, have grown concerned that the 
Endangered Species Act at times has been implemented in a 
manner that hurts Arkansas families, farms, businesses, and 
communities with disputable benefits at times to wildlife.
    Director Myers, critical habitat designation has caused 
unease and even fear with private landowners concerned for the 
use of their property if it is within the circle. Under section 
7 of the ESA private landowners are required to consult with 
the Fish and Wildlife Service when their property use requires 
a Federal permit or funding. Do we really need critical habitat 
designation to apply to private landowners?
    Mr. Myers. Thank you, Senator, for the question.
    As you stated, section 7 consultation is triggered when a 
Federal action agency is permitting or funding a project on 
private land where a listed or threatened species is present. 
That consultation will result in whether or not that permit or 
funding is allocated for that particular land management 
activity.
    In my view critical habitat designation has no further 
effect on those situations, but it can cause unnecessary 
anxiety as you have pointed out. I would just further my view 
that designation of that habitat could be eliminated on private 
lands.
    Senator Boozman. Tell me how it affects agriculture.
    Mr. Myers. With agricultural practices it is a similar 
situation. If they are receiving, say, farm bill allocations, 
and there is critical habitat that overlays, there are those 
conditions under which if those species are present, as they go 
through their planning process with FSA or NRCS, they could be 
precluded from receiving some of those funds.
    Senator Boozman. Often there is little data available for a 
petitioned species other than required under section 4 listing 
criteria. However, when developing a recovery plan much more 
refined data on life needs and habitat requirements is 
realized.
    Does it make sense that the need for critical habitat 
designation occurs with the recovery plan development and not 
at the listing?
    Mr. Myers. Senator, absolutely. I think there are many 
examples that show that as you go into that recovery plan 
process there are much more comprehensive amounts of data and 
much more information through stakeholders and partners.
    Of the simple examples I have encountered, the Atlantic 
sturgeon is a simple example of there was critical habitat 
designated that included reaches of rivers that were above dams 
where that species of fish never would be occurring.
    Had those designations come subsequent to or during the 
recovery planning process I think it would have been refined 
and been more targeted.
    Senator Boozman. Director Ashe, it is good to see you. 
There is lots of talk about the frivolous lawsuits that come 
about. It does seem there is perhaps an economic incentive for 
lawyers to do that in the sense that their attorney fees are 
paid regardless of if they win the case or not. Can you explain 
why this has become the norm?
    Mr. Ashe. Attorney fees are paid only if they win their 
case. They are not paid whether they win the case or not. As I 
have testified before, when somebody takes on the Federal 
Government that is a big chore.
    We get sued by States, energy industry, and NGOs. When they 
win the law provides their attorney fees and costs should be 
paid, but it is only when they win. I would say that is not a 
substantial burden for the Federal Government because No. 1 
they do not win that often, and two, it is not a big expense 
for us.
    Senator Boozman. In regard to that, how much time and 
effort is spent by the agency in man hours and the hassle 
factor where you could have that ability to do other things 
directly in line with your mission? I would say certainly all 
lawsuits are not frivolous and this and that, but there is 
enough smoke here that there actually is some fire.
    Mr. Ashe. Whether and how to compensate people for 
successful challenge against the Federal Government is a 
legitimate thing for the Congress to consider. It is kind of 
outside my area of expertise, but it is kind of a fundamental 
question of justice. To what extent do you want, does the 
Congress want to provide recompense to people who challenge 
their Federal Government and win?
    Senator Boozman. Right, but it does take a lot of resources 
from the agency.
    Mr. Ashe. It takes resources, but again, as others have 
mentioned here, Senator, the biggest challenge for the U.S. 
Fish and Wildlife Service in implementing the law is not the 
challenge that we face in the courts. It is the lack of 
capacity for us to do the work that the law requires.
    When we talk about recovery and recovering species we 
proved in the last Administration I think that where you make a 
dedicated investment and dedicated effort we can recover 
species and get them off the list. We delisted due to recovery 
more species than all previous Administrations combined.
    Where you dedicate the resources, where you build capacity, 
where we build partnership with our State colleagues we can 
achieve success. I think we have shown that.
    If I could take 1 minute I would tell you a number of 
suggestions have been made here today to make recovery 
standards binding at the time of listing to move critical 
habitat designation up to recovery planning.
    If you push everything up to the point at which you list 
the species, you are going to create a huge backlog. If we push 
everything up to the point at which we make a listing 
determination, it is going to make the work impossible to do 
listing, to do critical habitat, to do recovery planning, and 
to make that all binding at the time that you list the species 
is an incredible burden.
    I would urge the Committee to think about that carefully.
    Senator Boozman. Thank you very much.
    Thank you, Mr. Chairman.
    Senator Inhofe [presiding]. Thank you, Senator Boozman.
    Senator Rounds.
    Senator Rounds. Thank you, Mr. Chairman.
    Governor Freudenthal, it is good to see you once again. I 
could not agree more with your comments regarding the Western 
Governors' Association. That is an organization that is 
bipartisan in nature, but it is made up of leaders in the 
western part of the United States from many different points of 
view, but they come together and work through issues that are 
important to them.
    With the amount of Federal lands with which they have to 
work and the different ecosystems they are all involved with, 
they really do a marvelous job of trying to come together and 
find consensus.
    You talked about moving the goalpost and changing the 
course when someone has a new theory with regard to how we 
respond to these listings and so forth. Is this the result of a 
lack of perhaps up to date science at the agency, and if so, 
how should the scientific process be improved to make sure that 
we are using the most accurate science and have clear goals for 
species conservation?
    Mr. Freudenthal. As you know, as former Governors we 
believe in the Western Governors' largely bipartisan operation, 
and it always has been.
    I think what happens is, as I mentioned in my testimony, we 
develop missions that people want to insert into the ESA. In 
the case of sage grouse the science sort of took a back seat to 
the Administration's desire to impose landscape scale planning, 
which is a legitimate policy but should actually be manifested 
not through an ESA listing where you piggyback it onto the sage 
grouse.
    What happens is people develop new ideas. I am not a 
scientist but I will say the new ideas seem to conveniently 
align with the policy of the given Administration. In the 
recent rules, they stuck in the word ``credible.'' That was 
essentially a reflection of the status quo. We need to 
strengthen the kind of science that can be brought to bear on 
these decisions.
    I am nervous about peer review. I have a son who is a 
scientist. It is a lot like lawyers judging each other. We are 
pretty kind to each other, but I think the legislation has to 
have some yardstick that says the science has to have either 
been--you have to talk to the scientists, something that 
formulates whether it is required it be peer reviewed.
    For instance, in the attempt to change the listing they 
wanted the proponent to offer kind of both sides of the 
argument. That got struck before they finalized it. At some 
point you have to say science is a lot like a lot of other 
things. Some of it is statistical, and some of it is opinion. 
You have to differentiate opinion from what I would call 
statistical or more supportable facts.
    I am not quite sure how you word it, but one of the things 
that has to come out of this is better definition so that 
Director Ashe's successors and others--as well as the States--
begin to get a sense of certainty and what the target is.
    The problem is that the ESA will work if we stop putting 
bells and whistles on it to accomplish other purposes. Suddenly 
it becomes how do we get the western States to behave? How do 
we save 11 State sage grouse or sagebrush ecosystems? You end 
up saying that is not what the ESA is for. The ESA is supposed 
to be species specific and not necessarily become a fulcrum by 
which you lift up certain policy preferences.
    I think the key is to get back to the notion of what is the 
science related to that species and how is that science 
validated? I, obviously, disagree with Dan. I think more of it 
can be done up front so that we would know what the objective 
was on sage grouse, know the objective on bears, know the 
objective on the wolf so you could actually focus the limited 
resources we have.
    Senator Rounds. This may have been covered since we are all 
popping in and out. If it is, I will move on.
    I am curious both with Governor Freudenthal and also 
Director Myers. In 2015 we held an Oversight Subcommittee 
hearing on the practice of sue and settle. Particularly in this 
hearing we heard testimony discussing the impact of the 2011 
legal settlement between the Fish and Wildlife Service and the 
Center for Biological Diversity and Wild Earth Guardians that 
required the agency to issue a final listing decision on more 
than 250 species.
    Can you explain what impact the practice of sue and settle 
has on the ability of States and local units of government with 
whom you should be working to work constructively together 
toward species conservation? I would like your thoughts on it.
    Director Ashe, would you like to begin?
    Mr. Ashe. As I testified before, the notion of sue and 
settle, No. 1, I think is illegal. It would be illegal for the 
U.S. Fish and Wildlife Service to encourage someone to sue us 
and then settle. That is not what happened.
    What happened is the law contains very strict deadlines. We 
found ourselves I think in 18 Federal district courts arguing 
deadline lawsuits. We threw a lasso around that and pulled the 
plaintiffs to the table and forced them to settle. It was not a 
cozy agreement. It was actually a forced settlement.
    That allowed us to then put together a timeline that would 
allow us to meet the requirements under the law and get the 
courts to then hold to that timeline.
    I would say from the standpoint of our State and local 
partners it was very successful because we were able to push 
the big controversial things to the back, like sage grouse, 
which gave us 3 years to work with our State colleagues and sit 
down.
    We formed a Sage Grouse Task Force with 11 range States. It 
gave us the space to make a good decision. The same happened 
with Arctic grayling. It gave us the space to work with the 
State of Montana and ranchers in the Big Hole Valley of Montana 
and avoid the need to list the Arctic grayling.
    I think it worked to the advantage of our partners for us 
to have a logical, predictable, sensible schedule that everyone 
could see.
    Senator Rounds. I apologize to the Chair but would you mind 
if the Governor would respond to that as well? Thank you.
    Mr. Freudenthal. An old lawyer mentor of mine told me that 
a bad settlement is better than a good lawsuit. That is only 
true if you are in the room when it is being settled and when 
it is being approved.
    This is sort of we are going to settle it and then we will 
issue and you can comment on it, particularly on something that 
is broad and affects and immense number of people and their 
rights.
    I do not assert collusion. It is kind of fun as a rotary 
speech matter, but I do not do that as a matter of lawyer 
ethics. It is one that has a convenient outcome. People settle 
when the outcome works for both of them. It is the people on 
the outside, the States, private property owners, interest 
groups who are confronted with a de facto end game that is 
finished.
    I would also take exception on the question of we need to 
define win when it comes to the attorneys' fees. They do not 
have to win the whole case; they have to win one point, and 
that opens it up.
    You do not want to discourage settlement, but you have to 
formulate the settlement in the context of the people who are 
broadly affected by it because these are public policy 
questions. These are not just two private litigants engaged. At 
some level you have to let others participate.
    Director Ashe asserts that this was better for us. For 
those of us on the receiving end it may not have felt that way, 
but we would love to have been in the room when they were 
talking about what the terms of the settlement were to have 
some standing.
    Remember, even intervenors do not necessarily have standing 
to participate in the settlement depending on the posture of 
the litigation. I would argue that sue and settle--I do not 
want to discourage people from settling, but I do think that 
settlement has to be subject to a higher level of scrutiny when 
it involves significant rights of non-parties across the board 
in a public policy context.
    Senator Rounds. Thank you.
    Thank you for your patience, Mr. Chairman.
    Senator Barrasso [presiding]. Thank you, Senator Rounds.
    Senator Fischer.
    Senator Fischer. Thank you, Mr. Chairman.
    Mr. Holte, thank you for being here today. I appreciate 
your sharing of experiences about the real challenges and the 
costly consequences that ag producers face due to ESA policies. 
I am a cattle rancher. I can empathize with the producer and 
the family you mentioned.
    In your testimony you cited the general need to modernize 
the ESA from a listing and delisting perspective. We have 
tremendous assets in agriculture. Chief among them are our 
producers.
    Can you discuss the tools available to landowners that 
promote species recovery, and are these programs voluntary or 
incentive-based?
    Mr. Holte. I probably do not have real personal experience 
with the tools to assist in that. Much the frustration which I 
think was somewhat apparent in my testimony, most of the 
frustration was with an animal that has reached recovery status 
or well exceeded recovery status and yet through legal means 
delisting does not occur or is not maintained.
    To be frank with you, I do not know if I can answer your 
question real well.
    Senator Fischer. I think it is clear that better engagement 
is necessary, and we have to have that engagement with 
landowners in order to address the deficiencies many of us feel 
are within the ESA.
    As we look to modernize that Act, in your view are there 
any mechanisms dealing with consultation that you think might 
be helpful so that we can enhance a discussion with local 
landowners and bring them to the table?
    Mr. Holte. As I mentioned earlier, you may not have been 
able to be here, but the first thing farmers think of when they 
get up in the morning is not the Endangered Species Act. It is 
very much about the livelihood they are producing and the 
people they are feeding.
    We have a great network in agriculture of general farm 
organizations, commodity organizations, and we work closely 
with our State Departments of Agriculture and Natural 
Resources.
    It is an obvious conduit to get to farmers. Many States--
including Wisconsin, for sure--have a great ag press 
organization, a great network of agricultural press people, 
both in radio and print which are somewhat untapped at times, I 
think, in the area you mentioned.
    Those would be some suggestions I would throw out.
    Senator Fischer. Thank you, sir.
    Governor, I do not know if you know but Nebraska has 23 
natural resource districts. That is a system that is very 
unique to my State. Each of these NRDs is located within an 
individual watershed which allows the local people to develop 
programs to best serve the local natural resource management 
needs of that area.
    In your testimony you discussed mitigation as an important 
mechanism to preserve species. An NRD within the Missouri River 
Watershed has worked on the levee system that protects drinking 
water for two-thirds of Nebraskans as well as safeguard Offutt 
Air Force Base where STRATCOM and the 55th are located.
    However, under ESA rules this NRD would be required to 
purchase land for mitigation for future development. Certainly 
it is equally important so that we protect species and deliver 
this necessary levee project to the area.
    In your experience, Governor, what are the different tools 
currently available to mitigate the impact of projects on 
species?
    Mr. Freudenthal. Mitigation was actually developed, as you 
know, in the Army Corps of Engineers 404 bank context. There is 
a pretty good set of U.S. Fish and Wildlife Service rules that 
relate to banking.
    However, now we have mitigation options, in lieu fee where 
you pay into a fund or project-sponsored activities. You also 
have something called exchanges which have not really evolved 
to a definition.
    I think on mitigation, I would think about structuring the 
mitigation so that it responds to the nature of the impact. In 
some cases, something like the sage grouse, that is a much 
longer timeframe than it is for some other species which are 
able to respond more quickly to habitat changes.
    The problem with the sage grouse is they fall in love with 
one parcel of ground, and they are dependent on certain levels 
of sagebrush. They are not necessarily the smartest species the 
Lord ever created, so they need a different formulation. In 
that context, you want it to be responsive to the impact.
    I think the issue for the people doing what your folks are 
doing is that we are looking for some degree of permanence to 
make sure the impact is offset over the life of it. I do not 
know that has to be a permanent easement. For some species, it 
does but it has to be more than some of the stuff that is going 
on, repeatedly doing 5- and 10-year leases. That is meaningless 
in terms of species.
    My thought is the Committee needs to integrate some kind of 
discipline corresponding mitigation to the kind of impact, its 
nature and extent, as opposed to having that kind of float out 
there so your folks would have a set of rules.
    You need rules and consistency on mitigation just like you 
do on everything else where everybody has their own idea. 
Mitigation is not like art, is not in the eye of the beholder. 
It either works, or it does not.
    I think some yardsticks could be put in so your folks would 
know what they need to do and how it would be responsive to the 
impact they are trying to offset.
    As long as I am on that subject, one of the worse things 
they are doing now is going from a no net loss provision, which 
was present clear back to the 1980s. I think it is a 1981 set 
of rules. Now we have gone to net gain with no definition.
    Neither the ESA nor NEPA or any of the land management 
statutes contemplate using the authorization by the Federal 
Government as a vehicle to impose an additional tax on the 
activity of net gain. I get no net loss. That makes sense. It 
is a Federal resource; you want to protect it.
    To say that in addition to everything else you are going to 
do we are going to slap this other tax on as a matter of 
policy. That is important in the context of mitigation because 
it sets the bar as to what the impact is you are trying to 
offset. I get it, no net loss. I do not understand net gain.
    Other than that, I am entirely neutral.
    Senator Fischer. Got that. Thank you, sir.
    Senator Inhofe. Mr. Chairman, before you go on, may I have 
about 30 seconds to clarify something that was said?
    First of all, I would say to my friend, Dan Ashe, I have 
heard him talk about it before, that you have had more 
delistings than anyone has.
    Since its inception total listings have been 1,652. The 
total number of delistings during that time has been 47, 47 out 
of 1,600. Ten of those 47 were because they became extinct, so 
it is really 37 out of 1,600. You were responsible for 16 
delistings, 1 out of 100.
    Senator Barrasso. Senator Carper.
    Senator Carper. Thank you.
    Again I apologize to our witnesses for not being able to 
join you for most of this hearing. I appreciate very much what 
is going on.
    I am going to telegraph a pitch here. I think pitchers and 
catchers report for spring training this week. I am going to 
telegraph a pitch. The pitch that I telegraphed is what are a 
couple of areas where you think there is broad consensus, if we 
are to make any changes at all? What might they include?
    When you have a controversial hearing, I think this, from 
what I am told, is constructive. There is a lot of controversy 
and not a whole lot of agreement. Help us find a few nuggets of 
agreement here today. Why don't we start with that?
    Dan, do you want to go first? Mr. Ashe, where do you think 
there is agreement among the witnesses?
    Mr. Ashe. I think the first broad consensus needs to be 
that the benchmarks----
    Senator Carper. Be very brief.
    Mr. Ashe. The first point is I think we need to start with 
the consensus that we are trying to strengthen the law and our 
ability to save endangered species.
    Second, I think we can come agreement about enhanced 
capacity for States and Federal agencies to do their job and 
looking for ways to build and strengthen capacity, both in the 
field capacity and the science needed to support these 
decisions so they have a underlayment and firmament in science.
    Senator Carper. Good.
    Jamie Clark, can you give us two, just very briefly. You 
can agree or disagree, that is OK. Repetition is good.
    Ms. Rappaport Clark. Not that I often agree with Dan but 
absolutely funding--with funding for the Federal and State 
oversight agencies, I believe that we could make great strides 
in addressing imperiled species challenges across our country 
as well as our habitat.
    Second, if I have two, an underlying consensus issue is to 
increase the transparency with which the Endangered Species Act 
is implemented. I think that will cross over all the elements 
of the law.
    Senator Carper. All right, thank you.
    Mr. Holte.
    Mr. Holte. I think it might be more obvious, and we have 
not said it; we support the Endangered Species Act and the 
thought behind it. It is the right thought and the right 
direction to go. That is the first one.
    Second, probably for myself, it is the experience of having 
a species that has very definitely recovered, but we cannot get 
it delisted. It is the frustration of either too much broadness 
in the Act or allowing the legal system to cause us headaches.
    Senator Carper. Thank you.
    Mr. Myers.
    Mr. Myers. I would reflect what Dan said about building 
capacity. It is very important. I would also say as Governor 
Freudenthal said, there is sand in the gears. We need to use 
our existing capacities as effectively and efficiently as 
possible into addition to building that capacity.
    As Mr. Holte has mentioned I think the delisting delays and 
those choke points are very important and is probably common 
ground.
    Senator Carper. Thanks.
    Governor.
    Mr. Freudenthal. Senator, I advocate more funding, but I am 
careful of the biblical admonition about new wine and old 
wineskins. We need to do more than that.
    I do not know that there is agreement on this panel. I 
think the reason there is not agreement is it gets to be very 
nuanced, the interrelationship between significant portions of 
the range and DPS gets to--that is pretty tricky.
    There are probably things we could agree on, but everybody 
is so tentative about this because this has been tried twice 
before and it failed. I would argue that there is agreement 
about a discussion of problems, but we are a long way about 
agreement as to how the corrections in the different areas 
would occur because it is a complicated interrelationship that 
has evolved over the period of time, particularly with some of 
the case law. Everybody sees an advantage for them in that.
    At some stage you guys are going to have to convene 
something that everybody puts down their spears and says, OK, 
is there something that we can move on. I would say that we 
really have not crossed the threshold you established in your 
initial comments.
    Senator Carper. Thank you.
    Christophe Tulou, Senior Aide and former Secretary of the 
Delaware Department of Natural Resources and Environmental 
Control, is sitting right behind me. He was talking to a member 
of our EPW Committee on the minority side. He was talking to me 
about something called the sixth mass extinction.
    Apparently a number of scientists, maybe most, concluded 
that we are now living in the midst of what is termed a ``sixth 
mass extinction,'' one caused by human alteration of the 
planet.
    I would like a quick yes or no answer. Do you all agree 
that we are now experiencing a sixth mass extinction of 
species, just yes or no?
    Governor, do you want to start?
    Mr. Freudenthal. The truth is I am not qualified to answer. 
I am not familiar.
    Senator Carper. Thank you.
    Mr. Myers.
    Mr. Myers. I would echo the same answer. I am not qualified 
to answer that.
    Senator Carper. Thank you.
    Mr. Holte. Three in a row.
    Senator Carper. Ms. Rappaport Clark.
    Ms. Rappaport Clark. Yes.
    Senator Carper. You said yes?
    Ms. Rappaport Clark. Yes.
    Mr. Ashe. Yes.
    Senator Carper. All right. Thank you.
    I have a question, if I could, for Mr. Myers, Mr. Holte, 
and the Governor.
    Mr. Chairman, let me know when I need to slow down.
    I am wondering how it is that the population of a species 
declines so much that it has to be protected under the 
Endangered Species Act in the first place. I want to ask a 
couple questions about that, if I might.
    First, are States well aware generally years in advance of 
species in their jurisdiction that are declining? That is one 
question. The second question is, should we expect the States, 
who as I listened to your testimony, feel left out, unengaged, 
and willing to take on more responsibilities under this Act? 
Shouldn't we expect our States to do a better job of managing 
species so they do not end up in so much trouble?
    Mr. Myers, do you want to go first, and then we will ask 
the two fellows on either side of you?
    Mr. Myers. I would point out that for over a decade now 
State wildlife action plans have been guiding the work of State 
agencies. With development of State wildlife grants and these 
alternative funding sources, we have built capacity, 
significant capacity.
    I mentioned in my testimony and in greater detail in my 
written testimony, using the a southeast example, that we have 
created the Southeast At Risk Species Program where we are 
triaging across State boundaries and looking across those 
territorial jurisdictions range-wide at species.
    We are applying financial and human resources much more 
wisely and effectively than we have in the past to optimize 
those results. These are species that are not listed at this 
point in time, so I would say the States have made tremendous 
strides in building capacity but also in using their existing 
capacities more wisely.
    Senator Carper. Thank you.
    Mr. Holte. I would say in Wisconsin we have a State law 
that recognizes endangered species. We have our own list. That 
is periodically reviewed as far as the species listed and those 
delisted.
    In the last review I think we added six or seven species 
and we delisted 15. To me that says that our State is 
appropriately interested, active, and capable of managing the 
situation.
    One other point I would make is in the area I am most 
familiar with, the gray wolf. There was a 3-year period of time 
in which wolves were delisted in Wisconsin before court action 
was taken and listed them again.
    During that 3-year period of time, our Department of 
Natural Resources held three hunting seasons in which several 
hundred wolves were taken, but the total population only 
decreased 9 percent, well in excess yet of our goal.
    I think there is a lot of capacity and appropriate 
expertise at the State level to deal with these issues in 
conjunction with the Federal Government.
    Senator Carper. Governor.
    Mr. Freudenthal. I have three observations. One really has 
to with the history of game and fish agencies. They were 
initially created for management of species that people were 
interested in for either hunting or fishing or other things.
    It is really only within the last 10 or 15 years, largely 
driven by Federal grants, that the State agencies have shifted 
their focus. That accounts, I think, for part of the problem in 
that species habitat and species conditions deteriorate over 
time. Fifteen years is a pretty short period in terms of the 
States focusing on it.
    Second, I don't want to get into the issue about whether 
climate change is manmade. I will leave that to you. However, 
climate is changing. You see that, and those are things that 
State agencies try to account for it, but they account for it 
in the same gradual nature that it occurs.
    I think the question you raised is the correct one. I would 
argue that really the history of game and fish agencies does 
not, until recently, in a relative sense, focus on the question 
of species maintenance or species enhancement. It has by and 
large been hunting, fishing, the hook and bullet crowd.
    I love them but now our agencies have a much broader 
mission. One of the things I learned when I was Governor was 
how much money we spent in game and fish that was beyond the 
traditional mission that those game and fish agencies had.
    That is, I don't know, maybe a 15- or 20-year history. That 
is a relatively short time in the life of a species.
    Senator Carper. I have one last point, if I could. You 
mentioned trying to figure out how much you are spending in 
these agencies. One of the things I mentioned in my testimony 
is what does the preservation of our species or protection of 
our natural resources, whether animals, birds, or fish, mean 
for us economically in our State?
    We have a lot of people who come to our State to hunt for 
ducks, we have a lot who come to our State who want to fish our 
inland bays and also the Atlantic Ocean which is right off our 
coast. We actually tabulated how much we realized in economic 
development. There is a real positive there. We have to keep 
that one in mind.
    I am going to ask a question for the record. I will mention 
the question here. It is hard to get anything done around here, 
as you know, even on a good day for things that are not 
controversial.
    When you have something that is controversial, we do not 
have a lot of good days yet this year. It is especially 
challenging. I think the Chairman and I have a good personal 
relationship and have a real interest in collaborating and 
finding areas where we can collaborate.
    We talk about the 80-20 rule is our colleague from Wyoming, 
Mike Enzi, whom you know well, Governor. Mike Enzi has the 80-
20 rule. He says 80 percent, the things we agree on, why don't 
we focus on that. The 20 percent of things we don't agree on, 
why don't we just not focus on that and come back another day.
    I don't know that this is the 80 percent or the 20 percent, 
but I think we need to spend some time focusing on it and 
finding out.
    I will just close with this. I would ask, if you were in 
our shoes, what are some of the things you would do to try to 
find consensus to grow and develop consensus going forward? 
Give us your counsel.
    The second thing just for the record, the Chairman has 
heard me say this before, and my colleagues have as well, I was 
born in West Virginia not too far from where Senator Capito 
grew up. My dad and grandfather took me fishing at a very young 
age, probably 3 or 4, and hunting, a little bit older than 
that. I have memories still of the New River, fishing in the 
New River and other bodies of water.
    I remember my dad and my grandfather just being outraged at 
seeing trash in the water, along the shore, or on the docks and 
literally taking the time to clean it up.
    I got to be a Boy Scout later on in life. My wife and I had 
two boys became Eagle Scouts, and we were very much involved in 
what they do. The idea is I think we have a moral obligation to 
leave this planet better than the way we found it.
    There are ways to do that. There are ways to do that we do 
not impede our economic growth and economic opportunity. We 
have to be smart enough to figure out how can we be true to the 
advice my dad used to give me and my sister on our 
responsibility of stewardship to his planet.
    The other thing my dad used to say to my sister and me--my 
dad was a Chief Petty Officer in the Navy for like 30 years. He 
was tough as nails. He used to say a couple things over and 
over. One of the things he would say over and over to my sister 
and me was just use some common sense. He did not say it so 
nicely. He said it a lot.
    Out of that I take the notion that we should use some 
common sense in what we do here and our responsibilities.
    He also used to say had chores to do around our house, our 
garden and the yard and so forth. He was always saying if the 
job is worth doing, it is worth doing well. If the job is worth 
doing, it is worth doing it well. He said it a lot.
    Out of that, I took the idea that everything I do, I can do 
better. I think the same is true of all of us. I think the same 
is probably true of most programs that we develop in our States 
and for our country.
    Our challenge here is a way to do this better. My hope is 
by working together, by communicating, compromising, and 
collaborating, we will find the path forward is true to both 
our stewardship responsibilities and our responsibility to make 
sure we have jobs for people in this country.
    Thank you.
    Senator Barrasso. Thank you, Senator Carper. Thank you for 
your thoughtful comments.
    Senator Ernst.
    Senator Ernst. Thank you very much.
    Thanks to our panel. I think there are a lot of other 
hearings going on this morning, but I appreciate the fact that 
you are here today to share some thoughts.
    I would like to redirect to State and local control or 
collaboration in some of these projects. I know the Chair 
mentioned the monarch butterfly. This is a great example of 
where Iowa has really stepped up to the plate. We have what is 
the Iowa Monarch Conservation Consortium. It is a great example 
of how collaborative local-based approaches should be made 
prior to listings.
    The Consortium involves the Iowa State University, the Farm 
Bureau, the Iowa Department of Natural Resources, the Iowa 
Department of Agriculture and Land Stewardship, The Nature 
Conservancy, and many others. They are using science-based 
approaches in efforts to establish the best ways to increase 
habitat that will benefit the monarch butterfly.
    We are really glad that they have come together in this 
manner to head off a problem that we do see. We would much 
rather see that rather than heavy handed government approaches. 
I think this is a great way of how we leave the environment 
better than we found it.
    Ms. Rappaport Clark, I would like to direct this question 
to you. Do you support a greater role for States in the 
implementation of the ESA?
    Ms. Rappaport Clark. Absolutely, Senator. The States are 
very important collaborators and partners in all wide range of 
species conservation given their knowledge base, given their 
relationship with local landowners, and given their 
relationship with local entities.
    I believe that the Endangered Species Act over the years 
has demonstrated--your monarch example is a very good one--that 
there is enough flexibility in the law to expand those 
partnerships, and there is enough flexibility in the law to 
celebrate and ensure more rigor in those partnerships.
    The Federal Government cannot do this alone. The Federal 
Government steps in when everything else has failed. It is a 
last resort. The Endangered Species Act is not a law that leads 
conservation; it is a law that is there to prevent the 
extinction.
    To the degree we move upstream and States, tribes, other 
local stakeholders are engaged and resourced to be able to take 
care of our natural resources, that is a win-win all around.
    Senator Ernst. That is wonderful. What are the best ways we 
can be communicating out there when there is a species that is 
approaching endangered status? How is that communicated to the 
States and local government so they can proactively embrace 
this rather than having the Federal Government come in and 
instruct them how to do so?
    Ms. Rappaport Clark. There are a number of ways. Certainly 
I think you have heard some of my colleagues on the panel talk 
about their own State endangered species list. To a large 
degree the States have a tremendous capacity of knowing what is 
certainly endangered or imperiled within their own borders.
    However, oftentimes some of these species extend beyond 
State borders. The Federal Government, the Fish and Wildlife 
Service and NOAA Fisheries, maintain a list of candidate 
species which I call the yellow blinking light, what are those 
species trending toward endangerment and that should provide 
incentive for everyone interested and capable to come together 
to prevent the need to list so there is that upstream solution 
and the upstream capacity to engage early on.
    Senator Ernst. Mr. Ashe.
    Mr. Ashe. Thank you, Senator.
    I think yes to greater State engagement and involvement. I 
think we have been realizing that over the last decade or so. I 
think key to that is a predictable schedule. We talked earlier 
about the multi-district litigation settlement.
    What the U.S. Fish and Wildlife Service is involved in now 
is a process of planning the next schedule, looking at their 
listing obligations, sitting down with our State partners and 
NGO partners and looking forward and setting up a schedule, a 
predictable schedule for doing the work of the Endangered 
Species Act.
    The monarch butterfly is a great example of that where we 
said we have a petition, we are considering the need to list 
the Endangered Species Act; let us engage all of our partners 
now and start working on conservation.
    We are working with the Natural Resource Conservation 
Service to put I place assurances so that agricultural 
producers will know if they do good work for the monarch 
butterfly, it will not be a disadvantage to them.
    The Natural Resource Conservation Service has been a 
tremendous partner in providing those kinds of assurances to 
producers.
    Senator Ernst. OK.
    I am going to ask one more question for the entire panel. 
It focuses on do you believe that we cannot only support 
economic growth, but we can also balance that with the way we 
protect different species? How do we strike that balance?
    I am going to pose that to you, but I am going to give you 
a quick example of something we have seen in Iowa. Then I will 
ask you to respond to that first question.
    On January 11, 2017, the Fish and Wildlife Service listed 
the rusty patched bumblebee on the Endangered and Threatened 
Species List under the Endangered Species Act. The rule was set 
to go into effect on February 10 but was delayed under the 
current Administration until March 21. As of yesterday, the way 
I understand it, the NRDC has filed a suit on this delay.
    In Iowa, several counties in the central Iowa area would be 
included in this listing as historical areas where the bee used 
to exist. There has not been a sighting of this bee in Iowa 
since 2000 according to the Fish and Wildlife Service. That is 
concerning to me. This listing will tie the hands of farmers 
while really doing nothing to increase the habitat for the bee.
    Can you speak to the economic balance that we have to have 
between actually promoting economic development and protecting 
habitat?
    Yes, sir.
    Mr. Freudenthal. Thank you for the question, Senator.
    I would make two observations. One, it is entirely 
possible, but it will not occur unless we end up with the 
circumstance where we give meaning to partnership. The truth is 
the States are limited partners in an instance where the 
Federal Government is the general partner making the decisions. 
The States contribute resources to try to implement them.
    I think until there is some degree of sharing of authority 
you are not going to have a sharing of information or have that 
information become decision relevant. Regarding the monarch, it 
is interesting to me it stands out because we focus on these 
examples of cooperation because there are so few.
    In fact, we need to figure a way that it is not the 
exception but is the rule. I think the only way you do that is 
redefine this as a general partnership and not a limited 
partnership, because from the State's point of view we are the 
limited partner. They make a decision; we get to figure out how 
to implement and pour in resources to try to get it there.
    I think those kind of structural changes need to be 
effected so that when something like this is going to happen, 
somebody can say, just a minute. The significant portion of the 
range does not include, or this is a habitat designation. What 
does that mean?
    A more practical example in Wyoming is you can have a nest 
for a raptor that has not been occupied in 7 or 10 years, and 
people have to adjust their activities around it when in fact--
don't get me started.
    Let me say the point you raise is the correct one. The 
issue is the resolution of it. That is why everyone is so 
nervous because somehow we are going to upset this balance when 
in fact the lack of balance is what keeps us from making this 
Act function the way it should where everybody is paddling the 
canoe in the same direction.
    The only way you get there is if everyone is actually a 
partner and there is not a general partner who makes the 
decisions and calls the shots and their limited partners get to 
contribute resources.
    Senator Ernst. Collaboration, yes. Thank you.
    Mr. Holte. Senator, I would respond. I am optimistic. I 
think these things can happen. The one factor I think we 
sometimes overlook is discussion around our organization 
occasionally called ``farmer common sense.'' I am pretty sure 
it is very similar to Senator Carper's father's common sense. 
It might be difficult to legislate.
    What gives me optimism is the obvious bipartisanship this 
Committee has and the attitude they have toward these issues. 
If you can maintain that working together attitude, I am 
confident that State relationships as well as the actions of 
this Committee will be successful.
    Senator Ernst. Thank you.
    Yes, Ma'am.
    Ms. Rappaport Clark. Senator, I firmly believe that 
economic security and environmental security are flip sides of 
the same coin. They do go hand in hand.
    While I do not know the specifics of the bumblebee you 
mentioned, I do know a number of these species and bat species 
that are facing serious declines in this group called 
``pollinators'' are essential to the food crops of this 
country.
    They are sounding the alarm that something is going wrong. 
If we lose the pollinators, that whole segment of the food 
chain--we are going to be really threatening the agriculture 
fabric of this country.
    I would say one last issue for many threatened and 
endangered species is they provide tangible benefits to all of 
us as humans, whether they play valuable roles in clean water, 
food, medicines and things we do not even know yet. They are 
sounding the alarm.
    Protecting that whole fabric of species' existence is 
really important to the economic platform of who we are as a 
country.
    Senator Ernst. Going back to the bumblebee example, if it 
has not been cited in Iowa for 17 years, there is no reason 
there could not be habitat somewhere but that should be done in 
a collaborative effort with local authorities and those 
individual farmers.
    Sir, did you have one closing comment, and then I will 
relinquish my time?
    Mr. Myers. Yes. I would add you absolutely can find that 
balance. Just a simple example that comes to mind is forestry 
practices in the southeast as it relates to prescribed fire.
    Using prescribed fire protects their investment and their 
forests but also provides great habitat and also recovery 
potential for both T&E species as well as species that are 
tending toward listing.
    Senator Ernst. Thank you very much, Mr. Chair.
    Senator Barrasso. Thank you very much, Senator Ernst.
    Thanks to Senator Carper for coming back. I appreciate all 
of you being here today.
    If there are no more questions, members may submit follow 
up questions for the record. The hearing record will be open 
for the next 2 weeks.
    At this time, I would like to ask unanimous consent to 
enter into the record the 2013 article published by Ms. 
Rappaport Clark in BioScience, the 2015 Morning Consult poll, 
the 2016 E&E article, seven documents submitted by the Western 
Governors' Association, plus a statement by Senator Johnson.
    Senator Carper. I object.
    Senator Barrasso. Hearing no objection.
    Senator Carper. I do not object.
    [The referenced information follows:]
    
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    [The prepared statement of Senator Johnson follows:)

                    Statement of Hon. Ron Johnson, 
                U.S. Senator from the State of Wisconsin

    Chairman Barrasso, Ranking Member Carper, and members of 
the Committee, thank you for holding this oversight hearing 
regarding the Endangered Species Act. As an avid outdoorsman, I 
place a high value on preserving the environment for future 
generations. Preservation is a goal of the Endangered Species 
Act that we can all agree on, but the Federal Government must 
carry out its conservation efforts in a sensible and balanced 
manner.
    Since late 2014 former Congressman Reid Ribble, Congressman 
Sean Duffy, and I have been consistently and actively engaged 
with Wisconsinites regarding a species that now roams over much 
of Wisconsin--the gray wolf. This species was listed as 
endangered in 1974, when populations were at a record low. 
Wildlife experts enacted a wolf recovery plan that has far 
exceeded its Wisconsin goal of 350 wolves. According to the 
Wisconsin Department of Natural Resources, Wisconsin had at 
least 866 wolves in the 2015-2016 winter.
    Due to the gray wolf's recovery, U.S. Fish and Wildlife 
Service officials first attempted in 2006 to delist the gray 
wolf as an endangered species. Wisconsin, Wyoming, and other 
States were ready and willing to institute detailed management 
plans. In 2011 and 2012 Fish and Wildlife delisted the gray 
wolf as endangered in the Great Lakes and Wyoming. 
Unfortunately, a lawsuit and subsequent judicial ruling in late 
2014 reversed the Federal experts on the delisting.
    I am glad the Committee invited Jim Holte from the 
Wisconsin Farm Bureau to provide insights on the Endangered 
Species Act's unintended, negative consequences. I strongly 
agree with what I have heard directly from Mr. Holte and other 
stakeholders including farmers, ranchers, loggers, and 
sportsmen--that all future gray wolf listing decisions should 
be made by experts in the field, not judges in courtrooms.
    In order to correct the misguided judicial action, I first 
introduced legislation 2 years ago with Chairman Barrasso 
requiring the Department of the Interior to reissue the 
respective 2011 and 2012 delisting decisions for Great Lakes 
and Wyoming gray wolves. Unfortunately, Congress did not take 
action on our bill last session. I was pleased to reintroduce 
the Johnson-Barrasso legislation, S. 164, this year with the 
welcome addition of bipartisan support.
    I am hopeful this Committee and Congress will pass S. 164 
soon and note our bill takes a sensible approach that allows 
States to manage gray wolf populations while not modifying the 
Endangered Species Act. The bill also does not prevent Fish and 
Wildlife Service experts from ever returning the wolf to the 
endangered list if it determines the population is in need of 
Federal protection. This legislation provides us an example of 
how States and the Federal Government can work together toward 
reasonable, common sense solutions for ecosystem preservation.

    Senator Barrasso. I want to thank all of the witnesses for 
their time and testimony today.
    This hearing is adjourned.
    [Whereupon, at 12:04 p.m., the Committee was adjourned.]
    [Additional material submitted for the record follows:]
    
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