[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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Available via the World Wide Web: http://www.fdsys.gov
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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
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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:]
[GRAPHIC(S) NOT AVAILABLE IN TIFF FORMAT]
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.
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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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